The Chhattisgarh High Court has recently held that under Article 235 of the Constitution of India, which provides control to the High Courts over subordinate courts, the former cannot terminate the services of a District Judge or impose any punishment of reduction in rank.
This power belongs to the Governor being the appointing authority under Article 311(1) of the Constitution. However, the word "control" in the Article gives the High Court power to make inquiries and disciplinary control and recommend imposition of such punishment.
The observation was made in a petition directed against an order terminating the services of the petitioner, District Judge (Entry Level), under sub-rule (4) of Rule 9 of the Chhattisgarh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2006 (for short, 'the HJS Rules') and on the recommendation of the High Court of Chhattisgarh.
The petitioner was posted as Additional District Judge, Raipur. It is the petitioner's case that during the continuance of the probation period, he was served with a memo and an anonymous complaint against him and two other judicial officers. He was directed to submit his explanation on the complaint, which he did. However, he has not informed anything further and served with an order of termination in Rule 9(4) of the HJS Rules.
The petitioner argued that it must have followed a full-fledged departmental inquiry, given the punitive nature of the termination.
Furthermore, it was also submitted that the Standing Committee was not empowered to recommend the termination of the petitioner's services to the State Government. Only the Full Court of the High Court was authorized to recommend for termination of the petitioner's services, given the provisions under Article 235 of the Constitution of India.
It is also the case of the petitioner that the Full Court has never authorized the Standing Committee as contained in terms of Rule 4-C under Chapter I-A of the High Court of Chhattisgarh Rules, 2007 (for short, 'the Rules of 2007') read with Rule 9(4) of the HJS Rules to recommend the termination of a probationer.
The two issues before the Court in the instant matter were as follows: (a) Whether the Standing Committee constituted by notification dated 4-7-2015 would have competence and jurisdiction to recommend the termination of the petitioner's services (probationer) to the State Government in terms of sub-rule (4) of Rule 9 of the HJS Rules read with Article 235 of the Constitution of India?; (b) Whether the termination of the petitioner's services from the post of District Judge was punitive/stigmatic warranting holding of full-fledged inquiry against him into the allegations of misconduct?
The Court perused Article 235 of the Constitution of India. It noted that while the posting and promotion of District Judges shall be in the hands of the Governor acting in consultation with the High Court,—the posting and promotion and granting of leave to officers of the State Judicial Service other than District Judges shall be exclusively in the hands of the High Court, subject, of course, to such appeals as are allowed by the law regulating conditions of the service.
It noted that Article 235 of the Constitution of India speaks about two distinct powers: (a) the power of appointment, posting, and promotion of District Judges; and (b) second is the power of control over Judicial Officers of the State. It remarked,
"The word "control" employed in Article 235 means not only the general superintendence of the working of the Courts but includes the disciplinary control of the judicial officers, i.e., the district judges and judges subordinate to him."
It referred to the SC's decision in the case of State of West Bengal v. Nripendra Nath Bagchi, where it was held that the word "control" used in Article 235 of the Constitution means disciplinary control and dealt with the nature of the control vested in the High Court under Article 235 over district judges.
Further reliance was placed on the decision in the case of Baradakanta Mishra v. High Court of Orissa, where it was held that the control vested in the High Court under Article 235 of the Constitution is complete control subject only to the power of the Governor in the manner of appointment including initial posting and promotion of District Judges and dismissal, removal, reduction in rank of District Judges.
It observed that under Article 235 of the Constitution of India, the High Court exercises complete and exclusive control over the subordinate judiciary, including District Judge, but in case of termination and dismissal, the High Court can only recommend the imposition of punishment to the Governor and such recommendation would be binding on the Governor.
On whether the Standing Committee was authorized to make a recommendation for termination under the HJS Rules, the Court referred to the decision in State of Uttar Pradesh v. Batuk Dep Pati Tripathi & Anr. In the said case, it was held that the control vested in High Court over Subordinate Judiciary implies the power to frame Rules to make the exercise of the control feasible, convenient, and effective; this includes the power to constitute and permit a Judge or some of the Judges to act on behalf of all, and no delegation or abdication of power is involved in such situation.
The Court noted that a glance of Rule 4-C(ix) of the Rules of 2007 would show that the High Court has conferred to the Standing Committee only the power to pass orders of suspension, initiation of departmental proceedings against members of the Higher Judicial Service and Subordinate Judicial Service, and consequential orders in the said proceedings other than that of dismissal from service.
However, the power to make a recommendation to the State Government for compulsory retirement of any Judicial Officer of any rank has also been conferred to the Standing Committee. Still, no power either expressly or impliedly to make a recommendation for dismissal of a Judicial Officer / District Judge has been conferred in favor of the Standing Committee by the High Court.
"Even otherwise, Rule 4-O(i) (b) of the Rules of 2007 clearly states and makes the power of the Standing Committee more explicit that all recommendations for the dismissal from office of Judicial Officer shall be made at a meeting of the Full Court of all Judges." it added.
Therefore, the Court held that the Standing Committee had no power and jurisdiction to make a recommendation to the State Government for dismissal of the petitioner from the office of the District Judge. It was only the power and jurisdiction of the Full Court to make a recommendation to terminate the services of the petitioner/probationer in terms of Article 235 read with Rule 9(4) of the HJS Rules.
The Full Court of the High Court was the competent authority to recommend the termination of the petitioner's services because his services were not satisfactory.
The Court refused to go into the question of whether the impugned order terminating the petitioner's services is punitive or stigmatic. It observed that this question of law doesn't need to be opined on as the impugned order was passed based on a recommendation made by an incompetent authority.
It referred to the case of Sunny Abraham v. Union of India where it was held that the term 'non est' conveys the meaning of something treated to be not in existence because of some legal lacuna in creating the subject instrument. It goes beyond a remediable irregularity. It was observed that,
"In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid."
The Court quashed the petitioner's termination and directed the petitioner's reinstatement in service immediately along with all consequential service benefits except back wages.
Case Title: Ganesh Ram Berman v. High Court of Chhattisgarh & Anr.
Citation: 2022 LiveLaw (Chh) 47
Read The Order