Holding

The Disciplinary Committee must give the delinquent officer an opportunity of hearing before overturning the Enquiry Officer’s findings; failure to do so violates natural justice and Article 311(2), rendering the dismissal order void.

Summary

Y.D. Bagde, a judicial officer of the Maharashtra subordinate judiciary, was charged with corrupt practices and an enquiry officer found the charges not proved, recommending reinstatement. The High Court's Disciplinary Committee disagreed, issued a show‑cause notice and recommended dismissal without giving Bagde a hearing on its contrary view. The Supreme Court held that, under Article 311(2) of the Constitution and the principles of natural justice, the Disciplinary Committee must afford a hearing before overturning the enquiry officer’s findings. Rule 9(2) of the Maharashtra Civil Service (Discipline & Appeal) Rules, 1979, though silent, must be read to include this requirement. The Court also rejected the contention that only a Full Court could impose dismissal under Article 235. Consequently, the dismissal order was quashed and Bagde was reinstated with full benefits.

Issues considered

The Disciplinary Committee’s duty to provide a hearing before disagreeing with the Enquiry Officer’s findings and imposing dismissal.
Whether Rule 9(2) of the Maharashtra Civil Service (Discipline & Appeal) Rules, 1979, incorporates the requirement of a hearing in line with natural justice and Article 311(2).
The scope of Article 235 of the Constitution regarding whether a disciplinary decision must be taken by the Full Court of the High Court.
The power of the High Court and Supreme Court to review and re‑appraise the findings of a departmental enquiry.
The validity of the dismissal order issued by the State Government on the recommendation of the Disciplinary Committee.

Legislation cited

Constitution of Indias. Article 226, s. Article 235, s. Article 309, s. Article 311(2), s. Article 32

Subjects

natural justiceright to be hearddepartmental enquirydisciplinary proceedingsArticle 311Article 235Maharashtra Civil Service Rulesjudicial officer dismissalhigh court controlreappraisal of evidence

Judgment

"f!t.'

A YOGINA TH D. BAG DE
v.
STATE OF MAHARASHTRA AND ANR.

SEPTEMBER 16, 1999

B [S. SAGHIR AHMAD AND K. VENKATASWAMI, JJ.]

Service Law :

Maharashtra Civil Service (Discipline & Appeal) Rules, 1979-Rule
c 9(2)
Dismissal-Judicial Officer-Charged for indulging in corrupt
practices-Departmental enquiry-Enquiry Officer's finding that charges were
not established-Disciplinary Committee of High Court disagreeing with the
D findings of Enquiry Officer, recommending punishment of dismissal-Show
cause notice to delinquent officer-No opportunity of hearing provided before
final decision-Validity of-Held, it is obligatory on the Disciplinary
Committee to afford opportunity of hearing before reversing the finding of
Enquiry Officer-Requirement of hearing in consonance with the principles
of natural justice has to be read into the Rule, which does not specifically
E provide for such opportunity-Principles of natural justice-Violation of-
Order of dismissal quashed-Constitution of India, 1950, Article 311(2).

Departmental Enquiry-Pendency and conclusion of-Submission of
enquiry report-Effect of-Held, mere submission offindings to the Disciplinary
Authority does not bring about the closure of enquiry proceedings-Enquiry
F proceedings would be pending till the findings were considered and final
decision is taken in the matter.

Constitution of India

Article 235-Control of High Court over subordinate courts-Vesting
G of-Whether to be exercised by Full Court consisting of all the sitting Judges
or through a Committee consisting of some Judges? Judicial Officer-
Disciplinary Committee of High Court recommending dismissal-Validity
of-Held, in view of Constitution Bench's decision in Batuk Deo 's case,
Disciplinary Committee competent to recommend dismissal of an officer-
H Suggestion to Chief Justice of the High Court to adopt a Resolution for wider
490
Y.D. BAGDEv. STATE 491
consultation, with other Judges regarding imposition of major penalties like A
dismissal or removal of Judicial Officers. ·

Article 235-Control of High Court over subordinate courts-Duty to
protect the officer of subordinate court-Held, it is imperative for the High
Court to protect its honest Judicial Officers from unscrupulous litigants and B
lawyers.

Articles 226 and 32-Judicial review-Reappraisal of the findings of
Enquiry Officer or Disciplinary Authority-Scope and extent of

Appellant, an officer of subordinate judiciary, was charged for indulging C
in corrupt practices. The charges were framed on the basis of a complaint
made by an accused whose trial was pending before the appellant Departmental
Enquiry was initiated against the appellant. Enquiry Officer held that the
charges against the appellant were not established and, therefore,
recommended his reinstatement. However, the Disciplinary Committee of the
High Court, disagreeing with findings of Enquiry Officer, issued show cause D
notice to the appellant for imposing the punishment of dismissal. The
Disciplinary Committee without giving opportunity of hearing to the appellant,
recommended his dismissal from service. Appellant unsuccessfully challenged
his dismissal before the High Court. Hence the present appeal.
E
On behalf of appellant it was contended that before recording its reasons
for disagreeing with the findings of the Enquiry Officer and issuing a show
cause notice in which the punishment of dismissal was proposed, the appellant
should have been given an opportunity of hearing and since this was not done,
the principles of natural justice were violated with the result that the decision
of the Disciplinary Committee of the High Court stood vitiated; the decision F
to impose the punishment of dismissal could not have been taken by
Disciplinary Committee as the jurisdiction in that regard vested in the High
Court which means the Full Court comprising of all the sitting Judges and
they alone could have deliberated upon the matter and taken a decision
whether or not the appellant was liable to be dismissed from service; that G
there was no evidence in support of the charges that the appellant had
demanded money from the accused and that the Enquiry Officer was justified
i~ recording the finding that the charges were not established.

Allowing the appeal and setting aside the order of High Court, the
~rt H
492 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A Held: 1.1. The action of Disciplinary Committee in not giving an
opportunity of hearing to the appellant before taking a final decision that the
charges levelled against him were proved amounts to violation of principles
.,
of natural justice. The order of dismissal is quashed and appellant reinstated ,
in service with all consequential benefits. [520-B-E]

B Punjab National Bank & Ors. v. Kunj Behari Mishra, [1998] 7 SCC
84 =AIR (1998) SC 2713, relied on.

State of Assam v. Bimal Kumar Pandit, [1964] 2 SCR 1 =AIR (1963)
SC 1612; Institute of Chartered Accountants of India v. L.K. Ratna & Ors.,
[1986] 4 SCC 537; Managing Director, ECIL, Hyderabad & Ors. v.
C B.Karunakar & Ors., [1993) 4 SCC 727 and Ram Kishan v. Union of India,
[1995] 6 sec 157, referred to.

State Bank of India v. S.S. Kosha/, [1994] Supp. 2 SCC 468 and State
of Rajasthan v. MC. Saxena, [1998)3 SCC 385, held inapplicable.

·D 1.2. Rule 9(2) of the Maharashtra Civil Service (Discipline & Appeal)
Rules, 1979 enables the Disciplinary Authority to disagree with the findings
of the Inquiring Authority on any article of charge. The said Rule does not
specifically provide that before recording its own findings, the Disciplinary
Authority will give an opportunity of hearing to a delinquent officer. But the
E requirement of "hearing" in consonance with the principles of natural
justice provided in Article 311(2) of the Constitution has to be read into Rule
9(2) and it has to be held that before the Disciplinary Authority finally
disagrees with the findings of the Inquiring Authority, it would give an
opportunity of hearing to the delinquent officer. The Disciplinary Authority
also has to communicate to the delinquent officer the "tentative" reasons for
F disagreeing with the finding of the Inquiring Authority. Thus, a delinquent
employee has the right of hearing not only during the enquiry proceedings
-
conducted by the Enquiry Officer into the charges levelled against him but
also at the stage at which those findings are considered by the Disciplinary
Authority and the latter, namely, the Disciplinary Authority forms a tentative
G opinion that it does not agree with the findings recorded by the Enquiry
Officer. Mere submission of findings to the Disciplinary Authority does not
bring about the closure of the enquiry proceedings. The enquiry proceedings
w.ould come to an end only when the findings have been considered by the
Disciplinary Authority and the charges are either held to be not proved or
found to be proved and in that event punishment is inflicted upon the delinquent
H That being so, the "right to be heard" would be available to the delinquent
Y.D. BAGDEv. STATE 493
up to the final stage. This right being a constitutional right of the employee A
cannot be taken away by any legislative enactment or service rule including
Rules made under Article 309 of the Constitution.
(509-F-G-H; 510-A; 511-E-H; 512-AJ

