Saturday, 6 April 2019

Whether High court can impose minor penalty of censure on Judge of subordinate Judiciary?

The Disciplinary Committee considered the report of the Inquiry Officer and the reply to the show cause notice submitted by the petitioner and decided to award the minor penalty of censure. We do not find any reason to hold that the minor penalty of censure was not warranted. In our considered opinion, the decision of the disciplinary committee is fully justified in the facts of this case. We have also noted that the Inquiry Officer considered the allegations made in the complaint and has recorded her findings on most of the allegations.

7. Now coming to the powers of the Disciplinary Committee, Article 235 of the Constitution sets out that the control over District Courts and Courts subordinate thereto shall be vested in the High Court. In the case of Samsher Singh v. State of Punjab MANU/SC/0073/1974 : (1974) 2 SCC 831. a Bench of seven Judges, considering the scope of Article 235 of the Constitution, held that the High Court is invested with, under the said Article control of subordinate judiciary. In the case of High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil and Anr. MANU/SC/0692/1997 : (1997) 6 SCC 339 the Supreme Court held that after the appointment of a judicial officer 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 and the action taken is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction of administrative business in the Court, the Full Court of the Judges of the High Court generally passes a resolution authorizing the Chief Justice to constitute various committees including the committee to deal with disciplinary matters pertaining to the subordinate judiciary.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5203 of 2010

Decided On: 23.09.2010

Shiwanand Bhagwanrao Kulkarni Vs. The State of Maharashtra

Hon'ble Judges/Coram:
B.H. Marlapalle and A.A. Sayed, JJ.

Citation: 2010(6) MHLJ 827


1. Heard Mr. Anturkar, the learned Counsel for the petitioner. In this petition filed under Article 226 of the Constitution, the petitioner has taken exception to the order dated 11th February, 2010 by which he was communicated the decision of the Disciplinary Committee/Authority to impose the minor penalty of censure under Rule 6(1)(i) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (for short D. and A. Rules).

2. The petitioner joined as a Civil Judge, Junior Division and Judicial Magistrate, First Class on 20th July, 1995 and he continues to occupy the same post as of now. While he was posted at Jamner in Jalgaon District, the Principal District Judge received a complaint dated 22nd June, 2007 signed by eight Advocates from Jamner Bar and one of the complainants i.e. Shri Rajendra Baburao Patil, advocate was the President of the Advocates Bar Association. The grievances raised against the petitioner in the said complaint were (a) he used to work for half an hour in the morning session and also for half an hour in the afternoon session and for rest of the time he used to sit in the bar room which is called as Diwani room along with some selected lawyers and he used to chit chat with them; (b) he had accepted donations from the public representatives, officers and directors of some private institutions for the development work in the Court premises namely installation of electric pump, construction of water tank, laying of pipeline and lawn; (c) he used to sit in the premises of the Court along with selected group of lawyers between 8.00 a.m. to 10.00 a.m.; (d) he took interest in celebrating his birth day in the Court premises during Court hours, his Chamber was decorated by affixing rose flowers on the walls and a flower bed was laid from the Court gate to his Chamber and the Court premises were also decorated by attractive Rangoli; and (5) he used to enjoy parties with lawyers and staff members at hotels and dhabas situated at Jalgaon and Bhusawal.

3. The Principal District Judge, Jalgaon, ordered a preliminary inquiry which was conducted by Mrs. U.S. Thakare, District Judge-1 and Additional Sessions Judge, Jalgaon. She submitted her report dated 3rd September, 2007 and the said report was forwarded to the Registry of this Court. On 22nd August, 2008 the petitioner was served with the statement of imputations of his misconduct along with the memorandum and he was directed to show cause within 10 days as to why one of the minor penalties under Rule 5(1) of the D. and A. Rules should not be imposed upon him. The petitioner submitted his reply dated 4th May, 2009 which was placed before the Disciplinary Committee and by the impugned order the minor penalty of censure was imposed on the petitioner.

4. Mr. Anturkar, the learned Counsel for the petitioner has at the threshold, questioned the powers of the Disciplinary Committee to impose the minor penalty and he submitted that it is the State Government who has the power to impose either major or minor penalty on the recommendations of the High Court and on that count alone, the impugned order is required to be quashed and set aside. So far as the challenge on the merit is concerned, it was submitted that while conducting the preliminary inquiry the learned District Judge-1 did not record findings on every charge and in any case as per the said report of the Inquiry Officer the petitioner has been found to be guilty for late reporting to the Court and smoking, which as per Mr. Anturkar, cannot be construed as acts of misconduct.

