IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 WA.No. 1560 of 2007 --------------------- AGAINST THE JUDGEMENT IN WPC.22829/2005 Dated 13/12/2006 .................... APPELLANT: RESPONDENT NO.3 ----------------------------- THE HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): PETITIONER & RESPONDENTS 1 &2 -------------------------------------------- 1. T.V.MOHAMMED FAISAL, AGED 45 YEARS, S/O.UMMER KUNHI, THANIYAKAYIL HOUSE, PUNNA, CHAVAKKAD POST, PIN- 680506, THRISSUR DISTRICT (TERMINATED AS JFCM-III, PALAKKAD). 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.P.S.BIJU FOR R.1 SRI.K.ANAND FOR R.1 SENIOR GOVT. PLEADER SRI.BENNY GERVASIS FOR R2 & R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2010, ALONG WITH WPC NO. 20161 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.No.1560/2007 & W.P.(C) No. 20161/2007 ------------------------------ Dated this, the 27th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The third respondent in the Writ Petition, the High Court of Kerala, represented by its Registrar, is the appellant. The 1st respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The 1st respondent, while working as Judicial First Class Magistrate, Palakkad, was suspended from service on 12.2.1994, in contemplation of disciplinary proceedings. It appears, the suspension was preceded by certain preliminary enquiries held by the High Court through its Vigilance Wing The preliminary enquiry against him was held based on a report filed by the Chief Judicial Magistrate, Palakkad, who noticed some irregularities committed by the 1st respondent. Later, the 1st respondent was served with Ext.P1 memo of charges on 5.3.1994. The allegations in Ext.P1 memo were to the effect WA No.1560/07 & WPC No.20161/2007 - 2 - that he tampered with the depositions of PWs.3, 4 and 7 in C.C.No.73/1991, a case tried by him, so as to help the accused. The 1st respondent submitted Ext.P2 reply to the said charge- sheet. He admitted the existence of tampering in the depositions, but contended that he was not responsible for it. Later, he was served with Ext.P3 memo of charges dated 26.10.1994. The allegations against him in the said memo of charges were more or less identical to those in Ext.P1. Those charges related to C.C.No.225/91, which was tried by him. The 1st respondent submitted Ext.P4 reply, not disputing the existence of the irregularity, but denying his involvement in it. The High Court found the replies of the 1st respondent not satisfactory and therefore, the Additional District Judge, Palakkad was appointed as the Enquiry Officer, to enquire into the charges. The learned Additional District Judge, after holding enquiry, submitted Exts.P7 and P8 reports, wherein the 1st respondent was held to be guilty for making the tampering/corrections. The Administrative Committee of the High Court, which considered the enquiry reports, decided to WA No.1560/07 & WPC No.20161/2007 - 3 - accept them. It was also tentatively decided to impose the punishment of dismissal from service. Thereafter, Ext.P9 show cause notice dated 5.8.1996 was issued to him, calling upon him to show cause why the said penalty should not be imposed on him. Along with Ext.P9, copies of the enquiry reports were also furnished to him. The 1st respondent submitted Ext.P10 reply. In that reply, he has dealt with the findings in the enquiry against him and pleaded that they are not based on the evidence on record and therefore, should not be made the basis for the action against him. He also pleaded that the imposition of the proposed penalty was not warranted. The Administrative Committee considered Ext.P10 reply of the 1st respondent and decided to reject it. It was also decided to dismiss him from service. When the matter was placed before the Full Court, the decision of the Administrative Committee was approved with a modification that the punishment shall be removal from service. Thereafter, the Registrar of this Court addressed the Government by letter dated 21.5.1997, requesting to remove the 1st respondent from service. The Government, by Ext.P11 WA No.1560/07 & WPC No.20161/2007 - 4 - order dated 14.8.1997, accepted the recommendation of this Court and removed the 1st respondent from service with effect from the date of his suspension. The 1st respondent, thereupon, filed Ext.P12 review petition on 28.10.1997, praying to review Ext.P11. The Government considered the review petition and forwarded Ext.P13 note to the High Court, suggesting that the punishment is liable to be reviewed, according to it. The Administrative Committee of the High Court considered the matter first and thereafter, a Sub Committee of Judges was appointed to look into the matter and still later, based on the report of the sub-committee, the matter was considered by the Full Court and Ext.R3(a) note was sent to the Government, recommending to dismiss the review petition. The Government accepted the views of the High Court and by Ext.P14 order, dismissed the review petition on 27.01.2004. Later, the 1st respondent filed another review petition before the Government. This time also, the views of the High Court were sought and it replied, inter alia, stating that a second review petition is not maintainable. On merits also, the High Court informed the WA No.1560/07 & WPC No.20161/2007 - 5 - Government that there is no reason to reconsider the matter. In the light of the said advice, the Government dismissed the second review petition by Ext.P15 order dated 7.6.2005. The 1st respondent filed the Writ Petition, challenging Exts.P11, P14 and P15. 