1.3. In the instant case, the Enquiry Officer had recorded the findings
that the charges were not proved. These findings were' submitted to the B
Disciplinary Committee which disagreed with those findings and issued a
notice to the appellant requiring him to show cause why he should not be
dismissed from service. The Disciplinary Committee, in fact, had acted in
accordance with the statutory provisions contained in Rule 9(4)(i)(a)&(b),
and called upon to show cause against the proposed punishment of dismissal. C
But he was requiring to show cause only against the punishment proposed
by the Disciplinary Committee which had already taken a final decision that
the charges against the appellant were proved. It was not indicated to him
that the Disciplinary Committee had come only to a "tentative" decision and
that he could show cause against that too. It was for this reason that the reply
submitted by the appellant failed to find favour with the Disciplinary D
Committee. [512-C-D; 513-H; 514-AI
2. The Disciplinary Committee was not justified in disagreeing with
the findings recorded by the Enquiry Officer that the charges levelled against
the appellant were not established. There is inconsistency in the complainant's
story with regard to the place at which the demand was allegedly made by E
the appellant. Further, the trap laid by Anti-Corruption Bureau at the behest
of the complainant also failed. The statements of defence witnesses were not
considered by the Disciplinary Committee and instead relied upon the statement
of the complainant alone. This factor in itself was sufficient to vitiate the
findings recorded by the Disciplinary Committee contrary to the findings of
the Enquiry Officer. The Disciplinary Committee was not justified in going F
by surmises and conjectures rather than by the evidence on re-cord.
[519-C; 516-D-E-F-H]

3. Under Article 235 of the Constitution, the High Court has a duty
to protect the officers of the Subordinate Judiciary from unscrupulous litigants G
and lawyers.· In the instant case, the accused had taken the Court, where the
two Sessions Trials were pending against him, for a ride. He had adopted
similar tactics in the Court of Sessions Judge and again in the Court of
Addi. Distt. and Sessions Judge, where these two cases were transferred and
yet again in the court of the appellant where these Sessions Trials came to
be ultimately transferred. The presiding officer of the Court cannot act as H
494 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A fugitives. They have also to face sometimes quarrelsome, unscrupulous and
cantankerous litigants but they have to face them boldly without deviating
from the right path. They are not expected to be overawed by such litigants ~
or fall to their evil designs. [518-G-C-D; FJ
!shwar Chand Jain 1 High Court of Punjab & Haryana & Anr., AIR
1•

B (1988) SC 1395, relied on.
4. If the findings are perverse and are not supported by evidence on
record or the findings recorded at the domestic trial are such to which no
reasonable person would have reached, it would be open to the High Court
as also to this Court to interfere in the matter. Thus, it cannot be accepted
C that the High Court or this Court cannot, in exercise of its jurisdiction
under Article 226 or 32 of the Constitution, act as the Appellate Authority
in the domestic enquiry or trial and it is not open to this Court to reappraise
the evidence. [519-E-D)
Ku/deep Singh v. The Commissioner of Police & Ors., JT (1998) 8 SC
D 603 = [1999) 2 SCC 10; Nand Kishore v: State of Bihar, AIR (1978) SC 1277
= (1978) 3 SCC 366 = [1978) 3 SCR 708; State of Andhra Pradesh v. Sree
Rama Rao, AIR (1963) SC 1723 = [1964) 3 SCR 25; Central Bank of India
v. Prakesh Chand Jain, AIR (1969) SC 983; Bharat Iron Works v.Bhagubhai i
Balubhai Patel & Ors., AIR (1976)SC 98 = [1976) 2 SCR 280 = [1976)1
SCC 518 and Rajinder Kumar Kindra v. Delhi Admn. thro SecretaTy, (Labour)
E & Ors., AIR (1984) SC 1805 = [1985) 1 SCR 866 = 11984) 4 sec 635,
relied on.
5. The recommendation to dismiss the appellant made by the High
Court cannot be challenged on the ground that such recommendation was
made by the Disciplinary Committee and not by the Full Court comprising
F ofall the sitting Judges. However, constitution of Disciplinary Committee
with few Senior Judges permanently excludes other Judges, which is against
the concept of wider consulation which is inherent in the words "High
Court". Thus, it is suggested that the Chief Justice of High Court may adopt
a resolution permitting other Judges also to participate in the decision
G making process at least, the imposition of major penalties like dismissal or
removal of the judicial officers. [505-F-G; 506-B-C)
State of UP. v. Batuk Dea Pati Tripathi & Anr., [1988) 2 SCC 102,
followed.

Registrar, High Court of Madras, v. R. Rajiah, AIR (1998) SC 1388;
H Ffigh Court of Punjab & Haryana v. State of Haryana, l1975] 3 SCR 365;
Y.D. BAGDE v. STATE [S. SAGHIRAHMAD, J.] 495
Samsher Singh v. State of Punjab, [1975] 1 SCR 814; State of Haryana v. A
lnder Prakash Anand, AIR (1976) SC 1841 and B. Mishra v.. Orissa High
, Court, [1976) 3 SCC 327, relied on.

Batuk Deo Pati Tripathi v. State of U.P. & Ors., (Civil Misc. Writ No.
3561 decided on 18.4.1977), disapproved.
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15479 ~f
1996

From the Judgment and Order dated 21.6.96 of the Bombay High Court
in W.P. No. 3434 of 1993. c
V.N. Ganpule, Vijay Thakre and R.S. Lambat for the Appellant.

Harish N. Salve and D.M. Nargolkar for the Respondents.

The Judgment of the Court was delivered by D
S. SAGHIR AHMAD, J. The appellant has approached this Court against
the judgment and order dated 21.6.1996 passed by the Bombay High Court
which had dismissed the Writ Petition by which the appellant had challenged
the order dated 8.11.1993 (20. l l .1993) dismissing him from service after the
disciplinary proceedings in which it was found that the appellant was guilty E
of the charges framed against him.

The appellant was appointed as Civil Judge, Jr. Division, on l 8.2.1974
and was thereafter promoted as Civil Judge, Senior Division in August, 1983.
He was further promoted as Addi. District and Sessions Judge in September, F
1987.

In June, 1990, while the appellant was posted at Amravati, two Sessions
Trials No. 28 of 1982 and 37 of 1987, in which one Deepak Trimbakrao
Deshmukh, on whose complaint appellant was ultimately dismissed from
service, was involved as an accused. Both the cases related to a murder in G
which the appellant had refused long adjournments on the ground that the
matters were old. In July, 1990, the accused Deepak Trimbakrao Deshmukh·
filed a transfer petition before the Nagpur Bench of the Bombay High Court
for the transfer of the case from the appellant's court to some other court on
the ground that one Shri Patil, Advocate, who was opposed to Deepak
Trimbakrao Deshmukh, was very close to the appellant and, therefore, Deepak H
496 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Trimbakrao Deshmukh apprehended that he would not get justice from the
appellant's court. This was registered as Transfer Petition No. 701 of 1990. On
10th of August, 1990, the accused Deepak Trimbakrao Deshmukh filed another
Transfer Petition (No. 812 of 1990) on the allegation that his Advocate (Shri
Bapat) had assured him of his acquittal in the case, provided he would pay
B Rs. 20,000 to him as his fee. An interim order was passed in this case by which
the proceedings in the Sessions Trial were stayed. On 18th September, 1990,
however, Deepak Trimbakrao Deshmukh withdrew both the Transfer Petitions.

Thereafter, Deepak Trimbakrao Deshmukh made a complaint against the
appellant to the High Court as a result of which the appellant was placed
C under suspension by order dated 22nd April, 1992 which was served upon
the appellant on 27th April, 1992. Thereafter, through letter dated 22nd May,
1992, a chargesheet along with the statement of imputations, list of witnesses
and list of documents, proposed to be relied upon against the appellant, were
issued to the appellant. The following two charges were mentioned in the
chargesheet:

"1. That while you were working as 2nd Additional Sessions Judge,
Wardha, Sessions trial No.28/82 and 37/87 were pending before you
in which Deepak Trimbakrao Deshmukh was an accused. You had a
meeting with said accused at the residence of Dr. Naranje
Rashtrabhasha Prachar Samiti Road, Wardha on 23.11.90 when you
E assured him of acquittal on payment of Rs.10,000/- in each case and
that you thereby indulged in corrupt practice amounting to gross
misconduct.

