Rajasthan High Court - Jaipur
Ravindra Nath vs State Of Rajasthan And 3 Ors. on 30 June, 1986
Equivalent citations: 1986(2)WLN482
Author: Suresh Chandra Agrawal
Bench: Suresh Chandra Agrawal
JUDGMENT Suresh Chandra Agrawal, J.
1. In this writ petition, the petitioner, Ravindra Nath, has assailed the order (Ex. 46) dated 16th March, 1984 passed by the Governor of Rajasthan where by the petitioner has been dismissed from service by way of punishment for misconduct.
2. The petitioner was a member of the Rajasthan Higher Judicial Service (RFDS). During the period from October, 1980 to February, 1981 he was posted as District & Sessions Judge, Merta. A complaint was made by one Jorawarmal against the petitioner and on the said complaint a preliminary inquiry was conducted by M.C. Jain, J. After the said preliminary inquiry it was decided to initiate disciplinary proceedings against the petitioner and the petitioner was suspended by order (Ex 2) dated 2nd December, 1981. The Chief Justice nominated Dr. K.S. Sidhu J. as the disciplinary authority to hold the inquiry and the disciplinary authority issued a memorandum (Ex. 3) dated 29th January, 1982 to the petitioner whereby the petitioner was informed that it was proposed to hold an inquiry against him under rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (here in after referred to as 'the CCA Rules') and the petitioner was required to submit a written statement of his defence within a period of 15 days from the date of receipt of the said memorandum and also to state whether he desired to be heard in person and to furnish the names and addresses of the witnesses, if any, he wished to call in support of his defence avid to furnish a list of documents if any which he wished to produce in support of his defence. The said memorandum was accompanied by the statement of charges (Ex. 4) and the statement of allegations (Ex. 5) on the basis of which the charge was framed. The charge (Ex. 4) was as under:
That while working as Distt. and Sessions Judge, Merta you either your self or in the alternative through Shri Jagdish Nai, received a sum of Rs. 5000/- on 17-10-80 and Rs. 7000/- on 5-12-1981 in all a sum of Rs. 12000/- from one Jorawar MalSoni by way of illegal gratification as a consideration for giving a decision favourable to him in Civil Suit No. 8 of 1966 Gopal Lal v. Kishan Lal Jorawar Maland Ors. pending in Court of Distirct Judge, Merta.
3. The statement of allegations regarding the said charge was as under:
That a suit for partition No. 8 of 1966 titled Gopal Lal v. Kishan Lal Jorawar Maland Ors. was pending in the Court of Distt., Judge Merta while you were working as Distt. Judge at Merta. In that case you called Jorawar Malat your residence through one Jagdish Nai and demanded Rs. 15,000/- from him You asked Jorawar Malto pay Rs. 5,000/- to Shri Jagdish Nai and also told Jorawar Malthat no writing should be executed as evidence thereof. Jorawar Malon 17-10 80 delivered a bearer cheque of Rs. 5000/- bearing No. AN 744189 drawn on the State Bank of Bikaner and Jaipur to Jagdish Nai which Shri Jagdish Nai encashed on the same day on 17-10-80. Shri Jorawar Malgot it verified from you that you had received the payment of the cheque. On 3rd or 5th of the Feb., 1981 you called Jorawar Malat your residence and demanded a further sum of Rs. 10,000/- from him. Towards this amount he paid a sum of Rs. 7,000/- on 5-2-1.981 in cash to Shri Jagdish for which Jorawar Malgot executed from Jagdish a pronote in the name of his son Dev Karan the same day. The pronote was executed by Jagdish on your behalf. Since his case was not decided in his favour he sent separate telegraphic notice on 18-2-81 to both you and Jagdish demanding from both of you to refund of Rs. 12,000/-. You did not reply to this telegraphic notice. Instead, you expressed your displeasure to Jorawar Maland told him that the telegraphic notice should not have been sent to you. You also promised to refund the amount but you did not. Jorawar Mal also telephoned to you at Pali and demanded his payment. Thereafter Shri Jorawar Malsent you a registered notice dated 5-3-81 demanding payment but you neither made the payment nor replied to the notice. You received the payment in a case which was pending in your Court and from a person who was party to it through your man Shri Jagdish Nai.
4. The petitioner did not submit the written statement of defence in reply to the charge. On 8th June, 1982 the disciplinary authority recorded plea of the petitioner wherein the petitioner denied the charge. The petitioner denied that he had demanded Rs. 15,000/- from Jorawar Maland also denied that he had asked Jorawarmal to pay Rs. 5,000/- to Jagdish Nai and told him that no writing should be executed. He denied the knowledge of the bearer cheque for Rs. 5,000/- being given by Jorawarmal to Jagdish Nai on October 17, 1980 and the same being encashed by Jagdish Nai. He also denied that Jorawarmal got verified from the petitioner regarding the receipt of the amount of the cheque. The petitioner also denied the allegation that he had called Jorawarmal at his residence on 3rd or 5th February, 1981 and demanded the payment of Rs. 10,000/- from him and expressed his ignorance whether Jorawar Malhad paid Rs. 7,000/- to Jagdish Nai on 5th February, 1981 and got a promissory note executed from him in favour of his son Dev Karan. The petitioner also denied the receipt of the notice or telegraphic notice from Jorawarmal on 18th February, 1981 regarding refund of the amount of Rs. 12,000/-and also denied the allegation that he had expressed displeasure to Jorawarmal regarding telegraphic communication mentioned above. The petitioner also denied that he had promised to refund the amount of Rs. 12,000/- and stated that he did not receive any telephonic call from Jorawar Malat Pali about payment of any money from him. He also denied the receipt of any registered notice dated 5th March, 1981 purporting to have been sent by Jorawarmal Soni and stated that the material on which the charge was framed, is fabricated.
5. Thereafter the disciplinary authority recorded the evidence of the witnesses produced by the Presenting Officer. The petitioner examined himself as a witness in his defence and produced 5 other witnesses including Jagdish Nai. The disciplinary authority in his report (Ex. 41) dated May 19, 1983 held that the charge framed against the petitioner had been partly established in as much as it was conclusively proved that he had received payment of Rs. 12,000/- from Jorawarmal Soni, a litigant in his court, through Jagdish Nai apparently as a loan on the assurance that he would repay the amount, but he did not repay it, The disciplinary authority issued a show-cause notice (Ex. 40) dated 19th May, 1983 whereby the petitioner was informed that the disciplinary authority was of the opinion that the penalty of dismissal from service should be imposed on the petitioner and the petitioner was required to submit within a period of one month from the date of receipt of the said notice such representation as he may wish to make on fie proposed penalty. Along with the said notice, a copy of findings on the charge framed against the petitioner was also enclosed. The petitioner did not submit any reply to the said show-cause notice. There upon the disciplinary authority submitted its recommendation dated 22nd July, 1983. The report of the disciplinary authority dated 19th May, 1983 and the recommendation dated 22nd July, 1983 were considered by the Full Court and the Full Court agreed with the findings as well as the punishment proposed by the disciplinary authority. The recommendations of the Full Court were considered by the Governor who after considering the said recommendations and all the relevant material and records, agreed with the findings and the proposed punishment and thereupon the impugned order (Ex. 46) dated 19th March, 1984 was passed whereby the petitioner was dismissed from service with immediate effect. Feeling aggrieved by the said order, the petitioner has filed this writ petition.
6. It may be stated that the petitioner had earlier filed a Writ Petition, being SBCW No. 1783 of 1983, in this Court before passing the impugned order (Ex. 46) wherein he had challenged the findings recorded by the disciplinary authority. During pendency of the said writ petition the impuged order was passed. The petitioner sought leave to amend the said writ petition but the said application for leave to amend the writ petition was dismissed by order (Ex. 47) dated 26th March, 1984 and there upon the petitioner withdrew the said writ petition with liberty to file a fresh writ petition and the said writ petition was dismissed as withdrawn with liberty to the petitioner to file fresh writ petition with fresh cause of action.
7. In this writ petition a notice was issued to the State of Rajasthan & the High Court, respondents Nos. 1 and 2 to show cause as to why the writ petition be not admitted and in response to the said notice, a reply to the writ petition has been filed on behalf of Respondent No. 2, namely, the High Court. The petitioner has filed a rejoinder to the said reply.
8. It may also be stated that the petitioner had moved transfer petitions in the Supreme Court for the transfer of this writ petition as well as two other matters of the petitioner pending in this Court. The said transfer petitions were rejected by the Supreme Court by order dated 31st March, 1986 with the observation that a bench of two Judges, who have not declined to hear the writ petition, may be constituted and the writ petition may be taken up for hearing at an early date and maybe disposed of as far as possible within three months from the date of passing of the said order, in view of the aforesaid order of the Supreme Court, this Bench was constituted by Hon'ble the Chief Justice for hearing this writ petition and the other two matters.