3. The 1st respondent contended that before accepting the report of the Enquiry Officer, the High Court should have furnished a copy of the same to him and considered his views on the report. In support of that submission, reliance was placed on the decision of the Apex Court in Managing Director,ECIL v. B.Karunakar [(1993)4 SCC 727]. The 1st respondent also contended that the Government being the appointing authority and therefore, the competent authority to impose the punishment of removal from service, should have issued show cause notice to him and heard him. Since the Government did not do that, the impugned orders are vitiated for violation of the principles of natural justice and therefore, liable to be quashed. The 1st respondent further contended that the findings of the Enquiry Officer are not supported by the WA No.1560/07 & WPC No.20161/2007 - 6 - evidence on record and therefore, should not have been accepted by the High Court or the Government. 4. The appellant herein filed a detailed counter affidavit, resisting the prayers in the Writ Petition. It was pointed out that in matters of disciplinary action concerning judicial officers, the Government are absolutely bound by the views expressed by the High Court. Secondly, it was pointed out that since the enquiry reports were furnished to the 1st respondent along with Ext.P9 show cause notice and since he has shown cause not only against the proposed punishment, but also against accepting the findings of the Enquiry Officer, no prejudice has been caused to him. Other contentions were also taken. But, the learned Single Judge upheld the contentions of the 1st respondent and allowed the Writ Petition, quashing Exts.P11, P14 and P15. The learned Single Judge found that the 1st respondent should have been given an opportunity of being heard by the Government before issuing Ext.P11 order. Since that opportunity was not given, Ext.P11 is issued in violation of the guarantees under Article 311 of the Constitution of India. WA No.1560/07 & WPC No.20161/2007 - 7 - Finally, the learned Judge directed the Government to consider the matter regarding the punishment afresh in accordance with law, after affording an opportunity of being heard, bearing in mind the dictum laid down by the Apex Court in Managing Director, ECIL (supra). The learned Judge did not deal with the contention of the 1st respondent that the findings of the Enquiry Officer are not based on any evidence, for the reason that the matter was being remitted to the Government. Feeling aggrieved by the said judgment, the High Court has preferred this appeal. 5. We heard the learned senior counsel Sri.K.R.B.Kaimal for the appellant, Sri.P.S.Biju for the 1st respondent and the learned senior Government Pleader Sri.Benny Gervasis for the State. The learned senior counsel for the appellant submitted that in matters of disciplinary proceedings against judicial officers, though the Government, being the appointing authority, alone are competent to pass orders of dismissal or removal from service, in view of the constitutional guarantee under Article 311(2), they are absolutely bound by the views WA No.1560/07 & WPC No.20161/2007 - 8 - expressed by the High Court concerning the penalty to be imposed on the delinquent. All the decisions of the Apex Court, including those in State of Haryana v. Inder Prakash Anand [(1976)2 SCC 977], T.Lakshmi Narasimha Chari v. High Court of A.P. [(1996)5 SCC 90] and Registrar (Admn.) v. Sisir Kanta Satapathy [(1999)7 SCC 725] support the above proposition. If that be so, the views expressed by the High Court being binding on the Government, no purpose will be served by the Government hearing the 1st respondent. It is going to be only an empty formality or a futile exercise. The Government cannot take any independent decision based on the evidence on record. So, the interference made by the learned Single Judge with the impugned orders, for the reason that the Government did not hear the delinquent, is unsustainable in law. The learned senior counsel also submitted that the findings of the Enquiry officer are fully supported by the evidence on record and they were rightly accepted by the High Court. WA No.1560/07 & WPC No.20161/2007 - 9 - 6. Sri.P.S.Biju, learned counsel for the 1st respondent, on the other hand, pointed out that the learned Single Judge did not properly appreciate the purport of the contention made by the 1st respondent relying on Managing Director, ECIL (supra). The contention urged was that before accepting the enquiry reports, the High Court should have furnished copies of them to him and his views should have been obtained and considered. The learned counsel, relying on the decision in Managing Director, ECIL (supra), contended that the acceptance of the enquiry report, without giving the 1st respondent an opportunity to represent against it, vitiates the entire proceedings. Thus, the learned counsel tried to sustain the judgment of the learned Single Judge on this ground. 