G.K. Misra, C.J.
1. By order of the Full Court to initiate a proceeding for contempt, the Registrar of the High Court issued the contempt notice dated 3-7-1972 (here-inafter to be referred to as the Notice) to Shri Baradakanta Misra, the alleged contem-ner (hereinafter to be referred to as the contemner) calling upon him to appear in person and to show cause on 3-8-1972 as to why be shall not be punished or any other appropriate order not be passed against him for contempt of the High Court. On 26-7-1972 the contemner filed a petition by way of preliminary reply. On 7-8-1972 be filed his show-cause application. The contemrer filed Criminal Appeal No. 174/72 before the Supreme Court to quash the notice. Therein he made the State of Orissa a party through its Chief Secretary. The Legal Re-membrancer-cum-the ex-officio Additional Secretary, Law Department, filed an affidavit (Annexure-1) before the Supreme Court on behalf of the State giving detailed history with reference to the averments of the contemner in the memorandum of appeal (Annexure-20). The Criminal Appeal was ultimately dismissed by the Supreme Court as withdrawn by Annexure-18 on 21-11-1972. In this Court the State has filed an affidavit on 29-11-72. The contemncr filed a reply thereto on 18-12-72. Originally the case was being heard by a Bench consisting of R.N. Misra and B.K. Ray, JJ. They referred the matter to a larger Bench as important questions of law are involved. This is how the case came before this Full Bench.
2. Facts relevant to the notice are narrated hereunder:
(i) The substantive appointment of the contemrer is that of a Subordinate Judge. On 2-4-62 he was promoted on trial basis to the Rank of Additional District Magistrate (Judicial) which is a post borne in the cadre of the Orissa Superior Judicial Service (Junior Branch). He was reverted to his substantive post of a Subordinate Judge on 24-1-63 as his work was unsatisfactory, without a disciplinary proceeding being initiated under Article 311(2) of the Constitution. He challenged the order of reversion in a writ petition which was dismissed by a Bench consisting of Ahmad, C. J. and Barman, J., in ILR (1966) Cut 503 (Baradakanta Misra v. State of Orissa). Special Leave Application (Civil) No. 53 of 1967 against that decision was dismissed by the Supreme Court on 6-2-67. While working as a Subordinate Judge after reversion he was suspended from service from 15-5-64 to 9-4-67 during the pendency of a disciplinary proceeding against him. The disciplinary proceeding was disposed of with a light punishment on the contemner on sympathetic considerations. Two of his increments were stopped. Against that order the contemner filed an appeal to the State Government which sent back the case on the ground that the Public Service Commission was not consulted by the High Court before imposing the punishment and that the charge sheet served on him indicating the proposed punishment vitiated the disciplinary proceeding. The order of the State Government was contrary to law. Non-consultation with the Public Service Commission, if consultation was at all necessary, was a mere irregularity and did not vitiate the proceeding. Indication of the nature of the punishment in the charge-sheet does not, by itself, establish any bias (see ILR (1972) Cut 294, Janardan Kar v. State of Orissa).
(ii) On account of retirement of many District Judges with effect from 1-8-68, as a result of reduction in the age of retirement on superannuation of Government servants from 58 to 55 years, many vacancies occurred and the contemner was promoted to the rank of a District and Sessions Judge in the Orissa Superior Judicial Service (Senior Branch) on trial basis for a period of six months with effect from 31-7-1968 from the post of Additional District Magistrate (Judicial) to which he had been in the meanwhile promoted. He was posted as Additional District Judge, Ganjam, till 24-11-68 and thereafter as District and Sessions Judge in the same judge-ship. In January, 1969 he was allowed to continue as District and Sessions Judge on temporary basis until further orders, subject to review of his work at the time of confirmation.
(iii) From 12-5-69 to 12-10-69, his services were placed under the Government in the Law Department and he functioned as Joint Secretary, Law. From 13-10-69 to 4-12-70, he worked as Commissioner of Endowments. From 5-12-70 his services were replaced at the disposal of the High Court by the Government. He remained on leave from 5-12-70 to 20-6-71, except for one day on 5-4-71, when he joined as the Additional District and Sessions Judge of Cuttack. From 21-6-71 till 26-7-71, he was functioning as Additional District and Sessions Judge, Cuttack, except for a period of 12 days from 14-7-71 to 25-7-71 when he was posted to act as District and Sessions Judge of Cuttack during the leave vacancy of the District Judge Shri P.K. Mohanty. The Court, while posting him as District and Sessions Judge, for a short period by way of interim arrangement, imposed upon him several restrictions, such as, he should not effect any transfer of Class III and Class IV employees in the judgeship; he should not initiate or dispose of any disciplinary proceeding; he should not incur any expenditure from the contingency allotment exceeding Rs. 5/-; he should not make any inquiry, or undertake any tour by posting cases outside headquarters and that he should not deal with important administrative matters except correspondence of routine nature.
(iv) Character roll remarks of Shri B. K. Misra recorded by the Full Court for the period from 1968 to 1970 are as follows:
"Fairly intelligent, but hasty in his judicial work. Administrative control satisfactory."
"Judicial Work Hasty. Arbitrary in reaching his decisions. Administrative control He is arrogant. Even does not hesitate to flout the directions and writs issued in judicial proceedings by the High Court. Heshould mend his ways."
In an administrative file the Court recorded the following remarks in the year 1970:
"Disobedient, negligent in duty and lacking in administrative control."
For the period from 12-5-69 to 4-12-70 when Shri B.K. Misra was working under the Government as Joint Secretary, Law, and Commissioner of Endowments the Secretary to the Government in the Law Department recorded the following remarks in his character roll:
"His administrative ability, power of taking responsibility, zeal, official conduct and control of staff were highly unsatisfactory. His performance of duty was poor. He was quarrelsome and undignifying. He was acting in an indisciplined, defiant and arbitrary manner. He was not able to function in a team spirit. In law Department file No. End. 77/70 Government were pleased to hold, "He does not appear to be fit to hold the office of any Head of Department."
The Law Secretary wrote to the High Court that on the aforesaid records
"he was directed to be relieved immediately of his assignment as Endowment Commissioner and his services were replaced at the disposal of the High Court I have strong doubts about his honesty."
The above remarks of the Law Secretary were endorsed by the Chief Secretary Shri A.K. Barren except regarding the aspect of honesty about which he has no information, (v) On 30th June. 1971, the Full Court examined the question of confirmation of the contemner in the cadre of District and Sessions Judges and unanimously resolved that he was not fit for confirmation in the said Service. Thus, during the period the contemner was officiating in the Senior Branch of the Orissa Superior Judicial Service, his judicial work was found unsatisfactory; he was found to be indisciplined, quarrelsome and lacking in administrative ability and was unable to cope with the duties and responsibilities of a District and Sessions Judge.
(vi) During the period the contemner functioned as Additional District Judge, Cuttack, he showed gross indiscipline. In an election case the High Court issued summons to be urgently served on the witnesses. Direction was issued to the District Judge of Cuttack, Shri P.K. Mohanty, to personally see that effective steps are taken for service of the said summons. Shri Mohanty received the Court's letter at Jajpur where he was holding his sessions circuit. No Civil Court Registrar had been posted at Cuttack by then. The District Judge, Shri Mohanty, requested Shri B.K. Misra, Additional District Judge, Cuttack, to look into the matter. He made the following endorsement to Shri Misra:
"A. D. J. Kindly look into the matter and see that the summons is immediately served by deputing a special peon. The matter should be put up to me on my return to headquarters.Sd. P. K. Mohanti. District Judge. 5-7-71,"
The contemner took exception to the endorsement of the District Judge with the following remarks:
"D. J. You should request the Registrar to do it. I take objection to such endorsement. You may however mark a paper to me for needful without asking me to carry out in a particular manner.
Sd. B. K. Misra.
Under Section 9 of the Bengal, Agra and Assam Civil Courts Act, 1887 the Dist. Judge has administrative control over the Additional District Judge. The conduct of Shri Misra in making the aforesaid remark was subversive of official discipline and decorum. (vii) The other important incident related to the disposal of M. A. No. 33/1 of 1970-71 in the file of the contemner. He heard the appeal and posted it for judgment to 22-6-71. Judgment was delivered on that date dismissing the appeal. The order sheet and the judgment were signed by the contemner and the judgment was sealed. Later in the day the contemner scored through his signatures both in the order sheet and in the judgment and returned the record to the District Judge for disposal by making a false statement that the judgment had not been delivered and the parties being known to him, it was not desirable that he should further hear the appeal and dispose of the petition for taking additional evidence. The aforesaid action of the contemner was not only illegal and without jurisdiction but also revealed utter disregard for law, procedure and truth unbecoming of an officer of the rank of a District Judge.
(via) On the basis of the aforesaid facts the Registrar by order of the High Court addressed confidential letter No. 5122/XIX-21/ 71 (Annexure-1) to the Secretary to the Government of Orissa, Home- Department, Bhu-baneswar, on 26th of July, 1971 to terminate the temporary service of Shri B. K. Misra as District Judge and to revert him as Additional District Magistrate (Judicial). The High Court made it clear to the Government that it was not necessary to resort to a disciplinary proceeding under Article 311(2) of the Constitution as Shri Misra had no right to the post, not having been confirmed, and as the proposed reversion was not by way of punishment but as his work was found unsatisfactory. In paragraph 8 of that letter the position was summed op thus:
"Shri B.K. Misra has throughout proved himself to be unbalanced, quarrelsome and indisciplined in his official conduct and behaviour. His judgments are hastly, arbitrary and slipshod. Though he was given chances of promotion on trial basis as a matter of sympathetic consideration he has not been able to change his attitude and to correct himself. It is expedient that he should be reverted from the present post. The reversion from the Senior Branch to the Junior Branch of the Orissa Superior Judicial Service is to be made purely on the ground that the officer is considered, after trial, to be unsuitable for such higher service as envisaged in Explanation (d) of Rule 13 of the Orissa Civil Services (Classification, Control and Appeal)' Rules. In such circumstances no departmental proceedings are necessary to be started. Accordingly the Court, after careful consideration, recommend that the temporary appointment of Shri Misra to officiate in the cadre of District and Sessions Judges should be terminated and he should be reverted to the rank of Additional District Magistrate (Judicial) with immediate effect."
The Court made it clear that three departmental proceedings were pending against the contemner and he had been convicted in a contempt case and all these four matters were not taken into consideration while recommending his reversion.
(ix) On 1-9-71 the contemner was reverted to the Junior Branch of the Orissa Superior Judicial Service by order of the Governor by notification (Annexure-2) dated 1st September, 1971. On 10-9-71 the contemner made a representation (Annexure-3) to the Chief Minister praying for withdrawal of the order of reversion and for drawing up of a regular departmental proceeding against him and for placing him under suspension during the pendency of the proceeding, if necessary. On 19-1-72 the High Court sent its parawise comments (Anexure-4) on the representation of the contemner. On 21-3-72 the Governor of Orissa cancelled the reversion order by a notification (Annexure-5) dated 21st March, 1972.
(x) On 21st March, 1972 the Chief Minister, Shri Biswanath Das, wrote confidential D. O. No. 997/C.M. (Annexure-IX) to the Chief Justice by name explaining the circumstances under which the reversion order was cancelled. In the last paragraph he stated:
"In view of the decision, the State Government felt necessary to restore Shri Bara-dakanta Misra to his position so as to enable him to stand the scrutiny prescribed in the decision of the Hon'ble High Court."
The Chief Justice had been to New Delhi to attend the Chief Justice's Conference and was absent from headquarters from 16th March, 1972 to 25th March, 1972. The confidential demi-official letter of the Chief Minister was opened by the Chief Justice on his return on 26-3-72 and both the demi-official letter of the Chief Minister and the notification (Annexure-5) were placed before the Full Court on 28-3-72 for consideration. The Full Court took the decision to start a disciplinary proceeding against Shri Baradakanta Misra and pending the same to place him under suspension in exercise of the powers under Article 235 of the Constitution, The Full Court resolution is extracted (see para 23 (xy) of Annexure-1 being the counter affidavit of the State filed in Crl. A. No. 174/72 in the Supreme Court). "Proceeding of the Full Court meeting held on the 28th March, 1972.
1. The Hon'ble the Chief Justice.
2. The Hon'ble Justice Sri S.K. Ray
3. The Hon'ble Justice Sri B.K. Pafra
4. The Hon'ble Justice Sri R.N. Mista
5. The Hon'ble Justice Sri B.K. Ray
6. The Hon'ble Justice Sri K.B. Panda
7. The Hon'ble Justice Sri B.C. Das.
(The Hon'ble Justice Sri S. Acharya was absent for the reason that Sri B.K. Misra is a close relation.)
Discussed the Home Department Notification No. 10720 dated 21-3-1972 and demi-official letter No. 997 dated 21-3-72 from the Chief Minister, Orissa to the Hon'ble the Chief Justice in context of Court's letter No. 5122 dated 26-7-71 recommending termination of the temporary appointment of Sri B. K. Misra in the Senior Branch of the Orissa Superior Judicial Service. The recommendation had been made on a review of the career of Sri Mishra and also on the basis of certain specific allegations made against him which would have justified initiation of disciplinary proceeding against him. But no proceeding was initiated then because his officiating appointment in the Superior Judicial Service (Senior Branch) was recommended to be terminated. In the circumstances, Resolved that departmental proceedings be now drawn up against Sri B.K. Misra.
Resolved further that pending drawal and finalisation of the Departmental proceeding Sri Mishra be placed under suspension."
(xi) The Chief Justice wrote D. O. No. 13 C. J. (Res) dated 3rd April, 1972 (Annexure-X) to the Chief Minister in reply to his letter (Annexure-IX). During the absence of the Chief Justice the contemner had sent a letter to the High Court that he might be permitted to join and he was called upon to produce medical certificate as required under the rules and no decision had been taken by the Court before 28-3-72 to give a posting order to the contemner.
(xii) On 30th of March, 1972, the contemner was placed under suspension by notification No. 48-A (Annexure 6) and his headquarters was fixed at Cuttack. On 10-4-72 the contemner addressed the letter (An-nexure-8) purporting to be an appeal to the Governor of Orissa for cancelling the order of suspension and for posting him directly under the Government. On 14-4-72 the Registrar of the High Court asked the contemner by his letter (Annexure-11) as to whether he bad shifted to Cuttack in compliance with the order of the High Court. On 18-4-72 the contemner relied to the Registrar by his letter (Annexure-12) that he continued at Bhubaneswar and had not complied with the order. On 28-4-72 the Registrar of the High Court intimated the State Government by letter (Annexure-9) that the appeal filed by the contemner had been withheld by the High Court as no such appeal lies against the order of suspension pending disciplinary proceeding. The contemner was also intimated by Annexure-10 that the appeal had been withheld by the High Court.
(xiii) On 29-4-72 charges (Annexure-7) framed by the High Court were communicated to the contemner. On 14-5-72 the contemner intimated the Registrar by his letter (Annexure-13) that he had moved the Governor to refer the disciplinary proceeding to the Administrative Tribunal and he would take all other alternative steps, administrative and judicial, to avoid this proceeding being dealt with by the High Court. On the same day, he also addressed a letter (An-nexure-15) to the Governor, purporting to be a representation, with a prayer to direct the High Court to forward the appeal withheld by it.
(xiv) On 14-5-72 the contemner addressed a letter (Annexure-16) direct to the Governor, purporting to be a representation, for referring the departmental proceeding to the Administrative Tribunal. A copy of this letter was sent to the Registrar, High Court, with the remark:
"As the Honourable Court are likely to withhold such petitions, this is submitted direct with copy to the Honourable Court for information. The Honourable Court may be pleased to send their comments on this petition to the Governor."
(xv) On 22-5-72 the contemner addressed a letter (Annexure-14) to the Registrar intimating him that he would not submit any explanation to the charges framed until his representation to the Governor was disposed of. He also stated therein that he may file a writ application for the purpose, and would take the matter to the Supreme Court, if necessary. He stated in that very letter that he cannot wait for the permission of the High Court for leaving the headquarters.
On 3-7-72 notice of contempt was issued to the contemner by the Registrar of the High Court under orders of the Full Court.
3. In the two show-cause petitions, the contemner stated his defence as follows:
The various letters addressed by the contemner referred to in the notice are admitted but it is pleaded that contents thereof do not amount to contempt of court. The impugned averments, according to him, were made with the sole object of stating the facts before his higher authorities in support of his contentions in the appeals and petitions and that those averments are based on truth, as honestly believed by the contemner, and were absolutely necessary for the purpose, and the contemner bona fide feels that he is legally entitled to express them. He denied the charge that he committed contempt under a garb or camouflage of filing appeals and petitions. He further stated that the impugned acts, conduct and writings mentioned in the notice referred to the High Court only on its administrative side and not to the Court or the individual Judges on the judicial side. According to him, there is no contempt when it is of such a nature that it does not substantially interfere or tend to interfere with due course of justice which means administration by a court of law on its judicial side. He prayed that the contempt proceeding should be dropped and the case should be heard first on the question of maintainability.
4. During the hearing of the case it came to our notice that the memorandum of appeal (Annexure-20) in Criminal Appeal No. 174/72 filed by the contemner in the Supreme Court contained passages constituting gross contempt. A notice was accordingly issued by the Full Bench to the contemner on 5-1-73 to show cause. He showed cause on 9-1-73 saying that it was a preliminary reply. The contents of the memorandum of appeal were known to him. His prayer for further time was frivolous and was rejected.
5. In the Annexures referred to in the notice and in the arguments before us the contemner raised the following questions of law challenging the authority and jurisdiction of the High Court in several ways.
(i) The Governor has power to stay and transfer the disciplinary proceeding initiated by the High Court to the Administrative Tribunal (see para 1 (ii) in Annexure-13 and para 9 and the prayer in Annexure-16).
(ii) The High Court is only a Head of De partment as described in Item 30 of Appen dix-3 under Rule 20 of the Orissa Service Code, 1939, and Book Circulars issued by the Government are binding on the High Court on its administrative side (para 6 of Annexure-8).
(iii) The impugned order of suspension in contemplation of a disciplinary proceeding amounts to temporary removal from service and this power of temporary removal is vested in the Governor and not in the High Court (para 7 of Annexure-8).
(iv) The power to suspend a District Judge is vested in the Governor under R. 12 of the Orissa (Classification, Control and Appeal) Rules, 1962 (hereinafter to be referred to as the Appeal Rules) (para 7 of Annexure-8).
(v) Against the orders passed by the High Court an appeal lies to the Governor under Rules 22 (2), 23 (1) (a) and (b) of the Appeal Rules and under Rule 31 the Governor has full power to review any order passed by the High Court (para 15 of Annexure-8, and para 4 (1) of Annexure-15).
6. The learned Advocate-General, who opened the case, contended that Annexures 8, 12, 13, 14, 15, 16 and 20 read as a whole and the passages therein as extracted in the two notices constitute gross contempt of Court Though he conceded that some of the rules in the Appeal Rules are inconsistent with the control to be exercised by the High Court under Article 235 of the Constitution, he contended that Rules 22 (2), 23 and 31 are intra vires and the field of controversy need not be enlarged in this case by examining the constitutionality of these rules.
Mr. Patnaik supports the contention of the learned Advocate-General that the impugned Annexures clearly amount to contempt. He, however, contended that it is necessary to determine in this case whether Rules 2 (c), 12, 14, 22, 23 and 31 of the Appeal Rules are constitutional in view of the positive defence taken by the contemnee that he bona fide used the expressions in the impugned Annexures in exercise of his right of appeal and representation conferred by the impugned rules.