9. The petitioner, who has argued his case in person, has addressed elaborate arguments before us and has also placed reliance on a number of decisions of the Supreme Court and the various High Courts. Before we deal with the submissions urged by the petitioner, we may mention that for the purpose of exercising control vested in it under Article 235 of the Constitution of India over the judicial officers, the High Court had earlier passed a Full Court resolution dated 6th May, 1967 whereby the procedure to be followed in the matters of suspension and taking disciplinary action against judicial officers was prescribed. The said resolution was superseded by Full Court resolution dated 30th October, 1971. In the aforesaid Resolution dated 30th October, 1971 it has been stated that the CCA Rules which make provisions for taking disciplinary action, have been made under proviso to Article 309 of the Constitution and they, cannot, therefore, apply to the Presiding Officers of the District Courts and the courts subordinate thereto in so far as they are inconsistent with the provisions of Article 235 of the Constitution. By the said resolution it was also decided as under:
The control under Article 235 is vested in the Full Court, but as it is not convenient for the Full Court to act in all matters the following delegation of powers is made by it:
(1) The Chief Justice and the Administrative Judge are empowered to initiate disciplinary action against Judicial Officers including District Judges;
(2) The Chief Justice is empowered to place a Judge of a subordinate court under suspension under Rule 13(1) and to revoke such an order under Rule 13(5) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958;
(3)(i) The Administrative Judge or a Judge nominated by the Chief Justice shall have the power to take disciplinary action and to impose on a Judicial Officer any of the penalties enumerated in Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, execpt those of removal and dismissal from service;
(ii) The order of the Administrative Judge or a Judge nominated by the Chief Justice recommending removal or dismissal of a subordinate Judicial Officer shall be placed before the Full Court and the Full Court may accept the recommendation or reverse, modify or alter it in any manner it thinks proper;
(iii) If the Full Court is of the opinion that a subordinate Judicial Officer should be removed or dismissed from service it shall send its recommendation to that effect to the State Government for necessary action in accordance with the provisions of Article 311 of the Constitution;
(4) With regard to the meeting; of the Full Court the provisions contained in the Rajasthan High Court Rules will apply.
10. The petitioner has urged the following contentions to assail the validity of the impugned order of dismissal:
(i) The disciplinary proceedings conducted by the disciplinary authority were void being completely without jurisdiction;
(ii) The charge was framed with a closed mind without any relevant material;
(iii) The petitioner was denied reasonable opportunity of defending himself before the disciplinary authority;
(iv) The findings recorded by the disciplinary authority are perverse and are based on no evidence and are based on irrelevant and extraneous considerations;
(v) The second show-cause notice issued by the disciplinary authority was without jurisdiction and no action could be taken against the petitioner on the basis of the said show-cause notice;
(vi) The order of dismissal was passed by the Governor in breach of the undertaking given before this Court by the Government Advocate in SBCW No. 1783 of 1983; and
(vii) The petitioner was not supplied with the copy of findings of the disciplinary authority dated 22nd July, 1983, on which reliance has been placed in the impugned order of dismissal.
11. As regards the jurisdiction of the disciplinary authority to hold the disciplinary proceedings against the petitioner, the petitioner has, in the first place, submitted that he is governed by the Public Servants (Inquiries) Act., 1850. Since he was a public servant who was not removable without sanction of the Government and that the inquiry against him should have been conducted in accordance with the provisions of the said Act and it could not have been conducted under the CCA Rules. In our opinion there is no substance in the aforesaid contention. Under Article 235 of the Constitution the control over district courts and courts subordinate there to including the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district judge is vested in the High Court. The said provisions have been considered by the Supreme Court in a number of decisions. In Baradakanta Mishra v. High Court of Orissa the Supreme Court after taking note of the earlier decisions, has held:
The word "control" is accompanied by the word "vest" which shows that the High Court is made the sole custodian of the control over the judiciary. Control is not merely the power to arrange the day-to-day working of the court but contemplates disciplinary jurisdiction on the Presiding Judge. The word "control" includes something in addition to the mere superintendence of these courts. The control is over the conduct and discipline of Judges. The inclusion of a right of appeal against the orders of the High Court in the conditions of service indicates an order passed in disciplinary jurisdiction. The word "deal" in Article 235 also indicates that the control is over disciplinary and not mere administrative jurisdiction. The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including initial posting and promotion of District Judges and dismissal, removal, reduction in rank of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal subject however to the conditions of service to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by Clause (2) of Article 311 unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone could make enquiries into disciplinary conduct.
12. In Shamsher Singh v. State of Punjab and Ors. the action of the High Court in asking the State Government to depute the Director of Vigilance for holding an inquiry against a judicial officer was deprecated by the Supreme Court as an act of self-abnegation.
13. In the circumstances it must be held that the High court alone has She power to initate and hold disciplinary proceedings against a judicial officer and (lie said power cannot be exercised by the State Government. Under the Public Servants (inquiries) Act, 1850, provision has been made for holding Inquiries into the conduct of the public servants covered by the said Act, by the State Government in the case of persons employed in that Government and by the Suite Government in the case of persons employed under that Government whenever the Government concerned is of the opinion that there are good grounds for making a formal and public inquiry into the truth of any impuration or misbehaviour by any person in the service of the Government and the said Act prescribes the authority to whom an inquiry may be committed, hi other words the said Act prescribes that the State Government can initiate an inquiry against the Government servant covered by the said Act and can also appoint authority to conduct the said inquiry. The provisions of the aforesaid Act which empower the State Government to initiate an inquiry into the conduct of public servant thus impinge on the control vested in the High Court over the district courts and the courts subordinate thereto and the said provisions cannot, therefore, be made applicable to judicial officers.
14. Further more it may be mentioned that the only purpose for which an inquiry under the Public Servants (Inquiries) Act, 1950, can be made is to enable the Government to come to a definite conclusion regarding misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him. In S.K. Venkataraman v. Union of India and Anr. it has been held that the inquiry under the said Act is not compulsory and it is quite open to the Government to adopt any other method if it so chooses and that it is the matter of convenience merely and nothing else. Thus we find that there are two sets of provisions under which an inquiry into the alleged misconduct of a public servant can be conducted, one is that contained in Rule 16 of the CCA Rules and the other is that contained in the Public Servants (Inquiries) Act, 1850. The Full Court, in its resolution dated 30th October, 1971 has chosen to follow the procedure laid down in the CCA. Rules to the extent it is inconsistent with the provisions of Article 235 of the Constitution for the purpose of taking disciplinary action against the Presiding Officers of the district courts and the court subordinate thereto. The Full Court could have prescribed the procedure to be followed in the matter of taking disciplinary action against judicial officer and it has chosen to prescribe the procedure contained in the CCA Rules subject to the condition that the said rules would be applicable in so far as they are not inconsistent with the provisions of Article 235 of the Constitution. In the circumstances the appointment of the disciplinary authority and the proceedings taken by him under the CCA. Rules cannot be held to be without jurisdiction on the ground that such an inquiry could only be conducted in accordance with the provisions of Public Servants (Inquiries) Act, 1850.
15. Another contention that has been urged by the petitioner to challenge the jurisdiction of the disciplinary authority to hold the inquiry is that the Full Court Resolution dated 30th October, 1971 is illegal. In this connection the submission of the petitioner is that the resolution is not a law but mere expression of opinion and has no binding force and that such a resolution can only be of a temporary nature. The submission of the petitioner is also that the control that is vested in the High Court under Article 235 of the Constitution has to be exercised by the High Court, as a whole, and that it was not permissible for that the Full Court authorised the Chief Justice to appoint the disciplinary authority and that this amounts to abdication of the control by the Full Court. In support of his aforesaid submission, the petitioner has invited our attention to page 313-314 of Vol. 77 of Corpus Juris Secundum as well as page 3 of Vol. 37A of Words and Phrases Permanent Edition. The petitioner has also placed reliance on the decision of the Andhra Pradesh High Court in in the State of Andhra Pradesh v. Mohammed Mazharuddin Ahmed 1971 (1) SLR 538 and the decision of the Supreme Court in State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Anr. . We are of the view that this contention of the petitioner is also without substance. As the control over the district courts and the courts subordinate thereto is vested in the High Court under Article 235 of the Constitution, it is permissible for the High Court to prescribe the manner in which the said control is to be exercised. Since the High Court consists of body of persons, namely, the learned Judges of the High Court, the view of the High Court can only be expressed through a resolution passed at the meeting of the Full Court and such a resolution of the Full Court embodies, the ultimate expression of opinion of the learned Judges constituting the High Court. The Full Court Resolution dated 30th October, 1971 is in the nature of a law which prescribes the manner in which the control vested in the High Court under Article 235 of the Constitution over the judicial officers may be exercised. In Ugam Raj Bhandari v. The State of Rajasthan and Anr. 1979 WLN 737, a division bench of this Court, while considering the earlier Full Court Resolution dated 6th May, 1967 has observed that the said Full Court Resolution had sought to amend the CCA Rules which was applicable to judicial officers and to Jay down a fresh set of rules for regulating the procedure for taking disciplinary action against the judicial officers and was, therefore, legislative in character and it was not purely an administrative order involving delegation of powers of the High Court in favour of the Chief justice and the Administrative Judge. We may in this connection refer to the decision of the Full Bench of the Andhra Pradesh High Court in B. Ramanjaneyulu v. Government of A.P. and Anr. 1981 (2) SLR 478. In that case the Judges of the Andhra Pradesh High Court had passed a resolution whereby it was decided that the administrative work of the High Court should be considered by different committees which were to be constituted to deal with the particular class of business and one such committee that was constituted was the disciplinary committee to deal with complaints about corruption in judiciary. It was contended before that High Court that this could be done only by rules framed under Article 235 of the Constitution and it could not be done by a resolution of the Full Court and reliance was placed on the observations of the Supreme Court in State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Anr. (supra) to the effect that the High Court has power under Article 235 itself to frame rules for regulating the manner in which control vested may be exercised. The learned Judges of the Andhra Pradesh High Court rejected the said contention and observed that it is open to the High Court to devise the manner and method by which the power is entrusted to a smaller body and there is nothing in the language of Article 235 which indicates that it is obligatory on the part of the High Court to do so only by framing rules and that there is no reason why it cannot confer this power by means of a resolution and the learned Judes have held that in the State of Utter Pradesh v. Batuk Deo Pali Tripathi and another (supra) the Supreme Court never laid down or intended to lay down that the authorisation by the High Court to a committee should be only by rule and not in any other manner and that the entire reasoning of the Supreme Court regarding the need to vest in the High Court the power to authorise a smaller body to exercise administrative functions would apply to any appropriate manner and method of authorisation. We find ourselves fully in agreement with the aforesaid decision of the Andhra Pradesh High Court and we are, therefore, of the opinion that it was permissible for the Full Court to prescribe the manner in which control vested in the High Court under Article 235 of the Constitution should be exercised, by adopting the Full Court Resolution dated 30th October, 1971 and we are unable to agree with the contention of the petitioner that such control can only be exercised through the rules framed by the High Court.
