Chattisgarh High Court
High Court Of Chhattisgarh vs Ganesh Ram Berman on 29 July, 2022
Bench: Arup Kumar Goswami, Parth Prateem Sahu
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No. 281 of 2022
High Court of Chhattisgarh, Through : Registrar General, High Court
Bodri, Bilaspur, District Bilaspur (C.G.)
---- Appellant
Versus
1. Ganesh Ram Berman, Son of Late Rajuram Berman (ST), aged
about 43 years, Ex-Member of C.G. Higher Judicial Services, R/o.
Ward No. 19, Near Premetric Girls Hostel, Indira Nagar, Janjgir,
District Janjgir-Champa (C.G.)
2. State of Chhattisgarh, Through Principal Secretary, Law, Mahanadi
Bhawan, Atal Nagar, Nawa Raipur, District Raipur (C.G.)
---- Respondents
(Cause Title taken from Case Information System) For Petitioner : Prafull N. Bharat, Senior Advocate assisted by Mr. Shashank Thakur, Advocate For Respondent No. 1 : Mr. B.N. Mishra and Mr. T.K. Jha, Advocates For Respondent No. 2 : Mr. Jitendra Pali, Deputy Advocate General Date of Hearing : 23.06.2022 Date of Judgment : 29.07.2022 _________________________________________________________ Hon'ble Mr. Arup Kumar Goswami, Chief Justice Hon'ble Mr. Parth Prateem Sahu, Judge C A V Judgment Per Arup Kumar Goswami, Chief Justice Heard Mr. Prafull N. Bharat, learned senior counsel for the appellant, assisted by Mr. Shashank Thakur. Also heard Mr. B.N. Mishra, learned counsel, appearing for respondent No.1/writ petitioner 2 along with Mr. T.K. Jha and Mr. Jitendra Pali, learned Deputy Advocate General, appearing for respondent No.2.
2. This writ appeal is presented against an order dated 13.05.2022 passed by the learned Single Judge in WP(S) No.825 of 2017, whereby the writ petition filed by the petitioner / respondent No.1 in the appeal, was allowed by setting aside the order of termination dated 06.02.2017 passed by the Principal Secretary, Government of Chhattisgarh, Law and Legislative Affairs Department, observing that the same would not bar the appellant No.1 herein i.e., the High Court of Chhattisgarh to proceed in accordance with law. Direction was issued to reinstate the petitioner along with all consequential service benefits except back-wages. Liberty was granted to the petitioner to make a representation to the competent authority within 30 days claiming back- wages and it was observed that on such representation being made, the competent authority would consider the claim of back-wages within next 60 days in accordance with law keeping in view the relevant rules and regulations.
3. The writ petitioner was directly appointed as District Judge (Entry Level) by an order dated 30.10.2014 in terms of Rule 5 (1)(c) of the Chhattisgarh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2006 (hereinafter referred to as 'the Rules of 2006'). While the petitioner was in probation period, a letter dated 31.08.2016 was issued by the District & Sessions Judge, Raipur, enclosing thereto a copy of anonymous complaint making certain allegations against three judicial officers including the petitioner and the report of the 3 Registrar (Vigilance) on the allegations made against the petitioner, requiring the petitioner to submit his explanation. The petitioner submitted his explanation on 24.09.2016. Thereafter, the petitioner was served with the order of termination dated 06.02.2017 based on the recommendation of the High Court in terms of Rule 9(4) of the Rules of 2006.
