DEV SINGH & ORS.

A v. -.f REGISTRAR, PUNJAB & HARYANA HIGH COURT & ORS.

APRil: 15, 1987

[R.S. PATIIAK C.J. AND V. KHALID, J.] B • · Rules and Orders of the Punjab High Court Vol. I, Chapter 18-A, Rules IX and X: Dismissal of ministerial staff of subordinate courts by District Judge-Service appeal disposed of by High Court-Whether judicial decision. c Constitution of India, Articles 136 and 235: Removal from service of ministerial staff by District Judge-Service appeal dismissed by High _J, fourt-Decision whether judicial or administrative-Whether assailable in petition for special leave. ·

Sub-section (2) of Section 35 of the Punjab Courts Act, 1918 con- D fers power of appointment of ministerial officers of all courts controlled by a District Court and their suspension and removal on the District Court. Sub-section (3) makes every appointment subject to such rules as the High Court may prescribe in this behalf, while sub-section (4) ; -f111akes orders passed by the District Judge subject to the control of the High Court. .

• Chapter 18-A of the High Court Rules and Orders framed under Section 35(3) conttols the appointments, promotion and punishment of J>_. ministerial officials in the District and other civil courts, other than the High Court. Sub-rule 2(a) of Rule IX in that Chapter enables the District Judge to inflict any of the penalties mentioned in sub-rule (1): .,.)censure, fine, recovery of any pecuniary loss, withholding of increments or promotions, suspension, removal and dismissal of the ministerial officers of his own court or any court subordinate to him other than the Court of Small Causes. Sub-rule (2) of Rule X provides Ior appeals to

the High Court against penalties. Sub-rule (3) requires the persons appea.ling to the High Court to do so by a petition to the District Judge, G who shall forward the same to the Registrar of the High Court with --.( remarks that !ie may wish to make. After reading the petition the High Court may either (a) summarily reject it without hearing the petitioner;

(b) refer it to the District Judge for report and on receipt of such report reject the petition without hearing; or (c) hear the petitioner, and where other persons are held to be concerned such other person in open court.

A Sub-rule (4) forbids the petitioners to attend personally at the High Court unless summoned and provides for communication to them of orders on their petitions through the District Judge.

The appellants, who were the employees in the ministerial estab- . lishment of the courts at Ferozepur and Zlra, were alleged to have B taken a prominent part in raising objectionable slogans against the ·

Judicial Magistrate and the District Judge, in a d@monstrati11n orga nised by the subordinate court officials, to protest against the slapping of a subordinate by the Judicial Magistrate, Zira. They were charge sheeted for their misconduct. After enquiry it was found that they contravened Rule 7(1) of the Government Employees (Conduct) Rules, 1966 by acting prejudicially to the public order, decency and morality C and were dismissed from service by the. District judge in his capacity as the punishing authority.

The appellants preferred a service appeal before the High Court which was dismissed.

While granting the special leave on 2nd April, 1982 this Court made the following order:

"Appeal will be heard ....... on the preliminary issue as to whether the High Court in disposal of appeal was acting in administrative capacity under Art. 235 or as a Tribunal or as a High Court and the circumstances in which the appeal was main tained, if so." --t It was contended on behalf of the appellants that the decision of the High Court in this case was the judicial decision of a tribunal which J' could be examined by this Court under Article 136 of the Constitution. ~

ismissing the appeal, the Court,

HELD: 1.1 The appeal is not maintainable. Ev•ry decision or order by an authority which has a duty to act judicially is not subject to G appeal to this Court. Article 136 contemplates appeals only from adjudica

lions, of courts and tribunals. Such adjudication must doubtless be judicial. 'r" If the 'power exercised was administrative in nature it would exclude such a tribunal from the ambit of Article 136. [1029C; 1028H; 10200]

1.2 Every authority which is required to act jqicially either H by its constitution or by virtue of the authority conferred upon it is

DEV SINGH v. PUNJAB & HARYANA HIGH COURT 1007

nQt necessarily a tribunal for the purposes of Article 136. A tribunal, A wbose adjudication is subject to appeal must besides being under a duty to act judicially, be a body invested with the judicial power of the State. [1029A] •

1.3 There is a clear distinction between courts of law exercising judicial powers and other bodies. Decisions by courts are clearly judi B cial. That is not the case with bodies exercising administrative or execu tlve powers. In certain matters even judges have to act administratively and in so doing may have to act quasi-judicially in dealing with matters entrusted to them. It is only where the authorities are req1d1'fd to act judicially either by express provisions of the statute or by necessary implicatj11n that the decision of such an authority would amount to a C quasi-judicial proceeding. When Judge§ ill e11'.ercise of their administra . tive functions decide cases \I rP!l!lllt be said that their decisions are A either judicial 11r qq!'ll!l!liirial decisions. The test that has to be applied to find ou\ w,1, teief n order Is a judicial order or not is the existence of a Ii~ bhy, eelJ the partjes. [1028F; 1025C] ,.

In the instant case, the High Court while disposing of the appeal was not acting as a tribunal. It was 11ding purely administratively. It was not resolving any dispyle or controversy between two adversaries but only exerjsing Its power of control over the subordinate judiciary wbich is the same. as control under Article 235 -of the Constitution of

Idia. tio~!IE1 1021c; 10298; 1013Cl E

Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955] 1 SCR 267; Bachhittar Singh v. The State of Punjab, [1962] Suppl. 3 SCR 713; Associated Cement Companies Ltd. v. P.N. Sharma & Anr, [1965] 2 SCR 366; Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhun jhunwala, [1962] 2 SCR 339; Jaswant Sugar Mills Ltd. v. Lakshmi- F chand and others, [1963] Suppl. 1 SCR 242; Engineering Mazdoor Sabha v. Hind Cycles Limited, Bombay, [1963] Suppl. 1 SCR 625; Inda-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs & Ors., [1964] 6 SCR 594 and APHLC v. M.A.

Sangma, [1978] 1SCR393, referred to.