16. The petitioner has also urged that the resolution dated 30th October, 1971 can only bind the Judges who were parties to the said resolution and it has ceased to have binding authority after the Judges who had passed (he said resolution ceased to hold office. The aforesaid contention has also been considered by the Full Bench of the Andhra Pradesh High Court in B. Ramanjuneyulu v. Government of Andhra Pradesh and Anr. (supra) and has been rejected. The learned Judges have observed:
The High Court consists of the Chief Justice and the other Judges of the High Court for the time being. If a resolution is passed by the Chief Justice & the Judges it would be a resolution of the High Court. The mere fact that there is a subsequent change in the personnel of the Judges, either by retirement or by fresh appointment, the character of the previous resolution being one of the High Court will not be changed, it would be resolution of the High Court for all the time unless it is changed by another resolution of the High Court. It is not necessary that there should be a fresh resolution every time there is a change in the personnel of the Judges.
We fully endorse the aforesaid view and for the same reasons, the contention of the petitioner cannot be accepted.
17. The petitioner has next contended that the Full Court Resolution dated 30th October, 1971 cannot have binding force since it was not published in the Gazette and in this connection he has placed reliance on the decision of the Supreme Court in Harla v. The State of Rajasthan AIR 1915 SC 467. In this context it may be stated that in Ugam Raj Bhandari v. The State of Rajasthan and another (supra), a division bench of the court has considered this question with reference to the Full Court Resolution dated 6th May, 1967. In that case this Court, after referring to the decision of the Supreme Court in Harla v. The State of Rajasthan (supra) has referred to the decision of the Full Bench of the Bombay High Court in Chandrkant Sokharam Karkhanis and Ors. v. State of Maharashtra and Ors. and has endorsed the view that although it was not necessary that the resolution should be published in the official gazette, there should be publication in a manner as to bring the contents of the said resolution to the knowledge of all the judicial officers who were effected by the said resolution. In the present case we find that in the reply to the show cause notice filed on behalf of Respondent No. 2 it has been stated that copy of the resolution dated 30th November, 1971 was sent to each judicial officer in Rajasthan, including the petitioner by the High Court and the photostat copy of the letter dated 9th November, 1971 addressed to the various judicial officers has been filed as Annexure-1. In his rejoinder the petitioner has not specifically denied that copy of the resolution dated 30th October, 1971 was not received by him and what he has asserted is that until and unless the resolution is made known to all by publication, it cannot take the place of law and remains a domestic document. In view of the aforesaid assertion in the reply to the show cause notice filed on behalf of Respondent No. 2, it must be held that a copy of the resolution dated 30th October, 1971 was sent to all the judicial officers, including the petitioner, and the contents of the said resolution were therefore brought to the notice of all the judicial officers including the petitioner who were to be affected by the said resolution. In this connection it may also be pointed out that the relevant portions of the resolution dated 30th October, 1971 have been noticed by this Court and have been reproduced in the judgment of this Court in Jagdish Kumar Singh v. The State of Rajasthan and Ors. 1980 WLN 1. In these circumstances it is not possible to accept the contention of the petitioner that the resolution dated 30th October, 1971 was not duly published and was therefore, not operative in law.
18. As regards the contention of the petitioner that the said resolution of the Full Court dated 30th October, 1971 involves abdication of the powers of the High Court in favour of the Chief Justice in the matter of nominating the disciplinary authority, we may point out that in the State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Anr. (supra), the Supreme Court has rejected the contention that by leaving the decision of compulsory retirement of the judicial officers to the Administrative Committee the High Court had abdicated its constitutional function. The Supreme Court held that the Administrative Judge or the Administrative Committee is a mere instrumentality through which the entire court acts for more convenient transaction of its business, the assumed basis of the arrangement being that such instrumentalities will only act in furtherance or the broad policies evolved from time to time by the High Court as a whole and that each Judge of the High Court is an integral limb of the Court. The Supreme Court has observed:
A construction which will frustrate the very object of the salient provisions contained in Article 235 ought, in so far as possible, to be avoided. The control vested in the High Courts by that article comprehends, according to our decisions, a large variety of matters like transfers, subsequent postings, leave, promotions other than initial promotions, imposition of minor penalities which do not fall within Article 311, decisions regarding compulsory retirement, recommendations for imposition of major penalities which fall within Article 311, entries in character rolls and so forth. If every Judge is to be associated personally and directly with the decision on every one of these matters, several important matters pertaining to the High Court's administrative affairs will pile into arrears like court arrears. In fact, it is no exaggeration to say that the 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. Bearing in mind therefore the nature of the power which that article confers on the High Courts, we are of the opinion that it is wrong to characterise as 'delegation' the process wherby the entire High Court authorises a Judge or some of the Judges of the Court to act on behalf of the whole Court. Such an authorisation effectuates the purpose of Article 235 and indeed without it the control vested in the High Courts over the subordinate courts will tend gradually to become lax and ineffective. Administrative functions are only a part, though an important part of the High Court's constitutional functions. Judicial functions ought to occupy and do in fact consume the best part of a Judge's time. For balancing these two-fold functions it is inevitable that the administrative duties should be left to be discharged by some one behalf of all the Judges. Judicial functions brook no such sharing of responsibilities by any instrumentality.
In B. Ramanjaneyulu v. Government of Andhra Pradesh and Anr. (supra), the High Court of Andhra Pradesh had passed a resolution authorising the Chief Justice to constitute different committees, including the Disciplinary Committee, and in exercise of the said power the Chief Justice had been constituting, from time to time, various committees of the Judges for dealing with different classes of administrative business including the Disciplinary Committee. The Full Bench of the High Court held that the punishment recommended by the Disciplinary Committee to the Government must be held to be the recommendation of the High Court. The present case stands on a higher footing. Here under the Full Court Resolution dated 30th October, 1971 the Chief Justice has been empowered to nominate a Judge to take disciplinary action against judicial officer. In a case where the punishment proposed is removal or dismissal from service, the matter has to be placed before the Full Court and it is open to the Full Court to accept the recommendations of the disciplinary authority nominated by the Chief Justice or reverse, modify or alter it in any manner it thinks proper. This shows the ultimate control incases where the punishment of removal or dismissal from service is to be imposed vests in the Full Court. In the circumstances it cannot be held that the Full Court Resolution dated 30th October, 1971, whereby the Chief Justice has been empowered to nominate the Judge for the purpose of taking disciplinary action against a judicial officer, amounts to abdication by the Full Court of the control vested in the Full Court under Article 235 of the Constitution.
19. The decision of the Andhra Pradesh High Court in The State of Andhra Pradesh v. Mohammed Mazharuddin Ahmed (supra), on which reliance has been placed by the petitioner, has no application to the present case. In that case it was held that according to the law in force in Hyderabad on the relevant date it was the Administrative Bench that could hold the enquiry, or direct it to be held by one of the Judges. The appointment of the Enquiry Officer in that case was not by the Administrative Bench. In the present case we find that under the Resolution of the Full Court dated 30th October, 1971 the Chief Justice has been empowered to nominate one of the judges as the disciplinary authority for taking disciplinary action against a judicial officer and, therefore, the nomination of Dr. K.S. Sidhu, J. as the disciplinary authority by the Chief Justice was fully in accordance with the Resolution dated 30th October, 1971. Thus, none of the contentions urged by the petitioner to challenge the validity of the Resolution of the Full Court dated 30th October, 1971, and the jurisdiction of the disciplinary authority to hold the inquiry against the petitioner, merits acceptance and the first ground of challenge to the validity of the impugned order fails.