2. That on 18.12.1990 at about 8.00 P.M. at the residence of Dr.
Naranje, Rashtrabhasha Prachar Samiti Road, Wardha, you m.ade a
F demand ofRs.10,000 from Shri Deepak Trimbakrao Deshmukh, resident
of Wardha, Taluka Arvi, District Wardha, as consideration for his
acquittal in Sessions Trial No.37/87 under Section 302 etc. l.P.C. and
that you thereby indulged in corrupt practice amounting to gross
misconduct."
G
The appellant filed his reply on 18th Jone, 1992 in which the charges
were denied and it was stated by the appellant that Deepak Trimbakrao
Deshmukh had made a false complaint against him so that his cases may not
be tried by the appellant. On a consideration of the reply submitted by the
appellant, the Disciplinary Authority, not being satisfied by the reply, decided
H to hold a departmental enquiry against the appellant and, therefore, by its
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.] 497
order dated 3rd August, 1992 appointed Mr. G .B. Asma, Joint District Jildge, A
Akola, as the Enquiry Officer.

After completion of enquiry, the Enquiry Officer submitted his report
dated 21st December, 1992 to the Disciplinary Authority. It was held by the
Enquiry Officer that the charges against the appellant were not established B
and, therefore, he recommended the reinstatement of the appellant. The
Disciplinary Committee of the High Court considered the report of the Enquiry
Officer and disagreeing with the findings of the Enquiry Officer held that the
charges against the appellant were proved. The Disciplinary Committee,
therefore, tentatively decided to impose the penalty of dismissal from service
upon the appellant. Accordingly, the appellant was called upon by a notice C
to show cause why the proposed penalty be not imposed upon him. A copy
of the reasons recorded by the Disciplinary Committee for not agreeing with
the findings submitted by the Enquiry Officer as also a copy of the Enquiry
Officer's report were sent to the appellant who filed his reply to the show-
cause notice. This reply was considered by the Disciplinary Authority, namely,
the High Court which decided to impose the major penalty of dismissal from D
service and accordingly recommended to the Government of Maharashtra that
the appellant be dismissed from service. Acting upon this recommendation,
the Government of Maharashtra, by order dated 8.11.1993, dismissed the
appellant from service.
.. The order of dismissal was challenged by the appellant by means of a
E
Writ Petition, filed under Article 226 of the Constitution, which was opposed
by the High Court on whose behalf Nilkanth Vishwanath Dabholkar, l/C,
Additional Registrar, High Cout, (Legal) Appellate Side, filed an affidavit
dated 7.6.1996 in opposition. The High Court, by the impugned judgment
dated 21st of June, I 996, dismissed the Writ Petition and it is in these F
circumstances that the present appeal has been filed in this Court by Special
Leave.

Learned counsel appearing on behalf of the appellant has raised several
contentions including that there was no evidence in support of the charges G
that the appellant had demanded Rs.10,000 in each of the two Sessions Trials·
pending in his court from the accused, namely, Deepak Trimbakrao Deshmukh,
for his acquittal and that the Enquiry Officer was justified in recording the
finding that the charges were not established. It was also contended that the
reasons on the basis of which the Disciplinary Committee of the High Court
disagreed with the findings recorded by the Enquiry Officer are wholly H
498 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A erroneous and conjectural. It 'is contended that on the basis of the evidence
on record, no person could reasonably have come to the conclusion that the
payment of Rs. l 0,000 in each of the two Sessions Trials to the appellant by
Deepak Trimbakrao Deshmukh, was established. It is also contended that
before recording its reasons for disagreeing with the findings of the Enquiry
B Officer and issuing a show-cause notice in which the punishment of dismissal
was\Proposed, the appellant should have been given an opportunity of
hearing and since this was not done, the principles of natural justice were
violated with the result that the decision of the Disciplinary Committee of the
High Court stood vitiated and on the basis of that decision, no recommendation
could have been made to the State Government for dismissing the appellant
C from service nor could the State Government, acting on that recommendation,
legally pass the order of dismissal. The !earned counsel also contended that
the decision of the Disciplinary Committee of the High Court was wholly
contrary to the provisions contained in Article 235 of the Constitution under
which the control and supervision over the subordinate officers of the
-
subordinate judiciary vests in the High Court. It is contended that though the
D decision to hold the disciplinary enquiry could have been taken by the
Disciplinary Committee constituted by the High Court in pursuance of a
Resolution of the Full Court, the decision to impose the punishment of
dismissal could not have been taken by that Committee as the jurisdiction in
that regard vested in the High Court which means the Full Court comprising
E of all the sitting Judges and they alone could have deliberated upon the
matter and taken a decision whether or not the appellant was liable to be
dismissed from service.

It is contended that since the Enquiry Report was considered only by
the Disciplinary Committee which disagreed with the findings of the Enquiry
F Officer and came to its own conclusion that the charges against the appellant
were established and, therefore, he was liable to be dismissed from service
and since the decision of the Govemment was based on the recommendation
of the Disciplinary Committee, the order of dismissal ultimately passed by the
State Government on that recommendation cannot be sustained.

G We will first de~! with the jurisdiction of the Disciplinary Committe~,
constituted by the High Court, to consider the report of the Enquiry Officer
and take a decision to impose the punishment of dismissal from service upon
the appellant.

This question has been disposed of by the High Court, before which
H it was raised, in the following words:-
Y.D. BAG DE v. STATE [S. SAGHIR AHMAD, J.] 499
"Equally there is no merit in the submission made by the Petitioner A
that the decision of the Disciplinary Committee to impose major penalty
of dismissal from service upon the Petitioner on the charges levelled
against the Petitioner being held proved was required to be rectified
by the Full Court, i.e., all the Judges of this Court. The challenge of
the Petitioner on this ground is no longer res integra. By the judgment B
delivered on 23rd June, 1992 by the Division Bench of this Court in
Writ Petition No.5847 of 1991 as also by the judgment delivered on
15th March, 1996 by another Division Bench of this Court in Writ
Petition No.649of1996 (R.W.Khan v. State of Maharashtra), similar
challenge as made in the present petition has been negatived. While
examining the question whether the decision taken is that of the High C
Gourt or not in view of Article 235 of the Constitution of India, the
Division Bench found that there is in the field Resolution dated 2nd
May, 1981 passed by the Full Court which lay down the manner and
regulates the procedure for administrative decisions on several
subjects and matters enumerated therein. Based upon this Resolution
of Full Court, the practice evolved in this court is that from time to D
time a Disciplinary Committee is appointed by the Chief Justice which
normally consists of Senior Judges and the decisions and
recommendations made by such Disciplinary Committee are considered
as decisions and recommendations of Full Court, i.e., all the Judges
of this Court. Accordingly, the decision taken by the Disciplinary E
Committee of this Court to dismiss the Petitioner from service is
nothing but the decision of the High Court itself. Hence, it was not
necessary to place the said decision for approval or rectification
before the meeting of all the Judges or Full Court."

The above extract shows that the High Court was of the opinion that F
if in a meeting of the Full Court a Resolution was adopted authorising the
Chief Justice to constitute a Di~ciplinary Committee and the Committee was
authorised to take a decision with regard to the punishment which would be
inflicted upon a delinquent officer of the subordinate judiciary, the decision
of that Committee would be treated to be a decision of the ·Full Court and,
therefore, there was no need to circulate the findings of the Disciplinary G
Committee to all the Judges of the High Court or to place the whole matter
before the Full Court.

We may consider the respective contentions on merits.