2 .1 In deciding the appeal' under Rule X in Chapter 18 A the . High Court exercises only a supervisory administrative control over the subordinate courts and does not act as a tribunal disposing of an appeal involving a lis between two rival parties and arriving at a judicial decision. [1019D]

2.2 The appeal under Rule X(3) has to be by a petition, to be routed through the District Judge who sends it to the Registrar of the ~~- High Court. These are procedural formalities which normally govern appeals preferred before the Hlgli Court on the adm'inistrative side.

The permission given to the authority who imposes penalty to record hi!> , .., own remarks which he wishes to make concerning his own order i~ further proof of the fact that what the High Court has to consider is not a matter on the judicial side but one in its power of control and -·• superintendence over the subordinate courts. [1018A] )..... '

2.3 The procedure contained in Rule X(3) of hearing the petition -~ _ is not similar to the procedure followed in regular judicial proceedings. i~ It is not obligatory for the High Court to hear the petitioner. It can go into the papers and reject It summarily without giving the petitioner an opportunity to be beard. Alternatively, it cy"ld get a report from the .

DistrictJudge and on receipt of such a report disiiiiSI! jt willP"~ hearingA the petitioner. Thirdly, it could give a hearing to the petiti!IRl'f '!ii~ ?WI thpse who will be affected. This manner of disposal of the petition make& D it apparent that it is not strictly a judicial proceeding but has all the trappings of an administrative proceeding and an administrative decision. U018EH]

2.4 Sub-rule (4) of Rule. X again marks a complete departure from the normal judicial proceedi11g before a court. The petitioners are +- forbidden to attend personally at the High Court. They can dq sq.pnly when summoned. In a judicial proceeding, the party has a rlgbl IQ appear personally or through counsel. This denial also robs the appeal -

of its character of a judicial proceeding. [1019C]

---{, 2.5 The fact that Rule X is found in Chapter 18-A, which deals / . . with control, also gives the administrative shade to the proceeding un ; i....,.. der this Rule. Section 35(4) of the Punjab Courts Act, 19J8, which ' stipulates that any order passed by the District Judge under this section shall be subject to the control of the High Court, further fortifies tho view that the proceedings under Rule X(3) and th_e decisions made . thereunder are not judicial in nature. [1019E]

It cannot, therefore, be said that in ihe instant case the High Court while deciding the appeal acted as a tribunal whose order can be challenged before this Court under Article 136 of the Constitution. [1019F]

{The Registrar to transfer the records of the case to the High H Court. The latter to take the petition on its file as a petition under

DEV SINGH v. PUNJAB &HARYANAHIGHCOURT[KHALID, J.) 1009

Article 226 and dispose of the m@lter expeditiously.) [1029Dl

CIVII, APPELLATE JURISDICTION: Civil Appeal No. 1278 of 1\182.

Fnim tjie Judgment and Order dated 3-0.9.1981 of the Punjab

and Haryana High Court in Service Appeals of the Appellants.

V.M. Tarkunde, Mrs. Urmila Kapur and Ms. Janki Srinivasan for the Appellants. '

Kapil Sibal and Rathin Dass for the Respondents.

Tlw Judgment of the Court was delivered by c

KHALID, J. 1. The appellants were the employees in the ministerial establishment of the Courts at Ferozepore 'and Zira having entered into service varying from the year 1952 to 1965. They are members of the Punjab Civil Courts Clerks Association. On 24th July, D 1980, there was an inci\lent in the Court of Shri N .S. Mundra, Judicial Magistrate, st Class, Zira. On that day, one Jagdish Lal, a Senior Ah\mad of the Court was slapped. He is one of the appellants in this appe.al. On the day he was slapped, he presented a representation to the District and Sessions Judge Shri Nehra. An enquiry was directed to be held by the Senior Sub-Judge, Ferozepore into the incident. In this enquiry, it was found that Shri Mundra, Judicial Magistrate, Zira slapped J agdish Lal. This incident caused resentment in the Association and the Association, therefore, felt that something should be done to d11monstrate this resentment. Accordingly, it was decided by the Association that a request should be made to the District and Sessions Judge, Ferozepore, to transfer Jagdish Lal from the Court at Zira to any other Court so that calm could be restored. The appellants among others met the District and Sessions Judge for this purpose on 28-7-

1980. It is. alleged that the Sessions Judge did not accede to the request

of the representatives of the Association to plead their case before him. This aggravated the situation. Though the association and their representatives including the appellants were keen to resolve the mat- G ter, the District and Sessions Judge adopted a hardened attitude. The matter came to the notice of the High Court. An enquiry by Justice S.P. Goyal of the High Court of Punjab and Haryana was directed to be held and it was scheduled for 9th August, 1980. He was to reach the Canal Rest House at 4.00 P.M., but he could reach only t 7.30 J;>,.M.

At that time, the District and Sessions Judge, along with other Judicial H

A officers were present to receive him. A demonstration was organised by the subordinate Court officials. There was continued slogan shout- -~ ing from 4.00 P.M. till 7.30 P.M. before Justice Goyal's arrival. The appellants are said to have taken a prominent part in raising objectionable slogans. The slogans are:

"N.S. Mundra Murdabad; N.S. Mundra Hai Hai; Dakia Mahajan Superintendent Murdabad; B.S. Nehra Murdabad; B.S. Nehra naun Challa .Karo; Kata! Nehra Murda- . bad: B.S. Nehra Murdabad;"

The appellants were charg~, s!Jeeted for this conduct of theirs.