5. We have perused the preliminary inquiry report dated 3rd September, 2007 as well as the statements of the advocates and some litigants recorded by the Inquiry Officer in the course of the preliminary inquiry she conducted. The Inquiry Officer also recorded the statements of some of the Advocates who were not satisfied about the working of the petitioner. The Inquiry Officer by taking into consideration all these statements so recorded set out her conclusions as under:

(a) There is material to hold that the Judge, Shri Kulkarni occupies seat on dais for limited time. He spends much time during working hours in Diwani room with lawyers and smokes at the office. This conduct of the Judge Shri S.B. Kulkarni is against the judicial discipline.

(b) Judge Shri S.B. Kulkarni should not have suggested to the President of the Municipal Council to change its lawyer and there was prima facie material to show that the behaviour and conduct of Shri Kulkarni from the dais with lawyers was not dignified and more particularly while addressing to the lawyers. His conduct to sit with particular lawyers in the Diwani room during working hours was against the Rules and Regulations.

(c) There was prima facie evidence to show that the birth day of Judge Shri Kulkarni was celebrated in the premises of the Court, but there is nothing on record to show that the said birth day was celebrated at the instance of Judge Shri Kulkarni. Some lawyers or staff members might have celebrated the said function. Only thing is that Judge Shri Kulkarni should not have allowed celebration in Court premises during working hours.

(d) There was material available to support the allegations of Shri Kulkarni insulting the lawyers.

6. The Disciplinary Committee considered the report of the Inquiry Officer and the reply to the show cause notice submitted by the petitioner and decided to award the minor penalty of censure. We do not find any reason to hold that the minor penalty of censure was not warranted. In our considered opinion, the decision of the disciplinary committee is fully justified in the facts of this case. We have also noted that the Inquiry Officer considered the allegations made in the complaint and has recorded her findings on most of the allegations.

7. Now coming to the powers of the Disciplinary Committee, Article 235 of the Constitution sets out that the control over District Courts and Courts subordinate thereto shall be vested in the High Court. In the case of Samsher Singh v. State of Punjab MANU/SC/0073/1974 : (1974) 2 SCC 831. a Bench of seven Judges, considering the scope of Article 235 of the Constitution, held that the High Court is invested with, under the said Article control of subordinate judiciary. In the case of High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil and Anr. MANU/SC/0692/1997 : (1997) 6 SCC 339 the Supreme Court held that after the appointment of a judicial officer 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 and the action taken is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction of administrative business in the Court, the Full Court of the Judges of the High Court generally passes a resolution authorizing the Chief Justice to constitute various committees including the committee to deal with disciplinary matters pertaining to the subordinate judiciary.

8. Rule 10 of the D. and A. Rules prescribes the procedure for imposing minor penalty and Rule 6 of the said Rules sets out the Disciplinary Authorities. As per the proviso below Sub-rule (2) of Rule 6 of the D. and A. Rules the Heads of the Department shall exercise the powers of imposing minor penalties only in relation to Government servants of State Service (Class -I) under their respective administrative control who draw pay in a scale, the minimum of which does not exceed Rs. 10,650/ -. The pay scale for the post of Civil Judge, Junior Division, is Rs. 9,000/ -.

It was submitted by Mr. Anturkar that the Disciplinary Committee does not fall within the realm of the Head of the Department and, therefore, the impugned order has been passed without any authority of law. We are not impressed by this submission. In the case of High Court of Judicature v. Shashikant S. Patil and Anr. (2000) 2 SCC 416. a Bench of three Judges of the Supreme Court held:

22. It is the Full Court of all Judges of the High Court of Bombay which has authorized the Disciplinary Committee of five Judges of that High Court to exercise the functions of the High Court in respect of punishment to judicial officers. Such functions involve exercise of the powers envisaged in Article 235 of the Constitution....
Thus the Disciplinary Committee represents the Full Court of all Judges of this Court in view of the delegation made in its favour by the Full House and it exercises the powers envisaged under Article 235 of the Constitution for supervision and control over the subordinate judiciary. The submissions of Mr. Anturkar that the Principal District Judge would be the Departmental Head and he ought to have issued the impugned order of minor penalty, can not be accepted. Article 235 of the Constitution clearly vests the power of supervision and control over the District Courts and Courts subordinate thereto with the High Court and the High Court on its administrative side will, therefore, be the Head of the District Courts and Courts subordinate thereof. Article 216 of the Constitution states that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary. The Full House of the High Court has delegated its powers to the Disciplinary Committee for better administration and, therefore, the Disciplinary Committee acts on behalf of the High Court. We, therefore, reject the submissions made by Shri Anturkar that the impugned order has been passed without authority in law by the Disciplinary Committee.

9. Hence the challenge to the impugned order fails on all counts and, therefore, this petition must fail at the threshold. The same is hereby rejected summarily.




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