MATHUR, J. - (1.) BY way of this writ petition under Article 226 of the Constitution of India, petitioner seeks to quash the memo dated 28. 7. 2001, whereby she has been informed that an enquiry is proposed to be held against her under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958, hereinafter referred-to as `the CCA Rules'.
(2.) PETITIONER Smt. Sushila Nagar is officer in the cadre of Rajasthan Judicial Service. She was served with a memo of chargesheet dated 30. 10. 2000 alongwith the Statement of Allegation under the signatures of Hon'ble the Enquiry Judge. The case against the petitioner as set out in the Statement of Allegations is that the learned Civil Judge (Junior Division) cum Judicial Magistrate, I Class, Pali, by order dated 23. 05. 1986 directed to release tractor bearing No. RSY 8389 to one Shri Mahaveer Chand. Another claimant of tractor filed a review application, which was rejected by order dt. 30. 6. 88. The revisional Court set aside the order of the learned Magistrate by order dated 30. 04. 1993 and directed to decide the application for disposal of the tractor after hearing all the concerned parties. This order was challenged before this Court by way of petition under Section 482 Crpc, which was rejected by order dated 25. 7. 96. Obviously, after rejection of application u/sec. 482 Crpc, the learned Magistrate was required to dispose of the application for disposal of the tractor in accordance with the order of the revisional Court dt. 30. 04. 1993 i. e. to decide the application afresh after giving hearing to all the concerned parties. The petitioner was working as Civil Judge (Jr. Div.) cum Judicial Magistrate, I Class, at Pali. She disposed-of the said application by order dated 7. 10. 1996 and directed to release the tractor to Mahaveer Chand in the garb of the order of the High Court. It was noted by her that the High Court has considered Mahaveer Chand as the owner of the tractor on the basis of the documents. The order of the High Court dated 25. 7. 1995 and the order of the learned Magistrate i. e. the petitioner are extracted as follows: ``instant 482 Petition has been filed against the revisional order passed by learned revisional court dt. 30. 4. 93. A close scrutiny of the orders impugned passed by revisional court indicates that by the impugned orders the learned revisional court has remanded the matters to the learned Magistrate to decide it in accordance with law. The orders of remand passed by the learned revisional court is eminently just and proper and it does not require interference under Sec. 482 Crpc. Consequently, the instant Cr. Misc. petition is hereby dismissed. '' `7. 10. 95 : *** The order of the learned Magistrate was clearly contrary to the orders of the High Court dt. 25. 7. 1995 and of the revisional Court dt. 30. 4. 93. Thus, the order of the learned Magistrate was set aside by the order of the High Court dt. 15. 9. 98. This led to the enquiry against the petitioner under Rule 17 of the CCA Rules. Hon'ble the Chief Justice entrusted the enquiry against the petitioner to Hon'ble Mr. Justice N. P. Gupta. Petitioner submitted a detailed reply to the memorandum of charges dt. 30. 10. 2000. On the main allegation, the case of the petitioner as set out in the reply is as follows: ``respected Sir, it appears from the order sheet of the life that on 25. 5. 93, the complainant alongwith his counsel was present in the Munsif & Judicial Magistrate's court and further order sheets will show that order of issuing notices to other parties were passed regularly and simultaneously the complainant was asked to furnish the documents. It also appears that meanwhile a petition u/sec. 482 Crpc was filed before Hon'ble High Court and file was called there. On disputed date i. e. 7. 10. 96 the file of Judicial Magistrate's court was received back. On that day, the delinquent was having charge of 3 courts and was overburdened. Furthermore, the regular reader of the court Mr. Vinod was on leave and a novice Criminal clerk Mr. Mal Signh was officiating as a reader. The order sheet will further show that the advocate of the complainant was also present in the court. Sir, I directed the officiating reader to write down the ordersheet as per the directions given in Hon'ble High Court's orders, but it seems that the officiating reader could not understood the Hon'ble High Court's order order and by mistake without seeking any further directions from the delinquent in the presence of complaint's advocate, he wrote down the disputed order sheet. '' The petitioner was given personal hearing by the Hon'ble Enquiry Judge. She was also permitted to submit written submission. The Hon'ble Enquiry Judge considering the allegations and the explanations, expressed that the seriousness of the allegations, if established, may require major penalty and, as such, after noticing the observations of the Apex Court in Superintendent of Central Excise vs. Soma Bhai Ranchhor Bhai Patel (1), directed to place the matter before Hon'ble the Chief Justice to consider enquiry against the petitioner for major penalty under Rule 16 of the CCA Rules. Hon'ble the Chief Justice as a Disciplinary Authority by order dated 9. 07. 2001, considering the seriousness of charges against the petitioner, requested the Hon'ble Enquiry Judge to proceed under Rule 16. Accordingly, the impugned memo dt. 28. 7. 2001 informing the petitioner about the enquiry under Rule 16 of the CCA Rules proposed against her. Alongwith the said memo, she was also served with the Statement of Allegations. Mr. Mahesh Bora, learned counsel for the petitioner, has made two fold submissions challenging the impugned enquiry under Rule 16 of the CCA Rules. It is submitted that the charges against the petitioner have been framed by the Hon'ble Enquiry Judge contrary to sub rule (2) of Rule 16 of the CCA Rules, inasmuch as the said rule envisages framing of charge only by the Disciplinary Authority. Another submission of the learned counsel for the petitioner is that they enquiry under Rule 17 of the CCA Rules against the petitioner, which was at the fag end, could not have been converted into an enquiry under Rule 16 of the CCA Rules for awarding major penalty. It is further submitted that this has seriously prejudiced the case of the petitioner, inasmuch as she has disclosed her defence in enquiry under Rule 17 of the CCA Rules. Elaborating the contention, it is submitted that in an enquiry under Rule 16 of the CCA Rules, the petitioner was not required to disclose her defence but now the department will produce the evidence keeping in view the defence taken by her in the enquiry under Rule 17 of the CCA Rules. CONTENTION NO. I: Under Article 235 of the Constitution of India, the control over the District Court and the Courts subordinate thereto including posting and promotion of, and the grant of leave to the persons belonging to the judicial services of the State and holding any post inferior to the post of District Judges, vests in the High Court. Thus, the High Court is vested with the powers of taking disciplinary action against the presiding officers of the District Court and the Courts subordinate thereto, subject to the provisions of Article 311 of the Constitution of India.
