Bombay High Court
Dr. Noorjehan Safia Niaz And 1 Anr vs State Of Maharashtra And Ors on 6 February, 2015
Equivalent citations: AIR 2015 BOMBAY 83
Author: V.K. Tahilramani
Bench: Mohit S. Shah, P.V. Hardas, V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 106 OF 2014
Dr. Noorjehan Safia Niaz & Anr. .. Petitioners
Vs
State of Maharashtra & Ors. .. Respondents
..........
Mr. Raju Moray with Mr. Sagar A. Rane for the petitioners.
Mr. Milind More, A.G.P. for respondent nos. 1 & 3 - State.
.........
ig WITH
NOTICE OF MOTION NO. 1414 OF 2014
IN
CENTRAL EXCISE APPEAL NO. 213 OF 2007
Santogen Textile Mills Ltd. .. Applicant
IN THE MATTER OF
Santogen Textile Mills Ltd. .. Appellant
Vs
The Commissioner of Central Excise
Mumbai II .. Respondents
.........
Mr. Jas Sanghvi i/by PDS Legal for the applicant / appellant.
.........
CORAM : MOHIT S. SHAH, C.J.,
P.V. HARDAS &
SMT. V.K. TAHILRAMANI, JJ.
DATE : FEBRUARY 6, 2015 1 ::: Downloaded on - 17/03/2015 21:10:05 :::
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P.C.:
1. When these matters were listed for hearing before the Division Bench of this Court, the Division Bench noticed that the Registry of the Original Side has not placed the affidavit in reply before the Court which is stated therein to have been filed on 20 January 2015. The learned Judges therefore made observations that inconvenience was caused to the Judges and the litigants on such lapses and therefore, passed the following order on 28 January 2015:-
"2. Let the Prothonotary and Senior Master and Registrar, High Court, Original Side proceed against the Master and Assistant Prothonotary (Judicial) and supporting staff about the lapses on their part, which are indeed serious. Let written warnings be issued to all of them and an entry be made to this effect in their confidential records."
2. For the purpose of compliance with the above directions, the matter was placed by the Registry before the Chief Justice on the administrative side and the Chief Justice directed the matter to be placed before the Bench of three Judges. Accordingly, the matter is listed before us today.
3. While dealing with issue of taking disciplinary action against any officer or employee of the High Court for any alleged lapse in relation to any judicial proceeding or an administrative matter, the concerned Judge/s may take note of what may appear to be a lapse on the part of the office staff and may even direct the Registry to call for an explanation from such staff. If 2 ::: Downloaded on - 17/03/2015 21:10:05 :::
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the explanation is not accepted by the learned Judge/s, the question would arise whether the power to take disciplinary action can be exercised by the learned Judge/s hearing the matter.
4. Article 229 of the Constitution of India, particularly clauses (1) and (2) thereof read as under:
"(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct :
Provided that the Governor of the State may be rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State."
5. The relevant provisions of the Bombay High Court Discipline and Appeal Rules read as under:
"2. Definitions.- In these rules, unless the context otherwise requires-3 ::: Downloaded on - 17/03/2015 21:10:05 :::
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(c) 'Appointing Authority' in relation to a High Court servant means-
(i) the authority competent to make appointments to the service to which the High Court servant is for the time being a member or to the grade of service in which High Court servant is for the time being included;
(ii) the authority competent to make appointment to the post which High Court servant for the time being holds;
(iii) 'Disciplinary Authority' means an authority competent under these Rules to impose on a High Court servant any of the penalties specified in the rules.
5. (a) Disciplinary Authority.- The Chief Justice or the appointing authority may impose any of the penalties so specified in rule 4 on a High Court servant .
(b) The Additional Registrars and any other Officer specially empowered by the appointing authority or the Chief Justice may impose any of the minor penalties in rule 4.
6. Authority to institute the proceedings.-
(1) The Chief Justice or any other authority empowered by him by general or special order may,-
(a) institute disciplinary proceedings against a High Court servant.
(b) a disciplinary authority competent under these Rules to impose any of the penalties specified in Rules may institute disciplinary proceedings against a High Court servant on whom the disciplinary authority is competent to impose any of the penalties specified in Rules."4 ::: Downloaded on - 17/03/2015 21:10:05 :::
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6. The above provisions of Article 229 have come up for interpretation in several cases and the Apex Court has time and again examined the scheme of Articles 229 and 235 of the Constitution.
