Mathur, J.@mdashBy 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 23rd May, 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 30th April, 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 u/s 482 CrPC, which was rejected by order dated 25.7.96. Obviously, after rejection of application u/s 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. 30th April, 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 u/s 482 CrPC.
Consequently, the instant Cr.Misc. petition is hereby dismissed." 7.10.95:
3. 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/s 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 Singh 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."
4. 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 v. 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 9th July, 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.
5. 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:
6. 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.
7. It is held by the Apex Court in Baradakanta Mishra v. 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 v. Nripendra Nath Bagchi (3) and L. Narayan Das Shreeram Somani v. 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 v. Shirishkumar Rangrao Patil (5). 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.''
8. 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."
9. 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 30th October, 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:
10. As regard the second submission Mr. Mahesh Bora learned counsel for the petitioner has failed to point out any provision of law, which prohibits an inquiry initiated under Rules 17 to be converted under Rule 16 of the CCA. Rules, what to talk of converting an inquiry under Rule 17 to Rule 16 even a de novo inquiry can be ordered on the same facts and substantially on the same charge. A competent authority is legally empowered to initiate a fresh inquiry after serving a notice under Rule 16 of the CCA. Rules. This view has been taken by this Court in Fateh Singh Lodha v. State of Rajasthan (6). This aspect has not been disputed by Mr. Mahesh Bora learned counsel for the petitioner, but his only submission is that such a power cannot be exercised when the inquiry under Rule 17 is at the fag and and consequently it cannot be converted from Rule 17 to Rule 16, without notice to the party affected. We have failed to understand when a de novo inquiry can be initiated way such a power cannot be exercised at the fag and of the inquiry. The seriousness of the nature of allegation can be judged at any stage of the inquiry. Even after inquiry report is submitted by the Disciplinary Authority can in the facts and circumstances of the case direct an inquiry for major penalty under Rule 16. It is submitted that since in inquiry under Rule 17, a reply has been submitted, thereby a defence has been disclosed, a fresh inquiry under Rule 16 will prejudice the case of the delinquent. The contention deserves to be rejected as a reply is required to be filed to the statement of allegations in either case i.e. enquiry under Rule 17 or 16. When a reply is submitted, it is obvious that the defence is disclosed. Even on conversion when inquiry commences under Rule 16, the delinquent is required to submit a reply and to disclose his defence. A departmental inquiry is to be distinguished from a criminal trial, where at the stage of charge a accused is not required to say any thing except to plead guilty or not guilty. In a departmental inquiry when a reply is to be submitted of the statement of allegation, the delinquent is not only required to admit or deny allegations but also to set up his or her case.
11. It is lastly argued by Mr. Mahesh Bora that the service of notice of inquiry under Rule 16 is in violation of principles of natural justice inasmuch as no notice has been given to the petitioner to show cause as to way the inquiry under Rule 17 for minor penalty be not converted into inquiry under Rule 16 for inflicting major penalty. In this regard, he has placed reliance on an unreported judgment of the Division Bench of this Court rendered on 27th February, 1997 in Himmat Singh v. State of Rajasthan (7). It is held in the said case that if an inquiry is to be converted from Rule 17 to Rule 16, the Chief Justice is required to record reasons in writing for doing so. The relevant portion is extracted as follows:-
"When the inquiry under Rule 17 of the Rules was in progress and the disciplinary authority was ceased of the matter then without there being any fresh cause no order should have been passed by the Chief Justice for converting the proceedings under Rule 16, unless there were goods reasons to be recorded in writing."
12. In the instant case, the reasons have been recorded by the Hon''ble Chief Justice for converting the inquiry from Rule 17 to Rule 16 of the CCA Rules. The Hon''ble Inquiry Judge has indicated the seriousness of the allegations against the petitioner, which have appeared in the course of the inquiry. The Hon''ble Chief Justice after perusing the report of the inquiry officer and considering all the facts and circumstances of the case has ordered to proceed with an inquiry under Rule 16 of the CCA Rules. The report of the Hon''ble Inquiry Judge and the order of the Hon''ble Chief Justice is extracted as follows:
"Considering the allegations and the explanation, I am of the humble opinion that the seriousness of the allegation, if established, may require a major penalty, but then that cannot be imposed without holding a regular enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. May be that even after holding regular enquiry under Rule 16 the delinquent officer may be let off on a minor penalty, but then looking to the allegtions, and in view of the latest judgment of Hon''ble Supreme Court in Superintendent of Central Excise v. Somabhai Ranchoodbhal Patel reported in 2001 AIR SCW 1565, specially para 15 and 16 thereof, photo state extract whereof is enclosed herewith, Your Lordship may kindly consider as to whether it would be appropriate to convert this enquiry into one under Rule 16 instead of 17."
Hon''ble the Chief Justice
"Perused the report. Considering the seriousness of the charges against the delinquent, the Enquiry Judge may proceed under Rule 16 instead of Rule 17."
13. It is thus evident that an inquiry under Rule 17 has been converted into Rule 16 by the order of the Chief Justice for good reasons recorded in writing. Thus, we find no merit in this contention as well.
14. It is also significant to notice that it is only in an inquiry under Rule 16, which has been proposed on the statement of allegations set out in Annexure-6. The memorandum clearly speaks that inquiry is proposed under Rule 16. The relevant portion of Annexure-6 is extracted as follows:-
"1. Miss Susheela Nagar, RJS, Civil Judge (Dr. Div.) Addl, Chief Judicial Magistrate, (U.S.), H.Q. at Barmer is hereby informed that it is proposed to hold an enquiry against her under rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958"
15. Thus, instead of rushing to this Court, the petitioner could have raised all the objections in reply which have been raised in the instant petition. Be that as it may, the petitioner on her own obtained a finding from this Court on the objections, which were available to her in reply to the notice Annexure-6. The Apex Court in The Chairman, Board of Mining Examination & Chief Inspector of Mine and Anr. v. Ramjee (8), has observed that natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. The Court observed thus-
"If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating."
16. In view of the aforesaid none of the contentions raised by the petitioner is sustainable No other point has been urged before us.
17. Consequently, we find no merit in this petition. The same is dismissed in limine.