20. The second ground that has been urged by the petitioner relates to the charge. The petitioner has submitted that the charge was framed by the disciplinary authority with a closed mind with pre-occupied bias and without any relevant material. In this connection the submission of the petitioner is that in the charge it has been alleged that the petitioner had received a sum of Rs. 12,000/- from Jorawar MalSoni by way of illegal gratification as a consideration for giving a decision favourable to him in Civil Suit No. 8 of 1966 Gopal Lal v. Kishan Lal Jorawarmal and Ors. The petitioner has urged that in the complaint that was made by Jorawarmal Soni, it has not been alleged that the sum of Rs. 12,000/-was paid by him to the petitioner and the said sum was received by the petitioner by way of illegal gratification as consideration for giving a decision favourable to him, and in this connection, the petitioner has invited our attention to the copy of the complaint which has been filed as Ex. 50 with the writ petition. The submission of the petitioner was that according to the complaint the case of the complainant (Jorawarmal) was that a sum of Rs. 12,000/- was paid to the petitioner by way of loan. The petitioner has also submitted that the charge is not based on the report of the preliminary inquiry and in this connection he has referred to the letter Ex. 18 dated 11th June, 1982 sent by the Registrar of this Court to the petitioner wherein it has been stated that the report of the preliminary inquiry could not be shown to the petitioner because no reliance was placed on that report in support of the charge framed. In our view this contention is without substance. It is no doubt true that the charge was not framed on the basis of the report of the preliminary inquiry. It was framed on the basis of the complaint and the other material that was not produced before M.C. Jain, J. during the course of preliminary inquiry, which included the statements of Jorawarmal Soni as well as the two lawyers, Shanti Raj and Nath Raj recorded during the course of preliminary inquiry. In his complaint as well as in his statement during the course of the preliminary inquiry, Jorawarmal Soni did state that he had contacted the petitioner for the refund of the sum of Rs. 12,000/- when he came to know that he had been transferred to Pali. The two lawyers, viz., Shantiraj and Nathraj in their statements, had stated that Jorawarmal had told them that money was paid in connection of the case which was pending in the court of the petitioner and that the said case had not been decided by the petitioner as he had been transferred. On the basis of the aforesaid material, the disciplinary authority could prima facie arrive at the conclusion that the sum of Rs. 12,000/- received by the petitioner from Jorawarmal Soni was by way of illegal gratification as a consideration for giving a decision in favour of Jorawarmal Soni in Civil Suit No. 8 of 1966 pending in his Court. We are, therefore, unable to agree with the submission of the petitioner that the charge was framed by the disciplinary authority with a closed mind or with a pre-occupied bias or without any relevant material.
21. We may now come to the third ground of challenge regarding denial of a reasonable opportunity to the petitioner to defend himself by the disciplinary authority. In this connection the Submission of the petitioner was that Rule 16 of the CCA Rules, which prescribes the procedure to be followed before a major penalty specified in Rule 14 of the CCA Rules can be imposed, is applicable to disciplinary proceedings initiated against a judicial officer in accordance with the Full Court Resolution dated 30th October, 1971 and that in the present case there has been non-compliance with the provisions contained in Rule 16 of the CCA Rules which are mandatory in nature and the said non-compliance with the provisions of Rule 16 of the CCA Rules has resulted in denial of reasonable opportunity to the petitioner to defend himself by the disciplinary authority. Before we proceed to examine the aforesaid grievance of the petitioner we may mention that the basic right of a Government servant in the matter of dismissal, removal or reduction in rank is that contained in Clause (2) of Article 311 of the Constitution which prescribes that no person who is a member of a civil service of the Union or an all India Service or a Civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The content of the right conferred by Clause (2) of Article 311, as it stood prior to the amendments introduced by the Constitution (Fifteenth Amendment) Act, 1963 and the Constitution (Forty Second Amendment) Act, 1976 has been defined by the Supreme Court in Khemchand v. Union of India to include:
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence and finally;
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.
22. As a result of the first proviso introduced in Clause (2) of Article 311 by the Constitution (Forty Second Amendment) Act, 1976 the right of a Government Servant to an opportunity to make his representation against the proposed penalty has been taken away and under Clause (2) of Article 311, as amended, the reasonable opportunity envisaged would cover the opportunity (a) and (b) referred to above.
23. The procedure laid down in Rule 16 of the CCA Rules is intended to effectuate the right conferred under Clause (2) of Article 311 of the Constitution It may, however, be mentioned that Clause (2) of Article 311 incorporates the principle of audi alteram paretem, which is one of the basic principle of natural justice With regard to the principles of natural justice the law is well settled that rules of natural justice are matters not of form but of substance. See : State of Mysore v. Sivabasappa In K.L. Shinde v. State of Mysore the Supreme Court has observed that "whether a delinquent had a reasonable opportunity of effectively defending himself is a question of fact depending upon the circumstances of each case and no hard and fast Rule can be laid in that behalf." In Jankinath Sarangi v. State of Orissa while dealing with the question whether there was violation of the principles of natural justice in conducting the enquiry against the appellant, who was a government employee, the Supreme Court has observed," we have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right." In tint case the court found that no prejudice was caused to the appellant, and, therefore, there was no violation of the principles of natural justice. The law laid down in the decisions referred to above has been reiterated in the recent decision of the Supreme Court in K.L. Tripathi v. State Bank of India wherein it has been held that "in order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the appellant by the procedure followed."
24. In view of the aforesaid legal position it must be held that noncompliance with the provisions of Rule 16 of the CCA Rules would, by itself not lead to the conclusion that there has been denial of reasonable opportunity to defend himself to the delinquent employee and in order to succeed the delinquent employee has to also to establish that the non-compliance of the provisions of Rule 16 of the CCA Rules has caused prejudice to him and thereby he has been denied reasonable opportunity to defend himself against the charges levelled against him. The grievance of the petitioner with regard to denial of reasonable opportunity to defend himself has to be adjudged on the basis of this criterion.
25. The first grievance of the petioner in this regard was that he was denied inspection of relevant documents and thereby he was prevented from filing his written statement of defence and there has been contravention of provisions of Sub-rule (3) of Rule 16 of the CCA Rules. In support of his aforesaid submission, the petitioner has invited our attention to the application (Ex. 6) dated 3rd February, 1982, application (Ex. 7) dated 9th February, 1982, application (Ex. 8) dated 8th March, 1982 application (Ex. 9) dated 18th March, 1982 and the application (Ex. 10) dated 24th March, 1982 submitted by him wherein he had prayed for supply of copies of the document mentioned in these applications and their inspection in order to prepare his defence and has pointed out that no orders were passed by the disciplinary authority on the said applications and the petitioner was not allowed inspection of the documents referred to in the said applications and was also not supplied the copies of the documents prayed for. The original record of the enquiry conducted by tie disciplinary authority has been placed before us for perusal and on going through the same, we find that on 23rd February, 1982 the disciplinary authority had passed an order that the petitioner had not filed his reply within time of 15 days to the charge sheet and had also not requested for extension of time for filing reply and that it appeared that the petitioner does not want to put in any reply. By his order aforesaid the disciplinary authority directed that the presenting officer to file a list of document and witnesses. In pursuance of the said order the list of witnesses and the list of documents as well as the copies of the documents as shown in the list of documents were filed by the presenting Officer before the disciplinary authority on 30th March, 1982 and on the same date the disciplinary authority passed an order directing that one set of these copies and documents the supplied to the petitioner and in pursuance of the said order the copies of the list of witnesses and list of documents as well as copies of documents as shown in the list of documents were supplied to the petitioner on 1st April, 1982. The copy of the statements of witnesses recorded during the course of preliminary inquiry were supplied to the petitioner on 8th June, 1982. On the same date i.e. on 8th June, 1282 the disciplinary authority dealt with the request of the petitioner for inspection of original documents of which typed copies had been supplied to him and in view of the statement of the Presenting Officer that he was in possession of the photostatcopies only and that some of the copies were in manuscript, the disciplinary authority directed that whatever record was available with the Presenting Officer on which he relies, may be made available to the delinquent officer for inspection on 9th June, 1982. It may also be mentioned that on 8th June, 1982 the statement of the petitioner in reply to the charge was recorded by the disciplinary authority and on 16th June, 1982 the petitioner had submitted an interim written statement of defence. The evidence of the witnesses produced by the presenting officer was recorded on 16th and 17th June, 1982 and thereafter on 8th October, 1982 on which date the evidence of the Presenting Officer was closed.