2. Justice Goyal alighted from bi~ .cr and went inside the visiting room of the rest house. He called the rnprsi; ntatives of the Association. Some of them met him. They came out aft11r Oie m@ing. There were other demonstrators waiting for the result of the tnlk, s, Afi!lr they came back, those who raised slogans disbursed. On 11th August, 198.0, D the District Judge sent a letter to Shri G.S. Khurana, Chief Judicial Magistrate, Fro; z, epore, to hold preliminary e.nquiry into the demonstration by the Court official_s in front of the Can.al Rest House and the slogans raised there. Mr. J{hurana recorded the statement& of some officers on the same day and submitted his report on that very dy itself. According to his report, the appellants had taken a prominent E part in raising objectionable slogans in question. On tile basis of this report, the District Judge placed the appellants under susp.ension by his order dated 14-8-1980. On 12th August, 1980, the Ditrict Jw!g~ had intimated the High Court about the finding in the preliminary report and had sought guidance of the High Court. The appellants were supplied with the articles of the charges and statement• of impu- F talion etc. They gave their replies. While admitting that they had taken part in the demonstration on the day in question they denied that they had taken a prominent part in the demonstration as leaders in raising objectionable and defamatory slogans against their superior officers. A formal enquiry was ordered against these appellants. After a detailed enquiry it was found that the appellants had contravened G inter alia Rule 7(1) of the Government Employees (Conduct) Rules, 1966, and had thus acted prejudicially to the public order, decency and morality and thereby contravened Rule 7(1) of the Government Employees (Conduct) Rules, 1966. The District Judge, Ferozepore in his capacity as the punishing authority then served a show cause notice on all the appellants as to why the penalty of dimissal from service be not H imposed on them. The appellants submitted their explanation. After

< ~·

-~-

DEV SINGH v. PUNJAB & HARY ANA HIGH COURT (KHALID, J.l 1011

considering the replies, the District Judge, by his order dated A

17.11.1980, imposed on them punishment of dismissal from service.

3. The appellants preferred a service appeal in the High Court of Punjab and Haryana at Chandigarh. The High Court considered the various contentions raised by the appellants in detail and dismissed the appeal as having no merit. One of the employees who had also filed B appeal before the High Court withdrew his appeal and is now reported to be practising law.

This appeal has, therefore, come up before us by specjal leave under Article 136, against the order of the Single Judge in the above mentioned service appeal.

We have given only the bare facts in this judgment for the reason that this Court issued notice on the SLP for consideration of a preliminary point only which will be evident by the orders passed on 3.12.1981, 4...J.-1982 and 2-4-1982.

"Order of the Court on 3-12-1981: Issue show cause notice on SLP returnable on 4-1-1982, on the question as to whether the High Court in disposing of

the appeal of the petitioners was acting in administrative capacity or as a Tribunal or as High Court. There will be interim injunction restraining the respondents from evict- E ing petitioner No. 2 from Government accommodation held by him on the condition that the said petitioner continue~ to P, ay rei pr oompensation at hitherto charged, pending notke."

"Order of the Court on 4.1.1982: F Spe9ial le; we petjtion to be heard on the question whether the High Court in disposing of the ppeal pf the petitioners was 11ctiµg in an administrative capacity qnder Article 235 or iis I\ Tribunal or as the High Court. 'fhe special leave petition tp be herd on 9.2.1982 on this question. Stay to contiqµe !ill then." G

"Orderofthr Courton2.4.1982: Special leave granted. Printing of records and filing of statement of case dispensed with. Security dispensed with.

Appeal will be heard on present papers on the preliminary issue as to whether the High Court in disposal of appeal H

was acting in administrative capacity under Article 235 or as Tribunal or as a l{igh Court and the circumstances in which the appeal was maintained, if so. Hearing o: appeal wiUbe.fixed on second Tuesday in July 1982 pre-emptorily subject to ovemight's part heard." •

B From the above o. 1ers it is clear that the question that is to be decided in this appeal is whether an appeal under Article 136 lies to this Court from the order under challenge. That being so, it is necessary to consider the nature of the appeal before the High Ccrurt and the rules governing that appeal, before discussing the questions of law raised by the appeirantY counsel with reference to various authorities of this C Court, to contend that article 136 was attracted.

4. The appointment of the ministerial officers of the District Courts and Courts of Small Causes and their suspension and removal are provided under Section 35 of the Punjab Courts Act, 1918. That Section reads as follows: ( "35{1) The ministerial officers of the District Courts and Courts of Small Causes shall be appointed and.may be suspended or removed by the Judges of those Courts respectively.

(2) The ministerial officers of all Courts controlled by a District Court, other than Courts of Small Causes, shall be appointed, and may be suspended or removed by the District Court.

(3) Every appointment under this section shall be subject to such rules ai; the High Court may prescribe in this behalf, and in dealing with any matter under this Section, a Judge of a Court of Small Causes shall act subject to the control of the District Court.

( 4) Any order passed by a District Judge under this sec; tion shall be subject to the control of the High Court."

. '5. The High Court framed rules under this section for the subor- ---dinate services attached to or controlled by District Courts. Tiiese rules apply to subordinate services attached to Civil Courts other than the High Court, namely to ministerial and menial establishment of District H and Sessions Judge, Sub-Judge and Courts of Small Causes. Chapter

DEVSINGJI v. PUNJAB&HARYANAHIGHCOURTIKHALID, J.I 1013

18-A of the rules is the one relevant for our purpose. A close study of A

~ the scheme and the various provisions of Chapter 18-A would make it abundantly clear that the appointments, promotions, punishments etc . • of the ministerial officials _of the Courts subordinate to the High Court, ; were fully within the powers of the District and Sessions Judge subject to the control of the High Court. Chapter 18-A is captioned 'control'.

B Though there were changes effected by notifications issued by the

.. J,

State of Punjab regarding appointments, promotions in other services, after the coming into force of the Government of India Act, 1935, it is epoug!! to note for our purpose that the appointment, promotion and

;..._-( punishment qf m, jµist.erial qfficials jn the .pistric! or other Civil Courts continued to be governed by the rules in Chapter 18-A of the High Court Rules and Orders. c

6. Control in chapter 18-A is the same as control under Article 235 of the Constitution of India. Articles 233, 234 and 235 of the Constitution of India deal with the High Courts' control over the subordinate judiciary. Article 227 deals with the power of superintendence D over all Courts by the High Court. Its predecessor section in the Government of India Act, 1935 was Section 224 which dealt with administrative functions of the High Court. Article 233 deals with the appointment of District Judges and Article 234 with the recruitment of

.; ~

persons other than the District Judges to the judicial service. Article 235 deals with the control over subordinate courts and the control under this Article is wider than the control under the corresponding E provision of the Government of India Act. For our purpose, it is "

sufficient to note that Chapter 18-A contains provisions relating to the

I )-

control of the High Court. over the subordinate judiciary.

......

7. For the purpose of this appeal, we are concerned only with

--~

Rules IX and X of the rules in Chapter 18-A. Rule IX deals th F punishment. We extract the entire section since it would be profitable to have a correct look at this section.

