DR.ANAND C J. - (1.) THROUGH the medium of this writ petition filed under Art 226 of the Constitution of India read with Sec 103 & 104 of the Constitution of J & K, the petitioner, Shri T R Parihar, a District and Sessions Judge (under suspension,) has challenged the findings of the enquiry officer besides the proceedings of the disciplinary .
(2.) ENQUIRY initiated against him by the High Court and the subsequent (the show cause notice Annexure P/9 issued to him by respondent No. 2 High Court of J & K). The grounds of challenge have been enumerated in the writ petition. Notice was issued to the respondents to show cause why the petition be not admitted and in response to (he notice, respondent No. 2 has filed preliminary objections to the "admissibility of the writ petition. At the stage of arguments, however, learned counsel for the petitioner, rightly, did not pursue the challenge to the enquiry proceedings or the findings of the enquiry officer, but confined his arguments to the challenge to the validity of the show cause notice Annexure P/9 which reads thus HIGH COURT OF JAMMU &. KASHMIR AT JAMMU To . Shri Tej Ram Parihar, District and Sessions Judge, (Under Suspension) , C/o Deputy Registrar, High Court, Jammu. No : 25674/GS Dated : 18 -3 -1985 Sir, The report of the Enquiry Officer Honble Justice Mazhar Ali Shah was placed before the Honble Court for consideration. The Honble Court has resolved as under:
(3.) MR . M. H. Beg, the learned Advocate General, appearing for respondent No. 2, on the other hand, argued that the writ petition was directed against a show cause and was, therefore, premature and not maintainable - He submitted that the High Court is the competent authority to initiate all disciplinary proceedings against the subordinate Judges including the District Judges an I that the impugned show cause notice had been issued to the Petitioner by the High court with a view to provide him with an opportunity to show cause against the proposed punishment. Mr. Beg vehemently argued that the issuance of the show cause notice cannot be interpreted as any indication of respondent No. 1 having made in its mind to punish the petitioner and that since it is the High court alone which has to make the recommendation to the Government, in case it comes to the conclusion that the petitioner deserves the punishment dismissal, removal from service or reduction in rank, it was not only obligatory in law on the High court but also a requirement of the rules of natural justice that the High court should issue the notice of the proposed punishment to the petitioner before making its recommendation to the Governor. Argued Mr. Beg, that since the control of the High court over the courts and judges subordinate to it, including the District Judges, is absolute and exclusive it is the High court which is required to issue the notice under Section 126 (2) of the State constitution and that in case this power is conceded to the Governor, in the case of District Judges, it will erode the independence of the judiciary because in that event the counsel of Ministers would have the final say in the matter of punishment of judicial officers in disciplinary proceedings. From the contentions raised at the Bar, the question requiring determination in the present writ petition, at this stage, is the scope of the word "control" occurring in Sec 111 of the constitution of Jammu and Kashmir, corresponding to Art 235 of the constitution of India and whether a notice under Sec. 34 of the J&K Civil Services (Classification, Control and Appeal) Rules, and alternatively under clause (2 of Sec. 126 of the State Constitution is to be issued by High Court or the Governor. This in turn, brings in question the an bit and extent of the disciplinary control of the High Court over the subordinate judiciary including the District Judges. We shall consider these questions in the light of some decided cases.;