7. In answer, the learned senior counsel for the appellant submitted that along with Ext.P9 show cause notice, the 1st respondent was served with Exts.P7 and P8 enquiry reports also. Going by Ext.P10 reply, it can be seen that the 1st respondent had made an elaborate representation against the findings of the Enquiry Officer and stated his reasons why those WA No.1560/07 & WPC No.20161/2007 - 10 - findings should not be accepted. He also represented against the proposed penalty. So, no prejudice has been caused to the 1st respondent. In the absence of any prejudice, there need not be any interference with the impugned orders, it is pointed out. Further, in Ext.P10 reply he did not raise any grievance regarding non-furnishing of the copies of the enquiry reports. He must be taken to have waived the said objection. A point not taken before the disciplinary authority or Government cannot be permitted to be taken before this Court under Article 226 of the Constitution of India, it is submitted. 8. We also heard the learned senior Government Pleader, who did not dispute the position that in disciplinary matters concerning judicial officers, the Government are bound to follow the recommendations of the High Court. He also submitted that the orders impugned in the Writ Petition have been passed by the Government in conformity with the views of the High Court. 9. Now, it is well settled that in matters relating to disciplinary proceedings against judicial officers, the Government are bound to follow the views expressed by the WA No.1560/07 & WPC No.20161/2007 - 11 - High Court. The independence of the judiciary is one of the basic features of the Constitution. That means, there cannot even be any valid constitutional amendment, which will have the effect of tinkering with the independence of the judicial wing of the Government. If the executive Government are given a free hand to decide whether the findings in the disciplinary enquiry against a judicial officer are sustainable and whether the choice of penalty is proper, the same will definitely compromise on the independence of the judicial officer concerned. He will be trembling, when he has to take decisions concerning persons with political clout, because during his career at one stage or the other, such persons can mar his prospects. But, the constitutional provisions from Article 235 onwards and the relevant rules in the Kerala Civil Services (Classification, Control and Appeal) Rules firmly insulate the judiciary from the executive arm of the Government. 10. To buttress the point concerning supremacy of the views of the High Court in disciplinary matter of judicial officers, it is not necessary to refer to any precedent. But, for the sake WA No.1560/07 & WPC No.20161/2007 - 12 - of completeness, we will refer to some of the important decisions. First, we refer to the decision of the Apex Court in State of Haryana v. Inder Prakash Anand [(1976)2 SCC 977], wherein it was held as follows: “11. The decisions of this Court in State of West Bengal v. Nripendra Nath Bagchi [AIR 1966 SC 447] and High Court of Punjab and Haryana v. State of Haryana (sub nom Narendra Singh Rao) [(1975)1 SCC 843] are that Article 235 vests in the High Court control over District Courts and courts subordinate thereto. The Governor appoints and dismisses and removes judicial officers. 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 dismissal, removal, reduction in rank and the initial posting and of the initial promotion to District Judges. There is nothing in Article 235 to restrict the control of the High Court in respect of judges other than District Judges in any manner. Article 311 has taken away the power of dismissal or removal or reduction in rank from the High Court and the Governor has been given that special power referred to in Article 311(3). 12. This Court in Shamsher Singh v. State of WA No.1560/07 & WPC No.20161/2007 - 13 - Punjab [(1974)2 SCC 831] held that when a case is not of removal or dismissal or reduction in rank any order in respect of exercise of control over the judicial officers is by the High Court and no other authority. There cannot be dual control. If State Government is to have the power of deciding whether a judicial officer should be retained in service after attaining the age of 55 years up to the age of 58 years that will seriously affect the independence of the Judiciary and take away the control vested in the High Court. Compulsory retirement is neither suspension nor dismissal nor removal nor reduction in rank. It is unsound to contend that the Governor and not the High Court has the power to retire a judicial officer compulsorily under Section 14 of the Punjab General Clauses Act. The suggestion that the High Court recommends and the State Government is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.” In T.Lakshmi Narasimha Chari v. High Court of A.P. [(1996)5 SCC 90], the Apex Court held as follows: “16. In our opinion Rule 21(2) can be WA No.1560/07 & WPC No.20161/2007 - 14 - interpreted in conformity with Article 235 without the requirement of reading any limitation therein as indicated by the High Court. The second part of Article 235 enables the framing of such a rule to confer a right of appeal. Such a provision for appeal must be construed to mean that the appeal to the Governor against the order of the High Court provides for reconsideration of the High Court's order by the Governor, but in keeping with the requirement of Article 235 that the power of control over persons belonging to the judicial service of a State vests in the High Court, and that the appeal must be decided by the Governor only in accordance with the opinion of the High Court. In other words, such an appeal has to be forwarded by the Governor to the High Court for its opinion, which would enable the High Court to reconsider its earlier decision and give its opinion to the Governor, in accordance with which the