Mr. Mohanty arguing the case as amicus curiae in support of the defence of the contemner contended that though some of the impugned rules are hit by Article 235 of the Constitution and are void, yet Rules 22, 23 and 31 are intra vires and the court shall have to decide the constitutionality of these rules in this case.
7. It would be appropriate at this stage to dispose of a contention raised by the learned Advocate-General that it is not necessary in this case to examine the constitutionality of Rules 22, 23 and 31 of the Appeal Rules. His argument is that irrespective of whether the suspension order passed by the High Court is legal or not, the contemner is not entitled to commit contempt of the High Court in the impugned Annexures and that contempt cannot be justified by pleading that the purported appeal or representation is maintainable and as such the constitutionality of the impugned rules is not to be examined by enlarging the scope of this case. Reliance is placed on the following observations in AIR 1967 SC 1 (Naresh Shridhar Mirajkar v. State of Maharashtra):
"We have referred to these respective arguments just to indicate the extent of the field which has been covered by learned counsel who assisted us in dealing with the present petitions. As this Court has frequently emphasised, in dealing with constitutional matters it is necessary that the decision of the Court should be confined to the narrow points which a particular proceeding raises before it. Often enough, in dealing with the very narrow point raised by a writ petition wider arguments are urged before the Court, but the Court should always be careful not to cover ground which is strictly not relevant for the purpose of deciding the petition before it. Obiter observations and discussion of problems not directly involved in any proceeding should be avoided by Courts in dealing with all matters brought before them; but this requirement becomes almost compulsive when the Court is dealing with constitutional matters. That is why we do not propose to deal with the larger issues raised by the learned counsel in the present proceedings, and we wish to confine our decision to the narrow points which these petitions raise."
The principle enunciated m the aforesaid case can hardly be disputed. Each case must, however, be determined on its own facts and with reference to points of dispute which are in issue.
8. In para 33 in AIR 1970 SC 2015 (E.M. Sankaran Namboodripad v. T. Nara-yanan Nambiar) their Lordships observed thus:
"That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but cannot serve as a justification."
It is, therefore, clear that the question whether an appeal or representation lay to the Governor and whether the Governor is an authority having jurisdiction to give relief against the orders of the High Court and whether the contemner was bona fide actuated by such considerations have bearing on the question of punishment. The contention-of the learned Advocate-General that the unconstitutionality of the rules has no relation to the commission of contempt is correct. Even if an appeal or representation lies to the Governor and the Governor has got power to grant relief against the order of the High Court suspending the contemner, he is not entitled to cast contemptuous aspersions in the memorandum of appeal or the representation. But these questions become relevant while deciding the question of punishment. Moreover, in paragraphs 10 and 11 of Annexure-8 the contemner undermined the authority of this Court by imputing motive that the Government in an appeal under Rule 22 set aside the order of this Court on grounds of bias and prejudice of the High Court and non-consultation with the Public Service Commission and the High Court being responsible for unnecessary heavy expenditure in initiating a frivolous departmental proceeding against him. It is, therefore, not correct to say that the constitutionality of the impugned rules does not arise for consideration in this case. It is germane to the defence raised by the contemner. Mr. Patnaik and Mr. Mohanty are, therefore, right in contending that the constitutionality of the impugned rules has to be examined in this case. The contemner placed strong support on these rules.
9. The following points arise for determination:
(i) Has the Governor any jurisdiction and authority to stay or transfer the disciplinary proceeding initiated by the High Court to the Administrative Tribunal?
(ii) Are Book Circulars issued by the Government binding on the High Court and is the High Court a Head of Department as described in Item 30 in Appendix 3 under Rule 20 of the Orissa Service Code?
(iii) Does suspension in contemplation of an enquiry amount to temporary remoyal from service?
(iv) Is the notification (Annexure-6) issued under the orders of the High Court suspending the contemner under Article 235 of the Constitution without jurisdiction?
(v) Are the impugned Rules 2 (c), 12 (1), 14, 22, 23 and 31 ultra vires Article 235 of the Constitution so far as District Judges are concerned?
(vi) Do the passages extracted from Annexures-8, 12, 13, 14, 15 and 16 constitute contempt of Court?
(vii) Is it open to the contemner to scandalise the High Court and undermine, its authority, dignity, and prestige and interfere with the administration of justice and law by the impugned Annexures?
(viii) Do Annexure-20 and the passage extracted therefrom in the notice dated 5-1-73 constitute contempt?
(ix) Is the contempt of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice within the ambit of Section 13 of the Contempt of Courts Act, 1971 (hereinafter to be referred to as the Act)?
(x) Should the Chief Justice and Justice R.N. Misra have been members of this Full Bench?
(xi) If the contemner is held guilty, what should be the punishment?
10. Questions (i) to (v) are inter-linked. They can be effectively answered with reference to the principles laid down in AIR 1966 SC 447. (State of West Bengal v. Nri-pendra Nath Bagchi) and AIR 1967 SC 903, (State of Assam v. Ranga Mohammad) in which the scope and ambit of Articles 233 and 235 of the Constitution were clearly analysed.
11. Articles 233(1) and 235 run thus: "233. Appointment of District Judges.--(1) Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State."
"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 Judges shall be vested in the High Court, but nothing in this Article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."
12. With regard to the scope and ambit of these two articles, the relevant passages in Bagchi's case AIR 1966 SC 447 may be extracted.
"..... It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the Presiding Judge. Article 227 gives to the High Court superintendence over there courts and enables the High Court to call for returns etc. The word "control" in Article 235 must have a different content. It includes something in addition to mere superintendence. It is control over the conduct and discipline of the Indges." (para 13)
"Articles 233 and 235 make a mention of two distinct powers. The first is power of appointments of persons, their postings and promotion and the other is power of control. In the case of the District Judges, appointments of persons to be and posting and promotion are to be made by the Governor but the control over the District Judge is of the High Court, xx xx Control is useless if it is not accompanied by disciplinary powers. It is not to be expected that the High Court would run to the Government or the Governor in every case of indiscipline however small and which may not even require the punishment of dismissal or removal." (para 14)
"....In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, and a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by Clause (2) of Article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone could have held the enquiry in this case." (para 18)
13. The meaning of the word "posting" in Article 233(1) was not examined in Bagchi's case as the question did not arise. Its meaning came up for consideration directly in Ranga Mohammad's case, AIR 1967 SC 903 as it was contended on behalf of the State of Assam that 'posting' means transfer*. Their Lordships negatived this contention and observed thus:
"It follows, therefore, that under Article 233, the Governor is only concerned with the appointment, promotion and posting to the cadre of District Judges, but not with the transfer of District Judges already appointed or promoted and posted to the cadre. The latter is obviously a matter of control of District Judges which is vested in the High Court", (para 9).
On the principles enunciated ' in the aforeaid two cases, it is manifest that Article 233(1) is denuded of all contents excepting the power of appointment of District Judges whether directly or by promotion. The Article embodies no other power. All other powers to be exercised in respect of District Judges are in Article 235.
The confemper very strongly relied upon AIR 1968 SC 647 (State of Orissa v. Sudhansu Sekbar Misra) in contending that the strength of Bagchi's case has been whittled down by this decision. It was held in this case that the control to his exercised by the High Court under Article 235 would not extend to officers directly working under the Government, such as Law Secretary. Legal Remembrancer or Sales-tax Tribunals etc., and in that context their Lordships said that the observation made in a particular case must be judged in the facts and circumstances of that case. The very decision recognises the power of the High Court under Article 235 to withdraw District Judges who had worked in special posts for the prescribed term. That Baechi's and Ranga Muhammad's cases are corner-stones for intemreta-tion of Articles 233 and 235 has been recognised not only in AIR 1968 SC 647 but also in all subseouent decisions of the Sunreme Court (see AIR 1972 SC 1028, State of Assam v. S.N. Sen).
14. The position of law is, therefore, unassailable that disciplinary proceedings against judicial officers including Distict Judges can be initiated only by the High Court. The Governor has no power to initiate such a proceeding. He has no power to stay such a proceeding or to transfer the same to the Administrative Tribunal. The Administrative Tribunal has no jurisdiction either to initiate or to hear a disciplinary proceeding against any judicial officer. The Disciplinary Proceedings (Administrative Tribunal) Rules. 1951 (hereinafter to be referred to as the Tribunal Rules) have no application to members of Judicial Service including the District Judges. It is unnecessary to examine the constitutionality of any particular rule of the Tribunal Rules. It would be sufficient to say that in view of the pronouncement in Bagchi's case, the Administrative Tribunal has no jurisdiction over a member of the Judicial Service and if there is any particular rule to the contrary it would be ultra vires Article 235 of the Constitution.
The learned Advocate-General, Mr. Patnaik and Mr. Mphanty do not dispute the correctness of this position.
15. The contemner advanced a contention that the High Court is a Head of Department and the Book Circulars issued by the Government are binding on the High Court in exercising its control over the subordinate judiciary.
Rule 20 of the Orissa Service Code lays down that "Heads of Department" means the Government servants mentioned in Appendix-3. Item 30 in Appendix-3 lists 'High Court' as a Head of Department. Appendix-3 under Rule 20, to the extent it enumerates the High Court as a Head of Department, is unconstitutional. High Court is not a Government servant. Article 214 of the Constitution prescribes that there shall be a High Court for each State. Under Article 216 every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. India is a sovereign democratic Republic and the sovereignty of the State does not vest in any single institution. The Executive, the Legislature and the Judiciary represent the sovereignty of the State in its three different branches. The High Court is a constitutional authority and is not subordinate to the Governor or to the Government. The description of the High Court as a Head of Department in Item 30 of Appendix-3 to Rule 20 of the Orissa Service Code is ultra vires the Constitution. The Registrar of "the High Court could be appropriately included in the list in place of High Court as Head of Department. The circulars issued by the Government or the Governor in administrative capacity are not binding on the High Court. The High Court is vested with administrative control under Article 235 of the Constitution to issue its own circulars for the guidance of subordinate Courts and the officers presiding over them. The contention of the contemner on this count is misconceived and wholly without substance.
16. The order of suspension dated 30th March, 1972 (Annexure 6) in contemplation of the disciplinary proceeding is attacked on two grounds:
(i) it amounts to temporary removal from service which the Governor alone can do under Article 311(1) of the Constitution and
(ii) the power ot suspension vests in tne Governor under Rule 12 (1) (a) of the Appeal Rules.
That suspension, pending or in contemplation of a disciplinary proceeding, does not amount to temporary removal from service is concluded by AIR 1957 SC 246 (Md. Ghouse v. The State of Andhra Pradesh). In paragraph 8 of the judgment their Lordships clearly pronounced as follows:
".....The order passed by the High Court on January 28, 1954, is merely one of suspension pending final orders by the Government, and such an order is neither one of dismissal nor removal from service within Article 311 of the Constitution."
The first branch of the argument on this topic has no merit and is accordingly rejected.
17. The next question for consideration is whether the power to suspend District Judges vests in the High Court under Article 235 of the Constitution. Reliance is placed by the contemner on Rule 12 (1) (a) of the Appeal Rules in support of the contention that it vests in the Governor. The rule runs thus:
"12. Suspension-- (1) The appointing authority or any authority to which it is subordinate or any authority empowered by the Governor or the appointing authority in that behalf may place a Government servant under suspension-
(a) where a disciplinary proceeding against him is contemplated or is pending".
If this rule is constitutionally valid in its application to District Judges, then the contention of the contemner is sound. It is, therefore, necessary to examine its constitutionality.
18. Section 16 of the General Clauses Act, 1897, may be extracted:
"16. Power to appoint to include power to suspend or dismiss. -- Where, by any Central Act or Regulation, a power to make any appointment is conferred, then unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power."
To the same effect is Section 17 of the Orissa General Clauses Act, 19^7.
Article 367(1) of the Constitution runs thus:
"367. Interpretation.-- (1) Unless the context otherwise Requires the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India."
The underlined expressions in Section 16 of the General Clauses Act and Article 367(1) of the Constitution furnish the clue to the problem whether the Governor, the appointing authority of the District Judges under Article 233 of the Constitution, has the power to suspend them by application of Section 16 of the General Clauses Act, or whether such power would come within the ambit of Article 235, the same being excluded from the scope of Article 233 as indicated by a different intention and the context being otherwise.
In AIR 1961 Cal 1 at p. 17 para 74 (FB) (Nripendra Nath Bagchi v. Chief Secy. Govt of West Bengal) their Lordships held that power of suspension of District Judges vests in the Governor who has the power to appoint under Article 233 of the Constitution. This view is not correct as it overlooked the significance of the underlined expressions.
In AIR 1966 SC 447 their Lordships did not at all deal with this aspect and did not make any reference to Section 16 of the General Clauses Act and Article 367(1), It is, however, implicit in that judgment that the power of suspension of a District Judge is in the High Court under Article 235 of the Constitution; otherwise the order of suspension passed on Bagchi by the Governor would have subsisted. On application of Section 16 of the General Clauses Act read with Article 367(1) of the Constitution, a different intention appears. The control vesting in the High Court being absolute ovep the District Judges subject to certain conditions, the power to suspend them vests in the High Court and is excluded from the power of the Governor which would have normally been in him under Article 233 of the Constitution.
The learned Advocate-General in support of the contention that the High Court and not the Governor has the power to suspend District Judges under Article 235 of the Constitution, pending or in contemplation of a disciplinary proceeding, placed reliance on AIR 1964 SC 787 (R.P. Kapoor v. Union of India).
The meaning of the expression 'disciplinary matters' in Article 314 of the Constitution prior to its amendment came up for consideration in that case. In paragraph 9 of the judgment their Lordships observed thus:
"Another argument that is urged on behalf of the respondent is that suspension pending a departmental inquiry or pending a criminal proceeding cannot be said to be a disciplinary matter at all, and, therefore, the protection of Article 314 does not extend to such suspension. We cannot accept this argument. The words 'disciplinary matters' with which we are concerned appear in a constitutional provision and must be given their widest meaning consistent with what disciplinary matters may reasonably include. Suspension is of two kinds, viz., as a punishment or as an interim measure pending a departmental inquiry or pending a criminal proceeding. We shall deal with this aspect of suspension in detail later.
So far as suspension as a punishment ii concerned, it is conceded that it is a disciplinary matter. The dispute is only as to suspension pending a departmental inquiry or pending a criminal proceeding. There can in our opinion, be no doubt that suspension of this kind also must be comprised within the words "disciplinary matters" as used in Article 314. Take the case of suspension pending a departmental enquiry. The purpose of such suspension is generally to facilitate a departmental inquiry and, to ensure that while such inquiry is going on -- it may relate to serious lapses on the part of the public servant -- he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the inquiry. In such a case, suspension pending the departmental inquiry cannot be but a matter immediately related to disciplinary matters.
XX XX XX
We cannot, therefore, accept the argument on behalf of the respondent that suspension pending a departmental inquiry or pending investigation, inquiry or trial relating to a criminal charge is not a disciplinary matter within the meaning of those words in Article
On the authority of Bagchi's case that, control vests in the High Court and the High Court is the sole authority to initiate disciplinary proceeding, conclusion is irresistible, on the principle enunciated in Kapoor's case, that the power to suspend District Judges pending or in contemplation of a disciplinary proceeding vests in the High Court.
On the aforesaid analysis, Rule 12 (1) (a) of the Appeal Rules in its application to the District Judges is ultra vires Article 235 of the Constitution. One is not to be surprised at the continuance of such a provision, as the Appeal Rules came into force in 1962 and the interpretation of Article 235 by the Supreme Court was made in September, 1965 and no effort has been made to alter or adapt the conditions of service framed in the Appeal Rules in conformity with the law laid down in Bagchi's case.
Reliance was placed by the contemner on AIR 1972 SC 554 (P. R. Nayak v. Union of India) which interpreted Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969. On the language of the rule, their Lordships held that it did not suggest that suspension can be ordered merely when disciplinary proceedings are contemplated. The power of suspension passed by the High Court in this case was not under any particular service rule but in exercise of its control under Article 235 of the Constitution. This decision throws no light on the point in issue.
The learned Advocate-General, Mr. Patnaik and Mr. Mohanty accepted the position that the power of suspension of District Judges pending or in contemplation of a disciplinary proceeding vests in the High Court and not in the Governor.
19. One of the limitations to which complete control vested in the High Court is subject, is that the High Court is not authorised to deal with a person belonging to the Judicial Service otherwise than in accordance with the conditions of his service prescribed under such law. It is, therefore, necessary to ascertain the meaning of the expression "conditions of service" occurring in Article 235. Is the 'control' vested in the High Court subject to all "conditions of service" framed under Article 309 ? Article 309 of the Constitution runs thus:
"309. Recruitment and conditions of service of persons serving the Union or a State :--
Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State :
Provided that it shall be competent for the president or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
Article 309 is itself subject to Article 235 of the Constitution. The latter Article, however, prescribes that the High Court would deal with the judicial officers only in accordance with their conditions of service.
20. What is the meaning of the expression "conditions of service" used in the last clause of Article 235? Should it be given a wide connotation which would exhaust the content of the power of control or should it be given a limited meaning so as to reconcile it with the power of control? In AIR 1955 Andh Pra 65, (Mohammad Ghouse v. State of Andhra) a Division Bench consisting Subba Rao, C.J., and Satyanarain Raju, J. critically analysed the position (see para 8). They indicated the various matters which might come within the ambit of conditions of service. Those are :
(i) A rule providing that a Government servant can only be removed after a disciplinary enquiry by a Tribunal.
(ii) A rule that a judicial officer shall be under the supervision or control of a person other than the High Court.
(iii) If a rule is framed that a judicial officer is not liable to be posted, transferred or promoted except by the Government.
(iv) Every condition regulating the appointment, salary, pension, promotion, removal, discipline and amenities of a servant would be a condition of service.
Their Lordships with reference to these categories observed thus:
"If such a wide construction is accepted, the Article itself would become nugatory and, therefore, it should be given a limited meaning. It is, therefore, necessary to give a limited meaning which would reconcile both parts of the Article. The clue is found in the word 'deal' in Article 235. That word is more appropriate to the procedure prescribed than to the power conferred or exercised. The power is exercised in the manner prescribed by the conditions of service. The procedure cannot obviously affect the power of control, but it can only regulate the manner of its exercise. So construed, a reasonable reconciliation can be effected between the two parts of the Article.
To illustrate, the High Court has control and superintendence over subordinate Courts. This pov/er necessarily implies that the High Court can take disciplinary action against Subordinate Judges in appropriate cases. The control will certainly be ineffective if the authority exercising the control cannot take disciplinary action against a person under its control. To put it in other words, a superior authority cannot control the actions of a subordinate if he cannot take disciplinary action against him.
If the argument of the petitioner is accepted, it will mean that the High Court has control over a Subordinate Judge, but if he misbehaves, it is the Tribunal that makes an enquiry and it is the Government that removes him. This construction would in effect take away the subordinate officer from the control of the High Court. On the other hand, if it is held that in exercising control, the High Court shall follow the procedure prescribed under Article 309, as a condition of service, it will reconcile both parts of the Article. The conditions of service may prescribe that no person can be removed or otherwise punished without due enquiry or in disregard of the principles of natural justice. If there is such a condition the High Court in exercise of control under Article 235 should deal with the subordinate concerned in accordance with the condition
We would, therefore, hold that 'conditions of service' in Article 235 can only mean the condition regulating the exercise of the power of control. A condition of service, therefore, providing in effect and substance that the High Court shall not have power to lake disciplinary action either in exercise of its power of superintendence under Article 227 or under the power of control under Article 235, is constitutionally invalid."
