BARADAKANTA MISHRA versus HIGH COURT OF ORISSA & ANOTHER

RAY. C.J.-This appeal arises ou' of the judgment dated 3 December, 1973 of the High Court of Orisso.

p. 573, margin E

The appellant filed a writ petition for quashing the order of the High Court dated 8 December, 1972 reducing the appellant in rank and fur quashing orders dated 3 December, 1973 passed by the High Court dismissing the appellant from service.

p. 573, margin E

The High Court dismisse_d the petition of the appellant.

p. 573, margin F

The q,1estions for consideration are two. First, whether the High Court was competent to reduce the appellant in rank. Second, whether the High Court could pass orders dlsmissing the appellant from service.

p. 573, margin F

The appellant was appointed by the Governor as a Munsiff in the State of Orissa in 194 7. He was in course of time promoted to the post of a Subordinate Judge. The appellant was appointed by the Governor 28 March, 1962 as Additional District Magistrate (Judicial).

p. 573, margin G

1n 1961 a separate cadre of Additional District Magistrates (Judicial) was created by the Government. This new cadre was called "Superior Judicial Service_ Junior Branch''. This radre is not the same as that of District Judges and Additional District Judges who belonged to Superior Judicial Service Senior Branch.

p. 573, margin G

5 74 (1976]

p. 574

Th~ appellant was on 15 January, 1963 reverted from the post of Additional District Magistrate (Judicial) to the rank of Subordinate Judge. The appellant challenged the order of reversion in a writ petition in the High Court of Orissa. The writ petition was dismissed as will appear from the judgment reported in I.L.R. 1966 Cuttack 503. The appellant made an application for special leave to appeal to this Court being Special Leave Petition (Civil) No. 53 of 1967. The application was rejected.

p. 574, margin A

On 5 February, 1968 the High Court appointed the appellant to the post of Additional District Magistrate (Judicial) by promotion. It is said that under Rule 10 of the Orissa Superior Judicial Service Rules, 19G3 the High Court is the appointi>lg authority empowered to appoint Additional District Magistrates (Judi,,ial) by promotion frum the rank of Subordinate Judge.

p. 574, margin B

On 31 July, 1968 the appellant was appointed by the Governor as an Additional District Judge.

p. 574, margin C

On 8 December, 1972 the High Court imposed on the appellant the punishment of reduction in rank from the post of Additional District and Sessions Judge to an Additional District Magistrate (Judicial). The order passed by the High Court dated 8 December, 1972 records that in pursuance of the control vested in the High Court under Article 235 of the Constitution in a disciplil1ary proceeding initiated on charges dated 29 April, 1972 against the appellant an officiating member of the Orissa Superior Judicial Service Senior Branch the appellant is reduced in rank with immediate effect and 1s released from suspension.

p. 574, margin C

On 30 March, 1972 the High Court passed an order in exercise of powers unl1er Article 235 fo the effect that the appellant wos placed under suspension forthwith because a disciplinary proceeding against the appellant was contemplated.

p. 574, margin E

On 29 April, 1972 charges were serv~d on the appellant. He was asked to submit an explanation. He did not <lo so. He thereafter asked . for in~pection of certain documents. A Jate was appointed but he did not inspect any document. With regard to the enquiry pursuant to the charges delivered to the appellant on 29 April, 1972 the learned Judge of the High Court who was the Enquiring Judge came to the conclusion that one of the ~harges was established that the appellant after pronouncing judgment on 22 June, 1971 penned through bis signatures on the judgment and entered into the or<lersheet that it was not delivered. The Enquiring Judge also found the appellant guilty of tampering with the records of the Court. The Enquiring Judge also found the appellant guilty of the charge that though the appellant was ordered by the Court pending enquiry and during his suspension to fix the Headquarters at Cllttack he did not comply with the order.

p. 574, margin E

In the background of this Enquiry the High Courl ordered that th~ appellant be reduced to the rank of Additional District Magistrate. The appellant challenged this order.

p. 574, margin H

(Ray, C.J.)

p. 575

Alter the order of reduction on S December, 1972 the High Court issued orders posting the appellant as Additional District Magistrate .Sambalpur and directed him to join at his new ~tat\on. The appellant did not join the new station nor did he apply for leave. A fresh disciplinary proceeding was started against the appellant for wilful absence from duty. The matter was enquired into by a Judge ot th~ High Court. The appellant submitted that the order reducing him was beyond the powers of the High Court. The Enquiring Judge found him guilty The appellant was given an opportumty to show cause against the order. The appellant did not do so. The High Court thereupon imposed the punishment of dismissal on the appellant and dismissed him. One of the orders of dismissal recited that in pursuance of the order passed by the Court in exercise of its powers under Article 235 <'f the CQnstitution in a disciplinary proceeding initiated on charges dated l February, 1973 the appellant an officer of the Orisrn Judicial Service Class I officiating in the Junior Branch ot the Orissa Superior Judicial Service is dismissed from service with immediate effect. Another order of 3 _December 1973 reccted that in pursuance of the order passed by the Court in exercise of its powers under Article 235 the appellaut an officer of the Orissa Judicial Service Class I, officiating in the Junior Branch of:'the Orissa Superior Judicial Service, who has been convicted on the charge of criminal contempt by judgment ot the Orissa High Court reported in I.L.R. 1973 Cuttack 134 (Registrar of the Orissa High Court v. Baradqkarta and Am-.) which was confirmed by the Supreme Court by judgment dated 19 November, 1973 (Baradakanto Mishra v. Registrar, Orissa High Court & Anr.) in Criminal Appeal No. 41 of 1973 is un the ground of conduct leading to such conviction, dismissed from service with immediate effect. The judgment of this Court is reported in [1974]2 S.C.R. 282.