Governor must decide the appeal. In short, the remedy of such an appeal provided by the Rules which have been framed in consultation with the High Court is in the nature of a provision for reconsideration or review by the High Court of its earlier decision. The High Court on reconsideration of the matter has to give its opinion to the Governor WA No.1560/07 & WPC No.20161/2007 - 15 - and the Governor must invariably act in accordance with the opinion so given by the High Court. The Governor has no option to act in a manner different from that recommended by the High Court. This procedure requires reconsideration by the High Court of its earlier opinion and the opinion given by the High Court after reconsideration indicates the manner of decision of that appeal. There is thus no erosion in the control vested in the High Court over persons belonging to the judicial service of a State; and the requirement of an appeal i.e. reconsideration of the earlier decision is also satisfied. In this process, any comments by the Governor on the merits of the case would also receive consideration of the High Court before it forms the final opinion and forwards its recommendation to the Governor for decision of the appeal in accordance with that opinion. This is the scheme and requirement of Article 235. We are informed that similar provision exists for appeal in the case of persons belonging to the judicial service in some other States and the Rule is worked in the manner indicated. Such a construction of the Rule gives effect to the provision for appeal consistent with the right of appeal available under the second part of Article 235 and is WA No.1560/07 & WPC No.20161/2007 - 16 - consistent with the vesting of control in the High Court over the subordinate judiciary.” Again, in Registrar (Admn.) V. Sisir Kanta Satapathy [(1999)7 SCC 725], the Apex Court held as follows: “15. On going through the judgments of this Court right from Shyamlal v. State of U.P. [AIR 1954 SC 369] down to High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal [(1998)3 SCC 72] one cannot but reach one conclusion regarding the power of the High Court in the matter of ordering compulsory retirement. That conclusion is that the High Courts are vested with the disciplinary control as well as administrative control over the members of the judicial service exclusively, but that does not mean that they can also pass orders of dismissal, removal, reduction in rank or termination from service while exercising administrative and disciplinary control over the members of the judicial service. Undoubtedly, the High Courts alone are entitled to initiate, to hold enquiry and to take a decision in respect of dismissal, removal, reduction in rank or termination from service, but the formal order to give effect to such a decision has to be WA No.1560/07 & WPC No.20161/2007 - 17 - passed only by the State Governor on the recommendation of the High Court. It is well settled again by a catena of decisions of this Court that the recommendation of the High Court is binding on the State Government/Governor (vide para 18 in Inder Prakash Anand case).” In the light of the above decisions, it is futile to contend that the Government have any independent power in these matters. If the Government cannot take any decision on its own, there is no point in asking the Government to hear the delinquent and take a decision. Therefore, the direction issued by the learned Single Judge in this regard is plainly untenable. 11. The next point to be considered is whether the disciplinary proceedings are vitiated for not furnishing a copy of the enquiry report to the 1st respondent and obtaining his views before accepting the views of the Enquiry Officer. Before the 42nd amendment to Article 311, a reasonable opportunity of showing cause to the proposed action in disciplinary proceedings was found to contain a right to represent against the proposed penalty also. When the proposed penalty is put to the WA No.1560/07 & WPC No.20161/2007 - 18 - delinquent, he will be served with a copy of the enquiry report. Thus, he got an opportunity to represent against the findings of the Enquiry Officer also. The above view was holding the field, which is re-stated in the decision of the Apex Court in Khem Chand v. Union of India [AIR 1958 SC 300]. In the said decision, it was held as follows: “It is true that the provision does not, in terms, refer to different stages at which opportunity is to be given to the officer concerned. All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. He must not only be given an opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the government servant should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. Both these pleas have a direct bearing on the WA No.1560/07 & WPC No.20161/2007 - 19 - question of punishment and may well be put forward in showing cause against the proposed punishment. If this is the correct meaning of the clause, as we think it is, what consequences follow? If it is open to the government servant under this provision to contend, if that be the fact, that he is not guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him? If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence. If the purpose of this provision is to give the government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights. In addition to showing that he has not been guilty of WA No.1560/07 & WPC No.20161/2007 - 20 - any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be