This decision was upheld in AIR 1957 SC 246 which did not dissent from the view taken by Subba Rao, C. J. in AIR 1959 Andh Pra 497, (Mohammad Ghouse v. State of Andhra Pradesh) the same view was taken by Chandra Reddy, C. J. and Jaganmohan Reddy. J., in AIR 1961 Cal 1 (FB) agreed with the view taken in the aforesaid two decisions (see paragraph 27, last line). The Calcutta view was accepted in AIR 1966 SC 447. Before the Supreme Court the following contention was advanced :
".....It is contended that conditions of service are ouiside 'control' envisaged by Article 235 because the conditions of service are to be determined by the Governor in the case of the District Judge and in the case of judges subordinate to the District Judge by the Rules made by the Governor in that behalf after consultation with the State Public Service Commission and with the High Court." (see para 12).
In paragraph 13, their Lordships observed. "We do not accept this construction." AIR 1972 SC 1028 supports this view. Under Article 235 the power of promotion of persons holding posts inferior to that of the District Judge is in the High Court. Rule 5 (iv) of the Assam Judicial Service (Junior) Rules, 1954, however, prescribed that when a person is appointed to a permanent post fee will be confirmed in his appointment at the end of the period of probation. In case of the Deputy Registrar and Assistant Registrar of the High Court, confirmation shall be made by the High Court. In other cases it will be made by the Governor in consultation with the High Court. The Supreme Court struck down this rule as being in conflict with Article 235, and as such, unconstitutional. An argument was built on the wordings of the last part of Article 235 relating to the exercise of the power of control in accordance with the conditions of service as prescribed in Rule 5 (iv). The argument was negatived without much elaboration in paragraph 16 wherein their Lordships observed thus :
"On the basis of the last part of Article 235, an argument was purported to be advanced that the power of the High Court as to promotions was limited. In view of the plain words of the first part of this article, this argument has no basis."
Conclusion is, therefore, irresistible that the control vesting in the High Court under Article 235 is complete. Such control cannot be abridged by the conditions of service prescribed under Article 309 which is itself subject to Article 235. The conditions of service can, however, prescribe the procedure to regulate the manner of exercise of the control vested in the High Court and the power of control would be so exercised.
The correctness of this conclusion is not disputed by the learned Advocate-General, Mr. Patnaik and Mr. Mohanty.
21. It was argued by the contemner that against the High Court's order (Annexure 6) suspending him, he had a right of appeal under Rules 22 (2) and 23 of the Appeal Rules and he could invoke the Governor's power of review under Rule 31. The learned Advocate-General concedes that against the order of suspension no appeal lies under Rule 22 or 23 and no representation lies under Rule 31. He, however, contends that the control, exercised by the High Court under Article 235 of the Constitution is subject to a right of appeal as provided under Rr. 22 and 23 and power of review under Rule 31. Mr. Patnaik, on the other hand, contends that no right of appeal has been provided under the Appeal Rules against any order passed, or penalty imposed, by the High Court but if those rules, apply the same are ultra vires Article 235.
22. The relevant clause in Article 235 runs thus :
".....but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service....."
It is thus clear that right of appeal may or may not be provided in the conditions of service.
23. It is contended by Mr. Mohanty that District Judges had a vested right of appeal prior to the Constitution and the same has been preserved under the Appeal Rules.
This raises the question whether before 26-1-1950, when the Constitution came into force. District Judges had any right of appeal under the conditions of service and whether the same was continued after 26-1-1950.
24. Rule 33 of the Appeal Rules, so far as relevant, runs thus:
"33. Repeal and Savings : (J) Civil Services (Classification, Control and Appeal) Rules, 1930. and the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules 1935, and any notifications issued and orders made under any such rules to the extent to which they apply to persons to whom these rules apply and in so far as they relate to classification of Orissa Civil Services specified in the schedule or confer power to make appointments, impose penalties or entertain appeals are hereby repealed: X X X X"
It would thus appear that till the Appeal Rules came into force on the 7th May, 1962, the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to be referred to as the 1930 Rules) governed the conditions of service of District Judges. Under Section 46 of the Government of India Act, 1915 (hereinafter to be referred to as the 1915 Act), as amended by the Government of India Act, 1919 (hereinafter to be referred to as the 1919 Act), the Provinces were governed in relation to the reserved subjects by the Governor-in-council and in relation to transferred subjects by the Governor acting with Ministers appointed on that behalf. Sections 50 and 52 of the 1915 Act provided that in certain contingencies the Governor may dissent from the decision of the majority of the councillors and from the advice of the Ministers. This was how diarchy in administration was introduced. The 1930 Rules were framed under the 1915 Act, as amended by the 1919 Act.
In Section 134(4) of the 1915 Act "Local Government" was defined as follows;
" 'Local Government" means, in the case of a Governor's province, the governor-in-council, or the governor acting with ministers (as the case may require)....."
Under the Government of India Act, 1935 (hereinafter to be referred to as the 1935 Act) the concept of Governor-in-council was abolished. By Section 50 it was provided that there shall be a Council of Ministers to aid and advise the Governor in the exercise of his functions except in so far as he is, by or under that Act, required to exercise his functions or any of them in his discretion. Under the proviso to that section it was laid down that nothing in that subsection shall be construed as preventing the Governor from exercising his individual judgment in any case, where, by or under this Act, he is required so to do.
Sub-section (3) provided that if a question arose whether any matter is or is not a matter in respect of which the Governor is, by or under this Act, required to act in his discretion, or to exercise his individual judgment, the decision of the Governor in his discretion shall be final.
In Section 52, amongst other matters, service rights were enumerated as the special responsibilities of the Governor. Clause (1) (c) of that section ran thus:
"(1) (c) the securing to, and to the defendants of, persons who are or have been members of the public services of any rights, provided or preserved of any rights, this Act and the safeguarding of their legitimate interests."
Section 52(3) prescribed that in the matter of special responsibility the Governor is to act in his individual judgment.
It would thus be seen that under the 1915 and 1919 Acts, District Judges who were members of the Provincial Service, were entirely under the administrative control of the Governor. Under the 1935 Act the same position continued and they were under the administrative control of the Governor in the exercise of his individual judgment.
25. In the 1930 Rules, 'Government* meant the 'Local Government' so far as the Provinces were concerned. The public services in India were classified under Rule 14. Rule 14 (4) related to the Provincial Services. Rule 18 prescribed that the Provincial Services shall consist of such services (other than the services included in Schedule I) under the administrative control of the Local Government of a Governor's Province as the Local Government may from time to time declare, by notification in the local official Gazette, to be included in the provincial services of that Province. District Judges appointed by Promotion from the rank of Subordinate Judges belonged to the Provincial Service,
Till 1-4-1937, when the 1935 Act came into force, the appointing authority of District Judges was the Local Government under Rule 38. That rule said that all first appointments to a Provincial Service were to be made by the Local Government or by an authority empowered by the Local Government in this behalf. Under Rule 52, the disciplinary and the punishing authority of District Judges was the local Government. Rule 52 was as follows:
"52. Subject to the provisions of these rules, the Governor-General-in-Council or the Local Government of a Governor's province may impose;
(a) any of the penalties specified in clauses (i) to (v) of Rule 49 on any person included in any of the classes (1) to (5) specified in Rule 14 who is serving under the administrative control of the Governor-General-in-Council or the Local Government, as the case may be,
(b) The penalty specified in Clause (vi) or in Clause (vii) on any such person not being one of those referred to in Rule 50."
The punishments were prescribed in Rule 49 as follows:
"49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in Rule 14, namely,
(ii) Withholding of increments or promotion, including stoppage at an efficiency bar.
(iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale.
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.
(vi) Removal from the Civil Service of the Crown, which does not disqualify from future employment.
(vii) Dismissal from the Civil Service of the Crown, which ordinarily disqualifies from future employment.
X X X X X"
The appellate authority against any penalty imposed OR District Judges was the Governor under Rule 57 (5). Rule 57 (5), so far as relevant, ran as follows:
"A member of a Provincial Service...... may appeal to the Governor from an order passed by the local Government....."
26. Thus, till 1-4-1937 the "Local Government" which was the 'Governor-in-Council' in charge of reserved subjects could impose any penalty on a District Judge and an appeal lay to the Governor. The Governor under the 1915 and 1919 Acts was an all-powerful Governor and was not bound to act according to the advice of the Governor-in-Council.
27. After the coming into force of the 1935 Act on 1-4-1937 the appointing authority of the District Judges was no longer the 'Local Government' but the Governor in his individual judgment under Section 254(1) of the said Act. Section 254(1) ran as follows :
"254 (1). Appointments of persons to be, and the posting and promotion of, district-judges in any province shall be made by the Governor of the Province, exercising his individual judgment, and the High Court shall be consulted before a recommendation as to the making of any such appointment is submitted to the Governor."
The 'Local Government' continued to be the disciplinary and punishing authority under Rule 52 even after 1-4-1937. This is so in view of the fact that under the Government of India (Adaptation of Indian Laws) Order, 1937 (hereinafter to be referred to as the Order) no change was brought about. Clause 7 of the Order provided :
"Subject to the foregoing provisions of this Order, arty reference by whatever form of words in any Indian Law in force immediately before the commencement of this Order to an authority competent at the date of the passing of that law to exercise any powers or authorities, or discharge any functions, in any part of British India shall, where a corresponding new authority has been constituted by or under any Part of the Government of India Act, 1935, for the time being in force, have effect until duly repealed of amended as if it were a reference to that new authority." Clause 4 of the Order substituted the "Provincial Government" for the "Local Government." Under the 1935 Act the power vested in the Provincial Government and, therefore, reference to 'Local Government' in the 1930 Rules necessarily meant the "Provincial Government".
Clause-V governed the 1930 Rules as those rules come within the definition of "Indian Law" as defined in Section 293 of the Government of India Act by virtue of Clause 2 of the Order. By the 1935 Act diarchy was abolished and "Local Government" meant the Governor acting with the aid and advice of the Ministers. The Governor, however, continued as the appellate authority under Rule 57 (5). The 'Governor' as the appellate authority under Rule 57 (5) was the Governor who appointed the District Judges in exercise of his individual judgment, and was an all-powerful Governor who was not to act with the aid and advice of Ministers.
28. It would thus be seen that the disciplinary and punishing authority of the Districi Judges from 1-4-1937 till 26-1-1950 was the Governor acting with the aid and advice of the Council of Ministers and an appeal lay to the Governor acting in his individual judgment against penalties imposed by the "Local Government."
29. The legal position as to right of appeal of District Judges prior to 26-1-1950 may be summed up thus:
(i) The Governor in his individual judgment was the appointing authority of District Judges.
(ii) The 'Local Government', i.e. the Governor acting with the aid and advice of the Council of Ministers was the disciplinary and punishing authority in relation to all categories of penalties enumerated in Rule 49.
(iii) The High Court had no power to impose any penalty.
(iv) The Governor acting in his individual judgment was the appellate authority.
(v) The Governor under the 1935 Act was an all powerful Governor and was not bound to act in accordance with the advice of the Council of Ministers.
30. We would now examine the legal position under the Constitution.
There was a radical and revolutionary change in relation to the control to be exercised over the subordinate judiciary.
The power and status of the Governor was also completely altered. He became a constitutional Governor. Article 163(I) provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
31. In paragraph 15 in ILR (1971) Cut 954 = (AIR 1972 Orissa 1), (G.B. Chhotray v. State of Orissa) a Bench of this Court held that the Governor of Orissa has no power to act in his discretion in any matter under the Constitution. The passage may be extracted:
"What are the executive powers which the Governor shall exercise directly in accordance with the Constitution?
Where the Constitution enjoins that the Governor would act in his discretion, the Governor would exercise those powers directly and not with the aid and advice of the Council of Ministers. The expression 'to act in his discretion' has been used in Article 163(1) and Article 166(3). It, however, appears that the only instances of functions required by the Constitution to be exercised by a Governor in his discretion are the powers of the Governor of Assam under paragraphs 9 and 18 of the Sixth Schedule of the Constitution, and the functions of a Governor appointed to be the administrator of a Union Territory under Article 239(2). There is no other mattw in respect of which a Governor may, under the Constitution, act in his discretion. It is clear that the Governor of Orissa has no power to act in his discretion in any matter."
Thus, in discharge of all his executive functions the Governor of Orissa is to act with the aid and advice of his Ministers. If the Governor performs any executive functions which he cannot validly do without the aid and advice of his Council of Ministers, then those acts would be ultra vires and liable to be struck down (see AIR 1971 SC 1002, U. N. R. Rao v. Smt. Indira Gandhi).
32. Under Article 233 of the Constitution the Governor is the appointing authority of District Judges. Though the Governor is the appointing authority both under Section 254(1) of the 1935 act and Article 233 of the Constitution, the power of the Governor under the 1935 Act was fundamentally different from his power under the Constitution. Under Section 254(1) the appointment was made by the Governor in exercise of -his individual judgment while under the Constitution it is to be done by him with the aid and advice of his Council of Ministers. This is one significant change to be kept in view.
33. Under the 1935 Act, the administrative control over a District Judge vested in the Governor in exercise of his individual judgment, and the exercise of the right was his special responsibility. Under Article 235 of the Constitution the control vests in the High Court and is completely taken away from the Governor subject to certain conditions.
34. As a result of this revolutionary change the following consequences emerge as explained in Bagchi's case:
(i) The appointing authority of District Judges is the Governor. But the 'Governor' under Article 235 is not the same Governor as in Section 254(1) of the 1935 Act.
(ii) The Governor can impose on them only the punishment of dismissal and removal as prescribed under Article 311(1) of the Constitution. All other categories of penalties are to be imposed by the High Court in exercise of its administrative control.
There is a complete departure from the 1935 Act. The High Court had no such power prior to the Constitution.
(iii) The 'Local Government' was the disciplinary authority of the District Judges under the 1935 Act. Under the Constitution, the High Court is the disciplinary authority in respect of all categories of penalties including that of dismissal and removal.
35. Though these radical changes were introduced by the Constitution, there was no consequential amendment or adaptation in the 1930 Rules to bring it in conformity with the Constitution and they continued to hold the field till 7th May, 1962, when they were repealed by Rule 33 of the Appeal Rules. This would be clear from Clause 19 of the Adaptation of Laws Order, 1950.
36. We would now examine whether the District Judges had any right of appeal from 26-1-1950 till 7-5-1962 even though Rules 57 C5) of the 1930 Rules remained operative.
37. The appellate authority' against penalties imposed on District Judges before 26-1-1950 was the Governor acting in his individual judgment and not acting with the aid and advice of his Council of Ministers. Such a functionary was abolished in the Constitution. Thus, the appellate authority under Rule 57 (5) became non est after 26-1-1950.
Moreover, the punishing authority in respect of penalties other than dismissal or removal is now the High Court. In the 1930 Rules there was no provision for the High Court to impose any penalty. The 'Local Government' was the disciplinary and the punishing authority under the 1935 Act. As the 1930 Rules were not amended to bring them in conformity with the Constitution, there is no appellate authority as contemplated in the 1930 Rules against penalties which can be imposed by the High Court. From 26-1-1950 till 7-5-1962 the District Judges had no right of appeal against penalties of dismissal and removal imposed by the Governor, and similarly, they had no right of appeal against other penalties which could be imposed by the High Court despite the fact Rule 57 (5) was in force prescribing a right of appeal. It is, therefore, idle to contend that the right of appeal which a District Judge had before 26-1-1950 continued till 7th May, 1962.
38. Was the position altered by the Appeal Rules coming into force on 7th May, 1962? In other words, did the Appeal Rules confer a right of appeal on District Judges? This necessitates an examination of the relevant provisions in the Appeal Rules to see if they at all provide for the High Court being the disciplinary and punishing authority and if an appeal has been provided against orders of the High Court imposing any penalty on District Judges.
39. Rule 2 (a) of these Rules defines 'appointing authority.' So far as relevant, it runs thus:
'In these rules, unless the context otherwise requires:
(a) 'appointing authority' in relation to a government servant means;
(i) the authority empowered to make appointments to the service of which the Government servant is, for the time being, a member or to the grade of the service in which the Government servant is, for the time being, included."
Rules 10 and 11 refer to various classes of appointing authorities
Rule 18 of the Orissa Superior Judicial Service Rules, 1963 (hereinafter to be referred to as the Superior Rules) lays down that the conditions of service of the members of the Superior Judicial Service, in regard to matters not covered by these Rules, shall be the same as are, or as may from time to time be, admissible generally to other State Service Officers.
Governor is the appointing authority of District Judges under Article 233 and R. 8 (3) and R. 9 (1) of the Superior Rules.
"Disciplinary authority" has been defined in Rule 2 (c) as follows :
" 'Disciplinary authority' in relation to the imposition of a penalty on a Government servant, means the authority competent tinder these rules to impose on him that penalty?'"
The underlined words are significant, as the disciplinary authority has been defined in relation to the power of imposing penalties as prescribed in the Appeal Rules. In this rule the High Court has not been mentioned as an authority to impose any penalty on District Judges.
Penalities are enumerated in Rule 13 as follows :
"13. Nature of penalties:
The following penalties may for good and sufficient reasons, and as hereinafter provided, be imposed on a Government servant, namely,
(iii) Withholding of increments or promotion;
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;
(vi) Reduction to a lower service, grade or post or to a lower time-scale or a lower stage in a time-scale;
(vii) Compulsory retirement;
(viii) Removal from service which shall not be a disqualification for future employment;
(ix) Dismissal from service which shall ordinarily be a disqualification for future employment;
X X X X X"
40. Rule 14 (1) prescribes that the Governor may impose any of the penalties specified in Rule 13 on any Government servant. This rule, in its application to District Judges, is partly ultra vires. As explained in Bagchi's case, Government can impose only the penalties of dismissal and removal on District Judges. The High Court is the competent authority to impose all other penalties on them.
Rule 14 (2) (a) of the Appeal Rules runs thus:
"(2) Without prejudice to the provisions of Sub-rule (1) but subject to the provisions of Sub-rule (4), any of the penalties specified in Rule 13 may be imposed on;
(a) a member of a Civil Service by the appointing authority or the authority specified in the schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the Governor." In respect of penalties which cannot be imposed on District Judges by the Governor, the question of delegation of power under Rule 14 (2) does not arise. Moreover, to the extent this Sub-rule is controlled by the expression 'without prejudice to the provisions of Sub-rule (1)' the rule is ultra vires inasmuch as in respect of penalties which the High Court is competent to impose on District Judges under Article 235, the Governor has no jurisdiction or power to impose them.
41. The net effect of Pule 14 (2) is that the rule is ultra vires Article 235 except in respect of penalties of dismissal and removal of District Judges. In that regard also, the Governor is not the disciplinary authority. There is thus no provision in the Appeal Rules for imposition of any penalty by the High Court on the District Judges or the High Court being the disciplinary authority in respect of them. Rule 14 (4) (a) to the effect-
"no penalty specified in clauses (vi) to (ix) of Rule 13 shall be imposed by any authority lower than the appointing authority."
is ultra vires Article 235 to the extent it prohibits the High Court to impose penalties (vi) and (vii), on District Judges.
42. There being no provision in the rules for the High Courts to impose any penalty on the District Judges, Rules 22 (2), 23 and 31 prescribing appeal and review, have no application to orders passed by the High Court imposing penalties on District Judge.s under Article 235. In fact, the rules have been framed on the basic assumption that all categories of punishments can be imposed only by the Governor on the District Judges, and the Governor is the disciplinary authority. The concept that the High Court is the disciplinary authority in respect of all categories of penalties and that it can impose all penalties excepting dismissal and removal of District Judges was ushered in, for the first time, by Bagchi's case in September. 1965, long after the appeal rules were framed.