26. Sub-rule (3) of Rule 16 of the CCA Rules makes provision for permitting the Government servant to inspect and take extracts from such official records as he may specify for the purpose of preparing his defence and that such permission may be refused for reasons to be recorded in writing, if in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against the public interest to allow him access thereto. In the present case the petitioner did submit applications for permission to inspect certain records mentioned in those applications, but it appears that no orders were passed by the disciplinary authority on those applications and for the first time the petitioner was furnished with the copies of the documents on which reliance was placed on 1st April, 1982 and the statements of the witnesses recorded during the course of the preliminary inquiry were supplied to the petitioner on 8th June, 1982.
27. Most of the documents of which the petitioner wanted copies and inspection in his applications referred to above, were included amongst the documents and statements, the copies of which were supplied to the petitioner on 1st April, 1982 and 8th June, 1982. The grievance of the petitioner is that even these copies were not supplied to him earlier and as a result he was not able to submit his written statement of defence in time. The questions, which, therefore, arise for consideration are (i) whether the petitioner was precluded from submitting his written statement of defence on account of his not being allowed inspection of the documents mentioned in the applications and being furnished with the copies of the same; and (ii) whether the said failure on the part of the petitioner to submit his written statement of defence before the recording of his statement in reply to the charge on 8th June, 1982, has caused prejudice to the petitioner in defending himself. In our opinion both these questions must be answered in the negative. The statement of the charge and the statement of allegations which formed the basis of the charge set out in detail the case which the petitioner was required to meet. The documents of which the petitioner wanted inspection and copies constituted the evidence in support of these allegations. Even without the inspection of these documents the petitioner could have submitted his written statement of defence dealing with the allegations what formed the basis of the charge and he could have submitted a supplementry written statement after the copies of the documents were furnished to him it can not, therefore, be said that the petitioner was precluded from submitting his written statement of defence because he was not allowed inspection of documents mentioned in the applications submitted by him and was also not furnished with the copies of these documents in time. In this context it may also be s ated that the object underlying the provision for submission of the written statement of defence to the charge is to enable the delinquent employee to put forward his case so that the disciplinary authority may decide whether an inquiry into the charge is called for or not. In cases where the disciplinary authority, after considering the written statement of defence, feels satisfied that no misconduct has been committed by the delinquent employeee, it may drop the proceedings and in that event the delinquent employee, would be saved from the harassment of inquiry. The position is, however, different in a case where an inquiry is held and the charge is held to be proved. In such a case it could not be said that delinquent employee has suffered any prejudice on account of his being unable to submit his written statement of defence because the non-filing of the written statement of defence does not in any way stand in way of the delinquent employee defending himself in the inquiry.
28. In the present case we find that the crux of the charge against the petitioner was that a sum of Rs. 12,000/- (Rs. 5000/- by cheque and Rs. 7000/-by cash) was paid to the petitioner through Jagdish Nai by the complainant Jorawarmal Soni and the Jorawarmal Soni had executed pronote for Rs. 7000/-in favour of Devkaran son of Jorawarmal on 5th February, 1981 and that subsequently Jorawar Maldemanded the payment of the sum of Rs. 12,000/-from the petitioner as well as Jagdish Nai by sending telegrams as well as registered notices and at the time when the said sum was paid to the petitioner, a case, in which Jorawar MalSoni was a party, was pending in the court of the petitioner. The petitioner war made fully aware of the case which he was required to meet, namely, that Jagdisn Nai was man of the petitioner and sum of Rs. 12,000/-was received by the petitioner Jorawar Mal Soni through Jagdish Nai. It is true that the petitioner did not submit his written statement of defence in reply to charge and disciplinary authority recorded the plea of the petitioner on 8th June, 1982 without such a written statement of defence. But while recording the said plea of the petitioner on 8th June, 1982 the disciplinary authority recorded a detailed statement of the petitioner wherein he had denied the various allegation levelled against him. Further more we find that the petitioner also submitted an interim written statement of defence on 16th June, 1982 before the recording of the evidence of the witnesses produced by the Presenting Officer had commenced. The disciplinary authority after holding the inquiry into the charge has found that it was partly established. In these circumstances we are of the opinion that the failure on the part of the dicsiplinary authority to pass orders on the applications Ex. 6 to Ex. 10, submitted by the petitioner for permitting inspection of the documents mentioned in these applications and the failure on the part of the petitioner to submit written statement of defence to the charge, cannot be held to have caused any material prejudice to the petitioner so as to justify the conclusion that the petitioner was denied reasonable opportunity of defending himself.
29. The next contention that was urged by the petitioner was that he was not permitted the assistance of a lawyer during the course of the departmental inquiry by the disciplinary authority. In this connection it may be mentioned that the petitioner had submitted an application (Ex. 20) dated 17th May, 1982 before the disciplinary authority wherein it was stated that the departmental representative, namely, Shri Nand Lal Chhagani, is a direct recruit to the Rajasthan Higher Judicial Service (RHJS) from the bar and has a long experience of being an able and efficient lawyer prior to his appointment in the RHJS whereas the petitioner is a promotee officer having been recruited as Munsiff and the petitioner requested that he may be permitted the assistance of a lawyer during the departmental inquiry against him. The said request of the petitioner was, however, declined by the disciplinary authority. The petitioner has urged that the said request of the petitioner was justified and proper and it has been wrongly rejected by the disciplinary authority and this has resulted in prejudice to the petitioner. In support of his aforesaid submission the petitioner has placed reliance on the Supreme Court in C.L. Subramaniam v. The Collector of Customs Cochin well as the decision of the Calcutta High Court in Anandram Jiandrai Vaswani v. Union of India and Ors. 1982 (3) SLR 172. We find no merit in this contention, In Sub-rule (5) of Rule 16 of the CCA Rules, it is provided that the government servant may present his case with the assistance of any government servant approved by the disciplinary authority but may not engange a legal practitioner for the purpose unless the person engaged by the disciplinary authority is a legal practitioner or unless the Disciplinary authority having regard to the circumstances of the case, so permits. In the present case admittedly the Presenting Officer was not a legal practitioner. The question is whether having regard to the circumstances of the case the disciplinary authority should have permitted the petitioner to engage a legal practitioner. The Petitioner was a judicial officer having long judicial experience as a Munsiff, Civil Judge, District Judge and the Presenting Officer was also in the rank of a District Judge. The Presenting Officer has been changing from time to time. Initially Shri Nand Lal Chhagani was the Presenting Officer and he was directly recruited from the bar to the RHJS Shri Chhagani continued as the Presenting Officer till June. 1982 and thereafter Shri S.N. Calla, who was a promotee officer acted as the Presenting Officer and he continued as Presenting Officer till the arguments were heard by the disciplinary authority. In our opinion there is not much difference between person who is directly recruited as a District Judge from the bar and a person who has been promoted as District Judge from the subordinate judiciary because while a person who has been directly recruited from the bar has experience of appearing in courts as a lawyer, the person who has been promoted from the subordinate judiciary has judicial exerience of handling and deciding cases as Munsiff and Civil Judge. It cannot, therefore, be said that the Presenting Officer who is directly recruited to the RHJS from the bar stands on a better footing then the judicial officer who was promoted to the RHJS from the subordinate judiciary, in the matter of competence. Incase the petitioner felt, that a directly recruited judicial officer would be in a better position to represent his case, he should have requested the disciplinary authority to appoint such an officer as the defence nominee. The petitioner did nor, however, make such a request. Moreover, in the present case the main issue to be considered in the inquiry was as to whether the sum of Rs. 12, 000/- was paid by Jorawar Malto the petitioner through Jagdish Nai. This was a simple question of fact and it did not require any expert or special skill. The petitioner has elaborately cross-examined the witnesses produced by the Presenting Officer and has also produced witnesses in this defence. The decision in C.L. Subramaniam v. Collector of Customs (supra) does not lend assistance to the case of the petitioner, As pointed out by the Supseme Court in H.C. Sarin v. Union of India , in Subramcniam's case the argument that, rule or no rule, the services of a professional laywer should be made available at a departmental enquiry when asked for was not accepted and what was held in that case was that the disciplinary authority had brushed aside the request of delinquent employee on a wrong ground completely ignoring the circumstances which were relevant, This cannot be said about the order parsed by the disciplinary authority in the present case. Taking into consideration the facts and circumstances, of the case, we are of the opinion that it cannot be said that the disciplinary authority has committed an error in rejecting the application of the petitioner to engage a legal practitioner and that the said refusal of the disciplinary authority to permit the petitioner to engage a legal practitioner has caused in material prejudice to the petitioner in defending himself.