p. 575, margin A

The respondents contended that the High Court has disciplinary control over Dis\rict Judges and in exercise of that power the High Court can hold an enquiry and can impos<; all punishments other than dismissal or removal. The punishment of reduction in rank is said by the respondents not to be dismissal or removal because reduction in rank does not result in ouster from service. The respondents,, therefore, submit that the order of 8 December, 1972 reducing the appellant in rank _was within the contro~ vested under Article 235 of the Constitution in the High Court.

p. 575, margin E

With regard to the orders of dismissal the respondents submitted that the appellant preferred appeals from the orders. The appeals were heard and dismissed by the Governor. The respondents, therefore, submit that the dismissal in effect and substance is by the Governor. The orders of dismissal are said by the High Court to be recommendation to the Governor of dismissal of the appellant. The respondents submit that the appellant did not challenge the order of the Governor, and, therefore, the order~ have become final.

p. 575, margin F

A_r.tii;le 233 provides that the appointment, posting and promotion of D1stnct Judge is by the Governor. The posting of a District Judge is the initial or the first posting as District Judge. The promotion of District Judge is appointment of persons by promotion to 5 76

pp. 575–576, margin H

(1976] D_istrict fodges. When a Subordinate Judge is appointed as a Distnct Judge the appomtment is by promotion but it is a fresh appointment by promotion to be a District Judge. . Article 234 provides that appointment of persons other than Distnct Judg~ to the Judicial _Service of a State shall be made by the Governor m consultal!on with ,the State Public Commission and with the High Court.

p. 576

_Article 235 is relevant for the purpose of present appeal. The Article states that control over district cour,:s and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial Service of a State and holding any post inferior to the post of district iudge shall be vested in the High Court, but nothing in this Article shaff be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

p. 576, margin B

The scope of Article 235 has been examined· by this Court in several decisions. The important decisions arc The State of West Bengal v. Nripendra Nath Bagchi('); The High Court of Calcutta v. Amal Kumar Roy( High Court of Punjab and Haryana v. State Raryana (In the matter of N. S. Rao)( The effec.t of the decisions is this. The word "control" as used in Article 235 includes disciplinary control over District Judges and Judges inferior to the post of District Judge. This control is vested in the High Court to effectuate the purpose of securing independence of the subordinate iudiciary and unless it included disciplinary cont(O] as well the very object would be frustrated. The word "control" is accompanied by the word "ves'." which shows that the High Court is made the sole custodian of the con'.rol over the judiciary .. Control is not merely the power to arrange the day-to-day working' of the court but contemplates disciplinary jurisdiction on the presiding Judge. The word "control" includes something in addition to the mere snperintendence of these courts. The control is over the conduct and discipline of Judges. The inclusion of a right of appeal against the orders of the High Court in the conditions of service indicates an order passed in disciplinary jurisdiction. Th~ 'Yo~d "deal" in Article '23~ _also _indi_ca'.es that the control is over d1sc1plmary and not mere admm1strahve 1unsdiction. The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including initial posting a!'d ~remotion of D_istr!ct Judges and dismissal, removal, reduc!Ion m rank of D1stnct Judges. Within the exercise of the control vested in the High Court, the High Court can ho!~ enquiries,, impose punis~ments othe~ than dismissal or removal sub1ect however to the cond1l!ons of service to a right of appeal if granted by t~e conditions of ~ervice, and to the giving of an opportun1ty of showing cause as reqmred by clause (2)

p. 576, margin C

(j) ls.C.R. (2) [19631lS.C.R.437. (3) [1975] 3 S.C.R. 365.

p. 576, margin H

(Ray, C.J.) 77 of Aricle 311 unless such an opportunity is' dispensed with by the 6ovemor acting under the provisos (b) and ( c) to that clause. The High Court alone could make enquiries into disciplinary conduct.

p. 577

In N. S. Rao's case (supra) this Court said "The Governor has power to pass an order of dismissal, removal or termination on the recommendations of the High Court which are made in exercise of the power of control vested in the High Court. The High Court of course cannot terminate the services or impose any punishment on District Judge by removal or reduction. The cOntrol over District Judge is that disciplinary proceedings are commenced by the High Court. If as a result of any disciplinary proceeding any District Judge is to be removed from service or any punishment is to be imposed, that will be in accordance with the conditions of service.