43. Rules 22 (2), 23 and 31 run thus:
"22. (2) A member of an Orissa Civil Service Class I or an Orissa Civil Service, Class II against whom an order imposing any of the penalties specified in Rule 13 is made by an authority other than the Governor may appeal against such order to the Governor. X X XX X"
23. Appeal against other orders:
(1) A Government servant may appeal against an order x x x x to the Governor x x x x if the order is passed by any other authority;
(2) An appeal against an order:
(a) stopping a Government servant at the efficiency bar in the time-scale on the ground of his unfitness to cross the bar
(b) reverting to a lower service, grade or post, a Government servant officiating in a higher service, grade or post, otherwise than as a penalty;
(c) reducing or withholding the pension or denying the maximum pension admissible under the rules; and
(d) x x x x
(i) in the case of an order made in respect of a Government servant on whom the penalty of dismissal from service can be imposed only by the Governor, to the Governor; and
(ii) in the case of an order made in respect of any other Government servant, to the authority to whom an appeal against an order imposing upon him the penalty of dismissal for service would lie.
Explanation:-- x x x x
31. Governor's power to review:
Notwithstanding anything contained in these rules, the Governor may, on his own motion or otherwise, after calling for the records of the case, review any order which is made or is appealable under these rules or the rules repealed by Rule 33, and, after consultation with the Commission where such consultation is necessary-
(a) confirm, modify or set aside tne order;
(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;
(c) remit the case to the authority which made the order or any other authority directing such further action or inquiry as he considers proper, in the circumstances of the case; or
(d) pass such other orders as he deems fit; provided that:
(i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty,
(ii) if the Governor proposes to impose any of the penalties specified in clauses (vi) to (ix) of Rule 13 in a case where an inquiry under Rule 15 has not been held, he shall, subject to the provisions of Rule 18, direct that such inquiry be held and, thereafter, on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make against such penalty, pass such orders as he may deem fit."
In Schedule B of the Appeal Rules the Orissa Superior Judicial Service has been referred to as Class I Service. Rule 22 (2) provides for an appeal to the Governor against an order imposing any of the penalties specified in Rule 13. The word 'order' occurring in this Sub-rule necessarily refers to an order passed under the Appeal Rules. The authority other than the Governor in the Sub-rule also refers to an authority specified in the Appeal Rules. High Court is not specified as an authority under the Rules, Rule 22 (2) has, therefore, no application to penalties imposed on the District Judges by the High Court. On identical argument, Rule 23 has also no application. An order of suspension pending inquiry or in contemplation of a disciplinary proceeding under Rule 12 (1) (a) passed by an authority other than the Governor is not appealable under Rule 22 (2) as it is not a penalty and also not an order under Rule 23 (2). Rule 23 does not cover a case of suspension referred to in Rule 12 (1) (a) but covers express orders directly resulting in consequences referred to in Rule 23 (1).
44. Rule 31 has no application to orders passed by the High Court in exercise of its control under Article 235. Such orders are not made and also are not appealable under the Appeal Rules. Rule. 34 which is to the following effect:
"Removal of Doubts; Where a doubt arises as to who is the head of any office or as to whether any authority is subordinate to or higher than any other authority or as to interpretation of any of the provisions of these rules the matter shall be referred to the Governor whose decision thereon shall be final."
is ultra vires. (See AIR 1967 SC 691, Jalan Trading Co. v. Mill Mazdoor Sabha).
45. Assuming Rules 22, 23 and 31 apply to orders of suspension pending or in contemplation of an inquiry, and to penalties imposed by the High Court, tht question is whether they are ultra vires Article 235 cf the Constitution.
46. As has already been stated, the conditions of service framed under Article 309 may or may not prescribe a right cf appeal against the orders of the High Court passed in exercise of its power under the first part of Article 235. The question is, to whom the appeal would lie, from such orders of the High Court, once such right of appeal is prescribed in the conditions of service? The Article itself does not mention the forun to which such appeal would lie."
47. That the conditions of service cannot prescribe any appeal from the High Court's order to any authority external to the High Court is manifest in the Article itself. If that were not so, the Article would have expressly prescribed the forum. The control that vests in the High Court is absolute, subject to right of appeal, if provided. Suppose, the Governor frames a rule under Article 309 that such a right of appeal, from the order passed by the High Court in its disciplinary jurisdiction would lie to a Civil Surgeon or to an Executive Engineer. Mr. Mohanty concedes that such a provision would be ultra vires the first part of Article 235, inasmuch as the power and jurisdiction of the appellate authority being co-extensive with the power of the punishing authority, the ultimate exercise of the control would vest in the appellate authority. Does it make any difference if, instead of providing for a right of appeal against the High Court's order to an Executive Engineer or a Civil Surgeon, the Governor frames a rule providing for a right of appeal to himself?
48. The position would not, in any way, be different. The Governor is a constitutional Governor. If an appeal against the High Court's order would lie to the Governor, the same would be heard by a Minister with the opinion of his Secretary, and the entire control envisaged under Article 235 would be exercised by the Executive Government, which would be wholly subversive of the independence of the judiciary.
49. In AIR 1966 SC 1987, (Chandra Mohan v. State of Uttar Pradesh) their Lordships observed thus (Paragraph 14):
"The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States: It constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction. But the makers of the Constitution also realised, that "it is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question in the case of the superior Judges." Presumably to secure the independence of the judiciary from the executive, the Constitution introduced a group of Articles in Chapter VI of Part VI under the heading 'Subordinate Courts'. But at the time the Constitution was made, in most of the States the magistracy was under the direct control of the executive. Indeed, it is common knowledge that in pre-independence India there was a strong agitation that the judiciary should be separated from the executive and that the agitation was based upon the assumption that unless they were separated, the independence of the judiciary at she lower levels would be a mockery. So Article 50 of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public services of the States. Simply stated, it means that there shall be a separate judicial service free from the executive control."
The aforesaid passage brings into bold relief the legal position that in Chapter VT by vesting the control of the judiciary in the High Court the independence of the subordinate judiciary was achieved. The same view was expressed in Bagchi's case. In para 13, their Lordships said triat the history which lies behind the enactment of these articles indicates that control was vested in the High Court to effectuate a purpose, viz., the securing of the independence of the subordinate judiciary, and unless the word 'control' included disciplinary control as well, the very object would be frustrated. The word 'control' shows that the High Court is made the sole custodian of the control over the judiciary. It is the control over the conduct and discipline of the Judges. They further said that Article 235 goes to shows that by vesting control in the High Court the independence of the judiciary was in view.
50. In exercise of the appellate power the Governor may give the highest weight to the opinion of the High Court as was observed in AIR 1967 SC 903 in relation to consultation under Article 233 that it "loses all its meaning and becomes a mockery if what the High Court has to say is received with ill-grace or rejected out of hand. In such matters the opinion of the High Court is entitled to the highest regard." While not disputing the contention advanced by the learned Advocate General that in exercise of an appellate power the Governor may give the highest weight to the conclusion of the High Court, it would be difficult to accept the suggestion that the Governor would not take a view different from that of the High Court. In such a case, the real control would ultimately vest in the Governor and not in the High Court, Such a conclusion would be a complete negation of the principle established in Bagchi's case and the control vested in the High Court would be illusory. Doubtless, all constitutional authorities are to exercise their power bona fide. But, however, bona fide Government may act, there is bound to be honest difference of opinion. If any authority other than the High Court becomes the appellate authority, independence of the judiciary would vanish. This is not an argument of fear but an argument to reconcile Article 309 with Article 235.
51. The view that we have taken on an elementary analysis gets support from AIR 1961 Cal 1 (FB). In paragraph 22 their Lordships observed thus:
"The two expressions "right of appeal" and "deal with him" belong to the domain of discipline and disciplinary matters. "Dealing with him" and the "right of appeal" are integral parts of disciplinary control and relevant thereunder. These words, therefore, inter alia, import disciplinary control. Therefore, the word 'control' in Article 235 of the Constitution would include disciplinary control and jurisdiction subject to the two exceptions to be found in the conditions of his service protecting first his right of appeal, and secondly, the 'manner of dealing with him. Disciplinary action is part of 'dealing' with a person and this second limitation only means that such disciplinary action must conform to the conditions of his service. These two limitations do not divest the High Court's control, but only regulate the manner and procedure of the exercise of that control as laid down in the conditions of service. These conditions of service may certainly include provisions for disciplinary action and, therefore, can equally certainly be made by an Act of the State Legislature or regulated by the Governor of the State under Article 309 of the Constitution but neither the Governor nor the Act of the State Legislature can override the Constitution by divesting the High Court of the control the Constitution has vested in it. If the Governor or the State Act provides for disciplinary control over subordinate courts, then such provision has to be consistent with the High Court's control. In other words, the Governor or the State Act can only say how, and in what manner, the High Court shall exercise such disciplinary control and not that the High Court shall not have that control or that some other authority will have that control."
The underlined sentence furnishes the solution to the problem. This passage clearly supports the conclusion that an authority external to the High Court cannot be the appellate authority to which the appeal would lie. It is open to the Governor under Article 309 to frame rules as to how the appeal would be heard and also to prescribe an appellate authority internal to the High Court which would not divest the control vested in the High Court. For instance, the rules framed under Article 309 may provide that the disciplinary proceedings initiated by the High Court would be first heard either by a single Judge or by two Judges and an appeal would lie to the Full Court. In the alternative, the rules may prescribe that there will be no right to appeal and the entire matter would be heard by the Full Court as is being done now. That this concept is not fantastic would be manifest from certain provisions of the Appeal Rules. For instance, Rule 21 provides that no appeal shall lie against any order made by the Governor. Rule 22 (2) read with Schedule A shows that the Governor is the authority to impose penalties under Rule 13 on Orissa Civil Services, Class I, Class II, and Civil Posts Class II, and no appeal lies against such order. There is, therefore, nothing absurd in the conclusion that no appeal would lie against punishments imposed by the High Court on the members of the Judicial Service. The High Court is not subordinate to the Government or Governor.
52. The argument of Mr. Advocate General that in such a case the appeal would lie from 'Caesar to Caesar' is not correct in its application to the High Court. The High Court is the highest judicial authority in the State. It is a Court of Record which has the power to punish for contempt of itself under Article 215. In second appeals, first appeals, Company Act cases, and miscellaneous appeals an appeal lies against the order of a single Judge to a Division Bench, and in certain cases to a Full Bench if the same is referred to. In second appeals an application for leave to appeal under the Letters Patent is to be presented to the Judge himself who may either grant or refuse leave to appeal against his own judgment. Similarly, for leave to appeal to the Supreme Court under Arts. 132 to 134 of the Constitution, leave is to be granted by the Bench itself against its own judgment. The aforesaid constitutional and statutory provisions could not have been enacted if they could be construed as 'appeal from Caesar to Caesar'. Such an argument is appropriate to function-naries on the executive side and the subordinate judiciary and not to the High Court. We are, therefore, not impressed by the argument that in the rules framed under Article 309 provision cannot be made for tearing an appeal from a single Judge or two Judges to the Full Court as referred to I in the first clause of the second part of Arti-cle 235.
53. It was contended by the learned Advocate General that some checks and balances have been provided under the Constitution and provision of a right of appeal to the Governor would be such check and balance. We are unable to accept this argument. Checks and balances have been provided in Articles 233 to 235 in Chapter VI by providing that the power of dismissal and removal of District Judges and Munsifs vests in the Governor. So also those powers would vest in the Governor if Subordinate Judges and A. D. Ms. (J) are directly recruited and not appointed by promotion. This is sufficient check and balance. Though the ultimate power of dismissal and removal of District Judges has been conferred on the Governor, the control of the Subordinate Judiciary has been taken out of the powers of the Governor to effectuate the independence of the judiciary. The disciplinary proceeding is to be started by the High Court. When the High Court suggests punishment of dismissal or removal in certain cases the Governor may not agree with the proposal. But that would not amount to interference with the control vested in the High Court to impose other categories of penalties on District Judges, and dismissal or removal in cases of Subordinate Judges and A. D. MS (J) where they have been appointed by promotion. Rather., if the power of appeal is vested in the Governor there will be no checks and balances and the entire control will vest in the Governor. The independence of the judiciary will vanish. In paragraph 28 in AIR 1961 Cal 1 (FB) their Lordships expressed their view regarding checks and balances thus:
"This duality is not an unmixed evil, but is an example of that wholesome constitutional principle of checks and balances so that no one institution can afford to be tyrannical in the exercise of its powers and thereby ensuring the much needed security of public services in India"
The view expressed in paragraphs 22 and 28 of AIR 1961 Cal I (FB) was not dissented from in AIR 1966 SC 447.
54. Thus, both the clauses in the second part of Article 235 would carry the same construction as to the limitations in the power of control to be exercised under the first part of Article 235 as was observed in AIR 1972 SC 1028. To put it in an elementary way, under Article 309 rules may be framed by the Governor as to how a disciplinary proceeding would be enquired into. Similarly, rules may be framed as to how an appeal would be heard. The rules may or may not provide for an appeal But if they purport to provide for an appeal, the same has to specify that the disciplinary proceeding would be enquired into, in the first instance, by a single Judge or by two Judges and that appeal against his or their order would lie to the Full Court or the Standing Committee. The rules may also provide the powers of the Full Court in appeal, corresponding to Rule 22 or 23 of the Appeal Rules and also making provision as in Rules 31 and 32, conferring powers of review, on the Full Court. In no circumstances, however, should there be a rule framed providing a forum of appeal, external to the High Court. In that event, the first part of Article 235 would be wholly nugatory and the ultimate power of control over the subordinate judiciary would vest in that external authority. Both the parts of Article 235 must be harmonised.
55. We may illustrate our conclusion by certain examples. Upon the decision in Bagchi's case, the High Court is the disciplinary authority. It is the High Court who is to decide whether to initiate a proceeding. If the Governor is the appellate authority he can straightway say that no disciplinary proceedings can be initiated and the proceeding is to be quashed. Similarly, in exercise of the disciplinary control the High Court may impose penalties other than dismissal or removal. The Governor, in exercise of his appellate power, can say that no punishment is to be imposed. The result would be that the High Court can neither initiate a disciplinary proceeding nor can it take any action against any judicial officer, however, subversive of discipline his conduct may be.
56. A disciplinary proceeding is a judicial proceeding from start to finish and the final order passed under Article 311(2) is a judicial order (see paragraph 7 in AIR 1963 SC 395 Bachittar Singh v. State of Punjab). Appeal against the penalty imposed in such a proceeding is necessarily judicial and the authority hearing the appeal is a tribunal assuming without conceding that it is not a Court, and is subject to the superintendence of the High Court under Article 227.
If the Governor hears an appeal against an order passed, or penalty imposed, by the High Court, it would be a 'tribunal' subject to the superintendence of the High Court. The High Court may, in appropriate cases, interfere with the order of the 'tribunal' viz., the Governor, suo motu, without any application from the aggrieved party by calling for the record. This would lead to an absurd situation.
57. Mr. Mohanty, as well as the learned Advocate-General, very seriously contended that the Governor is the repository of all powers relating to administration of justice, as would appear from Entry 3, List II of Seventh Schedule of the Constitution, providing for administration of justice, constitution and organisation of all courts; and vesting the executive power of the State in the Governor under Article 154 except in matters in respect of which the Legislature of the State has power to make laws; and the Governor can frame rules under Article 309 of the Constitution making himself the appellate authority in respect of orders passed by the High Court. This contention is unsound.
58. Article 162 itself opens by saying that subject to the provisions of the Constitution, the executive power of a State shall extend to matters with respect to which the Legislature of the State has power to make laws. Even the State Legislature cannot pass law restricting or delimiting the control of the High Court over the subordinate judiciary, except as provided in the second part of Article 235. As has already been stated, both the parts of Article 235 must be harmoniously construed so as not to affect the control vested in the High Court under its first part. The fact that the Governor is to make provision in the budget for carrying on the judicial administration of subordinate Courts by the High Court is wholly irrelevant to the question of control to be exercised by the High Court over the subordinate judiciary.
59. We now propose -to deal with annexure 8.
In paragraphs 10 to 14, and the prayer portion thereof the contemner made the following statements, and these statements as extracted in paragraph 19 of the notice, are quoted hereunder. The grossly contemptuous sentences have been underlined by us.
"(10). In order to dispel the common notion that the legal authorities are not liable to error on such simple matters, it may be submitted that on the appeal by the appellant under Rule 22 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, against the aforesaid proceeding and punishment, the Governor cancelled even the very departmental proceedings on the ground that the same had been vitiated and became void, since the High Court from the start, had prejudged the matter and set aside the punishment on account of the participation of three of the Honourable Judges of the High Court in the said proceedings, even though the appellant had complained of their bias and prejudice against him, so as to disentitle them to deal with it, and even then, the matter had not been referred to the State Public Service Commission.
It may be appreciated that by the said departmental proceedings, huge amount of money in form of pay, allowance, and T. A. of the concerned officers, that is, the Enquiring District Judge, Conducting and Assistant Conducting Class I Officers, their staff, the appellant and his advocates, besides large number of witnesses of high position and status, were to be spent. This led to the aforesaid O. J. C. No. 206/64, which also cost the State exchequer a great deal, apart from the expenses of the appellant -- all on account of the palpable incorrect views of the High Court
(11) The present action clearly discloses mala fides. The appellant does not desire to introduce all such embarrassing events into this appeal except the following one, reserving however, his right to present the rest with reference to the connected records at the time of the personal hearing, or in a supplementary petition.
Before the leave of the appellant expired, he intimated the High Court his desire to join duties after his leave on the 20th March, 1972, and on this 20th, he reported for duty along with a fitness certificate, requesting the High Court to give him a posting order. The Home Department Notification No. 10720, dated 21st March, 1972, was duly received in the High Court. The High Court in their letter No. 2808 dated 23rd March, 1972. informed the appellant that his reposting after leave would be decided after the Medical Board reported as to his fitness to join after leave. In fact, this aspect was referred to the Medical Board as per the Court's letter No. 2205 dated 23-3-72. Since the appellant in his letter dated 24-3-72 contended that he had already joined after leave on the basis of the fitness certificate by the Medical Officer, previously accepted by the High Court, the High Court in their next letter No. 2370 dated 27th March, 1972, reiterated their stand of having a fitness certificate, signed by a Medical Officer in terms of Rule 140 of the Orissa Civil Service Code. This decision of the High Court, reached at before the Honourable the Chief Justice attended the High Court on 27-3-72 after his "ten days of absence, clearly indicates that no proceeding, much less suspension, against the appellant was under contemplation till that day, but on the other hand, the appellant's place of posting was under consideration of the High Court. Circumstances clearly disclose that after the return of 4he Honourable Chief Justice the Government's order, disapproving the High Court's views about the appellant's demotion, was not accepted gracefully by the High Court and so subterfuge was adopted to counteract the said decision of the Government by a novel step, thus to deprive the appellant of the result of the said decision. In view of this patent mala fide alone, such an action is liable to be quashed, by any competent court of law.
The appellant, therefore, approaches the State Government that considering all the aspects from the standpoints of equity, justice and good conscience, and taking into consideration the above factors, they may extend the lawful protection that a helpless employee is entitled to against the hardship to which he has been pushed.
(13) The appellant happens to be the senior-most judicial officer in the State as regards length of service, and he has already 20 more months before attaining the age of superannuation. Hence, he may not deserve the present unwarranted, sudden and mysterious suspension giving rise to speculations, touching his integrity.
(14) Apart from the consideration that the appellant at this fag-end of his service career, need be given a special post with special pay in order to secure some more benefit by way of pension and gratuity, as is the usual feature, the treatment of the High Court may require that after cancellation of this order of suspension, he be brought under the direct control of the Government in a special post of his service career of hardly 20 months more.