Article 235 of the Constitution provides as under: H
500 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A "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
B which he may under the law regulating the conditions of his service
or as authorising the High Court to deal w·ith him otherwise than in
accordance with the conditions of his service prescribed under such
law." .-

C This Article contemplates control of the High Court over the subordinate
courts. Read with Articles 233 and 234, the word "control" used in Arti~le 235
would indicate that although the Appointing Authority of the District Judge
and officers other than District Judges is the Governor of the State, the words
·~control over district courts and courts subordinate thereto", which are words
of wide connotation, vest in the High Court other facets of service of those
D officers, namely, their confirmation on completion of the period of probation,
their postings, transfers and disciplinary matters including power to recommend
major punishments. Thus, the "control" vested in the High Court is complete
control subject only to the powers of the Governor in the matter of appointment, h
initial posting and promotion to the posts of District Judges. For imposing
E major punishment, including the punishment of dismissal, removal or reduction
in rank, the High Court can, in exercise of its powers under Article 235 of the
Constitution, hold disciplinary proceedings and recommend the punishment
to be imposed on the delinquent to the Governor who alone would be
competent to impose such punishment having regard to the provisions of
Articles 233 and 234.
F
A controversy had erupted at one time whether the words "High Court"
used in Article 235 would mean all the Judges sitting together in a Full Court
meeting or merely a Committee of Judges appointed by the Chief Justice; in
other words, whether the Full Court comprising of all the sitting Judges of
G the Court can act through a Committee of Judges for purposes of
recommending the major punishment. A Full Bench ·of the Allahabad High
Court in Batuk Deo Pati Tripathi v. State of U.P. & Ors., (Civil Misc. Writ
No. 3561 decided on 18.4.1977) took the view that the words "High Court"
used in Article 235 meant the Full Court and not merely a Committee of Judges
appointed by the Chief Justice. This decision was reversed by a Constitution
H Bench of this Court in State of Uttar Pradesh v. Batuk Deo Pati Tripathi &
Y.D. BAGDEv. STATE [S. SAGHIRAHMAD, J.] 501

Anr. [1978] 2 SCC 102. This Court observed as under: A
"Having given our close and anxious consideration to that question,
we regret that we are unable to share the view of the majority of the
High Court Full Bench that by leaving the decision of the question
of the respondent's compulsory retirement to the Administrative
Committee, the Court had abdicated its constitutional function. B
According to the view of the majority, the act of the Court in allowing
the Administrative Committee to decide that question under Rule 1 of
Chapter III of 1952 Rules is an act of"self- abnegation" and therefore
void. This approach betrays, with respect, a misunderstanding of the
- object of Article 235. The ideal which inspired the provision that the
control over District Courts and courts subordinate thereto shall vest
C

in the High Courts is that those wings of the judiciary should be
independent of the executive. Tracing the history of that concept,
Hidayatullah, J. in State of West Bengal v. Nripendra Nath Baghchi
ha:; highlighted the meaning and purpose of Article 235, as construed
by this Court in various decisions, requires that all matters relating to D
the subordinate judiciary including compulsory retirement and
disciplinary proceedings but excluding the imposition of punishments

- falling within the scope of Article 311 and the first appointments and
promtions should be dealt with and decided upon by the High Courts
in the exercise of the control vested in them. A proper understanding
and appreciation of this position will be conducive to a correct
E

assessment of the situation under examination in the instant case. For,
knowing that the object of Article 235 is to ensure that independence
of an important wing of the judiciary, the inquiry which assumes
relevance is whether the procedure sanctified by the Rules of the High
Court is in any manner calculated to interfere with or undermine that F
independence. Does that procedure involve "self-abnegation", by
conceding the right of control to any outside authority? It is pertinent,
while we are on this question, to know the context in which the
expression "self-abnegation" was used by this Court. In Shamsher
Singh v. State ofPunjab (supra) the action of the High Court in asking G
the State Government to ·depute the Director of Vigilance to hold an
inquiry against a judicial officer was deprecated by this Court as an
act of self-abnegation. The High Court abdicated its control over the
subordinate judiciary, which includes the power to hold a disciplinary
inquiry against a defaulting Judge, by surrendering that power to the
executive. That, truly, was an act of self-abnegation. There is no H
502 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A parallel between what the High Court did in Shamsher Singh and what ' ,
has been done in the instant case. Here, the decision to compulsorily
retire the respondent was taken by the Judges of the High Court itself,
though not by all. If some but not all Judges of the High Court
participate in a decision relating to a matter which falls within the High
Courts' controlling jurisdiction over subrodinate courts, the High
B Court does not efface itself by surrendering its power to an e~traneous
authority. The procedure adopted by the High Court under its Rules
is not subversive of the independence of the subordinate judiciary,
which is what Article 235 recognises and seeks to achieve. The true
question then for decision is not the one by which the majority of the
c Full Bench felt oppressed but simply, whether the procedure prescribed
by the High Court Rules is in any other manner inconsistent with the
terms of Article 235 of the Constitution."

It was also argued in that case that since the words "High Court" meant
the entire body of Judges appointed to the Court, the control over the
D subordinate judiciary which was vested by Article 235 in the High Court had
to be exercised by the whole body of Judges and that the High Court cannot
delegate that power or functions to a Judge or a smaller body of Judges of
the Court. This argument was rejected by the Constitution Bench and it was
held that there was no delegation involved in the process adopted by the
High Court for appointing an Administrative Committee under the Rules made
.
E by the High Court in exercise of its power under Article 225 of the Constitution
and that the Administrative Committee could recommend imposition of major
penalty which could not be questioned on the ground that such
recommendation was made not by the High Court but by the Committee of
Judges to whom the power could not be delegated. It was further held that
F if a "power" was given to the High Court by the Constitution, the manner in
which that power would be exercised, could also be laid down by the High
Court.

The Constitution Bench decision still holds the field.

G In another decision, namely, Registrar, High Court ofMadras v. RRajiah,
AIR (1988) SC 1388, the view ·of the Constitution Bench was reiterated and
it was held that recommendation for compulsorily retiring a member of the
subordinate judicial service comes within the purview of the power of control
of the High Court under Article 235 of the Constitution. In this connection,
the Court also relied upon the decisions of this Court in High Court of Punjab
H & Haryana v. State of Haryana, [ 1975] 3 SCR 365; Shamsher Singh v. State
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.] 503
of Punjab, (1975) 1 SCR 814; State of Haryana v. Inder Prakash Anand, AIR A
(1976) SC 1841 and B.Mishra v. Orissa High Court, (1976) 3 SCC 327. The
Court, however, while considering the facts of the case, observed as under:

"22. In Rajiah 's case, a Review Committee consisting of the three
judges was appointed by a resolution of the High Court. In the
meeting of the Review Committee held on June 25, 1979 to consider B
the case of the respondent Rajiah, only two Judges of the High Court
were present. The two Judges came to the conclusion that the
respondent, Rajiah should be compulsorily retired with effect from
April 2, 1980. The Division Bench found that the third Judge had no
notice of the meeting held on June 25, 1979, but he agreed with the C
view expressed by the two Judges with a slight modification that the
respondent would retire with effect from March 3, 1980 under rule
56(d) of the Fundamental Rules. The Division Bench of the High Court
took the view that as all the three Judges had not sat together and
considered the question of compulsory retirement of respondent Rajiah,
and that further, the third Judge having also modified the decision of D
the two Judges, namely, that the respondent would be compulsorily
retired with effect from March 3, 1980, the impugned order of
compulsory retirement of the respondent Rajiah was vitiated. It is true
that the members of the Review Committee should sit together arid
consider the question of compulsory retirement, but simply because E
one of them did not participate in the meeting and subsequently
agreed with the view expressed by'the other two Judges, it would not
vitiate the decision of the Committee to compulsorily retire the
respondent. The third Judge might be justified in correcting the date
with effect from which the respondent would compulsorily retire, but
that is a very minor issue and would not, in our opinion, make the F
decision invalid.

23. In regard to the case of the other respondent, namely, K.
Rajeswaran, the High Court took the view that the constitution of the
Review Committee by the Chief Justice and not by the Full Court was G
illegal. We are unable to accept the view of the High Court. We fail
to understand why the Chief Justice cannot appoint a Review Committee
or an Administrative Committee. But in one respect the High Court
is, in our opinion, correct, namely, that the decision of the Review
Committee should have been placed before .a meeting of the Judges.
Jn the case of the respondent, Rajeswaran, the decision and H
504 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A recommendation of the Review Committee was not placed before the
Full Court meeting. Nor is there aey material to show that the same •
was circulated to the Judges. Jn that sense, the recommendation of
the Review Committee was not strictly legal."
( Emphasis supplied )

B Relying upon the extracts underlined above, learned 'counsel for the
appellant contended that since in the instant case the matter was not circulated
to all the individual Judges of the High Court nor was their opinion sought
whether the appellant was liable to be dismissed from service, the

C
recommendation of the High Court as also the ultimate order of the Governor
of Maharashtra are bad in law and are liable to be quashed. This contention,
though apparently supported by the observations of this Court in Rajiah 's
c~ses (supra), cannot be accpeted as in a latter decision in High Court of
-
Judicature at Bombay v. Shirishkumar Rangarao Patil & Anr., [1997] 6 SCC
339, a similar plea was rejected as it was found on a consideration of various
resolutions adopted by the Bombay High Court that the Full Court having
D itself authorised the Chief Justice to constitute a Committee of Judges for
disciplinary matters, whatever decision was taken by the Committee was
treated to be a decision of the Full Court. This Court in paragraphs 10 and
11 of the report observed as under :

"10. It would thus be settled law that the control of the subordinate
E
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
F 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
G th'erein. 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 an enquiry into the 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
H consider the report of the enquiry officer and to take follow-up action
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.] 505
and to make appropriate recommendation to the Disciplinary Committee A
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 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 B
judiciary.