"IX- Punishment-(1) The following penalties may for g, ood and sufficient reasons be imposed upon members of G t'1.e miqisterial staff:-

(j) ci:n&µre,

(ii) Fine of an amount not exceeding one month's salary for misconduct or neglect in the performance of duties, H

(iii) Recovery from _Pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders, ·

(iv) Withholding of increments or promotion inclwfr .:• .

stoppage at efficiency bar, ..

(v) Suspension,

(vi) Removal, and

(vii) Dismissal.·

(2)(a) Any-o.f ihe above penalties may be inflicted by the Disirict Judge on the ministerial officers of his own Court of any Court subordinate to him other than a Court of Small Causes, and on the menials of his own Court.

' _ '(b) The Judge of a Court of Small Causes may inflict any of the above penalties on the ministerial. officers or menials of his own Court.

(c) The District Judge may, with the previous sanction of the High Court, delegate to any Subordinate Judge the power to inflict penalties given in clause (a) to be exercised by the Subordinate Judge in any specified portion of the district subject to the control of the District Court.

Ncite:- This delegation has been made to the Senior Sub-Judge, 1st Class, in each district in regard to the process-serving establishment of all Courts in the district except that of the District Judge's Court and the Court of the Judge, Small Causes, Lahore, Amritsar and Delhi.

( d) Any Subordinate Judge may fine, in an amount not exceeding one month's salary, any ministerial officer of his own Court for misconduct or neglect in the performance of his duties.

(e) The Senior Subordinate Judge may inflict any of the above penalties on menials of his own Court or the Courts of other Subordinate Judges in the same district."

'>__, In Sub-Rule (1), eight penalties are categorised. Sub-Rule (2) enables the District Judge to inflict any of the penalties mentioned in Sub-Rule (I). Rule IX(2)(c) enables the District Judge, with the previ- H ous sanction of the High Court, to delegate to any Subordinate Judge

, "i

.___.)._

DEV SINGH v. PUNJAB & HARY ANA HIGH COURT (KHALID, J.( 1015

the power to inflict _penalties given in clause (a). Then comes the A important section that deals with appeals i.e. Rule X. We think it useful to extract the Rule in full.

"X. Appeals.-(1) The District Judge may on appeal or otherwise reverse or modify any order made under rule IX(2) by any Court under his control including a Court of B Small Causes, and his order shall be final:

Provided that nothing in this rule shall preclude the High Court from altering where it deems fit any such appellate order of a District Judge on pf!tition by an aggrieved person or otherwise: c

Provided further that the District Judge shall not enhance any punishment but should, if he considers enhancement desirable, refer the case to the High Court for orders.

(2) Appeals against penalties inflicted by a District Judge shall lie to the High Court in the following cases only:-

(a) Penalties mentioned in Rule IX(iii) to (viii) in respect of ministerial servants, holding perma- E nent and pensionable posts; ·

(b) Orders of substantive appointment by, promotion

or otherwise to a permanent and pensionable post the maximum pay of which is Rs. 75 or more permensem; F

( c) Orders of temporary appointment which is to last more than three months or has in fact lasted more than three months in respect of posts the maximum pay of which is Rs. 75 or more per mensem.

(3) Persons appealing to the High Court under this rule shall do so by petition. Such petition, accompanied by a copy of the order complained against, shall be presented

to the District Judge who passed the order within one month of the date of such order (the period between the H

date of application for the copy and the date on which it is supplied being excluded). The District Judge will forward the petition to the Registrar of the High Court without unnecessary delay, and in forwarding the same he will be at liberty to record any remarks which he may wish to make concerning any matter stated in the petition.

After reading the petition, the High Court may >--- either-

...__...

(a) Summarily reject it without hearing the peti ! tioner;

(b) refer it to the District Judge for report and on receipt of such report reject the petition without hearing the petitioner; or

( c) hear the petitioner, and in cases where other persons are held to be concerned in the subject of the petition, such other person in open Court.

Nothing in these rules shall debar the High Court or a District Judge, from altering, if deemed fit, any order of punishment or appointment not provided for above which may be passed by a District Judge, Senior Subordinate Judge or the Judge of a Small Causes Court in respect of niinisterial or menial establishment when an aggrieved person petitions or otherwise. District and Sessions Judges should not, therefore, withhold any petition addressed to the High Court whether an appeal lies to it in the case or not under these rules. In a case in which no appeal lies the District and Sessions Judge should forward it without any comments and relevant documents unless he wishes to do so or is so required by the High Court.

( 4) Petitioners are forbidden to attend personally at the High Court unless summoned to do so. Orders on their petitions will be communicated to them through the Dis trict Judge concerned.

(5) In order that a dismissed official may be able to exercise his right of appeal, the charge against him should be reduced to writing, his defence should either be taken in, or reduced to writing and the decision on such defence

,,./\

DEV SINGH v. PUNJAB & HARYANA HIGH COURT [KHALID, J.] 1017

should also be in writing. The record of the charge, defence A and decision should in all cases be such as to furnish sufficient information to the appellate authority to whom the dismissed official may prefer an appeal.

(6) Establishment orders, in which an appeal lies lo the High Court as a matter of right, should state briefly the B claims of the persons appointe.fl as well as those of their seniors, if any, who are considered unfit for the appointments in question, and where the order of seniority has not been followed the reasons for departure from it should be stated."

8. Rule X(l) deals with the powers of the District Judge to c

,\reverse or modify any order made under Rule IX(2) passed by any Court under his control. This sub-section contains two provisos. The first proviso gives the High Court an absolute power to alter when it deems fit any order passed by the District Judge in appeal when an aggrieved person moves the High Court or even suo moto. The second proviso restricts the powers of the District Judge to enhance any punishment imposed and makes it subject to the orders of the High Court when such a case is referred to the High Court for orders. Rule

; -~ X(2) deals with appeals against penalties inflicted by District Judge as in the case on hand. This section provides that appeals shall lie to the High Court from orders imposing penalties by the District Judge, but not in all cases. Appeals lie only against orders imposing penalties mentioned in Rule IX(iii) to IX( viii). In other words, an appeal does -

jnot lie when t!te District Judge passes an order imposing a penalty of censure or of fine of not more than one month's salary for misconduct or neglect in the performance of duties. ~

9. We are not concerned here with the orders mentioned in Rule X(2)(b) and (c). Sub-rule (3) of Rule X deals with the procedure in filing appeals to the High Court. It states that appeals shall be by a petition. It obligates presentation of the petition to the District Judge who passed the order within the time prescribed therein. The District Judge is directed to forward the petition to the Registrar of the High Court without unnecessary delay. The District Judge is given powers to record his remarks which he may wish to make concerning any matter stated in the petition.

