Punjab-Haryana High Court
Haryana Judicial Employees ... vs State Of Haryana & Others on 26 September, 2013
Bench: Surya Kant, Surinder Gupta
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
CWP No. 5836 of 1995
Date of Decision : 26.09.2013
Haryana Judicial Employees Association (affiliated to All India Judicial
Employees Confederation) Registered under the Societies Registration Act,
1860, Karnal& others
.......... Petitioners
Versus
State of Haryana & others
...... Respondents
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CORAM : HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE SURINDER GUPTA
Present : None for the petitioners.
Mr. Kamal Sehgal, Addl. A.G., Haryana.
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SURYA KANT, J. (Oral)
No one appears on behalf of the petitioners. On 12.9.2013 also, the petitioners remained unrepresented. We thus take up this writ petition for disposal on merit.
2. Petitioner No.1 is statedly an association of employees working in District Courts in the State of Haryana while petitioners No. 2 to 4 were working at the relevant time as Record Keeper, Ahalmad & Assistant Ahalmad in different Courts at Rohtak.
3. The principal grievance of the petitioners revolves around constitutionality of Section 36 of the Punjab Courts Act, 1918 (for short the 1918 Act). According to the petitioners, it violates Articles 14, 309 and 311 of the Constitution of India.
4. To appreciate the contention it would be useful to reproduce Section 36 of the 1918 Act and it reads as follows :-
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High Court Chandigarh CWP No. 5836 of 1995 2 "Section 36 : Powers to fine ministerial officers :- (1) A District Court or any Court under the Control of District Court may fine, in an amount not exceeding one month's salary, any ministerial officer of the Court for misconduct or neglect in the performance of his duties; (2) The District Court may, on appeal or otherwise, reverse or modify any order made under sub-section (1) by any Court under its control, and may of its own motion fine upto the amount of one month's salary any ministerial officers of any court under its control."
5. It thus empowers a District Judge or Judicial Officer to impose fine not exceeding one month's salary on a ministerial staff of his Court for the "misconduct" or "neglect" in performance of his duties.
6. Sub-section (2) of Section 36 of the 1918 Act provides the remedy to appeal against the order. On appeal the order can be set aside or modified, as the case may be.
7. Does this provision violate one or other Constitutional provision as alleged by the petitioners ?
8. The answer to the question, in our considered view, must be in negative. We say so for the reason that sub-section (1) of Section 36 of the 1918 Act does not vest arbitrary or unguided power in a Judicial Officer to impose fine on the ministerial staff. The imposition of fine must be preceded by an act of misconduct or negligence in performance of duties by such member of the ministerial staff. Unless the Judicial Officer forms a definite opinion with regard to the commission of misconduct or negligence in performance of duties by a member of ministerial staff, no fine under sub- section (1) can be levied. If that is so, we cannot accept the contention that the subject provision violates Article 14 of the Constitution.
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As regard to the alleged violation of Article 309 of the "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 5836 of 1995 3 Constitution, suffice it to say that proviso to Article 309 enables the Competent Authority to resort to its powers of subordinate legislation and notify the rules to govern conditions of service of the members of different services till such subordinate legislation is replaced by a piece of legislation enacted by the competent legislature. The power to punish a delinquent employee for a proven misconduct or negligence in performance of duties is only one of the conditions of service for which the Rules can be formulated under proviso to Article 309. The rules formulated and notified under proviso to Article 309 can be comprehensive to meet with that different eventualities besides prescribing service conditions of the employees. As the scope of Section 36(1) of the 1918 Act is limited to the extent of imposition of fine not exceeding one month's salary of the member of Ministerial staff who has been found guilty of misconduct or negligence in performance of his duties, this provision, thus, is not in conflict with the rules, if any, formulated under proviso to Article 309. It may also be noticed that there is no provision imposing penalty in the manner as is enabled by Section 36(1) of the 1918 Act, under the Punjab Subordinate Courts Punishment (Recruitment and General Conditions of Service) Rules, 1997, which have repealed and superseded the rules relied upon by the petitioners.
10. Adverting to the violation of Article 311 of the Constitution at the hands of Section 36(1) of the 1918 Act, it deserves mention at the outset that sub-article (1) of Article 311 of the Constitution guarantees protection against 'dismissal' or 'removal' from service of an employee by an authority subordinate to that of by which he was appointed. Sub Article (2) says that no person can be 'dismissed', 'removed' or 'reduced in rank' unless an inquiry in which he has been informed of the charges against him, has been held Satyawan 2013.10.24 16:37 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 5836 of 1995 4 after giving a reasonable opportunity of being heard to the charge-sheeted employees save in the cases falling under classes (a), (b) & (c) of its second proviso. Similarly sub-article (3) of Article 311 has no bearing on the issue raised in this petition.
11. What has, thus, been guaranteed under Article 311 of the Constitution is that the punishment of dismissal, removal or reduction in rank cannot be imposed on an employee unless the mandatory conditions contemplated therein are followed. Section 36(c) of the 1918 Act contrarily provides imposition of the penalty of fine only and not of dismissal, removal or reduction in rank. Thus, no head-on-collision can be read into between the two provisions.
12. For the reasons afore-stated, we dismiss this petition.
(SURYA KANT) JUDGE (SURINDER GUPTA) JUDGE 26.09.2013 'Satyawan' Satyawan 2013.10.24 16:37 "I attested to the accuracy and integrity of this document"
High Court Chandigarh