30. The next contention urged by the petitioner was that, he was unable to effectively cross-examine the witnesses produced by the Presenting Officer in support of the charge in as much as he was denied copies as well as the inspection of relevant documents. In this connection, grievance of the petitioner is that he was not allowed inspection of the complaint made by Jorawar MalSoni till 4th November, 1982 and by that time evidence of the witnesses produced by the Presenting Officer had been concluded. The grievance of the Petitioner is further that he was neither allowed inspection nor was he supplied with the copy of the report of the preliminary inquiry and the cheque for Rs. 5,000/- said to have been issued by Jorawar MalSoni in favour of Jagdish Nai. The grievance of the petitioner is further that he was also not allowed inspection of the original account books of Jorawar Mal Soni and, therefore he was unable to effectively cross-examine the witnesses. In this connection it may be mentioned that/the original cheque for Rs. 5,000/- said to have been issued by Jorawarmal Soni in favour of Jagdish Nai was in possession of the Bank, it was not a document produced in the enquiry. Moreover it has been admitted by Jagdish Nai, who has been examined as a defence witness by the petitioner, that the said cheque for Rs. 5,000/- was,received by him, from Jorawarmal Soni and he had encashed the said cheque in the Bank and had obtained Rs. 5,000/-from the Bank. Thus, there is no dispute that a sum of RS. 5,000/- was paid by Jorawarmal Soni to Jagdish through cheque dated 17th October, 1980 which was encashed by him from the Bank and if cannot, therefore, the said that any prejudice was caused to the petitioner for not summoning the original cheque from the Bank. The counterfoil of the said cheque, on which reliance was placed by the Presenting Officer, was shown to the petitioner.
31. As regards the report of the, Preliminary inquiry it may be stated that from the letter (Ex. 18) dated 11th June, 1982 sent by the Registrar of the High Court to the petitioner, it is evident that no reliance has been placed on the said report in support of the charge framed. Since no reliance has been placed on the report of the preliminary inquiry, the petitioner could not be supplied with the copy of the said report and non-supply of the report of the preliminary inquiry cannot be a ground for holding that there has been denial of reasonable opportunity to the petitioner to cross-examine the witnesses examined by the Presenting Officer. In this cenfext reference may be made to the decision of the Supreme Court in Krishna Chandra Tandon v. Union of India 1947 (4) SCC 374 wherein it has been held that the delinquent employee is not entitled to the copy of the report made by an officer on the complaint received against the delinquent employee unless the Enquiry Officer relied on that report. The Supreme Court has observed:
It is very necessary for an authority which orders an inquiry to be satisfied that there are prima facie grounds for holding a disciplinary enquiry and, therefore, before he makes up his mind he would either himself investigate or direct his subordinates to investigate in the matter and it is only after he receives the result of these investigations that he can decide as to whether disciplinary action is called for or not. Therefore, these documents of the nature of inter-departmental communications between officers preliminary to the holding of enquiry have really no importance unless the Enquiry Officer wants to rely on them for his conclusions.
32. As regards the complaint made by Jorawarmal Soni which led to she initiation of the disciplinary proceedings against the petitioner, we find that the petitioner was allowed inspection of the said complaint on 4in November, 1982 after the evidence of the witnesses produced by the Presenting Officer had been closed and to that extent the petitioner is justified in saying that he could not cross-examine the witnesses on the basis of the said complaint. We have, however, perused the complaint of Jorawarnial Soni and we find that the version given in the said complaint, has in substance, been reproduced in the statement of allegations on which the charge is based. Further more, the same version was repeated by Jorawarmal Soni in his statement recorded during the preliminary inquiry and a copy of the said statement was supplied to the petitioner on 8th June, 1982. The statement of Jorawarmal Soni was recorded by the disciplinary authority on 17th June, 1982 and 8th October, 1982. The petitioner had sufficient opportunity to cross examine Jorawarmal Soni on the basis of the aforesaid statement made by him during the course of the preliminary inquiry. It cannot, therefore, be said that any prejudice has been caused to the petitioner on account of non-supply of the complaint of Jorawarmal Soni to the petitioner or his not being allowed inspection of the same earlier than 4th November, 1982. In so far as the original account books arc concerned, it may be stated that the said original account books were produced before the Enquiry Officer at the time when the statement of Jorawarmal Soni was recorded and the petitioner had an opportunity of looking into the said account books while cross-examining Jorawarmal Soni before the disciplinary authority. It cannot, therefore, be said that the original account books were not made available to the petitioner at the time statement of Jorawarmal Soni was recorded and he was not able to cross-examine him on the basis of the said account books.
33. Another contention that was urged by the petitioner was that the disciplinary authority did not permit the petitioner to confront the witnesses with the portions of their previous statements. In this connection the submission of the petitioner was that Nathraj Singhvi PW 3, in his statement during the course of preliminary inquiry, has referred to the talk which Jorawarmal Soni had with him and that Nathraj Singhvi has deposed about the previous statement of Jorawarmal Soni and the petitioner was entitled to confront Jorawarmal Soni with his aforesaid previous statement made by him to Nathraj Singhvi In our opinion the statement said to have been made by Jorawarmal Soni before Nathraj Singhvi, as referred to by Nathraj Singhvi in his statement recorded during the course of preliminary inquiry, cannot be regarded as a previous statement of Jorawarmal Soni and the same cannot be used for the purpose of confronting Jorawar MalSoni during the course of examination. The aforesaid statement of Nathraj Singhvi made during the course of the preliminary inquiry can only be regarded as previous statement of Nathraj Singhvi which can be used for the purpose of cross-examining Nathraj Singhvi. More over in the present case the disciplinary authority has not placed reliance on the evidence of Nathraj Singhvi and in these circumstances we are of the opinion that the petitioner could no claim a right to cross-examine Jorawarmal Soni on the basis of statement made by Nathraj Singhvi during the course of the preliminary inquiry.
34. The next contention that was urged by the petitioner was that the disciplinary authority did not permit the petitioner to produce defence witnesses in support of his case. In this connection the petitioner has invited our attenti n to the list of witnesses (Ex. 27) dated 15th October, 1982 submitted by him before the disciplinary authority. In the said list, the petitioner had mentioned 14 persons whom he wanted to examine in support of his defence. The disciplinary authority, by order dated 12th November, 1982 permitted the petitioner to examine 5 witnesses out of them. As regards the other witnesses, the disciplinary authority held that Mohan Singh, Reader, District Court, Pali, C.L. Bhatnagar, Income-tax Officer, Nagaur, B.L. Divakar, Advocate, Merta City, M.C. Mathur, Advocate, Secretary, Bar Association Merta City and B.D. Vyas, Advocate, Merta City were either unnecessary or their evidence was irrelevant. As regards witness at S. No. 2 of his list, the driver of the Pool Jeep No. 2296, the disciplinary authority held that the said witness could not be summoned for want of his name. As regards witness at S. No. 14 of the list namely, expert on postal matters, the disciplinary authority held that he could not be summoned because the whole thing was left vague. The petitioner has not been able to show any infirmity in the afore.-aid order passed by the disciplinary authority. He has concentrated his attack to his being not allowed to examine Krishan Charan, Handwriting Expert. With regard to the aforesaid grievance of the petitioner, it may be stated that the order dated 12th November, 1982 passed by the Enquiry Officer does not refer to the aforesaid witness and it cannot be read as rejection by the disciplinary authority of the request of the petitioner to produce the said expert. On the other hand we find from the record of the Enquiry that earlier the petitioner had moved an application dated 16th June, 1982 whereby the petitioner had requested that the original pronote and the receipt attached to it, may be impounded and may be sent to examination to Shri Krishan Charan, handwriting expert. On the said application the disciplinary authority had passed an order that the petitioner would be at liberty to produce this evidence in defence, if necessary. We further find that the report of Shri Krishan Charan handwriting expert dated 17th March, 1983 was sub lifted by the petitioner before the disciplinary authority along with this application dated 6th April, 1983 on which date the statement of the petitioner was concluded and the case was put up for arguments on 7th April, 1983. There is nothing in the order-sheet to show that the petitioner had pressed his application dated 6th April, 1983 for summoning Shri Krishan Charan as a witness and the said request of the petitioner was rejected by the disciplinary authority. In these circumstances the petitioner cannot be heard to complain that the disciplinary authority rejected the prayer of the petitioner for producing the handwriting expert, Shri Krishan Charan, in his defence and that the petitioner has been prejudiced by the said rejection. It may be further stated that the evidente of the handwriting expert could only be in the nature of opinion evidence and it is well settled that hand writing experts' opinion must always be received with great caution and it is unsafe to base a judgment purely on expert opinion without substantial corroboration Here there was direct evidence of Jorawar Mal Soni to prove execution of the pronote by Jagdish Nai. The evidence of Jorawar Mal Soni has been found to be trust worthy by the disciplinary authority. In these circumstances we are of the opinion that the non-examination 'of the handwriting expert Shri Krishan Charan by the disciplinary authority does not vitiate the inquiry.
35. Having considered the aforesaid submissions urged by the petitioner to show that he was denied reasonable opportunity of defending himself before the disciplinary authority, we are of the opinion that on the basis of the said contentions, it is not possible to arrive at the conclusion that there has been denial of reasonable opportunity to the petitioner to defend himself before the disciplinary authority. The third ground of challenge cannot, therefore, be accepted and must be rejected.