10. A reading of this sub-rule makes it abundantly clear that the appeal to be heard by the High Court is something which it has to do in H

A exercise of its powers of control over the subordinate courts on the administrative side. The appeal .has to be by a petition. It.is to be routed through the District Judge who sends it to the Registrar of the High Court. These are the procedural formalities which normally govern appeals preferred before the High Court, on the administrative B side. The permission given to the authority who imposes penalty to record his own remarks which he wishes to make concerning his own order is further proof of the fact that what the High Court has to consider is not a matter on the judicial side but one in its power of control and superintendence over the subordinate courts. Appeals under the general law have their own procedure, which is different from the procedure detailed for the appeals under these rules of the C deciding authority forwarding the appeal through the proper channel to the controlling authority and of the freedom of the deciding authority to give its own remarks over and above the order already passed.

This procedure robs the appeal to the High Court of the characteristics of the normal appeal culminating in judicial orders. The matter will be D further clear when we look at the procedure that is to be followed by the High Court in disposing of the appeals contained in this subsection itself.

11. Rule X(3) enables the High Court to summarily reject the appeal without hearing the petitioner or refer it to the District Judge E for report and on receipt of such report reject the petition without hearing the petitioner; secondly to hear the petitioner, and in cases where other persons are held to be concerned in the subject of the petition, such other person in open court. The procedure contained in this rule of hearing the petition is not similar to the procedure followed in regular judicial proceedings. Under these rules it is not F obligatory for the High Court to hear the petitioner. It can go into the papers and reject it summarily without giving the petitioner 'an opportunity to be heard. It can also refer it to the District Judge for report. The second method of disposal of this petition is to get a report from the District Judge and on receipt of such a report to dismiss it without hearing the petitionet and thirdly to give a hearing to the

G petitioner and also those who will be affected by the disposal of the petition. The manner of disposal of the petition under this rule makes it abundantly clear that this petition which the appellants call an appeal is not strictly a judicial proceeding involving a !is between two adversaries and the decision thereon is not a judicial decision. It has all the trappings of an administrative proceeding and an administrative H decision.

.~--....

• ••

-.. -;_

DEV SINGH v. PUNJAB & HARYANA HIGH COURT [KHALID, J.] 1019

Subclause (4} gives further insight into the nature of the appeal.

It reads:

"(4) Petitioners are forbidden to attend personally at the High Court unless summoned to do so. Orders on their petitions will be communicated to them through the District Judge concerned."

This again marks a complete departure from the normal judicial proceeding before a court. The petitioners are forbidden to attend personally at the High Court. They can do so only when summoned to do so. In a judicial proceeding, the party has a right to appear personally or through his counsel. Here that right is denied to him.

This denial also robs the appeal of its character of a judicial proceeding. Orders passed by the High Court on such petitions will be communicated to the parties through the District Judge concerned.

12. A close study of these rules leaves no doubt in our mind that in deciding the appeal under Rule X, the High Court exercises only a supervisory administrative control and does not act as a Tribunal disposing of an appeal involving a lis between two rival parties and arriving at a judicial decision. As indicated above Rule X is in Chapter 18-A which deals with control. This gives the administrative shade to the proceeding under this rule. Section 35(3) contains the rule making power. Section 35( 4) stipulates that any order passed by the District Judge under this section shall be subject to the control of the High Court, thus fortifying our conclusion that the proceedings under this section and the decisions made thereunder are not judicial in nature.

This appeal can be disposed of with this conclusion and it is not necessary to refer to the various authorities cited before us. However, for the completeness of the judgment, we think it proper to briefly refer to the various authorities cited before us, for and against ihe position that the High Court, while deciding this appeal, acted as a Tribunal whose order can be challenged before this Court under Article 136 of the Constitution, though in our view the decisions cited dealt with situations different from the one we are dealing here.

13. In Durga Shankar Mehta v. Thakur Raghuraj Singh and Others, [ 1955] 1 SCR 267 a Constitution Bench of this Court was considering the jurisdiction of the Supreme Court under Article 136 of the Constitution in an election case. It is not necessary for our purpose to state the facts of the case here. It was contended that the special jurisdiction that was conferred in. the Election Tribunal could be in-

A voked by an aggrieved party only by meilll~ of an election petition, whose decision was final and conchlsive and that therefore a challenge to the order of the Tribunal Ullder Article 136 of the Constitution was not maintainable. To support this contention Article 329 and the nonobstante clause therein were called in to aid. This Court repelled that

contention as untenable though apparently attractive. This Court held that the expression 'Tribunal' as used in Article 136 did not mean snlile" thing as 'Court', but included in its ambit all adjudicating bodies proivded they were constituted by the State and were invested with the judicial as distinguished from purely administrative or executive ftme• tions. This decision has been pressed into service by the appeilants' counsel to contend that the High Court in the case on hand having been constituted by the State and invested with judicial power was a Tribunal and therefore, its decision could be examined by this Court under Article 136. In our view, this decision cannot help the appellants because this decision clearly held that if the power exercised was administrative in nature it would exclude such a Tribunal from the ambit of Article 136.

