TMI Blog1997 (4) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... iding in his favour an injunction application filed by the plaintiff in R.C.S. No. 150/90 titled Uttam Depale v. Sardarkhan Hasankhan and thereby he indulged in corrupt practice which amounted to gross misconduct. It was further alleged that he did not pass orders in the said injunction application; manipulated the judicial records by getting the roznama written through a Court Clerk showing that the matter was fixed On five occasions after the arguments were concluded with a view to achieve his ulterior motive, viz. demand of illegal gratification and, thereby, committed gross misconduct. He was also charged with other allegations details of which are not material for the purpose of disposal of this appeal. Yet another charge against him was that after hearing the arguments in RCS No. 138/96 titled Arjun v. Gangubai and in RCS No. 134/90 titled Ratnamlala v. Phadurang, he did not pass orders for nearly seven months and left the charge of the Court without passing the final orders. 3. After giving reasonable opportunity to the respondent-delinquent officer, the Enquiry Officer held that the aforesaid charge Nos. 1 and 2 and part of charge No. 3 were proved but the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs would be exercised by a Committee of five Judges to be appointed by the Chief Justice. On the basis thereof, the recommendation of dismissal of the respondent from service was made without the concurrence of the Full Court. Therefore, the ultimate order passed by the Government dismissing the respondent on the foot of the above recommendation is illegal. The Division Bench also observed that on consideration of the evidence on record, no reasonable man would reach the conclusion that the respondent had demanded illegal gratification for rendering judgment in an injunction petition in favour of the plaintiff. Accordingly, it set aside the order of dismissal. 5. Shri Harish Salve, learned Senior Counsel for the appellant has contended that the view taken by the High Court is not correct in law. The decision of the Committee is the decision on behalf of the Full Court, Pursuant to the aforestated Resolutions. The expression delegation of the power of the High Court in respect of punishment of judicial officers is wide enough to include appointment of enquiry officer, consideration of his report by the Committee constituted by the Chief Justice under the aforesaid Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. The judicial review is not meant to re-appreciate the evidence charge by charge and witness after witness; court cannot substitute its own decision in place of that of the disciplinary authority and the Government. The High Court, therefore, was clearly in error to treat the report of the Committee as non est. 6. Shri Batra, learned Senior Counsel for the respondent, relying on the aforesaid Resolutions of the Full Court and the action taken by the Committee, highlighted that the later Resolution is only to impose a penalty of dismissal from service. It has no power to appoint the Enquiry Officer, framing of the charges, consideration of the report and the decision taken to recommend respondent's dismissal from service. All these steps are illegal and are without authority of law. He also contended that the Enquiry Officer was biased against the respondent for the reason that the charges framed by the Enquiry Officer do not reflect on the charges framed by the High Court; thereby, the power to impose punishment was in derogation of the recommendation of the Committee of five Judges. As a fact, the recommendation was made only by four Judges. Therefore, it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Judge shall be vested in the High Court, but nothing in this article shall 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. 8. In Shamsher Singh v. Punjab and Anr. (1974)IILLJ465SC , a Bench of seven Judges of this Court, considering the scope of Article 235, had held that the High Court is invested with, under the said Article, control of subordinate judiciary. The members of the subordinate judiciary are not only under the control but also under the care and custody of the High Court. The enquiry should be got conducted through a District Judge. In The Registrar, High Court of Madras v. R. Rajiah AIR1988 SC 1388 , this Court had held thus : The test of control is not the passing of an order against a member of the subordinate judicial service, but the decision to take such action. It may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions against the subordinate judiciary. Far from helping the respondent, it goes is favour of the appellant insofar as the Chief Justice has overall control and, therefore, he exercises control of subordinate judiciary as head of the High Court and the control under Article 235 is of the High Court as head of the judiciary in the State, subject to the resolutions by the Full Court and further delegation in that behalf. 10. It would thus be settled law that the control of the subordinate judiciary under Article 235 is vested in the High Court. After the appointment of the judicial officers by the Governor, the power to transfer, maintain discipline and keep control over them vests in the High Court. The Chief Justice of the High Court is first among the judges of the High Court. The action taken is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction of administrative business in the Court, the Full Court of the Judges of the High Court generally passes a resolution authorising the Chief Justice to constitute various committees including the committee to deal with disciplinary matters t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. 