* * * * *
(ii) pending disposal of this appeal, stay of operation of the suspension order may be passed even on the basis of the advance
(iv) after cancellation of the suspension order, he may be posted directly under the Government."
60. In paragraphs 17, 18 and 20 of the notice the contemner was intimated that whereas it appeared that the said appeal petition and the contents of the petition, quoted above, scandalised the High Court and individual Judges thereof, and lowered and undermined the authority, dignity and prestige of the High Court and interfered with the administration of justice, both on the judicial side and in the exercise of its administrative capacity, it amounted to contempt.
61. In the appeal memo (annexure-8) the contemner attributed mala fides, bias and prejudice to the High Court. He made false insinuations that the Governor cancelled the previous disciplinary proceeding against the contemner on the ground that the same was vitiated as the High Court had prejudged the matter and the Government set aside the punishment on the ground that three of the Honourable Judges were biased and prejudiced against him. He alleged that the disciplinary proceeding involved the Government in heavy expenses on account of the palpably incorrect views of the High Court. He asserted that the order of suspension as per annexure-6 was mala fide. He stated that he would produce more facts relating to the mala fides of the High Court before the Governor. He alleged that the High Court did not gracefully accept the Government's order cancelling his demotion, and the High Court resorted to a subterfuge to counteract the said decision of the Government by taking a novel step, and that the High Court's action suffered from patent mala fide. He stated that there was a turn of event after return of the Chief Justice from the Chief Justices' Conference and that the High Court did not accept Government's decision gracefully, and that the other Judges had no independent judgment of their own, and were influenced by the Chief Justice to take a view, different from what they had already taken, to give a posting order to the contemner, and the High Court resorted to a subterfuge. He wanted protection of the Governor against the High Court which he insinuates as an engine of oppression. He characterised the High Court's order of suspension as mysterious and prayed that the Government should post him directly wide it.
62. We have already given at length a history of his service. The ontemner, after being tried in the temporarily promoted post of District Judge, was found unsuitable to be continued in such post. It was found that the contemner was deficient in judicial and administrative abilities required of the post. The Court, therefore, instead of taking disciplinary action for bringing about his reveision, recommended to the Governor, as the appointing authority under Article 233 of the Constitution to revert him to the lower post which he held before his temporary promotion on trial basis. The Governor had reverted him whereupon the contemner had made a representation. That representation was allowed on 20th of March, 1972. At that point of time the Chief Justice was away at Delhi for the Chief Justices' Conference. When the contemner desired to join duties, he was called upon to submit a certificate of fitness because he was on long medical leave. No decision had been taken by the Court to post him. In the usual course the certificate of fitness had been asked for. Reasons for the Government order were contained in a letter (Annexure IX), addressed by the Chief Minister to the Chief Justice which the Chief Justice opened on his return to the Court on the 27th of March, 1972. In the reasonings given by the Chief Minister, initiation of a proceeding had been indicated. The Full Court met and after appraising the situation then obtaining decided to start disciplinary action against the contemner and to place him under suspension so that in the post of District Judge he may no more function. In the action of the Court there was no mala fide. The Court in deciding to suspend the contemner adopted no subterfuge. It was not a novel step. The contemner himself had in his representation (Annexure-3) even asked for being placed under suspension in a regularly constituted disciplinary action if that was so warranted. While the Court acted in the manner indicated by the contemner, not because it was so indicated, but because the Court thought it appropriate, there was no novel step and the contemner had not been pushed to any situation of hardship.
63. The allegations contained in these paragraphs of the petition of appeal are palpably false to the knowledge of the contemner. As has been indicated in Perspective Publications v. State of Maharashtra, AIR 1971 SC 221, and reiterated in C. K. Daphtary v. O. P. Gupta, AIR 1971 SC 1132, evidence, to justify allegations amounting to contempt is not permissible. In the garb of a petition I of appeal the contemner has scandalised the Court by making allegations of a serious and scurrilous nature imputing improper motives to the Judges.
64. The petition of appeal was not a confidential communication to the Governor and in its being handled according to procedure, several persons dealing with it in the High Court and in the appropriate Government department, have to know its contents. There was sufficient publicity of its contents. The writings were meant to scandalise the Court and to shake the confidence of the litigating people at large in the efficiency, impartiality and integrity of the Judges of this Court. They thus clearly amount to Criminal Contempt in terms of Section 2(c)(i) of the Act. The contemner's allegation in para 10 of Annexure-B that Government had to incur heavy expenses in the previous disciplinary proceeding against him in which the High Court's decision was ultimately set aside by Government on account of the palpable incorrect views of the Court is a vivid ridicule of the efficiency of the Judges and this Court.
65. In annexure 12 the contemner, in reply to Court's direction fixing his headquarters, wrote to the Registrar thus:
"I have been continuing here, as previously allowed to be my headquarters. Detailed reply will be furnished after I see the Governor, Chief Minister, Orissa, in connection with my appeal dated 10-4-1972, obviously after it is forwarded by the Honourable Court, and I press for stay of operation of the suspension order * * * "
Though this letter smacks of clear defiance of the authority of the Court, we do not construe it as constituting contempt.
66. In annexure 13, the contemner, with reference to the charges, replied to the Registrar in the following terms : The grossly contemptuous writings have been underlined by us.
"I stoutly deny each and every charge under reference and would offer my extensive explanation, touching so many facts, laws and precedents. But I am now unable to do so on account of the following, among other reasons:
(1) A very large number of papers need be supplied to me, and I would require various records for my inspection, all absolutely necessary for preparing the explanation.
(ii) I have moved the Governor, Orissa, with a prayer to refer this matter to the Tribunal under the provisions of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951.
(iii) I would also take all other alternative steps -- administrative and judicial -- to avoid this proceeding being dealt with by the High Court, and for this purpose, have to consult some prominent Advocates of Calcutta and Delhi."
The tenor and contents of this letter betrary a wilful defiance to the constitutional authority of the Court. We have indicated elsewhere that the Governor was not entitled to refer the proceeding to the Administrative Tribunal, the Court being the only and the sole disciplinary authority. Therefore, no alternative step, administrative or judicial, could possibly be taken by the contemner to avoid the proceeding being dealt with by the High Court. The remarks of the contemner were rash and reckless. Annexure 13 asserts utter lack of confidence in the High Court's sense of integrity, and impartiality, and in that context the contemner issues a threat to the High Court, lowering it down in the estimation of the public. Keeping in view the allegations in annexure 8, the contents of paragraphs (ii) and (iii) of annexure 13 scandalising the Court, amount to gross contempt of Court.
67. In annexure-14, the contemner, wrote to the Registrar in the following words. The underlined sentences are grossly contemptuous writings.
"In my letter dated 14-5-1972, addressed to you, and the representation dated 14-5-1972 addressed to the Governor, Orissa, copy of which has been sent to you, I have mentioned as to my difficulties in submitting my explanations to the Honourable Court. So, before the representation to the Governor is disposed of, there is, for the present, no question of my sending the explanation.
I requested for four months only as a stop-gap period. In case the Honourable Court positively tell me that they would ignore my representation to the Governor, on the basis of the said reply, I will have to see the Governor and press for stay of hearing of this departmental proceedings. I may alternatively file a writ for this purpose, and would take the matter to the Supreme Court, if necessary
Anyway, it may kindly be appreciated that I would not submit any explanation to the Honourable Court aHeast before all these remedies are exhausted. So, for the present, the proceedings may be adjourned for four months.
As mentioned earlier, I will soon send a list of documents, I would absolutely require for preparing the explanation, so that the Honourable Court may keep them ready. I will apply only to the enquiry authorities in time for supply of these records. Other documents will be mentioned subsequently.
Regarding my absence from, the headquarters from 22-5-1972 to 2-7-1972, I may be permitted to say that I have to go out in connection with legal advice and filing applications and appeals in the Supreme Court in the matters connected with my suspension, proceedings and contempt cases. At leasi in one contempt matter, I have to file the appeal on the reopening day of the Supreme Court. I have written to some Advocates at New Delhi, besides at Calcutta and Patna, to tell me the convenient dates, when I can see them. I am also to prepare the explanation to these charges with the help of some prominent advocates at Berhampur and outside Orissa.
Since these are my first considerations, I cannot afford to wait for the permission of the Honourable Court It is true that I would not be absent from my home for this entire period; but when I will go out, depends on the replies of my advocates, and the dates, when the appeals will be filed in the Supreme Court, and taken up there. So, I will manage with the enquiry conducted by Honourable' B. C. Das, J., and if absolutely necessary, request for adjournment. In fact, all the matters, mentioned in para 2 of the letter under reference, are my personal considera-tion, and as such, they may not be reasons for refusing permission to me.
In the circumstances, I hereby inform the Honourable Court that I may be absent during the entire period, mentioned in my letter dated 14-4-1972 and the Honourable Court may kindly approve of the same."
68. Thus, in annexures 13 and 14. the contemner exhibited a contemptuous defiance of the Court's order, by declaring that he would not obey the order, and would leave the station without waiting for permission from the High Court, as his first consideration was to "go out in connection with legal advice and fifing applications and appeals in the Supreme Court" in matters connected with his suspension, and to take all steps to avoid the proceeding being dealt with by the High Court. These passages depict, in unequivocal terms, that the dispensation of justice by the Judges of the High Court on its administrative side, is most atrocious and vindictive and it is on that ground, the contemner would not obey the Court's order, would not submit any explanation, and would take all possible measures before the Supreme Court, the Governor and the Chief Minister not to surrender to the jurisdiction of the High Court. His entire attempt has been to present a lurid picture of the administration of justice by the High Court.
In Ranga Mohammad's case (ATR 1967 SC 903), the Supreme Court pronouoced that the power of transfer of District Judges vested in the High Court and not in the Governor. Despite such pronouncement the con-temner flouted the constitutional authority of the High Court in not shifting to Cuttack where he was posted as Additional District Judge at the time of his suspension. This contemptuous flouting of the order of the High Court, with the passages of his writing extracted, falls within Section 2(c)(i) of the Act, inasmuch as it clearly lowers the authority of the Court, scandalises the Judges by giving a picture that no justice can be obtained from their hands.
The High Court is entrusted with administration of justice, and in that connection to exercise control over the subordinate judiciary under Article 235, and power of superintendence over all courts and tribunals under Article 227. A contemputous disobedience of the order of the High Court must necessarily Interfere with and obstruct the administration of justice, and is also a contempt under Section 2(c)(iii) of the Act.
69. Annexure-16 dated 14th May, 1972, is a representation made by the contemner direct to the Governor without routing it through the High Court. Therein, he made the following statements. We have underlined the grossly contemptuous statements :
(5) The petitioner in this connection, makes particular mention of the following few events to show that the High Court have already contemplated in this departmental proceedings, a very heavy punishment for the petitioner :
(i) The High Court in their letter dated 26-7-1971 had strongly recommended to the Government for the demotion of the petitioner from the post of the District Judge, particularly, on account of two lapses of the petitioner, now forming charges 1 and 3. The Government originally agreed to such suggestion of the High Court, but subsequently on the petitioner's representation, dated September 10, 1971 recalled the said order of demotion, while requiring an inquiry on these two counts.
(ii) The Government in disposing of the petitioner's representation dated September 10, 1971, mentioned above, decided that the petitioner need not be suspended from service, obviously because these allegations, even if true, were prima facie, so inconsequential in nature, that they would not by any reasonable standard call for any punishment being inflicted on the petitioner, much less, his removal from service.
(iii) If on two such allegations, bias and prejudice of the High Court was disclosed by strongly pleading for demotion of the petitioner, the multiple number of such charges may naturally make the petitioner, apprehensive, of the result of the proceedings, if conducted by the High Court.
(iv) In spite of such decision of the Government not to suspend the petitioner during inquiry, the High Court even without any authority or jurisdiction in this regard, and on the face of the directions of the Government in Political and Services Department communicated in the Government's Memo No. 3559 -- Gen., dated 15-3-1958, have placed the petitioner under suspension.
(v) The aforesaid Government Memo No. 3559-Gen., dated 15-3-1958 inter alia contemplates that suspension should not be ordered, unless the charges may ultimately result in dismissal or discharge of the delinquent officer. The High Court have also taken unusual move in placing the petitioner under suspension in a 'contemplated' proceeding where charges could be framed after one month of the suspension and contain allegations on events, occurring subsequent to the suspension; (vide charges 6 and 8).
(vi) In the above context, the petitioner reasonably apprehends that the High Court on the administrative side, is seriously prejudiced and biased against him, and they act, as if the charges stand established, requiring extreme punishment and as such, justice may not be meted out to the petitioner by the High Court, if they conduct this departmental
(vii) In the past, as well as in the present charge-7, the High Court have taken objection to the, language employed with reference to the petitioner's colleagues, in the petitioner's replies/explanation to the High Court, and on that basis, framed specific charges for his having used indecorous and intemperate language although the petitioner did nothing except bona fide asserting the truth so far necessary for his defence. In the instant case, the explanation necessarily involves forthright expressions, which may be construed by the High Court to be indecorous and intemperate, and the petitioner on that account, may face further proceedings. In order to avoid such unfortunate contingency, the petitioner considers it risky to submit his explanation to the High Court.
(viii) In the background of several proceedings--administrative and judicial--having been already initiated by the High Court and the further framing of the present eight charges seen after the Government cancelled the petitioner's demotion, the petitioner feels aggrieved and begs to submit that the High Court in the best interest of justice, should not inquire into these charges. In this connection, the decision reported in AIR 1964 Gujarat 139, (Razvi v. DVL Engineer) may be cited.
(ix) Rule 4 of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951, read with the Rules 5 and 5-A thereof, authorises the Governor, either suo motu, or at the request of the delinquent officer (here the petitioner) to refer to the Tribunal this proceeding that involves the petitioner in the alleged 'misconduct in the discharge of of-ficial duties by violating the Government Servants' Conduct Rules as well as failure to discharge duties properly. Thus, the present one is a fit case for invoking the jurisdiction of the Governor to exercise powers under these provisions of law.
Copy to the Registrar, Orissa High Court, Cuttack. As the Honourable Court are likely to withhold such petitions this is submitted direct with copy to the Honourable Court for information. The Honourable Court may be pleased to send their comments on this petition to the Governor."
In paragraphs 34 and 36 of the notice the contemner was charged that the said representation, read as a whole with the impugned passages, constituted contempt of Court and had the tendency of undermining and lowering the dignity, prestige and authority of the High Court and scandalising the High Court, and that the representation was a mere garb and camouflage for achieving such a purpose by the contemner.
70. In annexure-16 the contemner has suggested that the Court has already prejudged the matter and has taken a previous decision to impose a heavy punishment. Bias and prejudice on the part of the Court were also alleged by the contemner. He suggested that the Court is not in a position to weigh the evidence and consider the materials on record and to impose a sentence commensurate with his delinquency. The action taken by the High Court has been branded as 'unusual'. All these allegations scandalise the Court and have a tendency to lower its dignity and prestige and they clearly fall within the definition of Section 2(c)(i) of the Act.
Copy of this annexure-16 was sent to the High Court with a contemptuous remark that since the High Court was likely to withhold the representation it was submitted direct to the Governor. Not being satisfied with that, he issued a further directive to the Court to send their comments on his representation to the Governor.
71. Annexures 8, 13, 14 and 16 thus clearly scandalise the High Court and purport to lower its authority and prestige. Their contents are intended to vilify the High Court as a whole, its Chief Justice and Judges, by imputing patent mala fides, bias, and want of sense of justice. Improper motive has been attributed to Judges taking part in the administration of justice. It is an attack on individual judges and the Court as a whole without reference to any particular case. The aspersion cast by the contemner on the character, ability and impartiality of the Judges undermines, or at any rate, tends to undermine the public confidence. The criticisms of the High Court by the contemner are not only not bona fide and fair, but are mala fide.
The impugned passages are meant to cause embarrassment in the minds of the Judges of the High Court in the discharge of their duties and they are calculated to obstruct and interfere with the administration of law and justice.
These passages do not constitute libel. A distinction is to be made between an act which scandalises or tends to scandalise a Judge in his private or personal capacity, and an act which scandalises him in his official capacity. An attack on personal or private capacity of a Judge constitutes 'libel' and not contempt.
Official capacity cannot be differentiated into judicial and administrative capacities. They are inter-linked. Any aspersion on the administrative capacity of the Judges or the Court which undermines, lowers, or tends to undermine or lower its authority and dignity by imputing motives so as to create a distrust in the public mind as to the capacity of Judges to mete out even-handed justice, is scandalising the Court.
The image and personality of the High Court is an integrated one. The impugned passages tend to create an apprehension in the minds of the people about the, integrity and fairness of the Judges, and deter the actual and prospective litigants from placing reliance on the Court's administration of justice. If the public and the litigants learn that the High Court, in its administrative capacity, is incapable of giving justice even to a District Judge who had put in about 24 years of judicial service, they are sure to lose their confidence in the administration of justice made by the High Court, even in respect of pending cases or the cases to be instituted before it. Such allegations, as have been made by the contemner in these annexures, constitute clear contempt within the definition of Section 2(c) (i) and (iii) of the Act.
72. Annexure-15 refers to various provisions of the Appeal Rules whereby, the contemner asserted that the Governor would exercise full jurisdiction over the High Court in regard to disciplinary matters. As we do not construe this annexure as constituting contempt, we do not propose to deal with it in detail.
73. Mr. Mohanty conceded that the impugned annexures and passages constitute gross contempt. He and the contemner, however, very seriously contended that the contemptuous aspersions made on the High Court which scandalise and lower its authority and dignity, do not constitute contempt as they were not made in any judicial proceeding before the Court, or with reference to judicial duties., but were made only on its administrative capacity. Reliance is placed on AIR 1950 All 549, (Rex v. B.S. Nayyar); AIR 1954 Ail 308, (State of U.P. v. Shyama-sundar Lal) and AIR 1961 Ker 321, (K. Damodaran v. Induchoodan).
We would deal with these cases, in due course, after we examine the correct legal position. It is, however, not necessary to delve into the ancient history of the law of contempt as the position appears to be concluded by the decisions of the Judicial Committee and the Supreme Court.
74. In AIR 1935 AH 1. (In re. an advocate of Allahabad) the facts were as follows :
in the 'Leader', a neswpapcr of Allahabad, an article written by Mr. Kapil Deo Malaviya an Advocate, was published. The article was headed : "A scandalous situation : The Bar Council Election". The passage referred to in the contempt notice was as follows:
"In this connection it is amusing to note that when a comparatively undeserving lawyer is raised to the Bench, which is a fairly frequent occurrence in our judicial history, it is generally claimed etc. ......"
One of the defence pleas of Mr. Malaviya was: inasmuch as the passage in respect of which notices were issued, was not a reflection upon the conduct of a particular Judge or a Bench, in connection with the trial of a particular case, it does not amount to contempt of Court. Before their Lordships the case in 1893 AC 138 (In the matter of a Special Reference from the Bahama Islands) was cited. Their Lordships held that in that case there was no attack on the Chief Justice in his official capacity. It was an attack on his personal capacity for which action for libel lies.