p. 577, margin A

It is indisputable that the appellant was promoted to the post of Additional and Sessions Judge. That is the cadre of District and Sessions Judge. He was reduced in rank. Reduction in rank is one of the major punishment mentioned in Article 311. The major punishments are dismissal, removal, or reduction in rank. The words "dismiss,, remove or reduce in rank" have stigma, namely, the meaning which they bear as three major punishments in Service Rules. The difference between: dismissal and removal is that dismissal ordinarily disqualifies any future employment and removal ordinarily does not (See Parshotam Lal Dhingra v. Union of India('). If one is reverted by way of punishment for misconduct Article 311 ( 2) is attracted. The expression "reduction in rank" means that the person who holds the position of a Subordinate Judge has .been reduced to the post of a Munsif!. The rank of a Subordinate Judge is higher than that of the Munsiff. But Subordinate Judges in the same cadre hold the same rank though ,they have to be listed according to their seniority in the Civil List. Therefore, losing some places in the seniority list in the same cadre does not amount to reduction in rank under Article 311(2l. (See The High Court of Calcutta v. Amal Kumar Roy) ( Reduction in rank may be brought about in the garb of a reversion. (See Debesh Chandra Das v: Union of India & Ors. (

p. 577, margin C

It was argued in N. N. Bagchi's case (supra) that the extent of control exercisable by the High Courts under Article 235 must be so cut down as to keep disciplinary jurisdiction out. This argument was not accepted by this Court. This Court said that the provisions that certain powers are to be exercised by the Governor and no: by the High Conrt do not take away other powers from the High Courts. This Court however incidenta!ly;;added that in exercising these special powers ·in relWion to inquiries against District Judges,, the Governor would always h~!I regard· :to•1hc opinion of the High Court in the

p. 577, margin F

. . (1) 119ss1 s.aR. s2s · (2) l S.C.R. 437.

p. 577, margin H

(3) 1S.C.R.220. 3'-g33SCl/76. maUer. This <:ourt concluded by holding that there is nothing in Article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry.

pp. 577–578, margin H

The High Court within the power and control vested under Article 235 could hold disciplinary proceedings against ·the appellant and could recommend the imposition of punishment of reduction in rank on the appellant. The actual power of imposition of one of the major punishments, viz., reduction in rank is exercisable by the Governor who is the appointing authority. The order passed by the High Court on 8 December,, 1972 reducing the appellant in rank is unconstitutional and is quashed.

p. 578, margin A

The two orders of dismissal dated 3 December, 1973 arc based on the order of 8 December, 1972. The substratum of the orders of dismissal being unconstitutional the orders of dismissa1 cannot have any legal force. Further, the contention of the High Court that the orders of dismissal passed by the High Court merged in the orders passed by the Governor cannot be accepted. If the order of the initial authority is void an order of the appellate authority cannot make it valid. The order of the Governor used the word "confirm". The appellant filed appeals to .the Government. The appeals were dismissed. The confirmation by the Governor cannot have any legal effect because that which is valid can be confirmed and not that which is void.

p. 578, margin C

For the foregoing reasons as is pointed out in N. S. Ron's case the High Court cannot •terminate the services or impose any punishment on the District Judge. If as a result of a disciplinary proceeding any District Judge is to be removed from service or anv punishment is to he imposed that should be in accordance with the CQ!lditions of service.

p. 578, margin E

In the present case the conditions of the Civil Services ( Classification Control and Appeal) Rules,. 1962, framed under Article 309 pro~ides in Rule 14(~) ~at the appoi_nting ~nthority alone can impose penalties as specified m .cla~ (v1) to (IX) of ~ules.13 .. Cl~use (vi) is the penalty of reduction m rank 8!1~ clause (ix) d1s1111S;5al from service. Therefore, under the cond1hons of service the High Omrt cannot reduce in rank or dismiss a District Judge.

p. 578, margin F

If the reduction of the appellant is without jurisdiction then the appellant is deemed to continue as a J?is1!ict Judge. The High Court could not dismiss the appellant. Dis1lllssal could only be by the Governor. This is clear fronj the decisions of this Court in N. S. Rao's case (supra) and Shamsher Singh & Anr. v. State of Punjab('). ---------(1) [1975] 1 S. C. R. 814.

p. 578, margin F

(Ray, C.J.) 79

p. 579

The appeal is, therefore, accepted. The judgment of the High A Court is set aside. The orders passed by the High Court on 8 December,, 1972 and 3 December, 1973 are quashed.

p. 579

In view of the orders being quashed the appellant will be deemed to be an Additional District Judge up to the date he retired. Parties will pay and bear ,their own costs. V.P.S. Appeal allowed.

p. 579