In M. Gurumoorthy vs. Accountant General, Assam1, the Supreme Court summed up the scope of Article 229 of the Constitution in the following words:-
"The unequivocal purpose and obvious intention of the farmers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court, it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. ...... Clause (1) read with clause (2) of Article 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under clause (1). The approval of the Governor, as noticed in the matter of Rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval."
7. In Chief Justice of Andhra Pradesh Vs Dixitulu 2 the Supreme Court explained the ambit and scope of the power of Chief Justice to appoint officers and employees in the High 1 (1971) 2 SCC 137 2 (1979) 2 SCC 34 5 ::: Downloaded on - 17/03/2015 21:10:05 :::
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Courts in following words:
"29. Now, let us see what is the ambit and scope of the power of "appointment" in Article 229(1). In the context of Article 229, read as a whole, this power is of wide amplitude. The word "appointment" in Article 229(1) is to be construed according to axiom that the greater includes the less............ The power of "appointment" conferred by Article 229(1) includes the power to suspend, dismiss, remove or compulsorily retire from service. In short, in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent, indicated in the Provisos. In conferring such exclusive and supreme powers on the Chief Justice, the object which the founding fathers had in view, was to ensure independence of the High Court."
8. In High Court of Judicature for Rajasthan Vs P.P. Singh & Anr.3, the Supreme Court has observed as under:-
"19. It is also true that the powers of the Chief Justice under Articles 235 and 229 of the Constitution of India are different and distinct. Whereas control over the subordinate courts vests in the High Court as a whole, the control over the High Court vests in the Chief Justice only."
(emphasis supplied)
9. Similarly in High Court of Judicature for Rajasthan Vs Ramesh Chand Paliwal & Anr.4, the Apex Court has held as under:-
3 (2003) 4 SCC 239 4 (1998) 3 SCC 72 6 ::: Downloaded on - 17/03/2015 21:10:05 :::
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"30. .... The Chief Justice has been vested with wide powers to run the High Court Administration independently so as not to brook any interference from any quarter, not even from his Brother Judges who, however, can scrutinise his administrative action or order on the judicial side like the action of any other authority.
36. What is, therefore, of significance is that although in Article 235, the word "High Court" has been used, in Article 229 the word "Chief Justice" has been used. The Constitution, therefore, treats them as two separate entities inasmuch as "control over subordinate courts" vests in the High Court, but High Court administration vests in the Chief Justice.
38. As pointed out above, under the constitutional scheme, Chief Justice is the supreme authority and the other Judges, so far as officers and servants of the High Court are concerned, have no role to play on the administrative side. Some Judges, undoubtedly, will become Chief Justices in their own turn one day, but it is imperative under the constitutional discipline that they work in tranquility. Judges have been described as "hermits". They have to live and behave like "hermits" who have no desire or aspiration, having shed in through penance. Their mission is to supply light and not heat. This is necessary so that their latent desire to run the High Court administration may not sprout before time, at least, in some cases."
(emphasis supplied)
10. The question whether any other Judge of the High Court can take disciplinary action against staff members of the High Court also came up for consideration before a Division Bench of the Gujarat High Court in Suo Motu Vs S.J. Gaekwad, Registrar, Gujarat High Court5. In the said case, a Single Judge of the Gujarat High Court gave directions to the Registry 5 (2001) 1 GLR 752 7 ::: Downloaded on - 17/03/2015 21:10:05 :::
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to initiate action against concerned clerk for not being diligent in performing his duties and to apprise the Court about the action initiated by the Registry. The Single Judge initiated suo motu contempt proceedings for non-compliance with the above directions. The Division Bench considered several decisions of the Supreme Court including the aforesaid decisions and held as under:-
"9.3 The power to initiate disciplinary proceedings against any officer or other staff member of the High Court, thus constitutionally lies within the exclusive domain of the Chief Justice under Article 229. The Constitution treats 'High Court' and 'Chief Justice' as two separate entities inasmuch as "Control over subordinate Courts" vests in the High Court under Article 235, but the High Court administration vests in the Chief Justice under Article 229. As held by the Supreme Court in M. Gurumoorthy v. A. G., reported in 1971 (2) SCC 137, Article 229 contemplates full freedom to the Chief Justice of the High Court in the matter of appointments of officers and servants of the High Court. The unequivocal and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matters of such appointments, it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent provided in the Article itself. In the matter of appointments, even the Legislature cannot abridge or modify the powers conferred on the Chief Justice under Article 229(1). The power available to the Chief Justice of a High Court under Article 229 is akin to powers of the Chief Justice of India under Article 146 of the Constitution as held by the Supreme Court in High Court of Rajasthan v. R. C. Paliwal (supra). The Supreme Court also held that, the Chief Justice has been vested wide powers to run the High Court administration independently so as not to brook any interference from any quarter, not even from his brother Judges who, however, can scrutinise his 8 ::: Downloaded on - 17/03/2015 21:10:05 :::
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administrative action or order on the judicial side like the action of any other authority.