11. It is true that a resolution came to be passed authorising the
Committee of five Judges to deal with imposition of punishment on
judicial officers. The question, therefore, is whether it requires the
Chief Justice and the Committee to initiate disciplinary proceedings. C
The "delegation of the function of the High Court in respect of
punishment of judicial officers" is an exception of width and of wide
amplitude to cover within its ambit the power to take a decision by
the Committee from the stage of initiation of disciplinary proceedings,
if necessary, till its logical end, viz. recommendation to the Government
to impose a penalty proposed by the Committee. The recommendation D
is by the High Court, the controlling authority under Article 235 of the
Constitution. Therefore, it is difficult to accept the contention of Shri
Batra that the delegation is only for imposition of punishment on
judicial officers. In fact, the High Court has no power to impose any
punishment by itself. The appointing authority, viz., the Governor is E
the competent authority under the Constitution to impose punishment
in accordance with the rules framed for the purpose. Therefore, the
entire gamut of procedural steps of disciplinary action is by the High
Court which is the controlling authority through the Committee
constituted in that behalf by the Chief Justice of the High Court."

The case before us is also that of an officer belonging to the subordinate F
judicial service of Maharashtra under the control of the Bombay High Court,
and is, therefore, squarely covered by the above decisions. We need not look
into this question any further. We, therefore, hold that the recommendation
to dismiss the appellant made by the Bombay High Court to the Governor
would not be open to challenge on the ground that such recommendation was G
made by the Disciplinary Committee and not by the Full Court comprising of
all the sitting Judges.

Before leaving this question, we may, however, observe that constitution
of a small committee of few senior Judges, as, for example, in the instant case
in which the Disciplinary Committee consists of five seniormost Judges, H
506 SUPREME COURT REPORTS [l999] SUPP. 2 S.C.R.

A excludes permanently other Judges. This exclusion militates against the concept
of "wider consultation" which is inherent in the words "High Court". Many
of the Judges, specially those elevated from judicial service who usually have
...
a short tenure, would superannuate without even reaching the "Collegium"
of five seniormost Judges. Bound as we are by the decision of the Constitution
B Bench, we leave the matter here as it is with the hope that this Judge-made
law would be reconsidered one day and if found to be retrograde and against
the developing concepts would undergo an evolutionary change or the
Bombay High Court itself, we may suggest, without intending to encroach
upon the exclusive Constitutional rights of the Chief Justice to run the High
Court, would adopt a new Resolution which would permit other Judges also
C to participate in the decision-making process concerning, at least, the imposition
of major penalties like dismissal or removal, on members of the subordinate
judiciary, as these punishments finally close their service chapter.

It was next contended by learned counsel for the appellant that the
Disciplinary Committee, which had disagreed with the findings recorded by
D the Enquiry Officer and had held that the charges against the appellant were
proved, had acted in violation of the 'principles of natural justice' inasmuch
as it did not give an opportunity of hearing at the stage when it developed
the inclination that the findings recorded by the Enquiry Officer were not
acceptable and were liable to be reversed. It was further contended that the
E findings of the Enquiry Officer, which were based essentially on an appreciation
of the evidence recorded by him were considered by the Disciplinary Committee
in the absence of the appellant without any notice to him and the Disciplinary .c
Authority on a re-appraisal of the evidence came to the conclusion that the
charges against the appellant were established. The Disciplinary Committee
thus having taken a decision, proceeded thereafter to issue a notice to the
F appellant to show cause why he should not be dismissed from service and
a recommendation to that effect be not made to the Governor. It was also
contended that Disciplinary Committee had already made up its mind and it
was only in respect of the proposed punishment that a notice was issued to
the appellant. Consequently, the appellant, it is contended, was denied an
G adequate opportunity of hearing which should have been afforded to him
before taking a decision that he was guilty of the charges levelled against him.

Before entering into the merits of this question, we may point out that
the action against the appellant was taken under the provisions of Maharashtra
Civil Services (Discipline & Appeal) Rules, 1979. Part III of the Rules deals
H with "penalties and disciplinary authorities". Penalties are mentioned in Rule
Y.D. BAGDE v. STATE [S. SAGHIRAHMAD,J.) 507
5. Dismissal from service is one of the major penalties mentioned in Rule A
5(l}(ix). The Disciplinary Authorities are indicated in Rule 6. The Authority
which can institute disciplinary proceedings is indicated in Rule 7.

Part IV of the Rules deals with procedure for imposing penalties. Rule
8 prescribes the procedure for ,imposing major penalties. The Inquiring
Authority, after completing the inquiry, is required to prepare a report as P
provided by Clause 25 of Rule 8 which provides as under :

"(25) After the conclusion of the inquiry, a report shall be prepared
by the inquiring authority. Such report shall contain -

(a) the articles of the charge and the statement of the imputation of C
misconduct or misbehaviour; ·
(b) the defence of the Government servant in respect of each article
of charge;
(c) an assessment of the evidence in respect of each article of
charge; D
(d) the fmdings on each article of charge and the reasons therefor;
(e) recommendation regarding the quantum of punishment."

The Inquiring Authority is thereafter required to forward the report as
also all other relevant records, including the report prepared by it under sub- E
rule (25); the written statement of defence, if any, submitted by the Government
servant; the oral and documentary evidence produced in the course of the
inquiry; written briefs, if any, filed by the Presenting Officer or the Government
servant or both during the course of the inquiry and the orders, if any, made
by the Disciplinary Authority and the Inquiring Authority in regard to the p
inquiry, to the Disciplinary Authority.

What action would be taken on this report and in what manner will this
report be dealt with is indicated in Rule 9. Relevant portions of this Rule are
quoted below :
G
"9. Action on.the inquiry report- (I) The disciplinary authority, if it
is not itself the inquiring authority may, for reasons to be recorded by
it in writing, remit the case to the inquiring authority for further
inquiry and report, and the inquiring authority shall thereupon proceed
to hold the further inquiry according to the provisions of rule 8 of
these rules as far as may be. H
508 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A (2) The disciplinary authority shall if it is not the inquiring authority,
consider the record of the inquiry and record its findings on each
charge. If it disagrees with the findings of the inquiring authority on
any article of charge, it shall record its reasons for such disagreement.

(3) .............................. ..
B
(4) (i) If the disciplinary authority, having regard to its findings on
all lor any of the articles of charge, is of the opinion that any of the
major penalties should be imposed on the Government servant, it
shall-

c (a) furnish to the Government servant, a copy of the report of the
inquiry held by it and its findings on each article of charge, or, where
the inquiry has been held by an inquiring authority appointed by it,
a copy of the report of such authority and a statement of its findings
on each article of charge expressly stating whether or not it agrees
with the findings of the inquiry authority, together with brief reasons
D for its disagreement, if any, with the findings of the inquiring authority;
and

(b) give to the Government servant a notice stating the penalty
proposed to be imposed on him and calling upon him to submit within
fifteen days of receipt of the notice or such further time not exceeding
E fifteen days, as may be allowed, such representation as he may wish
to make on the proposed penalty on the basis of the evidence adduced
during the inquiry held under rule 8 of these rules.

(ii) (a) ................................ .

F (b) ............................... ..

(iii) Where it is not necessary to consult the Commission, the
disciplinary authority shall consider the representation, if any, made
by the Government servant in pursuance of the notice given to him
under clause (i)(b) of this sub-rule and determine what penalty, ifany,
G should be i!11posed on him on the basis of the evidence add1:1cec;!
during the inquiry held under rule 8 and make such order as it may
deem fit."

In view of the provisions contained in the statutory Rule extracted
above, it is open to the Disciplinary Authority either to agree with the
H findings recorded by the Inquiring Authority or disagree with those findings.
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.] 509
If it does not agree with the findings of the Inquiring Authority, it may record A
its own findings. Where the Inquiring Authority has found the delinquent
officer guilty of the charges framed against him and the Disciplinary Authority
agrees with those findings, there would arise no difficulty. So also, if the
Inquiring Authority has held the charges proved, but the Disciplinary
Authority disagrees and records a finding that the charges were not
established, there would arise no difficulty. Difficulties have arisen in all those B
cases in which the Inquiring Authority has recorded a positive finding that
the charges were not established and the delinquent officer was recommended
to be exonerated, but the Disciplinary Authority disagreed with those findings
and recorded its own findings that the charges were established and the
delinquent officer was liable to be punished. This difficulty relates to the C
question of giving an opportunity of hearing to the delinquent officer at that
stage. Such an opportunity may either be provided specifically by the Rules
made under Article 309 of the Constitution or the Disciplinary Authority may,
of its own, provide such an opportunity. Where the Rules are in this regard
silent and the Disciplinary Authority also does not give an opportunity of
hearing to the delinquent officer and records findings, different from those of D
the Inquiring Authority that the charges were established, "an opportunity
of hearing" may have to be read into the Rule by which the procedure for
dealing with the Inquiring Authority's report is provided principally because
it would be contrary to the principles of natural justice if a delinquent officer,
who has already been held to be 'not guilty' by the Inquiring Authority, is E
found 'guilty' without being afforded an opportunity of hearing on the basis
of the same evidence and material on which a finding of "not guilty" has
already been recorded.

