@JUDGMENTTAG-ORDER
S.R. Nayak, J.@mdashThis writ petition is filed by a former District Munsif assailing G.O.Ms.No. 42 Law (LA and J) Courts-C Department dated 29-2-2000 imposing punishment of compulsory retirement from service with immediate effect as a disciplinary measure for a proved misconduct. The challenge to the proceedings Roc. No. 449/93/Vigilance Cell/B. Spl. dt.2-4-1996 issued by the Registrar (General), High Court of Andhra Pradesh, Hyderabad, the 2nd respondent herein, is misconceived inasmuch as the said order was subsequently set aside by the High Court itself on the representation made by the petitioner dated 8-7-1996 by its order dated 21-10-1999. The petitioner has also sought for quashing of the extension of periods of suspension pending departmental enquiry by orders dated 3-1-1994, 28-7-1994, 31-1-1995, 1-8-1995 and subsequent similar orders issued from time to time up to 29-2-2000.
2. The petitioner while working as Munsif-Magistrate, Zahirabad, Medak District was suspended pending enquiry on 14-7-1993 by proceedings issued by the 2nd respondent dated 20-7-1993. The 2nd respondent appointed Mr. M. Venkateswara Reddy. Addl. Chief Judge, City Civil Court, Secunderabad as Enquiry Officer to conduct regular departmental enquiry against the petitioner after framing necessary charges on the basis of the report of the District Judge and the enclosures appended thereto. Accordingly, the Enquiry Officer issued a Charge Memo dated 16-10-1993 containing as many as 8 charges. The charges are the following:
(1) You as the Presiding Officer of the Munsif Magistrate Court, Zahirabad ever since you took charge was in the habit of asking financial help and co-operation from the members of the Bar Association, Zahirabad pleading that you were getting only a sum of Rs.2000/- as salary every month and you had donated one of your kidneys to your son and spent lot of amount for the operation etc., and you were unable to meet your financial needs.
(2) You had secured loans from Central Bank of India and State Bank of India, Zahirabad exercising undue influence on Sri Chincholikar, Standing Counsel for Central Bank of India and Sri Digamber Rao Joshi, Standing Counsel for State Bank of India respectively.
(3) (a) You had demanded money from Mr. Mir Rayasat Ali, Advocate, appearing for the accused in STC Nos. 47 to 49/91 filed against the management of the Sugar Factory for violation of some of the provisions under Factories Act and Rules etc., and as the said Advocate refused to accede to your demand you had delayed pronouncement of Judgment in the matter;
(b) You had demanded money from Sri Venkatareddy, Advocate, appearing for the petitioner in LA. 380/92 in Election OP. 1/92 (between 17-3-93 to 29-3-93) for doing favour and as the said advocate refused to accede to your demand, you had delayed pronouncement of judgment in the above matter.
(4) (a) You had demanded Mr. Muktadar, Advocate son of Mr. M.A. Gafoor, advocate to present either a transistor or tape recorder for the marriage of your daughter and you had taken audio cassettes free of cost from Mr. Mukatadar, Advocate.
(b) You had taken supply of onions, potatoes and jaggery from Mr. G.R. Swamy, advocate and sent the same through Ramdas Transport Service to Tirupati in connection with the marriage of your daughter;
(c) You had taken supply of food daily from the house of Sub Inspector of Police, Zahirabad from September, 1992 to 27th May, 1993.
(5) You as the Presiding Officer of the Munsif Magistrate Court, Zahirabad, had threatened Mr. Safiuddin, Advocate on 18-11-1992 in open Court in the presence of advocates that you would report against him to the Bar Council for his absence on 17-11-1992 when the judgment was pronounced by you in O.S. 23/91 on the file of the M.M. Court, Zahirabad. You had also threatened the same advocate on 9-4-1994 when he made a request for grant of time to pay deficit Court fee in O.S.No. 105/91 in which a check-slip was issued for Rs.285/- by the High Court of A.P. stating that you would report that matter to the Bar Council for taking disciplinary action.
(6) You are not able to discharge the functions and duties of a judicial officer of a Court of law and you had committed acts of omission and commission which are unbecoming of a judicial officer.
(7) You are in the habit of adjourning the cases posted for judgments or orders from time to time creating suspicion in the minds of the advocates and the parties that you are expecting illegal gratification from them for granting favourable orders.
(8) During your tenure as the Presiding Officer of Munsif Magistrate''s Court, Zahirabad, you were in the habit of leaving headquarters on every Friday on one pretext or the other and returning back to the headquarters on the next Court working day i.e., Monday that too attending Court late.