10. Under Article 229 of the Constitution, the Chief Justice may exercise the power himself or exercise it through such other Judge or officer (such as the Registrar) of the Court,-as he may direct. Any direction to hold an inquiry against an officer or other member of the High Court, staff would therefore, essentially amount to exercise of powers under Article 229 and this can be done only by the Chief Justice or his Nominee. The power of the Chief Justice or his Nominee to take disciplinary action against officers and servants of the High Court cannot be curtailed by any interference from any quarter, not even from his brother Judges. Nor can there be a regular monitoring of any departmental action against an employee by the Court, because, that would amount to usurping the constitutional powers of the Chief Justice under Article 229, resulting in judicial arm-twisting of the Chief Justice and would constitute a serious inroad in the exclusive administrative powers of the Chief Justice. The initiation, nature, progress and outcome of disciplinary action against any officer or other employee of the High Court are the sole preserve of the Chief Justice. No contempt action, can therefore, be taken by this Court against any officer or other employee of the High Court for any administrative lapse or inaction, for which a proper remedy would be of administrative reform by the Chief Justice or departmental action that may be taken by the Chief Justice in his wisdom under Article 229 of the Constitution."
(emphasis supplied)
11. It is, thus, clear that as per the above constitutional scheme and the settled legal position, the learned Judges constituting the Division Bench in the present case could not have issued any direction to the Registry to issue warnings to the concerned staff members and record the written warnings in 9 ::: Downloaded on - 17/03/2015 21:10:06 :::
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their confidential records. This is not to say that absence of diligence, if any or the lapse, if any on the part of any staff member is to be ignored or trivialized but the question is about the competence and jurisdiction of the Judges of this Court other than the Chief Justice to initiate disciplinary action against the members of the Registry.
12. As per the above constitutional provisions, the decisions of the Apex Court and the settled legal position emerging from the authorities cited above, the learned Judges who passed the order dated 28 January 2015 did not have such powers. On this short ground alone, the directions contained in paragraph 2 of the order dated 28 January 2015 are recalled and the question of examining alleged lapses will be placed before the Chief Justice for appropriate action on the administrative side.
13. The observations made in paragraph 1 of the order dated 28 January 2015 commencing from "The state of affairs in the O.S. Registry ........." and ending with "The oral warnings issued from time to time have had no impact on the Registry officials" are deleted.
14. We may note here that on 4 February 2015, the Prothonotary & Sr. Master and the In-charge Registrar (Judicial- I) of the High Court has issued Practice Note No. 37 containing following directions:-
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"1. Any affidavit, Affidavit-in-reply, rejoinder and sur-rejoinder, shall be paginated correctly by the party filing the same in the Registry in respective department of the Original Side / Appellate Side.
2. A copy of any Affidavit, Affidavit-in-reply, rejoinder and sur-rejoinder shall be served by the party filing affidavit to all parties to the proceeding who have appeared in the matter on the date of filing or on the immediate next working day.
3. The Parties filing affidavit shall mention the due date of the matter on the presentation form and if no date is assigned, an endorsement to that effect shall be made by the party.4.
The Registrar General shall nominate an officer each in every Filing Department who shall ensure that such Affidavit / Reply / Rejoinder etc. is placed in the concerned proceeding on the same day of its filing and in any case not beyond next working day."
15. The copy of this order shall be served upon the Registrar General and the Prothonotary & Senior Master of this Court.
CHIEF JUSTICE (P.V. HARDAS, J.) (SMT. V.K. TAHILRAMANI, J) 11 ::: Downloaded on - 17/03/2015 21:10:06 :::