We have already extracted Rule 9(2) of the Maharashtra Civil Services
(Discipline & Appeal) Rules, 1979 which enables the Disciplinary Authority F
to disagree with the findings of the Inquiring Authority on any article of
charge. The only requirement is that it shall record its reasoning for such
disagreement. The Rule does not specifically provide that before recording its
own findings, the Disciplinary Authority will give an opportunity of hearing
to a delinquent officer. But the requirement of "hearing" in consonance with G
"the principles of natural justice even at that stage--has to be read into Rule
9(2) and it has to be held that before Disciplinary Authority fmally disagrees
with the findings of the Inquiring Authority, it would give an opportunity of
hearing to the delinquent officer so that he may have the opportunity to
, indicate that the findings recorded by the Inquiring Authority do not suffer
from any error and that there was no occasion to take a different view. The H
510 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

.A Disciplinary Authority, at the same time, has to communicate to the delinquent
officer the "Tentative" reasons for disagreeing with the findings of the
Inquiring Authority so that the delinquent officer may further indicate that the
reasons on the basis of which the Disciplinary Authority proposes to disagree
with the findings recorded by the Inquiring Authority are not germane and
B the finding of "not guilty" already recorded by the Inquiring Authority was
not liable to be interfered with.

Recently, a three~Judge Bench of this Court in Punjab National Bank
& Ors. v. Kun} Behari Mishra, [1998] 7 SCC 84 =AIR (1998) SC 2713, relying
upon the earlier decisions of this Court in State of Assam v. Bimal Kumar
C Pandit, [1964] 2 SCR 1 = AIR(1963) SC 1612; Institute ofCharteredAcountants
ofIndia v. L.K Ratna & Ors., [1986] 4 SCC 537 as also the Constitution Bench
decision in Managing Director, ECIL, Hyderabad & Ors. v. B. Karuna~r
& Ors., [1993] 4 SCC 727 and the decision in Ram Kishan v. Union of India,
[1995] 6 sec 157, has held that:
D "It will not stand to reason that when the finding in favour of the
delinquent officers is proposed to be overturned by the disciplinary
authority then no opportunity should be granted. The first stage of
the enquiry is not completed till the disciplinary authority has recorded
its findings. The principles of natural justice would demand that the
E authority which proposes to decide against the delinquent officer
must give him a hearing. When the enquiring officer holds the charges
to be proved, then that report has to be given to the delinquent officer
who can make a representation before the disciplinary authority takes
further action which may be prejudicial to the delinquent officer.
When, like in the present case, the enquiry report is in favour of the
F delinquent officer but the disciplinary authority proposes to differ
with such conclusions, then that authority which is deciding against
the delinquent officer must give him an opportunity of being heard for
otherwise he would be condemned unheard. In departmental
proceedings, what is of ultimate importance is the finding of the
G disciplinary authority."

The Court further observed as under :

"When the enquiry is conducted by the enquiry officer, his report is
not final or conclusive and the disciplinary proceedings do not stand
H concluded. The disciplinary proceedings stand concluded with the
Y.D. BAG DE v. STATE [S. SAGHIR AHMAD, J.) 511
decision of the disciplinary authority. It is the disciplinary authority A
which can impose the penalty and not the enquiry officer. Where the
disciplinary authority itself holds an enquiry, an opportunity of hearing
has to be granted by him. When the disciplinary authority differs with
the view of the enquiry officer and proposes to come to a different
conclusion, there is no reason as to why an opportunity of hearing
should not be granted. It will be most unfair and inequitous that B
where the charged officers succeed before the enquiry officer, they
are deprived of representing to the disciplinary authority before that
authority differs with the enquiry officer's report and, while recording
a finding of guilt, imposes punishment on the officer. In our opinion,
in any such situation, the charged officer must have an opportunity C
to represent before the disciplinary authority before final findings on
the charges are recorded and punishment imposed."

The Court further held that the contrary view expressed by this Court
in State Bank of India v. S.S. Kosha/, [1994] Supp. 2 SCC 46.8 and State of
Rajasthan v. MC. Saxena, [1998] 3 SCC 385 was not correct. D
In view of the above, a delinquent employee has the right of hearing
not only during the enquiry proceedings conducted by the Enquiry Officer
into the charges levelled against him but also at the stage at which those
findings are considered by the Disciplinary Authority and the latter, namely, E
the Disciplinary Authority forms a tentative opinion that it does not agree
with the findings recorded by the Enquiry Officer. If the findings recorded by
the Enquiry Officer are in favour of the delinquent and it has been held that
the charges are not proved, it is all the more necessary to give an opportunity
of hearing to the delinquent employee before reversing those findings. The
formation of opinion should be tentative and not final. It is at this stage that F
the delinquent employee should be given an opportunity of hearing after he
is infonned of the reasons on the basis of which the Disciplinary Authority
has proposed to disagree with the fmdings of the Enquiry Officer. This is in
consonance with the requirement of Article 311(2) of the Constitution as it
provides that a person shall not be dismissed or removed or reduced in rank G
except after an enquiry in which· he has been informed of the charges against
him and given a reasonable opportunity of being heard in respect of those
charges. So long as a final decision is not taken in the matter, the enquiry shall
be deemed to be pending. Mere submission of fmdings to the Disciplinary
Authority does not bring about the closure of the enquiry proceedings. The
enquiry proceedings would come to an end only when the findings have been H
512 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A considered by the Disciplinary Authority and the charges are either held to
be not proved or found to be proved and in that event punishment is inflicted
upon the delinquent. That being so, the "right to be heard" would be available
to the delinquent up to the final stage. This right being a constitutional right
of the employee cannot be taken away by any legislative enactment or Service
B Rule including Rules made under Article 309 of the Constitution.

Applying the above principles to the facts of this case, it would be
noticed that in the instant case the District Judge (Enquiry Officer) had
recorded the findings that the charges were not proved. These findings were
submitted to the Disciplinary Committee which disagreed with those findings
C and issued a notice to the appellant requiring him to show-cause why he
should not be dismissed from service. It is true that along with the show-
cause notice, the reasons on the basis of which the Disciplinary Committee
had disagreed with the findings of the District Judge were communicated to
the appellant but the Disciplinary Committee instead of forming a tentative
opinion had come to a final conclusion that the charges against the appellant
D were established. The Disciplinary Committee, in fact, had acted in accordance
with the statutory provisions contained in Rule 9(4)(i)(a) and (b). He was
called upon to show-ca~se against the proposed punishment of dismissal as
will be evident from the minutes of the Disciplinary Committee dated 21st
June, 1993 which provide as under:-
'-!
E "Decision Discussed.
For the reasons recorded in Annexure 'A'
hereto, the Committee disagrees with the
finding of the Enquiry Officer and finds that
the charges levelled against the delinquent
F Judicial Officer have been proved.

It was, therefore, tentatively decided to
impose upon the Judicial Officer penalty of
dismissal from service.
Let notice, therefore, issue to the delinquent
G
Judicial Officer calling upon him to show
cause why penalty of dismissal from service
as prescribed in Rule 5(1)(ix) of the
Maharashtra Civil Services (Discipline and
Appeal) Rules, 1979 should not be imposed
H upon him.
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.] 513
Show cause notice will be accompanied by A
a copy of the Report of the Inquiring
Authority and the reasons recorded by this
Committee."

These minutes were recorded after the Disciplinary Committee had considered
the Enquiry Repo11 and differed with the findings and recorded its final B
opinion in para I 0 of its reasons as under:

"10. The Disciplinary Committee is of the opinion that the findings
recorded by the Enquiry Officer on both the charges cannot be
sustained. The Committee, after going through the oral and
documentary evidence on record, is of the opinion that both the c
charges against the delinquent are proved. The delinquent is a Judicial
Officer who has failed to maintain the absolute integrity in discharge
of his judicial duties."