4. The inspection report of the Registrar (Vigilance) goes to show that on the basis of a direction given by the Portfolio Judge calling for disposal of criminal cases of all the three judicial officers, records of the disposal of cases from the month of August, 2015 to January, 2016 were called. The petitioner had disposed of 12 Sessions Cases, 19 Criminal Appeals, 159 Bail Applications and 21 Criminal Revisions and orders were examined by the Registrar (Vigilance). On perusal, Registrar (Vigilance) opined that there was no apparent irregularity in disposal of sessions cases, criminal cases and criminal revisions. In respect of disposal of Bail Applications, it was noted that there were some irregularities in disposing of the applications, it was observed as follows :
"1. Bail application No.1582/15 Rahul Dev Mahajan Vs State,
2. Bail application No.2375/15 Rajendra Prasad Pandey Vs State,
3. Bail application No. 110/16 Rajendra Prasad Pandey Vs State 4
4. Bail application No.114/16 Sarvan Singh @ Jogi Vs State Regarding Bail application no.1582/15 Rahul Dev Mahajan Vs State it is submitted that the first and second bail applications of the accused Rahul Dev Mahajan were rejected by Shri Ganesh Ram Burman, IV Additional District and Sessions Judge, Raipur on 22/06/15 and 04/08/15 respectively and thereafter the third bail application no.1582/15 was accepted on 21/08/15 and the accused was released on bail.
Similarly the first and second bail applications of the accused Sarvan Singh @ Joga were rejected by Shri Ganesh Ram Burman on 26/08/15 and 26/09/15 respectively and thereafter the third bail application no. 114/16 Sarvan Singh @ Jogi Vs State was accepted by the said Judicial Officer on 18/01/16 and the accused was released on bail.
It is mentionable that in crime no. 66/15 the first bail application of the accused Rajendra Prasad Pandey was rejected by A.C.J.M. on 18/09/15. Thereafter bail application no.2375/15 Rajendra Prasad Pandey Vs State was rejected by Shri Ganesh Ram Burman on 11/12/15. Thereafter the 5 bail application no.110/16 Rajendra Prasad Pandey Vs State was accepted by Shri Burman on 18/01/16 and the accused was released on bail.
..............."
5. Plea was taken that the order of termination was stigmatic and punitive in character and that the recommendation made by the Standing Committee for termination of the services of the petitioner under Rule 9(4) of the Rules of 2006 was without jurisdiction and that it was only the Full Court, which could have recommended termination of the services of the direct recruit judicial officers like the petitioner under Rule 9(4) of the Rules of 2006.
6. In the return filed by the High Court on 15.01.2018, it was pleaded that the order of termination of the petitioner is not stigmatic in nature and does not cast any stigma upon him. However, in the said affidavit, the plea taken by the petitioner that the recommendation of termination was made by the Standing Committee and not by the High Court was not adverted to.
7. The petitioner filed a rejoinder on 15.02.2018 to the return filed by the High Court, amongst others, stating that the allegations made in the complaint are unfounded allegations and during his two years of service on probation, no unsatisfactory or adverse remark was communicated to him. An additional rejoinder was filed by the petitioner on 12.07.2018 based on information received on the basis of applications made under the Right to Information Act, 2005 reiterating 6 that the recommendation for termination was made by the Standing Committee and not by the Full Court. An additional return was filed by the High Court on 02.05.2019. In paragraph 5 thereof, it is stated that Rule 4-O of Chapter 1-A of the Chhattisgarh High Court Rules, 2007 (for short, 'the Rules of 2007') provides that the final decision on the recommendation made by the Standing Committee would be taken by the Full Court and therefore, it is not necessary that the recommendations have to be made by the Full Court alone. It is further stated as follows :
"It is respectfully submitted that the standing committee has only made recommendation in contemplation of Chapter 1-A of the Rules of 2007, the final decision was taken by the full court and not by the standing committee".
8. In paragraph 6 of the impugned judgment of the learned Single Judge, it is stated as follows :
"6. On 27-1-2022, the petitioner filed documents along with copy of the extract of the Minutes of the Meeting of the Standing Committee dated 24-1-2017 obtained under the Right to Information Act to demonstrate that his termination was recommended by the Standing Committee and on the same day, the matter came up for hearing before this Court and time was sought and granted to counsel for respondent No.1 to file additional return, and 7 ultimately, additional return has been filed on behalf of respondent no.1 on 18-2-2022 stating that the petitioner's matter was placed for consideration before the Standing Committee and the Standing Committee taking into account the fact that the petitioner was on probation, recommended for termination of his services and pursuant to the recommendation of the Standing Committee, the Government of Chhattisgarh, Law and Legislative Affairs Department has passed order dated 6-2-2017 terminating the services of the petitioner. No further pleadings have been filed by the parties."