Sri Tej Bahudar Sapru who argued that case advanced a contention that there is no record of any case in which proceedings for contempt were instituted irr respect of a general reflection on the character and capacity of a Court. The answer by the Bench was given as follows :
"We are unable to say definitely whether the claim that there is no record of such cases is strictly accurate, but assuming that it is we are of the opinion that it does not in any way advance the case of the opposite parties. Cases of general attack upon the character and capacity of the Court, in the very nature of things, must be few and far between. Most offences of contempt of Court have been, as is to be expected, committed by parties who have considered themselves to have been as grieved by the conduct and decision of a particular Court or a Bench in a particular case. Because, a particular type of contempt of Court is unusual, or unprecedented, it does not follow that the Court has no power to punish such contempt if it is committed. It is true that the power to punish for contempt of Court is a drastic power exercisable summarily, and should not therefore be resorted to lightly, but to argue that, because a particular act has not been punished in the past as contempt where there is no proof that the act has ever been committed or, at any rate, formed the subject of proceedings, it may not be punishable as contempt when the act has been committed and brought to the notice of the Court, is clearly to confuse the principle with the application of the principle. Once it is conceded that to scandalise the Court is a contempt, then any publication which scandalises the Court or lowers its prestige is clearly a contempt, even though there is no record that similar publications have been held by the Courts in the past to constitute contempt. As we have already observed, general aspersions upon the character and capacity of the Court must be comparatively rare and the absence of report of such cases, in our view, affords no support for the contention of the learned counsel."
Their Lordships then referred to Rex v. Gray, (1900) 2 QB 36 and after examining several relevant decisions they concluded thus:
"We are, therefore, clearly of opinion that neither on general principle nor in a recorded decision is there any support for the contention of the learned counsel for the opposite parties that the Court is not empowered to punish for contempt where the alleged contempt consists of a general defamation or aspersion of the Court and not of a particular Judge in regard to his conduct of a particular case. Learned counsel has been unable to cite one single relevant authority in support of his argument, nor has he been able to suggest any cogent reason for differentiating between cases of defamation of a particular Judge or a particular Bench, and the defamation of the Court generally. The distinction which he has attempted to draw is, in our judgment, clearly illogical and unsound."
75. In AIR 1936 PC 141, (Andre Paul Terence Ambard v. The Attorney-General of Trinidad and Tobago) Lord Atkin delivering the judgment of the Judicial Committee made the following observations at page 143 :
"Every one will recognise the importance of maintaining the authority of the Courts in restraining and punishing interferences with the administration of justice whether they be interferences in particular civil or criminal cases or take the form of attempts to depreciate the authority of the Courts themselves."
The underlined sentence brings into bold relief the legal position that commission of contempt need not be confined to particular civil or criminal cases. If an attempt is made to depreciate the authority of the Courts themselves, in any form, that would be enough to constitute contempt. Criticism of the High Court's administrative capacity, if it purports to depreciate the authority of the Court, or imputes improper motives to those taking part in such administration, would constitute gross contempt, as it affects the image of the High Court, and engenders loss of confidence of the public in the administration of justice.
At page 145, their Lordships further observed :
"The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that the members of the public abstain from imputing improper motives to those taking, part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempt to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men."
A caution was thus administered that a fair and bona fide criticism of the administrative and judicial acts of Judges is permissible, and it is by that process that the fountain of justice would not be poisoned. But if the criticism is the outcome of malice, and is intended to impute improper motives to those taking part in the administration of justice, a gross contempt is committed thereby.
76. The pronouncement of the Judicial Committee in AIR 1943 PC 202, (Deoi Prasad Sharma v. Emperor) is to the same effect. At page 204, their Lordships made the following observations :
"When the comment in question in the present case is examined, it is found that there is no criticism of any judicial act of the Chief Justice, or any imputation on him for anything done or omitted to be done by him in the administration of justice. It can hardly be said that there is any criticism of him in his administrative capacity, for, as far as their Lordships have been informed, the administrative control of the Subordinate Courts of the Province, whatever it is, is exercised not by the Chief Justice, but by the Court over which he presides."
This decision is a clear authority for the proposition that if any criticism is made of the High Court and its Judges in their administrative capacity which is likely to lower or undermine the authority, dignity and prestige of the High Court, the same would be contempt.
In a newspaper report, the Chief Justice of Allahabad High Court was untruly alleged to have committed an ill-advised act in writing to his Subordinate Judges asking them to collect subscription for the war-fund. In that particular case, their Lordships did not construe the criticism of the Chief Justice as one in respect of his administrative capacity as they were intimated at the Bar that the Chief Justice alone was not in charge of the administrative control of the High Court, but it was the High Court as a whole, over which the Chief Justice presided, that was in charge of the administrative control. If an aspersion, on the High Court or any Judge in administrative capacity, which lowers or undermines or tends to lower or undermine its authority, does not constitute contempt, their Lordships would not have lacked words to simply say that alluding improper motives in administrative capacity would not constitute contempt, and would not have used words that there was no aspersion on the administrative capacity of the High Court or the Chief Justice. This decision, therefore, recognizes in unequivocal terms that contempt of the High Court can be committed by aspersions made on its administrative capacity, provided improper motives are alluded so as to shake the confidence of the public in its administration of justice.
AIR 1943 PC 202 has been accepted as laying down good law in a number of Supreme Court decisions : (see AIR 1970 SC 1821; In Re. P. C. Sen (paragraph 8) and AIR 1972 SC 989, Govind Ram v. State of Maharashtra (para 11)).
77. The same view Has been taken in AIR 1954 SC 10, (Barmha Prakaksh Sharma v. State of Uttar Pradesh). In that case the contemners were members of the Executive Committee of the District Bar Association at Muzaffarnagar within the State of Uttar Pradesh. They passed a resolution relating to the conduct of two judicial officers. One was a judicial magistrate, and the other was a revenue officer. The resolution was to the following effect:
"..... the two officers are thoroughly incompetent in law they do not inspire confidence in their judicial work, are given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and the lawyers alike."
But the meeting of the Executive Committee was held in camera and no non-member was allowed to be present in it. Their Lordships held that, if at all, it was a technical contempt as the resolution did not receive wide publicity, and they allowed the proceedings to be dropped. But their observations in paragraph 9, are very useful. They said :
"This scandalising might manifest itself in various ways, but in substance it is an attack on individual Judges or the Court as a whole with or without reference to particular cases casting unwarranted and defamatory aspersions upon the character or ability of the Judges. Such conduct is punished as contempt for this reason that it tends to create distrust in the popular mind and impair confidence of people in the Courts which are of prime importance to the litigants in the protection of their rights and liberties."
In paragraph 12, the observations continued thus:
"If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such Court, it can be punished summarily as contempt. One is a wrong done to the Judge personally while the other is a wrong done to the public. It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the Court's administration of justice, or, if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties."
78. In AIR 1958 Pat 276, (The State of Bihar v. Rangalal Sharma), the contemner handed over a closed letter to the District Judge, Manbhum District, making certain allegations against the Subordinate Judge, Jamshedpur. He complained of black-marketing and bribery against the Subordinate Judge. He named certain persons and included in that list the Subordinate Judge of Jamshedpur, and alleged that they were taking undue advantage from the Tata Iron and Steel Co. Ltd., by seeking employment for their relatives and that they were associated with the Company in an illegal manner. He also stated that there was a rumour that the Subordinate Judge had taken bribe of two or three lakhs.
Their Lordshios held that the aforesaid charge amounted to scandalising a Court or a Judge, and constituted contempt. Though unqualified apology was tendered in that case, the contemner was sentenced to two months' simple imprisonment and to pay a fine of Rs. 250/-.
The allegations were against the Subordinate Judge's entire personality and as to how he was taking undue advantage from the Tata Iron and Steel Co. Ltd.
79. In AIR 1959 Pat 373, (State V. Nagamoni), one of the Judges of the Paina High Court visited the Criminal Courts in the District of Saran of which the contemner was the District Magistrate. The Judge presented an inspection note to the High Court containing certain comments on the working of the Criminal Courts as also pointing out certain defects therein. A copy of the report was sent to the District Magistrate for necessary action. The District Magistrate sent a reply to the Registrar of the Patna High Court wherein he made caustic comments on the remarks of the Judge in the inspection note. Some of the words and expressions used were:
"I am surprised to find etc. ....."
"as distorted version based probably on statements made by some interested parties....."
"has jumped to certain conclusions" .....
"absurd" and "this may kindly be brought to his notice." The aspersion cast by the District Magistrate were on the inspection note which had been prepared by the Judge in exercise of his administrative capacity and not in discharge of his judicial functions.
Their Lordships held that the comments of the District Magistrate amounted to obstruction of the course of justice and cast reflection upon the dignity of the Court and constituted contempt.
80. In AIR 1964 Cal 572, (State V. Debabrat Bandopadhya), the District Magistrate of Nadia forcibly turned out a Subordinate Judge from the Circuit House, and thereby compelled him to leave his station of administration of justice and made it impossible for the Subordinate Judge to hold Court for four days.
A defence was taken that disruption of Court's work was not the direct, but an incidental and remote result of the Judge being forced to leave the Circuit House. The alleged act was held to be contempt.
Their Lordshios observed that every insult offered to a Judge in the exercise of bis duties is a contempt.
81. In AIR 1967 Andh Pra 299, (Advocate-General, A. P. v. V. Ramana Rao) the following passage, extracted in para. 32, in a publication was held to constitute contempt :
"The way in which the administration of the Andhra Pradesh High Court was conducted during the last few years when Justice Mr. P. Chandra Reddi was the Chief Justice provides ample evidence to substantiate Sri Bramananda Reddi's claim, not only in the appointment of law officers of the State and the promotion or transfer of Judges but also in the matter of constituting the Benches to dispose of matters in which the members of the executive are involved." Their Lordships construed this passage as contempt giving the following reasons:
"The true meaning and import of this passage can only be that partiality and favouritism were shown by this High Court in adjudging cases in which members of the executive were involved. This appears to us to be a serious reflection on the integrity and impartiality of the High Court. This passage casts a serious aspersion not only on the Chief Justice but also on other Judges who were members of the Benches said to have been constituted to dispose of matters in which the members of the executive were involved. Therefore, to suggest that Benches favourable or suitable to the Executive Departments or to the members of the executive were constituted to dispose of such causes is a direct attack on the administration of justice by this High Court. An attack like this is bound to lower the prestige and dignity of this Court and bring it into contempt and disrepute. What is more, it is calculated to impair the confidence of the litigating public in this Court. A perusal of the entire passage headed "Reddy Justice" published in the issue of Andhra Herald dated 29-11-1964 only serves to confirm this conclusion. The passage can have no other meaning or implication. There is hardly anything veiled in this passage. It is an express act of scandalising this Court."
Similarly there was another passage to the following effect in the impugned publication: "To provide one more glaring instance of the co-operation of the judiciary and the Executive in Andhra Pradesh, the recent recruitment of District Judges is enough to con-vince even the best pf optimists how High Court of Andhra Pradesh allowed itself to become the hand-maid of the Chief Minister." This passage was also held to constitute contempt. Preparation of lists for different Benches is not a part of the judicial function of the Chief Justice. It relates to his administrative function. Similarly, selection of District Judges by the High Court for being appointed by the Governor under Article 233 of the Constitution relates to the administrative function of the High Court in relation to the subordinate judiciary and not to its judicial function. This decision is, therefore, a clear authority in support of the proposition that contempt can be committed by casting aspersion on the administrative functions, or duties done by the High Court in its administrative capacity.
In paragraph 46, their Lordships made the following observation:
"A contempt by scandalising a Court or a Judge can be committed without making reference to a particular case or a particular decision. A wholesale and unbridled denigration of a Court or a Judge is perhaps more damaging and more likely to undermine public confidence in Court and the Judge.''
The contemner in that case was sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rupees one thousand.
82. In AIR 1969 Orissa 117, (Sarat Chandra Biswal v. Surendra Mohanty), the allegation of contempt was made in a representation petition addressed to the Chief Justice criticising some of his acts and speeches, on the occasion of the Flag Hoisting Ceremony of the High Court on 26th January, 1968. The contemner in the representation made several allegations. It was said by him that under rules of the High Court, a Division Bench of which the Chief Justice was a member, should have heard O. J. C. 418/67; but he transferred the same to be heard by another Bench of which he was not a member. The propriety of invitation to Dr. H.K. Mahtab to attend the function and the lunch was questioned. The special reference to Dr. H. K. Mahtab in the printed speech delivered by the Chief Justice was commented upon. It is to be noted that Dr. H. K. Mahtab was a party to O. J. C. No. 418/67 when the speech in the Flag Hoisting Ceremony was delivered by the Chief Justice eulogising Dr. Mahtab's contribution to the creation and establishment of the High Court. The aforesaid allegations were held to constitute contempt.
In appeal, the unqualified apology tendered by the contemners was accepted and the proceeding was dropped. The case is reported in AIR 1972 SC 180, (Dinabandhu Sahu v. State of Orissa).
Their Lordships did not say that the offending passages in the representation did not constitute contempt. They observed:
"We think that the contempt, if any, has been certainly purged in the manner In which the apology was given." The contempt in this case did not relate to the discharge of judicial duties of the Chief Justice or the High Court. It was an aspersion cast on the Chief Justice and on the High Court in inviting and eulogising Dr. H.K. Mahtab in the speech given by the Chief Justice at the Flag Hoisting Ceremony in performance of an administrative function. 83. In AIR 1970 SC 2015, (E. M. S. Namboodripad v. T.N. Nambiar), the then Chief Minister of Kerala, Mr. Namboodripad made a speech at a press conference, which was published in the Indian Express, wherein he was reported to have said:
"The Judges are guided and dominated by Class interests, class hatred, and class prejudices and where evidence is balanced between a well-dressed pot-bellied richman and a poor ill-dressed and illiterate person, the Judge instinctively favours the former." The Chief Minister said:
"Election of Judges would be a better arrangement, but unless the basic' State set up is changed, it could not solve the problem." In paragraph 6, their Lordships observed :
"The last form (Scandalising the Court) occurs, generally speaking, when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard. In this conduct are included all acts which bring the Court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. Such contempt may be committed in respect of a single Judge or a single Court, but may, in certain circumstances, be committed in respect of the whole of the judiciary or judicial system."
In paragraph 31 the position was summed up thus:
To charge the Judiciary is in nstru-ment of oppression, the Judges as guided and dominated by class hatred, class interests and class prejudices instinctively favouring the rich against the poor, is to draw a very distorted and poor picture of the judiciary. It is clear that it is an attack upon Judges which is calculated to raise in the minds of the people a general dissatisfaction with and distrust of all judicial decisions. It weakens the authority of law and law Courts." The passage which was held to be contempt was the aspersion cast upon the judiciary as a whole in the discharge of its duties of office, both judicial and administrative.
84. In AIR 1970 SC 1318, Rustom Cawasjee Cooper v. Union of India the judgment of Supreme Court in the Bank Natonalisation case was put to severe criticism. It was said that such decisions do not enhance the prestige of the judiciary, and that such acts on the part of the highest Court will only encourage Nexalites who have rejected constitutional means to bring about socialism and that the judgment would be treated with more and more contempt by ordinary people.
In paragraph 6, their Lordships' view was expressed thus:--
"There is no doubt that the Court like vany other institution does not enjoy immunity from fair criticism. This Court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges. They do not think themselves in possession of all truth or hold that wherever others differ from them, it is so far error. No one is more conscious of his limitations and fallibility than a Judge. But because of his training and the assistance he gets from the learned counsel he is apt to avoid mistakes more than others. Further, the supremacy of a Legislature under a written Constitution is only within what is in its power, but what is within its power and what is not, when any specific act is challenged, it is for the Courts to say. If that were realised, much of the mis-understanding would be avoided, and the organs of Government would function truly in their own spheres. We are constrained to say also that while fair and temperate criticism of this Court or any other Court even if strong, may not be actionable, attributing improper motives, or tending to bring Judges or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must and will be taken. Respect is expected not only from those to whom the judgment of the Court is acceptable, but also from those to whom it is repugnant. Those who err in their criticism by indulging in vilification of the institution of Courts, administration of justice the instruments through which the administration acts, should take heed, for they will act in their own peril. We think this be enough caution to persons embarking on the path of criticism."
Though the case arose out of caustic criticism imputing motives to the Judges of the Supreme Court in the Bank Nationalisation case, the underlined sentence makes it patently clear that any aspersion on institution of Courts imputing motive constitutes contempt. The institution of Courts and administration of justice cannot be confined to mere discharge of judicial functions. They extend to discharge of administrative functions which constitute an integral part of the administration of justice and the duties of Courts.
85. In AIR 1971 SC 221, Justice Tarkunde of Bombay High Court was severely criticised. Grover, L, summed up the various elements to be kept in view in paragraph 17, which we have already adverted to at different places. Reference was also made to AIR 1954 SC 10. An emphasis was laid on the fact that anything that was likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties constitutes contempt. Their Lordships upheld the conviction by the Bombay High Court which imposed a punishment of simple imprisonment for one month and a fine of Rupees one thousand. They said that in the impugned article there is a clear imputation of impropriety, lack of integrity and oblique motive to Justice Tarkunde in the matter of deciding the Thackersey Blitz suit which undoubtedly constituted contempt.
86. In AIR 1971 SC 1132, the con-temner made malicious allegations by attacking their Lordships Shah and Hegde, JJ., who decided a case against him. The aspersions were held to constitute flagrant contempt. Their Lordships held that evidence to justify allegations amounting to contempt of Court cannot be allowed, and the contemner-was sentenced to simple imprisonment for two months.
87. In (1971) 1 SCWR 581, (Amrik Singh v. State), the contemner made certain allegations in a transfer petition against most of the Judges of the Supreme Court including Mr. Justice A.N. Ray and Mr. Justice P. Jaganmohan Reddy who were members of the Bench. Their Lordships held that the allegations made against the Judges of the Supreme Court were scandalous and that the contemner was given to intimidate the Judges, the Magistracy and officers of the Court and that he made desperate allegations against the police and the Government pleader by alleging against them chicanery and resorting to subterfuge. He was sentenced to simple imprisonment for six months.
88. In ILR (1971) Cut 986 (Bhimsen Dixit v. B.K. Misra), Sri B.K. Misra (the contemner) had been convicted for contempt. That decision was affirmed in the Supreme Court in AIR 1972 SC 2466 (Sri B. K. Misra v. Bhimsen Dixit). The charge against the contemner in that case was that he deliberately did not follow the decision of this Court in ILR (1970) Cut 54 = (AIR 1970 Orissa 141) (Bhramarbar Santra v. State of Orissa), though it was directly applicable in the facts and circumstances of a case which he disposed of as Endowment Commissioner.
In para 11 of the Supreme Court decision their Lordships analysed the meaning of 'contempt of Court'. They said:
"Contempt of Court is disobedience to the Court by acting in opposition to the authority, justice and dignity thereof. It signifies a wilful disregard or disobedience of the Court's order. It also signifies such conduct as tends to bring the authority ot the Court and the administration of law into disrepute."
In paragraphs 15-16, their Lordships further observed:
"The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is, therefore, comprehended by the principles underlying the law of contempt. The ana-logy of the inferior court's disobedience to the specific order of a superior Court also suggests that his conduct falls within the purview of the law of contempt. Just as (he disobedience to the specific order of the Court undermines the authority and dignity of the Court in a particular case. Similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but it is also likely to subvert the rule of law and engender harassing uncertainty and confusion in the administration of law."
This case is also a direct authority for the proposition that any act which amounts to flouting the constitutional authority of the High Court affecting administration of justice is contempt. The flouting of an order undermining or impairing the authority need not be in respect of the discharge of judicial duties of the High Court. It would cover all cases where undermining the constitutional authority on the administrative side would engender uncertainty in the administration of justice and cast reflection on the personality of the High Court impairing the confidence of the public in its administration of law and justice. The juristic theory that subordinate Courts would follow the decisions of the High Court is an administrative policy forming an integral part of administration of justice and law by the High Court.
89. On the aforesaid authorities, we have absolutely no doubt that any act or speech or writing casting aspersion on the acts of the High Court, performed in exercise of its administrative functions, constitutes contempt. The High Court has an indivisible personality, and no rational distinction can be made between its judicial functions or administrative duties. The only thing to be seen is whether the aspersions imputed any motive to the High Court in the discharge of its administrative functions which impair the confidence of the public in its administration of justice and law.