14. In Bachhittar Singh v. The State of Punjab, [1962) Suppl. 3 SCR 713, an employee in PEPSU was dismissed by the Revenue Secretary. Against this order he preferred an appeal to the State Government. The Revenue Minister, PEPSU felt that the order of dismissal was too harsh and instead, he should be reverted and made an E endorsement to that effect on the file, but no written order was served on the employee. After the merger of PEPSU with Punjab, the Revenue Minister, Punjab, sent the file to the Chief Minister for his advice. The Chief Minister passed an order confirming the order of dismissal and the order was duly communicated to the employee. This order was challenged by him before the High Court. It was contended F before the High Court by the State of Punjab, with success, that the order of dismissal started with proceedings beginning with the enquiry and culminating in punishment and that the first part involved a decision on evidence while the second part of taking action an administrative one. This dichotomy was ingeniously put forward before this Court to render the appeal not maintainable by contending that the G order of dismissal was not a judicial order. This Court repelled that contention. This Court held that departmental proceedings taken against a Government servant were not divisible in the sense in which the High Court understood it. There is just one continuous proceeding though there are two stages in it. Mudholkar, J. speaking for the H Constitution Bench observed thus in repelling this contention:

!-.

m!V §IHOil v. PUNJAB I< HARY ANA HIGH COURT [KHALID, J.) 1021

" ..... Thete ls just one continuous proceedings though A there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges alleged against the Government servant are established or not and the second is reached only if it is found. that they are so established. That stage deals with the action to be taken against the Government servant concerned. The High B Court accepts that the first stage is a judicial proceeding and indeed it must be so because charges have to be framed, notice has to be given and the person concerned has to be given an opportunity of being heard. Even so far as the second stage is concerned, Article 311(2) of the Constitution requires a notice to be given to the person con- C cerned as also an opportunity of being heard. Therefore, this stage of the proceeding is no less judicial than ihe earlier one. Consequently any action decided to be taken against a Government servant found guilty of misconduct is a judicial order and as such it cannot be varied at the will of the authority who is empowered to impose the punishment.

D Indeed, the very object with which notice is required to be given on the question of punishment is to ensure that it will be such as would be justified upon the char, ses established and upon the other attendant circumstances of the case. It is thus wholly erroneous to characterise the'taking of action against a person found guilty of any charge at a departmen- E tal enquiry as an administrative order."

i This judgment will not help us in this case. It only lays down a general principle that a departmental enquiry and a decision is one continuous process consisting of the enquiry part and the decision making part, both the aspects of which are judicial in nature, and the decisions :taken F therein are in exercise of judicial power. · · . . . . . .

15. The counsel for the appellants placed strog reiiance on the :' decision of a Constitution Bench in the case of AssoCiated Cement Companies Ltd. v. P.N. Sharma and another, (1965] 2 S(:R 366, to contend that the decision of the High Court in this case was a judicial G decision of a Tribunal within the scope of Article 136. In that judgment this Court considere.d most of its previous decisions relating. to the scope of Article 136. What fell to be decided. in .that case was whether the State Government was a Tribunal when it exercised its . authority under Rule 6(5) and 6(6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1957..Jt is necessary to H

A briefly state the facts of the case. The employer•company appointed the first respondent as a Welfare Officer as required by the Factories Act, 1948 and as per the rules mentioned above. The letter of appoitti' ment stated that the first respondent was liable to be transferred from one unit of the company to another and that his services could be terminated by one month's notice or with one month's pay in lieu B thereof. The Welfare Officer was not prepared to go to a place to which he was transferred. Thereupon the company terminated the services of the 1st respondent with one month's salary. He llppealed lei the State of Punjab under Rule 6(6). The State of l'uttjab tlrdered hiS re.instatement. As the previous concurrene of the Labour Commis" sioner, as required by rule 6(3), proviso (2) was not ciliiaified, the C company brought the matter to this Court under Article 136(1) of the Constitution. A preliminary objection was raised before this Court that the appeal to this Court was incompetent because the second )._ respondent was not a Tribunal when it decided the apjleal. within the meaning of Article 136(1) of the Co11stitution. Rule 6( 6) read as follows: D

"6( 6) A welfare officer upon whom the punishment mentioned in clause (v) tlf sub-rule (3) is imposed may appeal to the State Government against the order of punishment within thirty days from the date of recipt of ).- the order by him, The decision of the State Government shall be final and binding."

It was by virtue of this rule that the State Government got the powers of appeal. Dealing with the preliminary objection the Constitution ,_.

Bench speaking through Gajendragadkar, CJ referred to this Court's earlier decision-in Harinagar Sugar Mills Ltd. v. Sh yam Sundar Jhun- F jhunwala and Others, [1962) 2 SCR 339, and observed as follows: >--

" ..... On the preliminary question as to whether the appeals were competent, the learned Judge agreed with the majority decision that the Central Government was a tribunal within the meaning of Article 136(1). Construing Article 136(1), the learned Judge observed that courts and tribunals act judicially in both senses which he had earlier discussed and in the term 'tribunal' are included all others, which are not so included. Among the powers of the State, said Hidayatullah, J., is included the power to decide controversies between parties. This is undoubtedly one of the attributes of the State and is aptly called the judicial power

. ,..../

--1

Dljy SJN(lH v. PUNJAB & HARYANA HIGH COURT [KHALID, J.! 1023

of the State. Broadly speaking, certain special matters go A

bfore tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different (pp. 362-63).

Thus, it would be noticed that all the learned Judges who heard this case, were agreed in taking the .view that the essential power which was exercised by the courts and tri- B bunals alike was the judicial power of the State."

16. This Court then referred to its decision in Jaswant Sugar Mills Ltd. v. Lakshmichand and Others, [1963] Suppl. 1 SCR 242 in which the finding that an appeal under Article 136(1) against the order of a Conciliation Officer was incompetent, was considered. Under c clause 29 of the orc\er promulgated in 1954 under the U.P. Industrial

Dispute~ At, 1947, the Conciliation Officer could grant or refuse p.yrmissi911 to alter the terms of employment of workmen at the instimce of the employer. This Section did not suit the employer. That was challenged before this Court. This Court held that the Conciliation Officer was not a Tribunal because he was not invested with the judi- D cial power of the State as he was empowered merely to lift the ban statutorily imposed on the employers' rights and was not authorised to pronounce a final and binding decision in any dispute. Regarding the conclusion in that case this Court observed as follows:

" ..... The condition precedent for bringing a tribunal within the ambit of Article 136, observed Shah, J., who spoke for the Court, 'is that it should be constituted by the

State' and he added that a tribunal would be outside the ambit of Article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. After examining the scheme of the relevant provision, it was observed that 'in deciding whether an authority required to ad judicially when dealing with matters effecting rights of citizens may be regarded as a tribunal' though not a court, the principal incident is the investiture of the 'trappings of a court'- such as authority to 1determine matters in cases initiated by G parties, sitting in public, power to compel attendance of witnesses and to examine them on oath, and others ...... .