9. The Minutes of the meeting of the Standing Committee dated 24.01.2017 in respect of item 5(c) pertaining to the petitioner reads as follows :
"(c) The Standing Committee considered the overall performance and entire service record of Shri Ganesh Ram Burman. On perusal of the record, it is found that he is not fit for confirmation in service.
Therefore, it is resolved to recommend termination of his services under Sub-rule (4) of Rule 9 of the Chhattisgarh Higher Judicial Service (Recruitment & Conditions of Service) Rules, 2006."
10. It is not disputed before us by the appellants that the recommendation was made by the Standing Committee. In fact, in 8 paragraph 4 of the appeal memo, it is categorically stated that the Standing Committee had resolved to make recommendation for termination of the services of the petitioner.
11. Rule 9(4) of the Rules of 2006 reads as follows :
"9. Probation.___ (4) The High Court may, at any time, before the completion of the probation or officiation, as the case may be, recommend termination of the service of a direct recruit or recommend reversion of a promotee member of the service to his substantive post from which he was promoted."
12. Having regard to the materials on record, the learned Single Judge had framed the following two questions for consideration :-
"1. Whether the Standing Committee constituted by notification dated 4-7-2015 would have competence and jurisdiction to recommend the termination of the petitioner's services (probationer) to the State Government in terms of sub-rule (4) of Rule 9 of the HJS Rules read with Article 235 of the Constitution of India ?
2. Whether the termination of the petitioner's services from the post of District Judge was punitive / stigmatic warranting holding of full-fledged enquiry against him into the allegations of misconduct ?" 9
13. The learned Single had considered the power of the Standing Committee as laid down in Rule 4-C with particular reference to Rule 4-C (ix), 4-C (xii) and also the matters where decisions are required to be taken by the Judges at the meeting of the Full Court as laid down in Rule 4-O(i)(b) and on consideration of the same made the following observation at paragraph 30 :
"30. A focused glance of Rule 4-C(ix) of the Rules of 2007 would show that the High Court has conferred to the Standing Committee only the power to pass orders of suspension, initiation of departmental proceedings against members of the High Judicial Service and Subordinate Judicial Service, and consequential orders in the said proceedings other than that of dismissal from service. However, the power to make recommendation to the State Government for compulsory retirement of any Judicial Officer of any rank has also been conferred to the Standing Committee, but no power either expressly or impliedly to make recommendation for dismissal of a Judicial Officer / District Judge has been conferred in favour of the Standing Committee by the High Court. Even otherwise, Rule 4-O(i)(b) of the Rules of 2007 clearly states and makes the power of the Standing Committee more explicit that all recommendations for the dismissal from office of Judicial Officer shall be 10 made at a meeting of the Full Court of all Judges. This makes it vividly clear that the Standing Committee had no power and jurisdiction to make recommendation to the State Government for dismissal of the petitioner from the office of the District Judge and it was only the power and jurisdiction of the Full Court to make recommendation to terminate the services of the petitioner / probationer in terms of Article 235 read with Rule 9(4) of the HJS Rules.
14. While deciding question No.1, the learned Single Judge had observed at paragraphs 32 and 33 as follows :
"32. A careful perusal of the additional return filed by the High Court on 18-2-2022 would show that it is the Standing Committee which has recommended the case of the petitioner for termination to the State Government and on that basis the State Government passed order dated 6-2-2017 terminating the services of the petitioner.