(3.) IT is held by the Apex Court in Baradakanta Mishra vs. High Court of Orissa (2), that the word ``control'' as used in Article 235 of the Constitution includes the disciplinary control over the District Judges and Judge inferior to the post of District Judge. The Apex Court further held that the word ``control'' includes something in addition to mere superintendence of the Courts. The control is over the conduct and discipline of judges. Following the earlier decision in The State of West Bengal vs. Nripendra Nath Bagchi (3) and L. Narayan Das Shreeram Somani vs. Sangli Bank Ltd. (4), the Apex Court held that the High Court alone can make enquiries against the judicial officers into their disciplinary conduct but it cannot terminate services or impose any punishment by removal or reduction. IT is settled that if, as a result of any disciplinary proceeding, any District Judge is to be removed from service or any punishment is to be imposed, that can be done only in accordance with the conditions of service. The position of law in this regard has been re-stated by the Apex Court in the High Court of Judicature at Bombay vs. Shirishkumar Rangrao Patil In the said case, the Apex Court approved the practice of passing resolution by the Full Court authorising the Chief Justice the constitute various committees including the committee to deal with the disciplinary matters pertaining to the subordinate judiciary or the ministerial staff working therein as under: ``it would thus be settled law that the control of the subordinate judiciary under Article 235 is vested in the High Court. After the appointment of the judicial officers by the Governor, the power to transfer, maintain discipline and keep control over them vests in the High Court. The Chief Justice of the High Court is first among the judges of the High Court. The action taken is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction of administrative business in the Court, the Full Court of the Judges of the High Court generally passes a resolution authorising the Chief Justice to constitute various committees including the committee to deal with disciplinary matters pertaining to the subordinate judiciary or the ministerial staff working therein. Article 235, therefore, relates to the power of taking a decision by the High Court against a member of the subordinate judiciary. Such a decision either to hold enquiry into conduct of a judicial officer, subordinate or higher judiciary, or to have the enquiry conducted through a District or Additional District Judge etc. and to consider the report of the Enquiry Officer for taking further action is of the High Court. Equally, the decision to consider the report of the enquiry officer and to take follow up action and to make appropriate recommendation to the Disciplinary Committee or to the Governor, is entirely of the High Court which acts through the Committee of the Judges authorised by the Full Court. Once a resolution is passed by the Full Court. Once of the High Court, there is no further necessity to refer the matter again to the Full Court while taking such procedural steps relating to control of the subordinate judiciary. '' The CCA Rules have been made applicable to the service conditions of the members of the Rajasthan Judicial Service by virtue of Rule 29 of the R. J. S. Rules, 1955, which reads as follows: ``29. Leave, allowance, pensions etc. :- Except or otherwise provided in these rules, the pay, allowances, pensions, leave and other conditions of service of the members of the service shall be regulated by: 1. the Rajasthan Travelling Allowance Rules, 1949, 2 the Rajasthan Civil Services (unification of pay scales) Rules, 1950, 3 the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950, 4 the Rajasthan Service Rules, 1951 and 5. any other rules under the proviso of article 309 of the Constitution and for the time being in force. '' Obviously, applicability of these rules are subject tot he Resolutions of the Full Court. The Full Court of the Rajasthan High Court by a resolution dated 30. 10. 1971 in exercises of the powers conferred by Article 235 of the Constitution of India delegated the powers to the Hon'ble Chief Justice for convenient transaction of business in the disciplinary matters. As per the said resolution, Hon'ble the Chief Justice or the Administrative Judge is empowered to initiate disciplinary action against the judicial officers including the District Judges. The Administrative Judge or the Judge nominated acts as a disciplinary authority. However, the Full Court in its meeting held on 6. 1. 1995 amended the resolution dt. 30. 10. 71, whereby the Administrative Judge or the Judge nominated by the Hon'ble Chief Justice, can issue chargesheet and conduct enquiry. The effect of the resolution is that now the judge nominated by Hon'ble the Chief Justice is an Enquiry Judge instead of Disciplinary Authority and he has the power to issue a chargesheet for enquiry under the Rules 16 or 17 of the CCA Rules. Thus, the chargesheet has been rightly issued by the Hon'ble Enquiry Judge as per the resolution of the Full Court dated 6. 1. 1995. Accordingly, the first contention raised by the learned counsel is rejected being devoid of any merit. CONTENTION NO. II: ;