Case: Baldev Raj Guliani &amp; Others Vs. The Punjab &amp; Haryana High Court &amp; Others

These two appeals are by certificate from the judgment of the Full Bench of the High Court of Punjab and Haryana. Both the appeals question the decision of the High Court--one by the Judicial Officer and the other by the Stateappellant in Civil Appeal No. 908 of 1975 (hereinafter to be referred to as the officer) was originally a member of the Punjab Civil Service (Judicial Branch). He was appointed as a Subordinate Judge, IV Class, on February 27, 1956. Thereafter he was promoted as a Sub Judge, First Class, and was duly confirmed. While, as a Subordinate Judge-cum-Magistrate First Class in Amloh, District Patiala, the Bar Association of Amloh on May 11, 1965, sent a resolution to the High Court leveling certain charges against the officer affecting his integrity and impartiality. The High Court ascertained the facts through a preliminary enquiry held by the District Judge, apparently, ex parte, at this stage. Thereafter, on the report of the District Judge a regular departmental enquiry was instituted. The officer was suspended by the Government on June 6, 1966, at the instance of the High Court. The District Judge, Sangrur, was appointed as the Enquiry Officer o n July 21, 1966. He enquired into the charges leveled against the officer. The Enquiry Officer submitted his report and found him guilty of all the charges except one. The High Court agreed with the Enquiry Officer and came to a tentative conclusive that the officer should be removed fromthe services of the officer were allocated to the State of Haryana with effect from November 1,High Court recommended to the State Government of Haryana to serve a notice under Article 311(2) of the Constitution asking the officer to show cause why the penalty of removal from service should not be imposed o n him. This was done by the State Government on March 13, 1967. The officer submitted his explanation through the High Court on April 20, 1967. The High Court found the explanation to be unsatisfactory and recommended to the Government that the officer should be removed from service.The State Government, although on its own showing, "was inclined to agree with the views of the High Court and with the recommendation made by it", however, referred the case to the Haryana Public Service Commission for advice purporting to act under Article 320(3)(c) of the Constitution. The Commission advised that no case had been made out against the officer and that he should be exonerated. The Governor accepted the advice of the Commission and passed the order on August 24, 1968, reinstating the officer in service with immediate effect. The High Court was requested by the Government to post the officer on his reinstatement. The High Court did not issue any posting order to the officer as it was of the opinion that the order of the Government was illegal for the vice of consultation with the Public Service Commission and for accepting its advice disregarding the recommendation of the High Court. The High Court requested the Government to review its order but the Government did not take any action on thatthe High Court refused to pass any posting order notwithstanding his several prayers the officer preferred in the High Court of Punjab and Haryana a petition under Article 226 of the Constitution on July 12, 1971, praying for a writ of mandamus directing the High Court to issue an appropriate order of posting and also for a mandamus directing the Government to disburse full salary to the officer including the salary for the period under suspension and other consequentialthe writ petition was pending before the Full Bench, the Governor, accepting the recommendation of the High Court, passed an order on December 16, 1974, issuing three months notice of compulsory retirement to the officer and the officer thus retired on March 18, 1975, after attaining the age of 55 under the service Rule s. The officer challenged the notice of retirement by way of a writ petition in the High Court on March 10, 1975. The same was, however, withdrawn by the officer on March 13, 1975, on which date judgment of t he Full Bench was delivered in the other writ application out of which the present appeals have arisen.The officer, however, later on filed a writ petition No. 747 of 1975 in this Court against the order of compulsory retirement and he was allowed by us to withdraw the same on July 30, 1976. The  retirement of the officer is, therefore, not inHigh Court by a majority of four learned Judges held asthe impugned order, exonerating the petitioner from all charges and reinstating him, was not passed in accordance with the mandatory provision of the Constitution embodied in Article 235 of the Constitution, order is void and non est being ultra vires Article 235 of the Constitution and the High Court was right in not giving effect to it". They also observed that any recommendation made by the High Court in exercise of power under Article 235 must be held to be binding on the Governor.(2) "Since the Public Service Commission was an extraneous body and could not be consulted and was able to influence the decision of the punishing authority, the order suffers from a grave constitutional infirmity and is, therefore, liable to be declared ultra vires Article 235 of the Constitution and hence void and non est on this ground too. The High Court was, therefore , right in disregarding that order and not implementing it by giving the posting orders to thefifth learned Judge (Gujral, J.) did not agree with the majority with regard to the conclusion on the aforementioned first point. He, however, agreed with the majority with regard to the second point and also agreed with the final decision. The High Court dismissed the officers writ application under Article 226 and held that he could not claim any relief on the basis of the order of reinstatement of the Governor of August 24, 1968. The High Court further held that the dismissal of the petition would "not bar the State Government from passing an order against the petitioner in accordance with the recommendation of the High Court completely ignoring and keeping out of consideration the advice tendered by the Public Service Commission".Firstly, the appellants contend that the Governor being the appointing authority is not bound to accept the recommendation of the High Court and the order of reinstatement is well within his powers under Article 311 read with the Rules for Appointment of Subordinate Judges in Haryana and the Punjab Civil Service (Punishment and Appeal) Rules, 1952, and is perfectly valid. Secondly, they contend that the Governor is entitled under Article 320(3)(c) of the Constitution to consult the Public Service Commission with regard to the matter in question arising out of a disciplinary proceeding. Thirdly, it is contended on behalf of the officer that in view of the fact that he