Some, though not necessarily all such trappings, will ordinarily make the authority which is under a duty to act judicially, a 'tribunal'." H

17. Then dealing with the question whether the State Govern ment when it exercised its authority under rule 6(5) and rule 6(6) was a

tribunal or not, this Court observed as follows: ~

"The question which we have to decide in the present appeal is whether the State Government is a tribunal when it exercises its authority under Rule 6(5) or Rule 6(6). No rules have been made prescribing the procedure which the State Government should follow in dealing with appeals under these two sub-rules, and there is no statutory pruvision conferring on the State Government any specific powers which are usually associated with the trial in !)pllrts and which are intended to help the court in reaching its deci• sions. The requirements of procedure which is followed in courts and the possession of subsidiary powers which are given to courts to try the cases before them, are described as trappings of the courts, and so, it may be conceded that these trappings are not shown to exist in the case of the , State Government which hears appeals under Rule 6(5) and Rule 6(6). But as we already stated, t!tli nsideration about the presence of all or some of the trappings of a .ci:i1m is really not decisive. The presence of some of the trapping5 may assist the determination of the question Qi 41 wetber the power exercised by the authority which possessc• tbll said trappings, is the judicial power of the State or not. The main and the basic test however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as part of the State's inherent power exercised in discharging its judicial functions. Applying this test, there can be no doubt that the power which the State Government exercises under Rule 6(5) and Rule 6(6), is a part of the State's judicial power. It has been conferred on the State Government by a statutory Rule and it can be exercised in respect of disputes between the management and its Welfare Officers. There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding. Besides, it is an order passed on appeal.

Having regard to these distinctive features of the power conferred on the State Government by Rule 6(5) and Rule

. ').- '

DEV SINGH v, PUNJAB & HARYANA HIGH COURT (KHALID, J.l 1025

6(6), we feel no hesitation in holding that it is a Tribunal A within the meaning of Article 136(1)."

What follow~ from this case and the authorities referred therein is this: The State is invested in some cases with a power to decide controversies between parties. This power is undoubtedly one of the attributes of the State and that is called the judicial power of the State.

What has to be remembered is that this power is exercised to resolve - controwrsles between parties. In Associated Cement's case also this I

Court took notice of the fact that a dispute existed between the

-'-I management and its welfare officer. It was held that there existed a !is the decision of which !is was rendered by the State in exercise of its judicial power. This was the test that has to be applied to find out c whether an order is a judicial order or not.

18. In Engineering Mazdoor Sabha v. Hind Cycles Limited, Bornbay, [1963) Suppl. 1SCR625 the question considered by a Constitution Bench was wb<:\ber the decision of an arbitrator to whom industrial disp1,1\1; s were volun, tarily referred under Section 10-A of the Industrial D nisputes Act, 1947. was quasi-judicial in character and his decision

awou!ll~U to a determination or order under Article 136(1) of the C\'lnstltution of India. This Court held that for invoking Article 136(1),

- . -J, two conditions must be satisfied-(1) The proposed appeal must be from any judgment, decree, determination, sentence or order, that is to say, it must not be against a purely executive or administrative E .. order. If the determination or order giving rise to the appeal is a judicial or quasi-judicial determination or order, the first condition is ...

satisfied. (2) The second condition imposed by the Article is that the said determination or order must have been made or passed by any Court or Tribunal in the territory of India. These conditions, there- F fore, require that the order complained against must have a judicial or quasi-judicial character and the authority whose order is complained against must be a Court or a Tribunal. Unless both the conditions are satisfied, Article 136(1) cannot be invoked. The decision of the arbitrator, it was held, could be characterised as quasi-judicial one, but the power of the arbitrator is not in exercise of the sovereign power or one by conferment of a statutory power by the State. He gets G

- -I the power to adjudicate by virtue of the authority given by the parties.

It was held that an appeal from the order of the arbitrator did not lie under article 136(1) of the Constitution.

19. In Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addi- H tional Collector of Customs and Others, [1964] 6 SCR 594 the question

A debated was whether the Central Board of Revenue exercising its appellate power under Section 190 of the Sea Customs Act or the ).- Central Government exercising its revision jurisdiction under Section 191 could be held to be a Tribunal under Article 136 .. This Court repeated the principle laid down in the earlier decisions that two conditions have to be satisfied before an appeal could be entertained in B this Court under Article 136: the order impugned must be an order of a judicial or quasi-judicial character and should not be purely an ).-. " administrative or executive order; and that the said order should have been passed either by a Court or a Tribunal in the territory of India.

After examining the earlier decisions and the tests laid down therein .-., . .-- .and also after examining the procedure prescribed in the Act in rela- C tion to the adjudication of disputes under these sections, it was held that the Central Board of Revenue and the revisional authority, the Central Government, had the character of a Tribunal under Article ). 136 of the Constitution and thus the preliminary objection that the appeal was not maintainable was overruled. Since great stress was laid by the learned. counsel for the appellants on this authority, we woµld D like to extract the relevant portion on which such reliance was placed to distinguish it from the facts of our case.