Pursuant to the above minutes, a notice dated 24.6.93 was issued to the D
appellant which after reproducing the minutes of the Meeting of the
Disciplinary Committee proceeded to say as under:

"As required by the Disciplinary Committee I issue this notice calling
upon you to show-cause why the penalty of dismissal from service
• should not be imposed upon you in view of the charges held E
established. Time of 15 days, from the date of receipt of this notice,
is given to you for submitting your reply, failing which it shall be
presumed that you do not wish to make any representation regarding
the penalty.

A copy of the report of the Enquiry Officer dated 21.I2.92 and a copy F
of Annexure 'A' are enclosed herewith for ready reference.

Yours faithfully,
Sd/-
r•
Registrar" G
Along with the show-cause notice, a copy of the findings recorded by
the Enquiry Officer as also the reasons recorded by the Disciplinary Committee
for disagreeing with those findings were communicated to the appellant but
it was immaterial as he was required to show-cause only against the punishi:nent
... proposed by the Disciplinary Committee which had already taken a final H
514 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A decision that the charges against the appellant were proved. It was not
indicated to him that the Disciplinary Committee had come only to a "tentative"
decision and that he could show cause against that too. It was for this reason
that the reply submitted by the appellant failed to find favour with the
Disciplinary Committee.

B Since the Disciplinary Committee did not give any opportunity of hearing
to the appellant before taking a final decision in the matter relating to findings
on the two charges framed against him, the principles of natural justice, as
laid down by a Three-Judge Bench of this Court in Punjab National Bank
& Ors. v. Kun} Behari Mishra, (1998] 7 SCC 84 =AIR 1998 SC 2713, referred
C to above, were violated.

Mr. Harish N. Salve, learned Senior Counsel appearing on behalf of the
respondent, has contended that the disciplinary proceedings come to an end
either when the delinquent is exonerated of the charges or when punishment
is inflicted upon him on charges being proved. Since in the instant case, the
D Disciplinary Committee had given an opportunity of hearing to the appellant
before finally recommending to the State Government to dismiss him from
service, the principles of natural justice were fully complied with and that too
at a stage earlier than the stage when the curtain was finally brought down
on the proceedings. He contended that not only the findings recorded by the
E Enquiry Officer but the reasons for which the Disciplinary Committee had not
agreed with those findings, were communicated to the appellant to whom a
notice was also issued to show-cause why he be not dismissed from service.
He further contended that the appellant submitted a reply in which he attacked
the reasons for which the Disciplinary Committee had decided to disagree
with the findings of the Enquiry Officer and, therefore, in the given
F circumstances of this case, it cannot be said that there was failure or denial
of opportunity at any stage.

The contention apparently appears to be sound but a little attention
would reveal that .it sounds like the reverberations from an empty vessel.
G What is ignored by the learned counsel is that a final decision with regard
to the charges levelled against the appellant had already been taken by the
Disciplinary Committee without providing any opportunity of hearing to him.
After having taken that decision, the members of the Disciplinary Committee
merely issued a notice to the appellant lo show-cause against the major
punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services
H (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law
Y.D. BAGDE v. STATE [S. SAGHIRAHMAD, J.) 515
laid down by this Court in the case of Punjab National Bank (supra) in which A
it had been categorically provided, following earlier decisions, that if the
Disciplinary Authority does not agree with the findings of the Enquiry Officer
that the charges are not proved, it has to provide, at that stage, an opportunity
of hearing to the delinquent so that there may still be some room left for
convincing the Disciplinary Authority that the findings already 'recorded by B
the Enquiry Officer were just and proper. Post-decisional opportunity of
hearing, though available in certain cases, will be of no avail, at least, in the
circumstances of the present case.

The Disciplinary Committee consisted of five Seniormost Judges of the
High Court which also included the Chief Justice. The Disciplinary Committee C
took a final decision that the charges against the appellant were established
and recorded that decision in writing and then issued a notice requiring him
to show cause against the proposed punishment of dismissal. The findings
were final; what was tentative was the proposal to inflict upon the appellant
the punishment of dismissal from service.
Di
We may now examine the reasons on the basis of which the Disciplinary
Committee has disagreed with the findings of exoneration recorded by the
Enquiry Officer.

There were two charges against the appellant which related to the E
demand of bribe for the acquittal of complainant, Deepak Trimbakrao
Deshmukh, in two Sessions Trials in which the complainant was the accused
facing charge, inter alia, under Section 302 IPC. The appellant had allegedly
demanded a sum of Rs. l 0,000 in each case at the residence of Dr. Naranje,
at Rashtra Bhasha Prachar Samiti Road, Wardha on 23.1.1990, in the first case
and again on 18.12.1990 at about 8.00 P.M. at Dr. Naranje's residence in the F
second case. These charges were sought to be proved by producing the
complainant Deepak Trimbakrao Deshmukh, his wife Mrs. Sudha Deepak
Deshmukh, Mrs. Madhuri Krishnarao Pradhan (Panch witness of the trap) and
Shri Anand Digambar Deshmukh, Deputy Superintendent of Police, A.C.B.
Nagpur. The appellant in his defence examined himself and produced Shri G
Sunil Gopalrao Bapat, Advocate, Wardha; Shri'Arjun Pancham Patil, Advocate,
Wardha; Dr.Sopan Chahadeo Naranje, Medical Practitioner, Wardha and Shri
Manik Tulsiram Tamgadge, Bailiff, Arvi, District Wardha.

The complainant had also approached the Anti-Corruption Bureau and
informed them of the demand made by the appellant whereupon the Anti- H
516 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Corruption Bureau, acting through Shri Anand Digambar Deshmukh, Deputy
Superintendent of Police, A.C.B. Nagpur, laid a trap against the appellant but
the trap was unsuccessful and failed. The Enquiry Officer held that this was
a false trap laid by Shri Anand Digambar Deshmukh, Deputy Superintendent
of Police, A.C.B. Nagpur in connivance with the accused without obtaining
B the prior permission of the Chief Justice. Although the complaint made by
Deepak Trimbakrao Deshmukh to the Anti-Corruption Bureau and the laying
of trap against the appellant by them was not part of the charge nor involved
as an issue before the Enquiry Officer, the Department led evidence in that
regard and produced Shri Anand Digambar Deshmukh, Deputy Superintendent
of Police, A.C.B. Nagpur and the Panch witness Mrs. Madhuri Krishnarao
C Pradhan, besides complainant's wife, Mrs. Sudha Deepak Deshmukh who
allegedly wanted to offer the money to the appellant. 41111

The story of demand of Rs.10,000 in each Session Trial was denied by
the appellant who, as pointed out earlier, examined himself as also Dr. Naranje
at whose house the demand was allegedly made on both the occasions as
D also Mr. Bapat, advocate who allegedly acted as the go-between. These
witnesses denied the whole story. The trap laid by the Anti-Corruption Bureau
had also failed.

Deepak Trimbakrao Deshmukh had specifically alleged that the demand
E of Rs. I 0,000 in each of the two Sessions Trials was made by the appellant
at the residence of Dr. Naranje. This was also set out in the Transfer Petition
No.88 of 1991, filed in the High Court, in which it was stated that the
Meeting of 23rd November, 1990 in which the amount in question was
demanded, had taken place in the house of Dr. Naranje. But in his complaint
to the High· Court on 27th November, 1990, the complainant himself stated that
F this Meeting took place at the house of the appellant. This was enough to
falsify the whole story and the Enquiry Officer was justified in rejecting the
story of demand in the background of other facts set out above. Complainant's
wife Mrs. Sudha Deepak Deshmukh who was allegedly present at the house
of Dr, Naranje was found by the Enquiry Officer to be unsuccessful in
G describing the position of the main entrance of Dr. Naranje's house apart from
other discrepancies but the Disciplinary Committee rejected the infirmity found
by the Enquiry Officer on the ground that the Enquiry Officer had applied the
standard of proof of a criminal case to the disciplinary proceedings.

We fail to appreciate the approach of the Disciplinary Committee which
H has gone by surmises and conjectures rather than by the evidence on record.
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.] 517
The statements of Dr. Naranje and that of Mr. Bapat, advocate have not been A
.., taken into consideration by the Disciplinary Committee and it has relied
upon the statement of complainant alone to come to the conclusion that Mr.
Bapat, advocate had assured acquittal provided the complainant withdrew his
Transfer Petitions.