33. From the aforesaid factual position on record, it is quite vivid that the competent authority to make recommendation for termination of the petitioner's services on the ground that his services were not satisfactory, was the Full Court of the High Court in view of Article 235 of the Constitution of India and in view of the judgments of the Supreme 11 Court noticed herein-above, however, in the present case admittedly, the Full Court had not made any recommendation for termination of the petitioner's services and it is the Standing Committee that has made such recommendation for dismissal of his services which the Standing Committee was neither empowered nor authorised in terms of notification dated 4-7-2015 to make recommendation to terminate the services of the petitioner. Since the power to make recommendation to the State Government to terminate the services of the petitioner is vested with the Full Court of the High Court by virtue of Article 235 of the Constitution of India, the Full Court would only be the competent authority to exercise such power, but, in the instant case, no such recommendation has been made by the Full Court of the High Court to terminate the services of the petitioner in terms of Rule 9(4) of the HJS Rules. Since the High Court has not made any recommendation in terms of Rule 9(4) of the HJS Rules to terminate the petitioner's services, the order of termination passed by respondent No.2 on the basis of recommendation of the Standing Committee is ipso facto unconstitutional, non-est and without authority of law, and deserves to be quashed. 12
15. With regard to question No.2, at paragraph 36 it was observed as follows :
"36. Since the impugned order of termination has already been held to be unconstitutional, non est and without authority of law, this question though placed for consideration, is not being gone into as held herein-above and question No.2 is answered accordingly."
16. Though in the additional return filed by the respondent No.1 on 02.05.2019 a plea was taken that final decision was taken by the Full Court, it is evident that a mis-leading statement was made in the affidavit filed that the final decision was taken by the Court. We record our displeasure for filing such an affidavit containing statements which are not borne out of records.
17. Mr. Prafull N. Bharat, learned senior counsel, appearing for the appellant, submits that Rule 4-B of the Rules of 2007 empowers the Standing Committee to recommend termination of a probationer. It is submitted that Rule 4-C (ix) of the Rules 2007 as also the proviso appended to Rule 4-C (xii) of the Rules 2007 empower the Standing Committee to make such recommendation. In respect of above submissions, he has drawn attention of the Court to paragraph 7 of the memo of appeal.
18. Mr. B. N. Mishra, learned counsel, appearing for the writ petitioner, relies on the judgment of the learned Single Judge and 13 submits that the writ appeal lacks merit and the same deserves to be dismissed.
19. We have considered the submission of learned counsel for the parties and perused the materials on record.
20. In the case of State of Uttar Pradesh Vs. Batuk Deo Pati Tripathi and Another, reported in (1978) 2 SCC 102, the Hon'ble Supreme Court had observed that Article 235 of the Constitution provides that the control over District Courts and courts subordinate thereto shall be vested in the High Court and since Article 216 provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint, Article 235 has to be construed to mean that the control over District Courts and courts subordinate thereto is vested in the entire body of Judges who together constitute the High Court and not in the Chief Justice as representing the High Court or an Administrative Judge or a smaller body of Judges acting as an Administrative Committee. It was further observed that though the control over subordinate courts is vested institutionally in the High Courts by Article 235, it did not follow that the High Courts have no power to prescribe the manner in which that control may in practice be exercised and that the very circumstance that the power of control, which comprehends matters of a wide-ranging variety, vests in the entire body of Judges makes it imperative that rules must be framed to make the exercise of control feasible, convenient and effective. It was further observed that 14 power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. It is an incident of the power itself and indeed, without it, the exercise of the power may in practice be fraught with difficulties which will frustrate, rather than further, the object of the power. It was observed that the power of control over the subordinate courts which is vested in the High Courts comprises such numerous matters often involving consideration of details of minutest nature and therefore, if the whole court is required to consider every one of those matters, the exercise of control, instead of becoming effective, will tend to cause delay and confusion in the administration of justice in the State. Control will be better and more effectively exercised if a smaller committee of Judges has the authority of the court to consider the manifold matters falling within the purview of Article 235.
21. Thus, the law laid down by the Hon'ble Supreme Court in Batuk Deo Pati Tripathi (supra) makes it explicit clear, a Committee of Judges by whatever name called if duly authorised by the Full Court can take decisions with regard to matters in respect of which authority has been granted to that Committee.
22. At this juncture, it will be appropriate that in exercise of powers conferred under Articles 225 and 227 of the Constitution of India, Section 25 of the Madhya Pradesh Reorganisation Act, 2000 and all other powers enabling it in that behalf, and in supersession of the High Court of Chhattisgarh Rules, 2005, the High Court of Chhattisgarh 15 had made the High Court of Chhattisgarh Rules, 2007. Chapter I-A was inserted w.e.f. 04.07.2015. Chapter I-A provides for Rules for disposal of Non-Judicial Business and it comprises of Rule 4-A to Rule 4-R.