The Enquiry Officer after holding a regular departmental enquiry held that only charges 1, 3(a), 3(b), 4(b), 4(c), 6 and 8 are proved and the remaining charges are not proved. The High Court, on receipt of the findings recorded by the Enquiry Officer and after due application of mind, found that charge No. 6 framed against the petitioner-delinquent is also not proved. The resultant position is that only charges 1, 3(a), 3(b), 4(b), 4(c) and 8 are proved. Having regard to the gravity of the proved misconduct, the High Court thought it fit to impose the penalty of compulsory retirement on the petitioner. Accordingly, by its order dated 2-4-1996, imposed penalty of compulsory retirement from service as a disciplinary measure. The petitioner subsequently submitted a representation dated 8-7-1996 contending that the High Court was not competent to pass the order imposing the penalty of compulsory retirement as a disciplinary measure and such order could validly be passed only by the Governor in the light of the Judgment of the Supreme Court in
3. Sri K.V. Satyanarayana, learned Counsel appearing for the petitioner would place two contentions before us while assailing the validity of the impugned G.O., viz., (i) under Rule 19(2)(a) of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1963 (for short, the CCA Rules), where it is proposed to impose, on a member of a service, any of the penalties classified in items (iv), (v), (vi) and (vii) in Rule 8, which includes the penalty of compulsory retirement, only the competent authority to impose that penalty shall appoint an Enquiry Officer and in the instant case, admittedly the Enquiry Officer was appointed by the High Court, whereas in law, the penalty of compulsory retirement as a disciplinary measure could be imposed validly only by the Governor, and on that count itself, the enquiry conducted against the petitioner is vitiated and the subsequent action taken on the report submitted by such incompetent Enquiry Officer would also fall to the ground; and (ii) that the order of the Governor is not a speaking order and it does not disclose reasons in support of the order.
4. Let us first dispose of the second contention first. It is true that in the impugned G.O., the Governor except referring to the enquiry conducted against the delinquent officer, findings recorded by the Enquiry Officer and the High Court, and the recommendation of the High Court, has not given any independent reasons in support of the impugned order. It is now, well settled by a catena of decisions of the Supreme Court, that in disciplinary proceedings, the recommendations made by the High Court bind the Governor and he is left with no discretion except to act according to the recommendation of the High Court. If this is the settled position in law, we are at a loss to understand how the non-disclosure of reasons by the Governor in addition to the finding recorded by the Enquiry Officer and the High Court would vitiate the impugned order. We say this because the very object behind insistence for disclosure of reasons is that the author of the order should apply discretion vested in him to the facts and circumstances of each case and pass appropriate and just order. In other words, discretion should be brought to bear on facts and circumstances of each case in the decision-making. Since the Governor is deprived of any such discretion to differ with the view or the recommendation made by the High Court, he giving independant reasons in support of the order would not arise. In that view of the matter, the second contention of the learned Counsel Mr. K.V. Satyanarayana is not acceptable to us and it is accordingly rejected.
5. This takes us to the first contention of the learned Counsel for the petitioner. It is true that Rule 19(2)(a) of the CCA Rules, 1963 provides that where it is proposed to impose major penalties like compulsory retirement, the authority competent to impose such penalty shall alone appoint the Enquiry Officer. The question for consideration is whether this provision would control the power of the High Court under Art.235 of the Constitution of India. Article 235 reads-
"235. 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 a 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 authorizing the High Court to deal with him otherwise than in accordance with the conditions of this service prescribed under such law."
6. The words ''control over Courts'' occurring in Article 235 fell for consideration in large number of cases decided by the Apex Court. The Apex Court has opined that the words ''control over Courts'' is wide and comprehensive enough to include general superintendence of the working of the subordinate Courts, disciplinary control over the Presiding Officers of the subordinate Courts, recommendation of imposition of penalty including suspension for the purposes of disciplinary enquiry, transfer, confirmation, promotion etc. In other words, the control vested in the High Court under Article 235 of the Constitution is complete control subject only to the power of the Governor in the matter of appointment, including posting and promotion of District Judges.
7. Secondly, it is very pertinent to notice in the instant case that the petitioner did not raise any objection when he was served with the charge memo dated 16-10-1993 about the incompetency of the High Court to appoint Mr. M. Venkateswara Reddy, as Enquiry Officer. He participated in the enquiry proceedings and suffered an adverse order at the hands of the High Court. Further, even in his representation dated 8-7-1996 submitted to the High Court, he did not raise this plea. The only contention in the representation was that in view of the Judgment of the Supreme Court in David Wilson''s case (1 supra), only the Governor is competent to impose the penalty of compulsory retirement as a disciplinary measure and not the High Court. Looking from that angle also, the technical plea taken by the petitioner in this writ petition for the first time cannot be countenanced and on that ground that disciplinary action taken against him on the proved misconduct cannot be nullified.
8. Before concluding, another prayer made by the petitioner in the writ petition to quash the extension of periods of suspension vide orders dated 3-1-1994, 28-7-1994, 31-1-1995, 1-8-1995 and subsequent orders of similar nature till 29-2-2000 be noted. We do not think it necessary to deal with the question whether there was any justification for extension of suspension period from time to time, in the present proceeding. Answer to that question may be a relevant consideration in passing the consequential order by the High Court in pursuance of the order of the Governor. At the time of hearing, we pointedly asked the learned Counsel for the petitioner whether any consequential order has been made by the High Court in pursuance of the order of the Governor dated 29-2-2000 and the learned Counsel would inform us that no such order has been yet passed by the High Court. Therefore, there is no necessity for us to deal with the legality and the merit of the extension of suspension period vide orders dated 3-1-1994, 28-7-1994, 31-1-1995, 1-8-1995 and subsequent orders till 29-2-2000 in the present proceedings. We leave that question open and it is open for the petitioner to make necessary representation to the High Court in that regard.
9. In the result and for the foregoing reasons, we do not find any merit in the writ petition and it is accordingly dismissed with no order as to costs.