was ultimately compulsorily retired on the recommendation of the High Court and the order of suspension merged with the order of rein- statement it is no longer possible for the Governor to pass the order of removal of a person who has already retired from service. it is submitted that m that view of the matter the writ application had become infructuous. and even the High Court need not have decided the writ application. It is, therefore, submitted on behalf of the officer that since on his reinstatement the order of suspension lapsed and he had retired, he would be entitled to his full salary during the entire period of suspension up to the date of hisbehalf of the High Court it is submitted that under Article 235 of the Constitution the sole and exclusive disciplinary control over the subordinate judiciary being vested in the High Court the High Courts recommendation is binding on the Governor and the Governor ought to have accepted the recommendation and passed an order of removal of the officer. It is further submitted that the order of reinstatement passed by the Governor after consulting the Public Service Commission is absolutely void and ultra vires.The controversies, such as we have to deal with, have raised their unpicturesque heads from time to time. We are, therefore, not required to write on a clean slate on this subject. Even so, one aspect of the matter, viz., that relating to the consultation with the Public Service Commission by the Governor with regard to judicial officers misconduct assumes a great importance in this case in a manner that has not arisen earlier before thisAppendix A it is provided in item (f) that the punishing authority in case of removal from the service which does not disqualify from future employment is the "Government" and there is no appeal there from. In item (g) of Appendix A dismissal is also provided for in similar terms. In Appendix B the authority competent to pass an order of termination of the service of a Subordinate Judge is the "Government" and there is no appeal against such an order.It will be seen that under rule 14 of the Appointment Rules of the Subordinate Judges, the Punishment Rules are being made applicable to the Subordinaterule 4(vi) of the Punishment Rules read with Appendix A of Part (F) of the Appointment Rules. the competent authority to remove a Subordinate Judge from service is the , Government". It was, therefore, appropriate that the High Court, after close, of the departmental enquiry, when it was satisfied that the officer was guilty of misconduct deserving removal from service, recommended to the Governor for his removal. Up to this stage there was no difficulty. Trouble arose when the Government, although on its own showing, was inclined to agree with the High Court thought it proper to obtain the advice of the Public Service Commission as is usually done in the case of other civil servants. As stated earlier, the Commission tendered its advice contra ry to the recommendation of the High Court and held the opinion that the officer should be exonerated from the charges. The Government accepted the advice of the Commission and reinstated the officer which resulted in refusal to accept the recommendation of the High Court.

Reasoning:
We are unable to accept this submission since, as we have pointed out, just as the High Court staff are not serving under the Government of the State, the judicial officers are also not serving under the Statebrings us to the third submission of the appellants. At one stage we thought that we would not consider this submission since this may arise at the time of payment of salary for the period of suspension as the officer has already retired. We, however, find that even in the writ application there was a prayer for a mandamus to the Government to disburse the officers full salary during the entire period of suspension up to the date of his retirement. The learned counsel for the officer has also argued the matter fully before us. We would, therefore, deal with the same. Since the order of reinstatement of August 24, 1968, is quashed the officer is reverted to the status quo ante as on the date prior to the aforesaid order. It is undisputed that he had been under suspension during that period. It is submitted that on the passing of the order of reinstatement the order of suspension merged in that order -and since there is no other order of suspension passed thereafter either by the High Court or by the Governor the officer on his compulsory retirement will be entitled to his full salary as an officer who had already ceased to be under suspension. It is submitted that the principle of merger which is generally invoked when an order of dismissal is passed against an officer under suspension should apply also in the case ofare, however, unable to accept this submission. The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely different. Suspension is a step to dismissal and may culminate in dismissal. When an officer is suspended no work is taken from him but he does not cease to be in service. When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal. Nothing remains to be done about his suspension. When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect. The suspended officer, on reinstatement, goes back to service. A further order may have to be passed by the authority as to in what manner the period of suspension will be treated. That will be, therefore, a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed. If, therefore, the order of reinstatement is set aside the officer is bound to revert to his immediate anterior status of suspension. There may be certain service rules to take care of this position but even otherwise the position will be automatic and the order of reinstatement being quashed the position of the officer, in absence of any order in that behalf from the court, will be what he was earlier, viz., that of a suspended officer. In this view of the matter, since the order of reinstatement stands quashed and the officer had been under suspension in a departmental proceeding awaiting orders of the Governor for removal, on t he recommendation of the High Court, he would have the status of a suspended officer on the date of his compulsory retirement. The officer in this case was, therefore, compulsorily retired while he was under suspension from service. It is not for us to decide whether being in such a position he would be entitled to his full salary for the entire period of suspension and we refrain from expressing any opinion on that aspect of the matter. It should, however, be observed that since the officer has already retired it will not be necessary for the Governor to consider the recommendation of the High Court for the purpose of removal of the officer. We, however, do not fail to see that the Government, on its own was inclined to accept the recommendation of the High Court at the initial stage.