S. K. MAL LODHA, J. - (1.) IN these two writ petitions, two Judicial Officers have separately questioned the validity of the separate orders passed against them, by which, the orders exonerating them of all the charges were recalled.
(2.) THE writ petitions were heard together and as common questions are involved it will be convenient to dispose them of by a common judgment. S. B Civil writ Petition No. 839 of 1979 Jagdish Kumar Sinha versus THE State of Rajasthan. The petitioner worked as Munsif & Judicial Magistrate, Banswara during 1977. He was served with Memorandum No Est. B 2 (iii) 3/77/! 477 dated March 1, 1977 along with statement of charges and statement of allegations for the Departmental Enquiry against hirn, for some undesirable temper, which is unbecoming of a Judicial Officer. In pursuance of the aforesaid memorandum, he filed reply and claimed regular hearing during the Departmental Enquiry. During the pendency of the Departmental Enquiry he met the then Chief Justice Shri C. Honniah. The then Chief Justice passed on order exonerating him of all the charges. He has submitted photo stat copy of the letter dated September 21, 1978 marked as Ex. 3 informing him that he has been exonerated of all the charges. Later on, he was served with letter No. Est. B. 2 (iii) 3/77/3435 dated May 10, 1979 issued by the Registrar Rajasthan High Court, Jodhpur, by which, he was intimated that the order of exoneration dated September 21, 1978 has been recalled and Mr. Justice K. D. Sharma has been nominated as Disciplinary Authority to complete the enquiry. He has filed the photostat copy of the letter dated May 10, 1979 marked as Ex. 4. The petitioner has preferred this writ petition feeling aggrieved by recalling of the order dated September 21, 1978 exonerating him of all the charges. He has prayed for the issue of a writ of prohibition, restraining the respondents (State of Rajasthan, High Court of Judicature for Rajasthan and Registrar, High Court of Judicature for Rajasthan at Jodhpur) to proceed with the enquiry and to quash the order dated May 10, 1979, by which, the order of exoneration was recalled: S. B. Civil Writ Petition No. 850 of 1979 Saligram Chouhan versus the State of Rajasthan. The petitioner worked as Additional Munsif and Judicial Magistrate from June, 1974 to May, 1975 and as Munsif & Judicial Magistrate from May, 1975 to June, 1977 at Dholpur. In January, 1978, while posted as Munsif & Judicial Magistrate, he was served with Memorandum No. Est. B. 2 (iii) 1/78/226 dated January 10, 1978 along with statement of charges and statement of allegations for Departmental Enquiry against him. The memorandum and statement of charges were relating to the period of his posting at Dholpur both as Additional Munsif and Judicial Magistrate and as Munsif and Judicial Magistrate from June 1974 to June 1977. The charges related to the allegations that his orders/judgments were motivated with extraneous considerations. In pursuance of the aforesaid memorandum, he filed his reply. Thereafter, late Mr Justice R. L. Gupta was nominated as Disciplinary Authority. After the death of Mr. Justice R. L. Gupta the petitioner met the then Chief Justice Shri C. Honniah The then Chief Justice, after giving a personal hearing to the petitioner, exonerated him of all the charges levelled against him. The order of exoneration was conveyed to the petitioner vide letter No. 10596 dated August 30, 1978 by the Registrar, Rajasthan High Court, Jodhpur. The photostat copy of the letter has been submitted by him marked as Ex. 3 Later on, he was served with letter No. Est. B2 (iii) 1/78/3343 dated May 7, 1979, by which, he was intimated that the order of exoneration dated August 30, 1978 has been recalled and Mr. Justice D. P. Gupta has been nominated as Disciplinary Authority to complete the enquiry. The petitioner has filed this writ petition questioning the validity of the order contained in the letter dated May 7, 1979, recalling the order dated August 30, 1978 exonerating him of all the charges. He has prayed for the issue of a writ of prohibition, restraining the respondents to proceed with the enquiry and to quash the order intimated to him vide letter dated May 7, 1979, by which, the order of exoneration was recalled. On behalf of the respondents, caveat was lodged. Replies to both the writ petitions were filed on July 17, 1979, opposing the writ petitions. Along with the replies, copy of the order of exoneration and copy of the order recalling that order were filed marked as Ex. R. l and Ex. R. 2 respectively. The following objections, which are material for the disposal for the writ petitions, were raised by the respondents: (1) That there was no exoneration of the petitioners either by a competent authority or after a proper enquiry. In other words, it was stated that the power to conduct enquiry and exonerating or imposing any penalty on the delinquent] officer vests in the disciplinary authority and not the Chief Justice and, therefore, the order of the then Chief Justice, exonerating the