The High Court has overlooked another important aspect of the case B
which is to the effect that Sessions Trial Nos. 28of1982 and 37of1987 were
pending in the court of Sessions Judge, Wardha (Mr. S.S.Nikhree), from where
these were transferred to the court of Addl. Distt. and Sessions Judge (Mr.
S.T. Kharche) who attempted to proceed substantially with those trials, but

- Deepak Trimbakrao Deshmukh created all sorts of hinderances and obstacles
and ultimately filed a Transfer Petition (No. 387 of 1988) under Section 409
of the Criminal Procedure Code in the Sessions Court, Wardha, in which
C

various allegations were made against the Presiding Officer, namely, Mr.S.T.
Kharche, but the Transfer Application was rejected on 5.11.1988 by the
Sessions Judge. Thereafter, when those cases were taken. up by Mr. Kharche,
Deepak Trimbakrao Deshmukh filed an Application on 8.5.1990 for adjournment D
to enable him to file Vakalatnama of his counsel. On this application, an
elaborate order was passed by Mr.S.T. Kharche who, however, having regard
to the quarrelsome nature of the accused, requested the Sessions Judge,
Wardha, to transfer those cases to some other court and consequently both
the Sessions Trials were transferred to the court of Second Addl. Distt. & E
Sessions Judge, Wardha, prnsided over by the appellant. In that court also,
the accused (Deepak Trimbakrao Deshmukh) adopted dilatory tactics to prolong
the trial and ultimately gave an application in which he stated that he was
certain that "no clean and impartial justice" was going to be done to him in
both the Sessions Trials. This was treated as a contumacious conduct and
the appellant passed an order taking cognizance under Section 345 of the F
Criminal Procedure Code read with Section 228 of the IPC and detained the
accused in custody. He was also issued a notice requiring him to show cause
why he should not be punished under Section 345 of the Criminal Procedure
Code. The accused did not submit any reply and he was consequently
convicted and sentenced to pay a fine of Rs.200 or in default to suffer simple G
imprisonment for 15 days·. The accused, however, deposited the fine in the
court on the same day.

This order was challenged by the accused (Deepak Trimbakrao
Deshmukh) in Criminal Appeal No. 108 of 1991 before the Nagpur Bench of
the Bombay High Court, but'the appeal was dismissed on 9.3.1992 and the H
518 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A order convicting the accused under Section 345 Cr.P.C. was upheld. The
accused continued, even thereafter, to make frivolous applications for
adjournments and ultimately approached the High Court for transfer of both
the cases to some other court. The High Court stayed the proceedings and
called for the explanation of the appellant. The explanation was submitted by
the appellant, but thereafter the accused withdrew both the Transfer
B Applications. When the appellant, as Presiding Officer of that court, proceeded
to dispose of those cases, the accused made the allegations in question
against him and reported the matter to the Chief Justice of the Bombay High
~
Court, and as stated earlier, disciplinary proceedings were started against the
appellant which ultimately resulted in his dismissal.
c
These facts will indicate that the accused (Deepak Trimbakrao Deshmukh)
had taken the court, where the two Sessions Trials were pending against him,
for a ride. He had adopted similar tactics in the court of Sessions Judge,
Wardha, and again in the court of 1st Addi. Distt. and Sessions Judge,
Wardha, where these two cases were transferred, and yet again in the court
D of the appellant where these Sessions Trials came to be ultimately transferred.

After withdrawal of Transfer Applications, when the appellant proceeded
with the two Sessions Trials, the Disciplinary Committee inferred that the
appellant was still pursuing his earlier demand of bribe as otherwise he
E himself would have written that he would not do these cases. This, we feel,
is wholly fallacious. After the Transfer Petitions were withdrawn and the stay
order passed therein was vacated, the appellant, as Presiding Officer of the
court, had to proceed with those cases as he had, so long as those cases were
on his file, no other choice. If the appellant had written to the Sessions Judge
to transfer those cases to some other court, the accused (Deepak Trimbakrao
F Deshmukh) would have succeeded in his designs in avoiding the court of the
appellant. The Presiding Officers of the Court cannot act as fugitives. They
have also to face sometimes quarrelsome, unscrupulous and cantankerous
litigants but they have to face them boldly without deviating from the right
path. They are not expected to be overawed by such litigants or fall to their
G evil designs.

Under Article 235 of the Constitution, the High Court has a duty to
protect the officers of the subordinate judiciary from unscrupulous litigants
and lawyers. In Jshwar Chand Jain v. High Court of Punjab & Haryana &
Anr., AIR (1988) SC 1395, it was, inter alia, observed that the High Court
· H while exercising its power of control over the subordinate judiciary is under
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.] 519

a Constitutional obligation to guide and protect judicial officers. It was further A
observed that an honest and strict judicial officer is likely to have adversaries
in the mofussil courts; if trifling complaints relating to judicial orders which
may have been upheld by the High Court on the judicial side are entertained,
no Judicial Officer would feel protected; and it would be difficult for him to
discharge his duties honestly and independently. It is, therefore, imperative B
for the High Court to protect its honest judicial officers by ignoring ii/-
conceived or motivated complaints made by the unscrupulous lawyers and
litigants.

Having regard to the circumstances of this case, we are of the view that
the Disciplinary Committee was wholly in error in disagreeing with the findings C
recorded by the Enquiry Officer and the charges levelled against the appellant
were not established.

It was lastly contended by Mr. Harish N. Salve that this Court cannot
reappraise the evidence which has already been scrutinised by the Enquiry
Officer as also by the Disciplinary Committee. It is contended that the High D
Court or this Court cannot, in exercise of its jurisdiction under Article 226 or .
32 of the Constitution, act as the Appellate Authority in the domestic enquiry
or trial and it is not open to this Court to reappraise the evidence. The
proposition as put forward by Mr. Salve is in very broad terms and cannot
be accepted. The law is well-settled that if the findings are perverse and are E
not supported by evidence on record or the findings recorded at the domestic
trial are such to which no reasonable person would have reached, it would
be open to the High Court as also to this Court to interfere in the matter. In
Ku/deep Singh v. The Commissioner of Police & Ors., JT (1998) 8 SC 603 =
[1999] 2 SCC IO, this Court, relying upon the earlier decisions in Nand
. Kishore v. State of Bihar, AIR (I 978) SC 1277 = [1978] 3 SCC 366 = [l 978] F
3 SCR 708; State ofAndhra Pradesh v. Sree Rama Rao, AIR (1963) SC 1723
= (1964] 3 SCR 25; Central Bank ofIndia v. Prakash Chand Jain, AIR (1969)
SC 983; Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors., AIR (1976)
SC 98 = [1976] 2 SCR 280 = [1976] l SCC 518 as also Rajinder Kumar Kindra
v. Delhi Administration through Secretary (Labour) & Ors., AIR (1984) SC G
1805;., [1985] 1 SCR 866 = [1984] 4 SCC 635, laid down that although the court
cannot sit in appeal over the findings recorded by the Disciplinary Authority
or the Enquiry Officer in a departmental enquiry, it does not mean that in no
circumstance can the court interfere. It was observed that the power of
judicial review available to a High Court as also to this Court under the
Constitution takes in its stride the domestic enquiry as well and the Courts H
520 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A can interfere with the conclusions reached therein if there was no evidence
to support the findings or the findings recorded were such as co~ld not have
been reached by an ordinary prudent man or the findings were perverse. ·

· In the instant case, we have scrutinised the reasons of the Disciplinary
Committee and have found that it had taken its final decision without giving
B an opportunity of hearing to the appellant at the stage at which it proposed
to differ with the findings of the Enquiry Officer. We have also found that the
complainant's story with regard to the place at which the demand was allegedly
made by the appellant was inconsistent. We have also noticed that the trap
laid by the A.C.B., Nagpur against the appellant had failed and was held by
C
-
the Enquiry Officer to be a farce and not having been laid with the permission
of the Chief Justice. We have also noticed that there was absolute non-
consideration of the statements of defence witnesses, namely, Dr. NaranJe and
Mr. Bapat, advocate, by the Disciplinary Committee. This factor in itself was
sufficient to vitiate the findings recorded by that Committee contrary to the
findings of the Enquiry Officer.
D
For the reasons stated above, we allow the appeal and set aside the
judgment dated 21.6.1996 passed by the Bombay High Court by which the
appellant's Writ Petition was dismissed. We hereby allow the Writ Petition
and quash the order of dismissal dated 08.11.1993 passed by the State
Government with the direction that the appellant shall be reinstated in service
E forthwith with all consequential benefits, including all arrears of pay which
shall be paid to him within three months. There will be no order as to costs.

S.VKI. Appeal allowed.