" ...... The fact that the status of the Cutoms Officer who adjudicates under Section 167 (12A) and section 183 of the Act is not that of a Tribunal, does not make any difference when we reach the stage of appeal or revision. A period of limitation is prescribed for the appeal, a procedure is prescribed by Rule 49 that the appeal or revision must be accompanied by a copy of the decision or order complained against, and the obvious scheme is that both the appellate and the revisional authorities must consider the matter judicially on the evidence and determine it in accordance with law. It is obvious that heavy fines are imposed in these proceedings and the confiscation orders passed may affect ships of very large value. By his appeal or revisional application the ship owner naturally contends that the order of confiscation is improper or invalid and he sometimes urges that the fine imposed is unreasonable and excessive. Where disputes of this character are raised before the appellate or the revisional authority, it would be difficult to accede to the argument that the authority which deals with these disputes in its appellate or revisional jurisdiction is not a tribunal under Article 136. These authorities are constituted by the legislature and they are empowered to deal with the

.-1·

DEV SINGH v. PUNJAB & HARYANA HIGH COURT (KHALID, J.J 1027

disputes brought before them by aggrieved persons. Thus, A the scheme of the Act, the nature of the proceedings brought before the appellate and the revisional authorities, the extent of the claim involved, the nature of the penalties imposed and the kind of enquiry which the Act contemplates, all indicate that both the appellate and the revisional authorities acting under the relevant provisions of the Act B constitute Tribunals under Article 136 of the Constitution, because they are invested with the judicial power of the State, and are required to act judicially. Therefore, we must over-rule the preliminary objection raised by. the Additional Solicitor General and proceed to deal with the appeal on the merits." c

This judgment can be easily distinguished from the case on hand on the finding that the High Court in this case, as already indicated by us, was acting purely administratively and was not making a judicial decision and the procedure adopted was totally different from the procedure in a Court. This decision, therefore, cannot create any hurdle for our D conclusi, on against the appellants.

20, In APHLC v. M.A. , Sangma, [ 1978] 1 SCR 393 this Court was dealing with t!!e jurisdiction of the Election Commission to decide the question of a symbol (o the parties contesting the election. It was held that the decision from the Election Commission was amenable to E appeal under Article 136 of the Constitution of India since the powers were conferred on the Election Commission by rules, that the Election Commission was dealing with the matter between two rival parties and that the decision taken was a judicial decision. Here again, the Court reiterated the several tests to determine whether a particular body or authority was a Tribunal within the ambit of Article 136 or not. These F tests are not exhaustive. The two necessary pre-requisites for that authority to come within Article 136( 1) are that it must be constituted by the State and invested with some judicial power of the State. These two tests, it was held, were unfailing one, while some of the other test or tests may not be present. At pages 409 and 410 the matter is made abundantly clearin the following statement oflaw by the Court: G

" ...... There is thus a lis between two groups of the Conference. The Commission is undoubtedly the specified and exclusive adjudicating authority of this lis. The Commission is created by the Constitution and the power to adjudicate the dispute flows from Article 324 as well as H

from Rule 5 and is thus c8~!rr~!J llll~r the law as a fr~~: tion of judicial power of t~~ St~\!' TJi, e 9'.W\11\ssion has prescribed its own rrocecjµf!' jp !ti~ ~¥m bols Onler, namely, to give a nar\ng tp, !~E P1\rliE~ wlwn there is a

dispte with regMfl )R fecognition or regarding choice of symbols ..... " ·

" ....... To q; pe~\, tb~ p.mver \g dei!le $is frnrtiou lar dispute is i1 part pf the !ilatll'fi judicial power and that power is conferred on the Election Commisson by Article 324 of the Constitution as also by rule 5 of the rules. The principal and non-failing test which must be pesl\l i11 order to determine wheth':'~ qgqy Bf 11ut!l<iFilY is il tli• bunal within the ambit of f\rtile j:36(1), is fulfil!~!:! in this case when the Election OmJ11issim1. i~ required to adjudi cate a dispute betwee11 two parties, one group asserting to be recognised politicf!l party of !he State and the other group controverting the proposition before it, bu.t at the same time not laying any claim to be that party ....... "

21. We have considered the above decisions carefully. In our view, the principles laid down in these cases cannot help the appe\: !ants in support of the plea that the High Court ":hile P, isposing 'df the appeal was acting as a tribunal. Th';' rlevan\ proyisipµ.s Ql!llled in t!le E earlier part of the judgment relting !P \Jie ppe~I in Ql!tosti\l!l, iq '!l!f

judgment, clearly establish that the.\'figq Opqf\ et~\I Pll thl' a<!minis trative side in deciding the appel:

22. TJiere is a clear distinction between courts of law exercising judicial powers and other bodies. Decisions by courts are clearly judi F cial. That is not the case with bpqies exercjsjpg adj11iqistn1tive or executive powers. In certain matters Her Judges have to act administratively and in so doing may have to act quasi-judicially in dealing with the matters entruste~ to them. It is only where the authorities are required to act judicially ei!\ler by express provisions of the statute or by necessary implication tha\ t!le decisions of such an G authority would amount to a quasijuqicial proceeding. When Judges in exercise of their administrative fimctiplls <:lecicte cases it cannot be said that their decisions are either juilicial or quasijudicjal decisions.

23. Every decision or order by an autl!ori!Y which hftS a duty to act judicially is not subject to appeal to this Court. Article 136 contemp H !ates appeals to this Court only from adjudications of courts and tri

~-...

. .... -

9EV Sll'IGfl ~- P~JAJI fl'. HARYANAHIGH COURT [KHALID, J.[ 1029

P!lPlll~: &u~!i llf!i!!fliFMi'll! mp.t ouf!ess be judicial. This does not A

m~!lll !lli!I f)¥el1' i!!!!ll9Fi!¥ f'hich is required to act jµdicially, either by

it~ PP!JS!jfµtipn or by virtue of the authority conferred upon it, is necess11rily ii tritim111I for th!! purpose of Article 136. A tribunal, whose

11cli114i~?tion js sµbject to appeal, must besides being under a duty to act

j111!ijij!ly, p~ lmdY ilw~~!d with the judicial power of the State.

24. 111 lh~ !!Plleill bfpre the High Court, the High Court was following its own procedure, a procdure not normally followed in judicial matters. The High Court was not resolving any dispute or controversy between two adversaries. In other words, while deciding this appeal there was no Jis before the High Court. The High Court was only

!lJ!:rcing ils power of control while deciding this appeal. We have, tllerefon:, ng pesitatiml to hold that the appeal is not maintainable.

Howvr. w~ do not propose to dismiss it without leaving any remedy . to the appellants. We direct the Registrar to transfer the records of the case lo the Punjab )nd Haryana High Court requesting the High Court to take this petition on its file as a petition under Article 226 and dispose of the matter as expeditiously as possible on the available pleacljngs and documents. There will be nq ord.er as to costs.

P.S.S.

Appeal dismissed .