An illustration would make the position clear.
Suppose a publication or statement is made that the High Court transfers its judicial officers to convenient stations only if the officers give some perquisite, 'or presents to the Judges of the High Court. If this news gets wing, and the public come to know of it, the prestige and dignity of the High Court are bound to be lowered and undermined. The confidence of the public in the administration of justice and law by the High Court would be impaired and shaken. Once the public confidence is shaken, can it be said that they would still continue to believe that the High Court is honest while deciding cases judicially? The answer would be in unequivocal negative. The personality of the High Court is indivisible and if it can accept bribe in transferring its judicial officers to convenient places, it could still be more dishonest in deciding cases where opportunity of accepting bribe is still greater. Thus, any aspersion on the administrative functions of the High Court has direct repercussions on its judicial functions.
Take another illustration : A person says that the High Court effects transfer of judicial officers under political pressure. Would not such a statement create an impression in the public mind and make it believe that the High Court can be politically pressurised to decide cases judicially? Thus, any reflection on the administrative activity of the High Court would adversely affect its prestige and dignity on its judicial functions, as both are interlinked and integrated.
90. We now propose to examine the cases cited on behalf of the contemner.
The facts in AIR 1950 All 549 were as follows:
The contemner Sri B.S. Nayyar prepared a memorandum on behalf of the tenants for the consideration of the Honourable Premier. He sent copies of the memorandum to the President of all India Congress Committee and to the Hon'ble Premier. On 24th December, 1948, the District Magistrate wrote to the Deputy Registrar of the High Court at Lucknow drawing attention to certain re-marks contained in one of the documents. Sri Nayyar made the following allegations under the heading "Support by the district high command." He gave instances of self-gain by Pandit Sobha Ram, ex-Secretary, Congress Mondal Committee. The instance were (i) reward of such activities of Pandit Sobha Ram even his acquittal in a theft case of a buffalo; (ii) tampering of records as in Mohendra Singh's case and other instances; (iii) engaging of one lawyer in most of such cases of sub-tenants who was the nephew of Hon'ble Minister of Land Revenue. The contemner filed a written reply that the alleged contempts were in respect of the executive and the members of the Congress party but no attack of any kind was made upon the judiciary. In paragraph 10 of the judgment, their Lordships observed that Courts are not concerned with contempt of any authority except Courts of law in the exercise of their judicial functions. In that connection they made the following observations :
"In India very often the same officers exercise executive as well as judicial functions. Sometimes it becomes difficult to draw a distinction between their capacities but nevertheless a distinction must be drawn and it is only if the criticism is of judicial acts that action by way of proceedings in contempt may be taken."
In that particular case aspersions were cast on the executive Magistrate and the District Congress Committee. In the case of executive Magistrates the position is somewhat different. A Deputy Collector may be vested with criminal powers. Before separation of the judiciary from the executive, all Magistrates were under the administrative control of" the Government. They were not only hearing criminal cases but also discharging very many other executive functions. For instance, most of their time was spent on drought and flood relief, collection of rent and so on. When a particular functionary combines judicial and executive functions in the aforesaid manner, any comment made on the competency and honesty of such officer relating to his executive duties would not amount to contempt of Court. If a Deputy Collector entrusted with flood relief duties, and distribution of food materials is dishonest, it is open to the members of the public to make criticism of his conduct by bringing the same to the notice of the higher authorities. This would not amount to contempt of Court though the Deputy Collector also discharges the duty of a Magistrate. That way, the Allahabad decision can be supported and distinguished.
This principle has, however, no application to discharge of administrative functions of officers meant exclusively for doing judicial work. If the decision purports to go further that contempt cannot be committed in relation to discharge of administrative functions of judicial officers appointed to do judicial work exclusively, then we are unable to accept this decision as laying down as good law. Take for instance, the case of Munsifs, Subordinate Judges, Dist. Judges and the High Courts. None of them is an executive functionary though each of them has to discharge certain administrative functions pertaining to administration of law and justice. In these cases contempt can be committed if reflection is made on the administrative capacity so as to impair the public confidence or bring down the image of the Court in the public estimation. We may, however, observe with respect that the interpretation their Lordships put on AIR 1943 PC 202, (Debi Prasad V. Emperor) is not correct.
91. The next case on which reliance is placed is AIR 1954 All 308, (State of Uttar Pradesh v. Shyam Sundar Lal Jain). In that decision their Lordships placed reliance on AIR 1950 All 549. A criminal case had been decided against the contemner. Without taking any further action, by way of revision, the contemner wrote a letter to the Prime Minister of India making serious allegations of corruption and partiality against the Magistrate. The representation was forwarded by the Prime Minister to the Chief Secretary. In that case their Lordships held that the allegations did not amount to contempt. The learned Judges relied on three important facts; (i) on the materials placed before them they were not in a position to say that the representation was mala fide; (ii) the letter was sent to the Prime Minister who the opposite party thought was the appropriate authority though in fact he was not, and there was no publication to the public; and (iii) the letter was sent by registered post in a confidential form. The view taken by the Allahabad High Court in that case does not appear to have been accepted in AIR 1956 Andh Pra 84. (Govt. Pleader, Andhra v. A.R. Vajiravelu Chetty). Their Lordships said: "It is not necessary to express our view whether we would have come to the same conclusion on the facts." We agree with the observations of their Lordships in the Andhra case, and do not accept the Allahabad case as laying down the correct law. At any rate, it is distinguishable by special features on facts.
92. The last case cited in AIR 1961 Ker 321, (Kaviath Damodaran v. Indu-choodan). The offending passage runs thus :
"It is learnt that Sri Chako, the District Magistrate of Tellicherry, has been transferred to Kozhikode as the Principal Sub-Judge. It is further learnt that the black hands of certain leaders of the Deliverance movement were behind the transfer. Sri Chako had issued a warrant to search the house of a prominent Congress leader of Cannanore and it is stated that the said leader had bestowed a blessing on Sri Chacko that he would not be able to issue similar orders any longer. It is this blessing that has come out in the shape of a transfer."
The essence of the criticism is that because the District Magistrate issued a search warrant against a prominent Congress leader he was transferred. In this connection their Lordships referred to AIR 1943 PC 202 in paragraph 6 of their judgment. They held that though the transfers were made on the recommendation of the High Court the publication did not amount to contempt of the High Court. The decision may be supported on the ground that the ultimate authority to effect transfer was the Government and not the High Court and consequently, the aspersion was on the Government and not on the High Court. In that way, on the facts of that case there was no criticism of the High Court on its administrative side, but if the decision purports to say that the criticism of the High Court on its administrative side imputing improper motives or scandalising it would not amount to contempt, then we are unable to accept it as laying down good law.
93. We conclude this part of the case by saying that the impugned passages in an-nexures 8, 13, 14 and 16 making aspersions on the High Court in its administrative capacity by scandalising it and lowering its authority by imputing motives, amount to gross contempt of Court.
94. We would now examine the legal position with reference to the Contempt of Courts Act, 1971, which came into force on the 24th of December, 1971. The impugned annexures are of the year 1972, and come within the mischief of this Act. Prior to this Act 'contempt of Court' had, not been statutorily defined. Section 2 now furnishes the definition. It runs thus ;
"2. Definitions: In this act, unless the context otherwise requires:
(a) 'contempt of Court' means civil contempt or criminal contempt;
(b) 'civil contempt' means wiful dis obedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court; -
(c) 'criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations or otherwise) of any matter or the doing of any other act whatsoever which:
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any Court;
(ii) prejudices, or interferes or tends to interfere with the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any other manner; *****
95. Analysis of the definition of 'criminal contempt' would show that three classes of action have been classified as criminal contempt. The second class is clearly with reference to judicial proceedings. The expression 'the due course of any judicial proceeding' has not been used in the first or third class. The first category of cases deals with scandalisation of courts by acts, speeches and otherwise which scandalise or tend to scandalise or lower or tend to lower the authority of any court. Nothing has been used in the definition to show that such scandalisation or lowering of authority would be confined to a Court while it is exercising its judicial duties. When the word 'Court' is used without any restrictive clause as to the capacity in which it functions, scandalisation covers the Court both in its judicial and administrative capacity.
The third class refers to interference or obstruction of administration of justice in any other manner which means that it need not be in course of a judicial proceeding.
The impugned passages in the aforesaid Annexures constitute gross contempt within the ambit of both the Clauses (i) and (m) of Section 2(c). 96. The Additional charge framed against the contemner is in respect of the allegations made in the memorandum of appeal (Annexure-20) in Cr. Appeal No. 174 of 1972 before the Supreme Court. Notice of charge was served on the contemner on 5-1-1973. He was charged as follows: The grossly contemptuous sentences have been underlined by us :
"Whereas, during hearing of the said case on reading the memorandum of appeal filed by you before the Supreme Court in Criminal Appeal No. 174 of 1972, which has been made a part of the record of the aforesaid contempt case, it has appeared to the Court that the contents of the memorandum of appeal in the said Criminal Appeal constitute contempt of the High Court and
Whereas, the contents of the following paragraphs in particular constitute contempt of the High Court, viz., :--
(I) Paragraph 7:-- "Honourable Justice Shri G.K. Misra, the Chief Justice, sitting with another Honourable Judge initiated and/ or accepted contempt proceedings against the appellant thus, giving rise to 6 such proceedings, numbered Original Criminal Miscellaneous Case Nos. 19 of 1969 (No. 15/69), and 9, 12, 13, 14 and 21 of 1970. In all these cases, the Honourable Chief Justice directed the State Advocate to appear for the prosecution against the appellant."
(2) Paragraph 8 :-- "Original Criminal Misc. Case No. 19/69 had absolutely no basis for contempt, and as such, was not maintainable. In spite of such objections from the appellant, the High Court with the Honourable Chief Justice proceeded with it, and got examined a number of witnesses for the prosecution as well as for the appellant. In the leading judgment of the Honourable Chief Justice, though the contempt proceedings were dropped, various adverse comments were made against the appellant who could not afford to come up in appeal and get them expunged."
(3) Paragraph 9:-- "The other five cases were heard with Honourable Justice Shri R.N. Misra as the Senior Judge. In original Criminal Misc. Case No. 9/70, which was on account of the appellant's not following certain observations made in another decision of the Honourable Chief Justice and Honourable Justice R.N. Misra, the appellant was brought down to the Court hall, and the Honourable Judges convicted and sentenced the appellant and with out affording him an opportunity to obtain stay of the sentence from this Honourable Court, executed the sentence by administering admonition in the open Court, and sounding warning that, if at any time such contumacious conduct of his was noticed, a very serious view would be taken about punishment. The appellant was further directed to pay Rupees three hundred as costs To the Private party on whose petition the Honourable High Court had initiated the said contempt proceeding though the party had no further part to play and such costs in criminal proceedings are not permissible. When the appellant moved the State Government through the High Court for legal and financial aid to prefer an appeal to this Honourable Court against this conviction, the High Court strongly objected to such financial assistance by the State. Ultimately an appeal was filed and is pending in this Honourable Court being Criminal Appeal No. 312 of 1972. (The said appeal has already been dismissed and the order of the High Court has been affirmed as per the decision of the Supreme Court reported in ATR 1972 SC 2466)."
(4) Paragraph 11 :-- "...... The Honourable Judge in Original Cr. Misc. Case 12 of 1970 added a new charge, and desired taking evidence in the open Court. The appellant by a petition submitted that this new charge was not maintainable as being barred by time and pressed for a preliminary decision on the question of maintainability which was rejected. But when the appellant^ filed an appeal in this Honourable Court and brought this fact to the notice of the Honourable Judges they dropped the additional charge.
Similarly in Original Cr. Misc. Case No. 13/70, the Hon'ble Judges while dropping the proceedings found out a very innocent and inconsequential mistake in the sworn counter affidavit of the appellant and on that account ordered for filing a criminal complaint for an offence under Section 199 of the Indian Penal Code."
(5) Paragraph 23 :-- "In view of the strong prejudices jind the warning sounded in the judgment in Original Cr. Misc. Case No. 9 of 1970 and reiterated in the judgments of Original Cr. Misc. Cases 14 and 21 of the Honourable High Court, the appellant unfortunately entertains an apprehension that the Court may impose substantive punish-ment and may refuse bail or time to the appellant for getting redress from this Hon'ble Court."
(6) Ground G :-- "For that in view of the prejudice and previous warning by the Honourable High Court in the judgment of Orl. Cr. Misc. Case No. 9 of 1970. and reiterated in the subsequent judgment, that the appellant shall be awarded substantive punishment, in case such contumacious conduct of his is noticed, the appellant entertains an apprehension that the Honourable High Court may impose substantive punishment when there will be no scope for bail or time for immediate redress from this Hon'ble Court, and as such, he has to undergo penalty, ignominy and harassment. Hence, this Hon'ble Court may entertain this appeal and quash the impugned proceeding and notice."
(7) Ground I:-- "For that the appellant fears bias of the Hon'ble High Court against nun in view of the facts and circumstances, stated above."
(8) Paragraph 14:-- "..... The High Court while indicating their decision to issue orders of posting, did not do so immediately. The Honourable Chief Justice was absent from the headquarters from 16-3-1972 to 25-3-1972, and on his return, he seemed to have disapproved the Government's order, rejecting the High Court's views about the appellant's demotion, and hence seem to have decided to deprive the appellant of the result of the Government's decision, by issuing the Court's Notification dated 30-3-1972 suspending the appellant forthwith on the ground that 'a disciplinary proceeding against him was being contemplated."
The contemner supported the statements made in the Criminal Appeal by affidavit as being true and correct to the best of his knowledge. The notice dated 5-1-1973 stated as follows :--
"Whereas, the allegations specifically referred to hereinbefore prima facie constitute contempt of Court inasmuch as they scandalise and/or tend to scandalise and lower the authority of the Court, they prejudice the pending judicial proceeding before the Court in Original Cr. Misc. Case No. 8 of 1972, and interfere or tend to interfere with the administration of justice by the High Court and prima facie constitute criminal contempt under Section 2(c) (i), (ii) and (iii) of the Contempt of Courts Act, (70 of 1971)."
97. In the cause shown to the additional charge the contemner has stated as follows :
"That this opposite party engaged Sri B. P. Singh as his advocate for the purpose of such appeal and told him all the facts mostly from records including the ones eventually mentioned by the said learned Advocate in paragraphs 1 to 14 and 16 to 20 of the memorandum of appeal in Criminal Appeal No. 174/72 of the Supreme Court of India.
That the averments impugned in the notice dated 5-1-1973 besides others including submissions and prayers in the memorandum of appeal seem to have been mentioned by the learned advocate with the sole object of stating the true events before the Supreme Court for invoking its powers to interfere with the proceeding pending in this Honourable Court at that preliminary stage.
That these impugned averments being based on true and bona fide belief by this opposite party had been narrated to the learned advocate who perhaps considering them absolutely necessary for the purpose, bona fide mentioned them besides himself making submissions and prayers in the said memorandum of appeal.
That after the said memorandum of appeal was prepared and the affidavit to be sworn to by this opposite party drafted, this opposite party found the contents of the affidavit and annexures besides the memorandum of appeal to be true and correct to the best of his knowledge and had to affirm them to be true and correct."
The contemner has stood by his affidavit made in annexure-20 and has, in answer to the charge of contempt, affirmed the allegations as being true.
The plea of the contemner that it is not he, but his advocate, who was responsible for what has been stated in annexure-20, discloses the inherent character of the contemner. He should have had the fairness to shoulder the responsibility himself without shifting the blame to his Advocate.
98. We would now proceed to notice the contemptuous remarks made in annexure-20.
Original Or. Misc. No. 15/69 has been wrongly referred to as Orl. Cr. Misc. 19/69 in paragraphs 7 and 8 of annexure-20. The judgment in Orl. Cr. Misc. No. 15/69, State v. B.K. Misra, reported in ILR (1970) Cut 1130, was delivered by a Bench consisting of S.K. Ray, J. and myself. The allegation against the contemner in that case was that when a peon of the High Court approached the contemner for service of summons he refused to take it and misbehaved with the peon. The Bench came to the conclusion that the contemner could not be imputed with the knowledge that the peon had come to his residence to serve a judicial process in a stay matter arising out of a writ application. He was Exonerated. We, however, made the following observations (paragraph 11):
"We cannot, however, part with this case without observing that Mr. B. K. Misra, who is a senior District Judge, should have behaved with dignity, restraint and politeness even in a case where there was lack of carefulness on the part of a person of the rank of a peon."
In paragraph 9 of annexure-20, the contemner refers to his conviction for contempt by a Bench of this Court consisting of R.N. Misra and B.C. Das, JJ., reported in ILR (1971) Cut 986 for his not following the Jaw laid down by this Court in ILR (1970) Cut 54 = (AIR 1970 Orissa 141). The contemner was administered an admonition in open Court. The observation (see paragraph 7) was to the following effect:
"The contemner in this case deserves to be visited with exemplary punishment. We understand this judicial officer has now reverted to the cadre from the post of Endowments Commissioner. He has about three years of service which may provide an opportunity for change in his approach to matters. We have, therefore, decided that instead of visiting him with the punishment of imprisonment, we would admonish him in open Court and sound a warning to him that if at any time such contumacious conduct of his is noticed, a serious view would be taken about punishment." The contemner filed before the Supreme Court the memorandum of appeal (annexure-20) in Cr. Appeal No. 174/72 on 30-8-1972, while Cr. Appeal No. 312/71, against ILR (1971) Cut 986, was pending before the Supreme Court till 29-9-1972. Clearly, therefore, the comments made were in respect of this very contempt proceeding in Orl. Cr. Misc. No. 8/72 pending in this Court. The insinuation of the contemner to the effect that he was brought to the Court-hall, the Judges convicted and sentenced him without affording him an opportunity for obtaining stay of sentence from the Supreme Court, and executed the sentence by administering admonition in open Court and sounding a warning that if at any time such contumacious conduct of his was noticed, a serious view would be taken about punishment, is grossly contemptuous.
It was within the jurisdiction and power of the High Court to administer admonition which alone can be done in open Court, and sounding a warning while imposing a nominal punishment. The contemner by this passage clearly gives a picture that the High Court is very unjust and unfair in its administration of justice in administering the admonition in open Court.
ILR (1971) Cut 986, was confirmed in AIR 1972 SC 2466. The Supreme Court observed that the petitioner's conduct was deliberate and mala fide and was grossly contemptuous.
In paragraph 11 of annexure-20, the contemns referred to Orl. Misc. Case No. 12/70 which was decided by a Bench consisting of R. N, Misra and B. K. Ray. JJ. in (1972) 2 Cut WR 1865.
Referring to that case the contemner commented as follows :
"The Honourable Judges in Orl. Cr. Misc. 12/70 added a new charge and desired taking evidence in open Court. The appellant by a petition submitted that this new charge was not maintainable as being barred by time and pressed for a preliminary decision on the question of maintainability which was rejected. But when the appellant filed an appeal in this Honourable Court and brought this fact to the notice of Honourable Judges, they dropped the additional charge." The underlined sentence is "grossly contemptuous. As will appear from paragraph 3 of the judgment in (1972) 2 Cut WR 1865, the additional charge was dropped because Sri B.C. Chaudhury who made the allegation against the contemner did not come forward to be examined by the Court. The contemner falsely alleged in paragraph 11 that the Bench dropped the additional charge out of fear as the confemner filed an appeal before the Supreme Court. This is grossly scandalous and contemptuous. An aspersion is cast that out of fear for the Supreme Court the additional charge was dropped and he Judges constituting the Bench are imbecile, and cannot exercise independent judgment and are liable to decide cases being influenced by fear for the Supreme Court.