23. Rule 4-A provides for constitution of Standing Committee comprising of the Chief Justice, two Judges nominated by the Chief Justice, who shall generally be the senior-most Judges and two Judges nominated by the Chief Justice by rotation for a period of two years. It is provided that one of them shall be a Judge appointed from Higher Judicial Service.
24. Rule 4-B provides that the Standing Committee shall be charged with the control and direction of the Subordinate Courts, so far as such control and direction are exercised otherwise than judicially. Rule 4-B is a general power by which Standing Committee has been charged with the control and direction of the Subordinate Courts on the administrative side.
25. Rule 4-C refers to the power of the Standing Committee without reference to the Judges generally to exercise such powers as are indicated therein.
26. Since arguments have been advanced on the touchstone of Rule 4-C (ix) and Rule 4-C (xii), it will be appropriate to extract Rule 4- C (ix) and Rule 4-C(xii) as under :
"(ix) to pass orders of suspension, initiation of departmental proceedings against members of the 16 Higher Judicial Service and Subordinate Judicial Service, and consequential orders in the said proceedings other than that of dismissal from service.
(xii) to make recommendation to the State Government for compulsory retirement of any Judicial Officer of any rank.
Provided that notice of the decision of the Standing Committee shall be circulated to the Full Court within ten days from the date of the decision and if any member of Full Court desires, within three weeks of the decision, the matter to be discussed at a meeting of the Full Court then no action will be taken till the decision at such a meeting."
27. At this juncture, it is relevant to state that though the learned Single Judge had extracted Rule 4-C(xii), the proviso thereto was not taken note of.
28. It will be also necessary to reproduce Rule 4-O(i)(b), which is as under :
4-O.(i) On the following matter decision shall be taken by the Judges at a meeting of the Full Court :-
(b) All recommendations for the dismissal from office of Judicial Officer."17
29. Rule 4-C(ix) empowers the Standing Committee to pass orders of suspension, initiation of departmental proceedings against members of the Higher Judicial Service and Subordinate Judicial Service, and consequential orders in the said proceedings other than that of dismissal from service. Present is not a case where any departmental proceedings have been initiated against the writ petitioner. Rule 4-C (ix) also does not empower the Standing Committee to pass any consequential orders of dismissal from service. In the instant case, the Standing Committee has recommended termination of service.
30. Rule 4-C (xii) provides that the Standing Committee is empowered to make recommendation to the State for compulsory retirement of any Judicial Officer of any rank. Proviso thereto lays down that notice of the decision of the Standing Committee shall be circulated to the Full Court within ten days from the date of the decision and if any member of Full Court desires within three weeks of the decision that the matter be discussed at a meeting of the Full Court, then no action shall be taken till the decision is taken at such a meeting. Present is not a case of Standing Committee making any recommendation to the State Government for compulsory retirement of the petitioner. Present is a case whereby the Standing Committee has recommended termination of the service of the petitioner before completion of probation. It is also not the case that recommendation of the Standing Committee was circulated to the Full Court and the Full Court had approved the same.
18
31. Rule 4-O(i)(b) makes it explicit clear that all recommendations for the dismissal from office of Judicial Officer has to be made pursuant to a decision taken by the Judges at a meeting of the Full Court.
32. In view of the above discussion, there is no escape from the conclusion that the decision of the Standing Committee recommending termination of the service of the petitioner was without jurisdiction. We are fully in accord with the view taken by the learned Single Judge that since the High Court has not made any recommendation in terms of Rule 9(4) of the Rules of 2006 to terminate the service of the writ petitioner, the order of termination passed by the respondent No.2 on the basis of recommendation of the Standing Committee is unconstitutional, non-est and without authority of law.
33. In view of the above discussion, we find no merit in this appeal. Accordingly, the writ appeal is dismissed.
34. We affirm the order of the learned Single Judge. We further observe that the High Court will take appropriate decision with regard to probation period of the writ petitioner expeditiously.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
CHIEF JUSTICE JUDGE
Chandra