36. We may now proceed to deal with the submissions urged by the petitioner to assail to the report of the disciplinary authority. In this connection the first contention that has been urged by the petitioner, was that the disciplinary authority has found the petitioner guilty of a charge different from that contained in the statement of charge (Ex. 4) and that the petitioner had no opportunity to meet the charge which has been held to be proved. In this connection the submission of the petitioner was that in the statement of charge (Ex. 4) it is alleged that the petitioner had received the sum of Rs. 12,000/- from Jorawarmal Soni by way of illegal gratification as a consideration for giving a decision favourable to him in Civil suit No. 8/1966 Gopal Lal v. Kishan Lal Jorawarmal pending in the court of District Judge, Merta and the charge which has been found proved by the disciplinary authority is that the petitioner received the payment of Rs. 12,000/- from Jorawarmal Soni, a litigant in his court, through Jagdish Nai apparently as a loan on the assurance that he will repay the amount, but he did not repay it. The submission of the petitioner was that the charge of receiving illegal gratification is entirely different in scope than the charge of taking loan from litigant. We have given our careful consideration to the aforesaid submission of the petitioner and we are unable to accept the same. The law is well settled that in a disciplinary proceeding it is permissible for the disciplinary authority to find a Government servant guilty of a charge of lesser gravity than the charge which was subject matter of the inquiry provided that charge which is found established, falls within the scope and ambit of the charge which was the subject matter of inquiry. It is, therefore, necessary to consider whether the charge that has been found to be Established by the disciplinary authority, can be said to fall within the scope and ambit of the charge which was subject matter of inquiry. A perusal of the charge as well as the statement of allegations which form the basis of charge, it would be apparent that the case which the petitioner was required to meet was that he had received a sum of Rs. 12,000/- from Jorawarmal Soni through Jagdish Nai and that the said Jorawar Mal Soni was a party to Suit No. 8 of 1966 pending in the court of the petitioner while he was posted as District Judge, Merta and that since the said case was not decided by the petitioner in favour of Jorawar Mal Soni, he claimed refund of the said, amount of Rs. 12,000/- from the petitioner, but the petitioner failed to refund the same and that the petitioner received the aforesaid amount in a case which was pending in his Court from a person who was a party in the said case. On the basis of the aforesaid facts, the petitioner was charged with the misconduct of receiving a sum of Rs. 12,000/-by way of illegal gratification as consideration for giving a decision favourable to Jorawarmal Soni in the suit to which he was party and which was pending before the petitioner. The disciplinary authority has found that the sum of Rs. 12,000/- was received by the petitioner from Jorawar MalSoni who was a party to suit No. 8/1966 pending in the court of the petitioner at the time when the said sum was received by the petitioner. The disciplinary authority has, however, held that it was not established that the aforesaid amount was received by the petitioner by way of illegal gratification, but this was established that Jorawarmal Soni had paid sum of Rs. 12,000/- to the petitioner in the hope that the amount would be repaid to him and that he would also be finding favour of the petitioner in the suit pending before him. In our opinion the charge which has been found proved against the petitioner by the disciplinary authority that the petitioner received the payment of Rs. 12,000/-from Jorawarmal Soni, a litigant in his court, apparently as a loan on the assurance that he would repay the amount, but he did not repay it, is lesser in gravity than the charge of receiving illegal gratification which was the subject matter of the inquiry. The said charge which has been found established against the petitioner, however, falls within the scope of the charge which was the subject matter of the inquiry and it cannot be said that the charge which was found to be proved by the disciplinary authority is alien to the charge which was subject-matter of the inquiry.
37. The other submission of the petitioner with regard to the report of the disciplinary authority was that the findings recorded by the disciplinary authority are based on no evidence and are perverse and are based on extraneous and irrelevant considerations. In this connection it may be mentioned that the petitioner does not dispute that while exercising the jurisdiction vested in this Court under Article 226 of the Constitution, to issue a writ of certiorari, this Court does not act as a court of appeal and cannot reappreciate the evidence produced before the disciplinary authority. In so far as submission of the petitioner that the findings recorded by the disciplinary authority are based on no evidence is concerned, we may say that we find it difficult to appreciate the said contention because on perusal of the report of the disciplinary authority, we find that there was evidence of Jorawar MalSoni with regard to payment of Rs. 5,000/- to the petitioner through Jagdish Nai by cheque on 17th October, 1980 and the payment of Rs. 7,000/- in cash on February 5, 1981. In addition to the aforesaid evidence of Jorawar MalSoni, there is documentry evidence, namely, receipt (Ex. 2), pronote (Ex. 3) with regard to Rs. 7,000/T paid to Jagdish Nai on February 5, 1931 as, well as the entry in the, account-books of Jorawar Mal Soni and the telegram and the registered letters sent by Jorawar Ma' to the petitioner and jagdish Nai. As against this there was evidence of the petitioner and Jagdish Nai. The disciplinary authority has placed reliance on the testimony of Jqrawar Mai Soni in preference to the testimony of the petitioner and Jagdish Nai and has held that Jorawar Mal Soni was a witness on whose testimony one may place implicit reliance. In other words the disciplinary authority has accepted the evidence of Jorawar Mai. It cannot, therefore, be held that the findings recorded by the disciplinary authority are based on no evidence.
38. In support of this contention that the findings recorded by the disciplinary authority are perverse, the petitioner has taken us through the report of the disciplinary authority and has submitted that the disciplinary authority has recorded his findings only on the basis of surmises and conjectures and that there has been no proper appreciation, of the case of the petitioner and the evidence produced by him in support of his case. In this connection the petitioner has submitted that the, disciplinary authority has placed reliance on the suggestions made by the petitioner during the course of cross-examination of Jorawarmal Soni and that such suggestions, which are meant only to test the veracity of the witness, could not be used to reject the defence of the petitioner. The petitioner has placed reliance on the observations of this Court in Liladhar v. The State 1953 RLW 348 that inference cannot be drawn against the accused on the basis of the questions put to the prosecution witnesses during the course of cross-examination. In our opinion this contention of the petitioner is also devoid of any force. From a perusal of the report of the disciplinary authority we find that the disciplinary authority has very carefully considered the evidence that was produced before him and has excluded from consideration the testimony of Shanti Raj, Nathraj Singhvi and Gopi Kishan, advocates produced by the Presenting Officer. The disciplinary authority held that Shanti Raj and Nathraj advocates had made complaint to the High Court against the petitioner and their evidence was not free from bias against the petitioner. As regards the evidence of Gopi Kishan, the disciplinary authority has held that the local bar at Merta was a fraction ridden bar and, therefore, much importance could not be attached to the evidence of Gopi Kishan Advocate appearing as a witness on behalf of the Department and Ranchod Das Joshi Advocate appearing for the petitioner. The report of the disciplinary authority shows that these were two versions before the disciplinary authority, one given by complainant Jorawar Maland the other given by the petitioner and Jagdish Nai The disciplinary authority has given cogent reasons for accepting the version given by Jorawar Mal Soni and for rejecting the verson given by the petitioner and Jagdish Nai and in this connection the disciplinary authority has taken note of the conduct of Jagdish Nai that he had not specifically denied in his reply (Ex. 11) to the notice sent by Jorawar Mal Soni that he had received payment of Rs. 7,000/- on the basis of pronote executed by him in favour of Jorawar Mai's son and had instead raised counter questions of a diversionary nature in his reply. The disciplinary authority has also observed that Jagdish Nai did not consistently and categorically deny that the pronote and receipt dated February 5. 1981 bear his signatures and writing when the said documents were put to him during the course of cross-examination. The disciplinary authority has also observed that the petitioner had made a clearly false assertion that he came to know Jagdish Nai for the first time after the commencement of the inquiry and that when he was reminded that Jagdish Nai had been visiting his house frequently to cut his hair, all he could say was that he would remember if he ever visited his bungalow to give him hair cut. The disciplinary authority after considering the evidence adduced before him concluded that Jagdish Nai frequently visited the house of the petitioner and that he was known to him since the days of his earlier posting at Merta prior to 1980 and that the petitioner was trying to suppress the truth regarding his relations with Jagdish Nai. The disciplinary authority has observed that as against this Jorawar MalSoni had given detailed evidence explaining each and every circumstance quite convicingly and he took scrupious care to state that he had paid the amount of Rs. 12,000/- to the petitioner through Jagdish Nai in response to the request of the petitioner that he very badly needed this money for completion of the construction of his house at Jodhpur and on the assurance that repayment would be entirely his responsibility. The disciplinary authority was of the view that Jorawar Mal Soni was a witness who has regard for truth in as much as he did not fully support the allegations in the charge-sheet that he had paid this amount to the petitioner by way of illegal gratification. Having thus rejected the testimony of Jagdish Nai and the petitioner and having found that implicit reliance could be placed on the testimony of Jorawar MalSoni, the disciplinary authority has referred to some of the questions which were put by the petitioner to Jorawar MalSoni during the course of cross-examination which according to the disciplinary authority, have directly supported Jorawar Mai's version that the petitioner had requested him for payment of Rs. 12,000/-. The disciplinary authority has also referred to the suggestion made by the petitioner to Jorawarmal Soni during the course of cross-examination that he and Jagdish Nai had gone to the house of the petitioner for the first time only after Jagdish Nai had requested him for Rs. 7,000/- some time in early 1981 to show that the said suggestion indicates that there was some truth in what Jorawarmal Soni has stated about his visits to the house of the petitioner in the company Of Jagdish Nai. The disciplinary authority has also referred to the suggestion made by the petitioner to Jorawarmal Soni during cross-examination that even before transaction of Rs. 7,000/- the petitioner had advised Jorawarmal Soni at his residence that Jorawarmal Soni should always deal with the petitioner directly and not through Jagdish Nai. In our opinion the disciplinary authority could legitimately take into account the aforesaid suggestions made by the petitioner to Jorawarmal Soni during the course of cross-examination for the purpose of appreciating the evidence of Jorawarmal Soni on the one hand and that of the petitioner and Jagdish Nai on the other. More over this was only by way of an additional circumstance to support the findings which had earlier been recorded by the disciplinary authority that reliance could be placed on the testimony of Jorawarmal Soni and no reliance could be placed on the testimony of the version given by the petitioner and Jagdish Nai.