petitioners of all the charges, was without jurisdiction and hence 'non-est. ' (2) That the writ petitions, challenging the re-starting of the disciplinary proceedings are pre-mature, as no punitive action was taken and result of the enquiry cannot be forecasted. (3) That the writ petitions are not maintainable in law. Rejoinders to the writ petitions were submitted. After hearing the learned counsel for the parties, the writ petitions were admitted on August 30, 1979. When these writ petitions came up for orders on the stay application on October 10, 1979, learned counsel for both the parties stated that arguments may by heard on the main writ petitions, while considering the stay applications and the writ petitions may be disposed of finally. I have heard Mr. A K. Mathur, learned counsel for the petitioners and Mr. D. S. Shishodia, learned Government Advocate on behalf of respondents. Learned counsel for the petitioners has raised the following contentions before me - (1) That the orders, by which, the orders exonerating the petitioners of all the charges were recalled, were passed in utter violation of the principles of natural justice inasmuch as before passing them no opportunity of hearing was afforded to the petitioners. (2) That the petitioners were exonerated of all the charges by the then Chief Justice and exoneration implies termination and as such enquiry against them could not be re-initiated. (3) That the orders in question amount to reviewing the previous orders exonerating the petitioners and as there is no specific provision for review of the exoneration orders, the orders in question are without jurisdiction. (4) Alternatively, review could only be made under r. 32 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and as the conditions laid down therein are not satisfied and as the orders were passed after the expiry of the period for reviewing the same, they are illegal. Learned counsel for the petitioners, in the first instance, submitted that there was violation of the principles of natural justice inasmuch as no opportunity of hearing was given to the petitioners, before passing the impugned orders, and, placed reliance on the decisions of State of Orissa vs. Binapani Dei (1), A. K. Kraipak vs. U. O. I. (2), Smt. Maneka Gandhi vs. Union of India (3), Poonam Chand vs. District Judge, Jodhpur. (D. B. Civil Writ Petition No. 369 of 1978, decided: on May 10, 1979), Bachansingh vs. Collector, Sriganganagar (S. B. Civil Writ Petition No. 591 of 1977, decided on July 12, 1979) and the State of Rajasthan vs. Shri Krishna Annakhetra Trust (D. B. Civil Special Appeal No. 81 of 1979, decided on May 8, 1979 ). On the basis of the aforesaid authorities, it was argued that the impugned orders recalling the orders exonerating the petitioners, having been passed without affording an opportunity of hearing to them, are illegal. It is not in dispute that the petitioners were not afforded an opportunity of being heard before passing of the impugned orders.
(3.) RELYING on Suresh Keshy George vs. University of Kerala (4), it was observed in A. K. Kraipak's case (2) as under: - "what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. " In Maneka Gandhi's case (3), it was obeserved as follows: "what opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing which in very brief and minimal: it may be hearing prior to the decision or it may even be post-decisional remedial hearing. The audi-alteram partem rule is sufficienlty flexible to permit modifications and variations to suit the exigencies of myraid kinds of situations which may arise. " Learned Government Advocate submitted that the orders of exoneration passed by the then Chief Justice were without jurisdiction and they being nullity in law did not confer any right on the petitioners and, therefore, the question of violation of the principles of natural justice does not arise. In this connection, reliance was placed on the decision of Puranchand vs. State of Rajasthan (5), wherein Kansingh, J. has made the following observations: "apart from this when no legal right came to be created in favour of the petitioner, the principles of natural justice will not be attracted. " In this connection, he also submitted that the orders of exoneration were passed by the then Chief Justice in violation of the principles of natural justice inasmuch as the departmental nominees were not heard and, therefore, they can be ignored. In view of the rival contentions raised by the learned counsel for the parties, the question that, therefore, arises for consideration is: whether the orders of exoneration passed by the then Chief Justice were without jurisdiction and, therefore, the orders recalling them could be passed without affording an opportunity of hearing to the petitioners. Article 235 of the Constitution of India reads as under: "235. Control over subordinate courts. The control over district courts and courts subordinate thereto 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 shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. " ;