A.N. SAHA Vs. HIGH COURT

JUDGEMENT

(1.) The Petitioner, an Additional District Judge, has assailed the departmental proceedings purported to have been started against him wherein he is going to be suspended on the grounds inter alia, that the power of control over the District Courts and Courts subordinate to the High Courts vested in the High Court by Article 235 of the Constitution cannot be exercised until the conditions of services are prescribed by law made by the appropriate legislature or in the absence of any law by rules made by the Governor under proviso to Article 309 of the Constitution. As no law has been made nor any rules have been framed laying down the condition of service and providing for any right of appeal the High Court is not competent to exercise its power of control over District Courts and Courts subordinate thereto. The petitioner stated that he had come to know on July 29, 1983 over telephone from the then Registrar, Appellate Side, High Court, Calcutta, Sri S.N. Koley, about the initiation of the departmental proceeding against him and he was going to be suspended soon. The petitioner has further stated that no formal explanation had ever been called for from him in regard to any of the allegations forming the subject matter of the enquiry. It has been submitted that no rule has been framed under Article 235 of the Constitution empowering the High Court to hold any enquiry or to start any disciplinary proceeding against any Judicial Officer including the petitioner, who is posted as Additional District and Sessions Judge, 3rd Court, Alipore and is now on leave. It has been further submitted by the petitioner that the Governor, who is the appointing authority, has not delegated to the High Court any such power of starting departmental proceeding and suspending any judicial officer. As such the impugned order of departmental proceeding and suspension against the petitioner is without any jurisdiction and legal authority and is liable to be quashed. It has also been submitted that the High Court has no power to suspend a Judicial Officer. It is only the Governor who can suspend under Section 16 of the General Clauses Act, any Judicial Officer in absence of any Rule delegating such power to the High Court. The petitioner has, therefore, prayed for a Writ of or in the nature of Mandamus commanding the Respondents to show cause as to why the impugned proceeding should not be quashed, cancelled or set aside and also for a Writ of Prohibition prohibiting the Respondents from proceeding any further with the proceeding. There is also a prayer for a Writ of Certiorari upon the Respondents 1 to 4 to certify and transmit the relevant records for quashing the same. There is a prayer for ad -interim injunction restraining the respondents from giving effect to the order of departmental enquiry as well as the order of suspension made, if any, pending the hearing of the petition.

(2.) ON 10th August, 1983 this Court after hearing the petitioner's Advocate fixed the application for hearing a week hence at the top of the list An interim order of maintaining status -quo as on the date was made in the meantime. The petitioner was directed to serve the copies of the application on the Respondents 2 to 4.

(3.) THE petitioner thereafter filed an application for Special Leave to appeal being S.L.P. (Civil) No. 1248 of 1983 in the Supreme Court of India against the said judgment and order of Appellate Bench of this Hon'ble Court. On 23rd March, 1984 the Special Leave Petition was permitted to be withdrawn. With liberty to the petitioner to move the High Court for leave to amend the writ petition in appropriate manner and raise further grounds as may be advised.