39. As regards the complaint of the petitioner that the disciplinary authority did not consider the evidence adduced by the petitioner in support of his defence, it may be stated that the disciplinary authority has taken note of the evidence produced by the petitioner to prove that he left Merta for Nagaur on 15th October, 1980 and that he did not return to Merta from Nagaur before 9.45 a.m. on 17th October, 1980 and that he left Merta for Jodhpur in the afternoon on 17th October, 1980 and that he returned to Merta on 20th October, 1980. The disciplinary authority has observed that he was not much impressed by the said evidence and such evidence could be easily manufactured and procured and that in any case it cannot possibly rebut the proven facts that the petitioner met Jorawar MalSoni at his residence on or about 15th October, 1980 and requested for a sum of Rs. 15,000/- that Jorawar Malpaid Rs. 5,000/- to Jagdish Nai on 17th October itself and that the petitioner further requested Jorawar Malfor payment of Rs. 10.000/- in the first week of February, 1981 and that Jorawar Malpaid a sum of Rs. 7,000/-to Jagdish Nai on 5th February, 1981 against a pronote. [t cannot, therefore, be said that the disciplinary authority did not consider the evidence produced by the petitioner is support of his defence. In the circumstances referred to above, we are unable to agree with the contention of the petitioner that the findings recorded by the disciplinary authority are perverse.
40. As regards the submission of the petitioner that the findings recorded by the disciplinary authority are based on extraneous and irrelevant considerations, we may state that the petitioner has been unable to show as to what extraneous and irrelevant circumstances were taken into consideration by the disciplinary authority for recording the findings against him. All that the petitioner has been able to show in this regard seems that the disciplinary authority approached the whole matter with a preconceived mind and in this connection he has repeated the contentions urged by him with regard to the charge framed against the petitioner. We have already rejected the said contention of the petitioner with regard to the charge and for the same reasons we find no substance in the contention of the petitioner that the findings recorded by the disciplinary authority are based on extraneous and irrelevant considerations.
41. With regard to the issuance of the show cause notice (Ex. 40) by the disciplinary authority, the submission of the petitioner was that since the penalty of dismissal could only be imposed by the Governor, who was the appointing authority of the petitioner, the said show cause notice could only be issued by the Governor. The petitioner has further submitted that in any event such show cause notice should have been issued by the Full Court after considering the report of the disciplinary authority and that the disciplinary authority was not competent to issue the show cause notice (Ex. 40) before the findings recorded by him were considered and accepted by the Full Court dated 30th October, 1971. We find no merit in this consideration. Under resolution of the Full Court dated 30th October. 1971 the disciplinary authority was competent to impose any of the penalties enumerated in Rule 14 of the CCA Rules except the penalty of removal and dismissal from service. After recording the findings in the inquiry report (Ex.41) holding the petitioner guilty of the charge of having received payment of Rs. 12,000/-from Jorawarmal, a litigant in his court, through Jagdish Nai, apparently as a loan, on the assurance that he would re, ay the amount, but he did not repay it, the disciplinary authority arrived at the provisional conclusion that the penalty of dismissal from service should be imposed on the petitioner and he issued a show cause notice requiring the petitioner to make his representation against the proposed penalty. It is quite possible that after the receipt of the representation of the petitioner in response to the show cause notice, the disciplinary authority may have decided to change his opinion and impose a lesser penalty than that of removal or dismissal from service and it was within the competence of the disciplinary authority to impose a penalty other than the penalty of removal and dismissal from service. In the event of disciplinary authority not accepting the representation of the petitioner and holding that the penalty of dismissal or removal from service should be imposed ort the petitioner, he would have submitted the papers with his recommendations for consideration of the Full Court and the Full Court would have considered the report of the disciplinary authority as well as his recommendations with regard to the imposition of penalty in the light of the representation that was submitted by the petitioner in response to the show cause notice. In our opinion, therefore, the disciplinary authority cannot be said to have acted illegally in issuing the show cause notice (Ex. 40) requiring the petitioner to submit his representation against the proposed penalty.
42. As regards passing of the order (Ex. 46) whereby the petitioner has been dismissed from service, the petitioner has in the first place submitted that the said order was passed in breach of the undertaking that was given by the Government Advocate in S.B. Civil Writ Petition No. 1783 of 1983 which has been filed by the petitioner and which was pending in this Court on the date of the passing of the impugned; order. In, this connection we may mention that the petitioner had filed a contempt petition. S.B. Contempt Petition No. 135 of 1985, in this Court wherein he had submitted that the order (Ex. 46) dismissing the petitioner from the service was passed in breach of the undertaking given by Shri H.N. Calla, Government Advocate, on behalf of the Government of Rajasthan in this Court in S.B. Civil Writ Petition No. 1783 of 1983 and the proceedings for Contempt of Court may be initiated against the non-petitioner to the said contempt petition, namely, the Government of Rajasthan and the High Court of Judicature for Rajasthan Shri N.K. Bairwa Special Secretary to the Government of Rajasthan, Jaipur, Shri S.R. Singh Bajwa, Registrar, Rajasthan High Court, Jodhpur and Shri H.N. Calla, Government Advocate. The said contempt petition was dismissed by the order of this Court (Bhatnagar, J) dated 7th January, 1986, on the view that the application was barred by limitation in as much as according to the petitioner the contempt was committed on March 19, 1984 when the order of dismissal was passed and the notice was issued by the Court to the Government Advocate on July 12, 1985 after expiry of more than one year. In the said order the learned Judge has also gone into the merits of the case and has found that there was no substance in the said contempt petition even on merits. In this connection the learned Judge has observed that the under taking that was given by the Government Advocate on September 14, 1983 was not continued in the order sheets of the various dates after November 22, 1983 and it could not, therefore, be said that the order dated March 18, 1984 was passed in disobedience of any order of this Court. In view of the said order passed by this Court in the contempt petition filed by the petitioner, it cannot be said that the impugned order was passed in breach of the undertaking given by the Government Advocate in SB. Civil Writ Petition No. 1783/1983.
43. Another contention that was urged by the petitioner to challenge the validity of the order (Ex. 46) regarding his dismissal was that in the said order reliance has been placed on the findings of the disciplinary authority dated 22nd July, (983 and that copy of the said findings was not supplied to the petitioner and the petitioner had no opportunity of making his submissions against the said findings. In this connection it maybe mentioned that the findings of the disciplinary authority were actually recorded in the report (Ex. 41) dated May 19, 1983 wherein the disciplinary authority found the charge to be partly established against the petitioner. The report of the disciplinary authority dated 22nd July, 1983 doss not contain any findings by the disciplinary authority but is only a record of the fact that a show cause notice was issued to the petitioner requiring him to show cause against the proposed penalty of dismissal from service and that the petitioner had failed to file any reply in response to the said show cause notice and that after considering the matter carefully and with regard to the fact that the petitioner had not shown any cause as to why he should not be dismissed from service, the disciplinary authority was of the opinion that the petitioner deserves to be dismissed from service and that the report along with the record of the enquiry may be circulated amongst the Hon'ble Judges for their perusal and their views in the matter. It would thus be clear that the report dated July 22, 1983 submitted by the disciplinary authority, though described as findings, is in the nature of the recommendations with regard to the penalty to be imposed on the petitioner in the light of the findings recorded in the Enquiry report (Ex. 41) dated May 19, 1983. This report was made by the disciplinary authority in furtherance of his report dated May 19, 1983 after giving an opportunity to the petitioner to submit his representation against the proposed penalty of dismissal from service. Since the petitioner did not submit any representation in response to show cause notice, it could not be said that the petitioner has suffered any prejudice by the said report of the disciplinary authority dated 22nd July, 1983 recommending that the penalty of dismissal from service be imposed on the petitioner. We are, therefore, unable to hold that the order (Ex. 46) is vitiated on account of the copy, of the report of the disciplinary authority dated July 22, 1983 having not been furnished to the petitioner.
44. No other contention was urged by the petitioner.
45. In the result the writ petition fails and is hereby dismissed. In the circumstances of the case there will be no order as to costs.