12. It is true, as contended stated Shri Batra, that power of disciplinary action was delegated to a Committee of five Judges. The recommendation came to be made only by a Committee of four Judges. Though his contention that the decision to dismiss the respondent is of the Committee of four Judges is prima facie plausible to be accepted, we find no force for diverse reasons. We called upon Shri Harish Salve to produce the original record. Pursuant thereto, the records are placed before us. We find from the record that after the receipt of the reply of the respondent to the show cause notice, the copies of the record were circulated to all the five Judges. Since one of the Judges retired, before any decision could be taken, the Committee was reconstituted. The Acting Chief Justice and four other Judges constituted the Committee of five Judges. The file was circulated to all the Judges. One of the learned Judges, however, due to unavoidable reasons, was absent on the day of the meeting; the fact, viz., that four out of five Judges assembled to transact the business was duly received. Accordingly, they transacted the business as per the agenda including the item rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t vitiated by any manifest error of law. The order of dismissal does indicate that the Governor independently considered the record and came to the conclusion that the proposed punishment of respondent's dismissal from service was warranted on the proved facts. We, accordingly, hold that the Division Bench Committed an error of law in holding that the order of respondent's dismissal from service is beset with illegality, warranting interference by the Division Bench on Judicial side. 13. The question then is : whether the High Court is justified in recommending to the Governor the respondents' dismissal from service on the basis of the material on record and whether the evidence on record was not sufficient to conclude the misconduct of having demanded illegal gratification? In a democracy governed by rule of law, under a written constitution, judiciary is the sentinel on the qui vive to protect the fundamental rights and posed to keep even scales of justice between the citizens and the States or States inter se. Rule of law and judicial review are basic features of the Constitution. As its integral constitutional structure, independence of the judiciary is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He directly comes in contract with the litigant during the day to day proceedings in the Court. On him lies the responsibility to build a solemn atmosphere in dispensation of justice, the personality, knowledge, judicial restraint, capacity to maintain dignity character, conduct, official as well as personal, and integrity are the additional aspects which make the functioning of the court successful and acceptable. Law is a means to an end and justice is that end. But in actuality, Law and Justice are distant neighbours; sometimes even strangely hostile. If law shoots down justice, the people shoot down the law and lawlessness paralyses development, disrupts order and retards progress. (vide All India Judges' Association v. Union of India and Ors. (1993)ILLJ723SC - quoted with approval, and the statement of law, by Krishna Iyer) Fourteenth Report of the Law Commission, extracted and approved by this Court in the above judgment, postulates thus : If the public is to give profound respect to the judges the judges should by their conduct try and observe it; not by word or deed should they give cause for the people that they to not deserve the pedestal on which we exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect would be disastrous and deleterious. Obviously, therefore, this Court in All India Judges Association case attempted to ensure better uniform conditions of service for subordinate judiciary throughout the country, it recommended that the Superannuation of the subordinate judicial officer at the age of 60 years; and ensured amelioration of their service conditions by giving diverse directions. In 2nd All India Judges' Association case, this Court dealt with the status of the judicial officer as a class and held that they are above the personnel working in other constitutional functionaries, viz., the Executive and the Legislative. Directions were issued by this Court for ensuring due implementation for their better service conditions. Three year's minimum service at the Bar was recommended to be eligible to be a judicial officer in All India Judges' Assn. and Ors. v. Union of India and Ors. (1995)IILLJ664SC (third case). In All India Judges' Association v. Union of India and Ors. (1994)4SCC727 (4th case), direction was issued to ensure accommodation. 15. In Chapter V of the Constitution, by operation of Article 235, total and absolute control over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -imposed or corrective measures or disciplinary action under the doctrine of control enshrined in Articles 235 124(6) of the Constitution. It would, therefore, be necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self-introspection. What is most necessary is to root out the proclivity of the corrupt conduct rather than catch when the corrupt demands made and acceptance of illegal gratification. Corruption in judiciary cannot be committed without some members of the Bar becoming privy to the corrupt. The vigilant watch by the High Court, and many a time by the members of the Bar, is the sustaining stream to catch the corrupt and to deal with the situation appropriately. At the same time the High Court is the protector of the subordinate judiciary. Often some members of the bar, in particular, in Muffasil courts, attempt to take undue advantage of their long standing at the bar and attempt to abuse their standing by bringing or attempting to bring about diverse forms of pressures and pin-pricks on junior judicial officers or stubborn and stern and unbendable officers. If they remain unsuccessful, to achieve their n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Enquiry Officer and he gave reasons in support thereof. The High Court also examined this contention and accepted the explanation. Under these circumstances, being in the realm of appreciation of evidence, this Court cannot by itself, appreciate evidence, and reach a conclusion different from that of the Disciplinary Authority. Allegation of bias also is not warranted on the facts. When we asked the counsel whether any allegation of bias was made at the inception of the enquiry against the Enquiry Officer, he candidly admitted that no such allegations were made. The allegations came to be made for the first time in the reply to the show cause notice issued by the High Court. It would, therefore, be obvious that it is an afterthought attempt to get over the report of the Enquiry Officer. The charges were framed by the High Court and communicated to the Enquiry Officer. In the enquiry report, he merely posed questions that arose for decision, in a manner different from the wording used in the charges but it is a way of expression in considering the issue. It is not a sign to show that the enquiry officer was biased or that he was prejudiced against the respondent. Thus we hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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