In paragraph 11 of: annexure-20 the contemner made comments on a judgment of a Division Bench consisting of R. N. Misra and B.K. Ray, JJ., reported in (1972) 2 Cut WR 1872. His comments were:--
"The Honourable Judges while dropping the proceeding found out a very innocent and inconsequential mistake in the sworn counter-affidavit of the appellant and on that account ordered for filing a criminal complaint for an offence under Section 199, Indian Penal Code."
While the matter was pending in a judicial proceeding and this Court had directed the Registrar to make a complaint in writing and forward the same to the Sub-Divisional Magistrate, Cuttack, for disposal in accordance with law, the remark of the contemner that it is an innocent and inconsequential mistake was intended to indicate that the High Court has acted mala fide. The statement tends to interfere with a pending proceeding and constitutes gross contempt.
In paragraph 23 the contemner alleged 'strong prejudice' to the High Court. He further stated :
"That he entertains an apprehension that the Court may impose substantive punishment and may refuse bail or time to the appellant for getting redress from this Honourable Court."
Under Section 19(3) of the Act where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by Sub-section (2). Sub section (2) prescribes that pending any appeal, the appellate Court may order that (a) the execution of the punishment or order appealed against be suspended; (b) if the appellant is in confinement, he be released on bail, and (c) the appeal be heard notwithstanding that the appellant has not purged his contempt. I It is thus clear that it is not mandatory for the High Court to grant bail even in a case where substantive punishment is imposed. The word used is 'may' and the High Court has the discretion, according to the facts and circumstances of each case, whether to grant bail or not. If the contempt committed is very grave, it is open to the High Court not to grant bail.
In paragraph 23 the contender's averment that he entertained an apprehension that the High Court may impose substantive punishment and may refuse bail is a contumacious aspersion on the Court that it does not exercise its judicial powers according' to the facts and circumstances of the case and the Court is already determined to impose substantive punishment and refuse bail. This aspersion clearly comes within the mischief of Section 2(c) (i), (ii) and (iii). While casting such aspersion, the contemner refers to the observations of this Court in (1972) 2 Cut WR 1857. (State v. B.K. Misra) and (1972) 2 Cut WR 1876, (State v. B.K. Misra). Both these cases were disposed of by a Bench consisting of R.N. Misra and B.K. Panda, JJ.
In paragraph 6 of the first case the following observations had been made:
"While dealing with this contemner sometime back, a Bench of this Court admonished him in open Court and directed him to bear the costs of the proceeding. On that occasion it was clearly indicated that any further dereliction on the part of the contemner would be seriously viewed. In that background the proper sentence to be awarded to the contemner would be one of substantive imprisonment. But in view of the fact that the contempt in this case was an event before the disposal of that contempt proceeding, we are prepared to take a lenient view and would sentence the contemner to pay a fine of Rs. 500/- or in default to suffer simple imprisonment for a period of three months."
In the second case, the Bench observed as follows: (Para 9).
"In our view there is no room for such submission for this ghastly conduct of a judicial officer as the contemner happens to be. We find no scope for a lenient punishment. While we are of the view that only deterrent sentence of substantive punishment is the adequate sentence, yet for the reasons we have recorded in another contempt case (Orl. Cr. Misc. 14/70) against the same contemner disposed of today, we are prepared to impose a fine only.
We would accordingly sentence the contemner to pay a fine of Rs. 750/- or in default direct him to suffer four months' S. I."
The impugned aspersion in para 23 of annexure-20 depreciates the image of the High Court and undermines the public confidence in it by creating an impression that the High Court cannot fairly decide cases.
Paragraph 14 of annexure-20 has not been extracted in the notice dated 5-1-1973. The entire annexure-20 has, however, been included as the subject-matter of contempt. In paragraph 14 the contemner asserts that it is the Chief Justice alone who disapproved the Government order and deprived the contemner of the result of the Government decision by issuing the Court's notification dated 30-3-1972. This assertion is a deliberate falsehood as would appear from the facts narrated in para-2, sub-paras (x) and (xi) of this judgment. This false averment made in paragraph 14 of annexure-20 scandalises the Chief Justice by giving a picture that he is unjust and vindictive and in his hands fair justice cannot be obtained. This amounts to gross contempt.
In grounds (G) and (I) the contemner similarly alleges prejudice and bias against the High Court as a whole.
Thus in annexure-20 the contcmner has, in clearest terms, alleged bias and prejudice against the High Court and its Chief Justice. He has taken the plea that the Court itself has become disqualified to deal with the case. In his view the Judges of this Court have fallen from the path of rectitude, and are vindictive, and have already decided to impose substantive sentence and refuse bail, and they are not in a position to mete out even-handed justice.
99. That contempt of a lower Court can be committed while seeking to ventilate grievances in a memorandum of appeal is no longer in doubt.
In AIR 1965 Pat 360, (State of Bihar v. Kamakhya Narain Singh), the contemner scandalised the High Court and its Judges in an application under Article 32 of the Constitution before the Supreme Court. He stated that" Chief Justice Ramaswami was a friend of the Chief Minister and the contemner did not expect to get justice in his hands. The allegations were held to constitute gross contempt. Though unqualified apology was tendered, the same was not accepted and the contemner was sentenced to undergo S. I. until the rising of the Court and to pay a fine of rupees one thousand.
The matter is concluded by AIR 1967 SC 1494, (Jugal Kishore v. Sitamani Central Co-op. Bank). In the grounds of appeal to the joint Registrar of Co-operative Societies against the order of the Assistant Registrar, the order of the Assistant Registrar was characterised as mala fide. Their Lordships held that this constitutes gross contempt, and upheld the decision of the Patna High Court in AIR 1965 Pat 227, Sitamani Central Coop. Bank v. Jugal Kishore. In paragraph 26 the following observation was made:
"Generally speaking, any conduct that tends to bring the authority and administration of law into disrespect or disregard or to interfere with or prejudice party litigants or their witnesses during their litigation amounts to contempt of Court: (See Oswald on Contempt at p. 6). In order that Courts should be able to dispense justice without fear or favour, affection or ill-will, it is essential that litigants who resort to Courts, should so conduct themselves as not to bring the authority and the administration of law into disrespect or disregard. Neither should they exceed the limits of fair criticism or use language casting aspersion on the probity of the Courts or questioning the bona fides of their judgments."
On the aforesaid analysis, we have no doubt that annexure-20 constitutes gross contempt. Several of the allegations made by the contemner therein are false to his knowledge. They have been made with the sole purpose of creating prejudice against the Judges of this Court so that the contemner may better his cause in appeal. Such statements are likely to deflect the High Court itself from a strict and unhesitant performance of its duties. The contemner has been actuated by mala fides and bias in making scurrilous allegations against this Court. He is a judicial officer of 24 year's standing, and if a person of his status makes allegations, as contained in annexure-20, the litigants are bound to act upon them, and thereby lose confidence in the impartiality, independence or integrity of the High Court and its Judges and the fountain of justice would be sullied.
From the aforesaid decisions referred to by the contemner in Annexure-20, it is clear that to none of the cases in which the contemner has been convicted of contempt, the Chief Justice is a party. In fact, all these cases excepting ILR (1971) Cut 986, were decided when the Chief Justice was acting as the Governor from 1-7-72 to 8-11-72. To all these cases R.N. Misra, B.C. Das, B.K. Ray and K.B. Panda, JJ. were parties. The observations made in those cases were with reference to the facts and circumstances of those cases. To allude motive to those judges constitutes gross contempt of Court.
The contempt comes within the mischief: of Section 2(c) (i), (ii) and (iii) of the Act.|
100. It is contended by Mr. Mo-hanty and the contemner that even if criminal contempt has been committed, no punishment should be imposed, as the contempt is not of a nature resulting in substantial interference with the course of justice. Reliance is placed on Section 13 of the Act which runs as follows:
"Notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court, unless it is satisfied that the contempt is of such a nature that it substantially interferes or tends to substantially interfere with the due course of justice."
It is contended that the expression "due course of justice" is synonymous with a judicial proceeding. The contention is without substance.
Section 2(c)(ii) uses the expression 'the due course of any judicial proceeding'. There is a fundamental difference between 'due course of judicial proceeding' and 'duel course of justice'. The expression 'due course of justice' is of much wider import. It would necessarily cover all the three classes of cases in Section 2(c); otherwise an absurd result would be reached that no punishment can be imposed in respect of contempts under Section 2(c) (i) and (ii).
One of the meanings of the word 'course' in Chambers's 20th Century Dictionary (latest edn.) is the 'path in which anything moves'. 'Course of justice' would, therefore, mean the 'path in which justice moves'. If the administration of justice is affected by impairing the confidence of the public in the integrity and impartiality of Judges, whether in exercise of the Court's administrative or judicial capacity, or otherwise by comments on the Court or the Judges not in any of these capacities, the path of justice is soiled. The emphasis in Section 13 is on the word 'substantially' as distinguished from 'technically'; in other words, if a technical contempt is committed, the Court may not impose any punishment. Punishment is to be imposed where the contempt substantially interferes or tends to interfere with the due course of justice.
AIR 1954 SC 10, gives an illustration of technical contempt where no punishment was imposed. In paragraph 19, their Lordships said that what is material is the nature and extent of the publication and whether or not it was likely to have injurious effect on the minds of the public or of the judiciary itself and thereby lead to interference with the administration of justice. In that particular case their Lordships held that contempt, if any, was of a technical nature and the proceedings should be dropped.
In this case in respect of Annexure-20 the contemner has committed contempt not only under Section 2(c) (i) and (iii), but also under Section 2(c) (ii) as the aspersion made in the memorandum of appeal (Annexure-20) was in respect of pending judicial proceeding. In all the other impugned an-nexures which have been held to constitute contempt, the contemner was actuated by malice and out of mala fides has intentionally scandalised the Court.
He was an unbalanced and inefficient officer with a chequered career. The Court showed great leniency in promoting him from stage to stage despite his inefficiency and unbalanced behaviour. When ultimately the Court decided on substantial grounds which have been enumerated in this judgment to demote him, the contemner found no other way but to resort to scandalising the High Court so that it would desist from taking any disciplinary action against him. In Annexure-20 the contemner has also tried to influence the mind of the Judges of this Court not to impose substantive sentence of imprisonment on him and to grant him bail in case any substantive punishment was imposed, Patent mala fides have been found to have permeated in all his acts.
All the impugned annexures which have been found to constitute contempt substantially interfere with due course of justice.
101. Towards the close of the arguments the contemner raised an objection that the Chief Justice and Justice R.N. Misra should not have been in the "Full Bench. We rejected the prayer and passed an order on 10-1-73 that reasons would be given in the judgment. We proceed to give the "reasons now.
This case was before a Division Bench consisting of R.N. Misra and B.K. Ray, JJ. On 23-11-72 that Bench directed this case to be placed before the Chief Justice for being dealt with by a larger Bench as many questions of law were involved. On 24-11-72 a Bench consisting of K.B. Panda J. and myself directed this case to be heard by a Full Bench of five Judges and posted the matter to 4-12-72 for hearing. On 1-12-72 an order was passed that the Full Bench would consist of the Chief Justice, S.K. Ray, B.K. Patra, R.N. Misra and B.M. Ray, JJ. and the order was dictated in open, Court in the presence of the contemner and he raised no objection.
Hearing of the case by the Full Bench began on 4-12-72 and continued for five days till 8-12-72. On 8-12-72 the hearing was adjourned to 2-1-73 as two of the Judges in the Full Bench were not available and the X'mas holidays intervened. The contemner was directed to file further affidavit, if any, to the State's counter.
On 18-12-72 the contemner filed a further affidavit appending thereto an analysis of the counter-affidavit and annexures filed on behalf of the State in Crl. Appeal No. 174/72.
Hearing was resumed on 2-1-73. The contemner argued his own case for two days on 3-1-73 and 4-1-73. He closed his argument on 4-1-73 and his last argument was that the Chief Justice should not have been a member of the Full Bench.
On 5-1-73 the Court drew up the additional charge of contempt with reference to Annexufe-20. On 9-1-73 the contemner showed cause to the notice dated 5-1-73, In paragraph 12 of the affidavit he stated thus: "That the charges dated 5-1-73, seem to refer inter alia to opposite party's alleged conduct for scandalising, specifically, the Hon'ble the Chief Justice and Hon'ble Justice Sri R.N. Misra, and that earlier, this opposite party in paragraphs 16 to 21 of his annexure to the reply dated 18-12-72, had narrated, connecting the Hon'ble Chief Justice on his administrative functions, and also submitted in course of the hearing of those earlier charges, as to the adverse attitude of the Hon'ble the Chief Justice on the administrative sides against him." This additional show-cause was in the shape of a petition and the last prayer in it reads thus:
"This Honourable Court may further be pleased to consider, if the Honourable Chief Justice and Honourable Justice Sri R.N. Misra may participate in the hearing of these charges dated 5-1-73."
102. Allegations of incompetency, patent mala fides taking to subterfuge, adopting a novel step and making of a mysterious order of suspension were made by the contemner relating to the entire Court and the entire Court had been scandalised by Annexures 8, 13, 14, 16, and 20 as having had prejudice and bias against the contemner, and as being determined from before to impose a substantive sentence of imprisonment on the contemner, and to refuse bail. Curiously, the contemner used the words 'taking to subterfuge', 'mysterious' and 'mala fides' which were held to constitute contempt in (1971) 1 SCWR 581; AIR 1926 All 623 at p. 627 (SB), (In Re: Hadi Husain v. Nasir Uddin Haider) and AIR 1967 SC 1494 respectively.
Thus, the contemner did not raise any objection to the Chief Justice and Justice R. N. Misra being on the Bench in his show-cause petitions dated 26-7-72 and 7-8- 72. and his further affidavit dated 18-12-72 and during the hearing of the case spread over about a month from 4-12-72 till 4-1-73. For the first time on 4-1-73 he closed his argument by the last contention that the Chief Justice" should not have been on the Bench. In his further show cause on 9-1-73 he enlarged the field of objection by saying that both the Chief Justice and Justice R.N. Misra should not have been on the Bench. Even assuming that his request could have been acceded to, constitution of a different bench could not be thought of after eight days of hearing. The objection was raised in the last hours on 4-3-73 and the arguments of all parties were closed after hearing for one day more on 10-1-73.
It would be worthwhile to state that there are only seven Judges in this Court including the Chief Justice. The wife of Mr. Justice Acharya is the sister of the wife of the contemner. As they are close relations, Mr. Justice Acharya does not take part in any matter in which the contemner is concerned. Of the remaining six Judges only Justice K.B. Panda was not a member of the Full Bench. Justice K.B. Panda was a party to all the administrative decisions taken against the contemner for initiating disciplinary proceeding and for suspending him. He was also a party to the two cases reported in (1972) 2 Cut WR 1857 and (1972) 2 Cut WR 1876 in which the contemner was convicted of contempt and imposed with fines of Rs. 500/ and Rs. 750/- respectively.
Thus all the six judges dealt with the disciplinary proceedings against the contemner and had taken part in the Full Court decision on 28-3-72 (see paragraph 2, sub-paras (x) and (xi) of this judgment.) In all the contempt cases in which the contemnet has been convicted, R.N. Misra, B.K. Ray and K.B. Panda, JJ. had participated. In none of the cases in which he has been convicted, the Chief Justice, and S. K. Ray and B.K. Patra, JJ. had anything to do.
While stating acts in Annexure-20, some insinuations have been made against the Chief Justice and Justice R.N. Misra alleging how the contempt proceeding was started, but those are nothing personal to any one of us and the contemner has spared none of the Judges of this Court though he has referred to the name of Justice R.N. Misra in all the contempt cases without giving the names of other Judges who were parties to the cases resulting in his convic-tion. It is wholly immaterial which of the Hon'ble Judges wrote the judgment. No particular distinction can, therefore, be made merely because the contemner in particular referred to the Chief Justice and Justice R.N. Misra in Annexure-20. He has not given any reasons anywhere as to why the Chief Justice and Justice R.N. Misra should not participate in the Full Bench.
103. In AIR 1954 SC 186, (Sukhdev Singh v. Hon'ble C. J., S: Teja Singh and the Hon'ble Judges of the Pepsu High Court) the contemner filed an application before the Supreme Court asking for transfer of certain contempt proceedings from the Pepsu High Court and in the alternative asking that at least the matter should not be heard by two of the Judges of that High Court.
In rejecting that application the Supreme Court made the following observations which are worth extracting: (para 25).
".....The Constitution gives every High Court the right and the power to punish a contempt of itself. If we werr to order a transfer to another Court in this case, we would be depriving the Pcpsu High Court of the right which is so vested in it. We have no more power to do that than has a Legislature. As for transfer from one Judge to another, there again there is no original jurisdiction which we car exercise. It is not a fundamental right and sc Article 32 has no application and there is no other law to which recourse can be had. This petition is therefore incompetent and must be dismissed.
26. We wish, however, to add that though we have no power to order a transfer in an original petition cf this kind we consider it desirable on general principles of justice that a judge who has been personally attacked should not as far as possible hear a contempt matter which, to that extent concerns him personally. It is otherwise when the attack is net directed against him personally. We do not lay down any gene-ral rule because there may be cases where that is impossible, as for example in a Court where there is only one judge or two and both are attacked. Other cases may also arise, where it is more convenient and proper for the judge to deal with the matter himself, as for example in a contempt 'in facie curiae.'
All we can say is that this must be left to the good sense of the judges themselves who, we are confident, will comfort themselves with that dispassionate dignity and decorum which befits their high office and will bear in mind the oil quoted maxim that justice must not only be done but must be seen to be done by all concerned and roost particularly by an accused person who should always be given as far as that is humanly possible a feeling of confidence that he will receive a fair, just and impartial trial by judges who have no personal inter-est or concern in his case."
We have sufficiently indicated that the eontemner has not assigned any reason alleging anything personal to either the Chief Justice or Justice R.N. Misra. In Annexure-20 he did not make a prayer that these two Judges should not hear the contempt proceeding. Both of us have nothing personal against the eontemner, Justice R.N. Misra and T have dealt with his administrative matters as much as all other Judges excepting Justice Acharya. Justice R.N. Misra has dealt with his contempt cases sitting with him three other Judges. Each case has been dealt with on its own merit and though all through Bench after Bench have been pronouncing that the eontemner was guilty of serious contempt, they have been resorting to imposing lenient sentences of fine and admonitions. If Justice R.N. Misra would have been excluded from hearing of the case, Justice K.B. Panda and Justice B.K. Ray who were parties to those decisions would have been equally excluded even though the eontemner has not specifically made that prayer.
The contender's prayer would not determine the course of action that the Judges are to resort to in deciding cases. The fact that the eontemner raised this objection for the first time as his last contention on 4-1-73 and again in his objection on 9-1-73, indicates that it was frivolous. By this prayer he has committed gross contempt in the face of the Judges during the hearing in Court. The prayer of choosing Judges merely because some have expressed adverse views is itself a gross contempt: (See AIR 1955 SC 19, M.Y. Shareef v. Hon'ble Judges of Nagpur High Court).
We would refer to a recent decision of the Supreme Court in (1971) 1 SCWR 581. In this case the eontemner in a transfer application alleged that all the Judges of the Supreme Court excepting Chief Justice Hida-yatullah and another Judge were incompetent to hear the transfer application as they were all concerned in the case. As the objection was taken from the very beginning, a Bench consisting of the Hon'ble the Chief Justice and the other Judge not objected to, took up the matter. The learned Chief Justice, however, retired on December 16, 1970, and Ray and Reddy, JJ. were elevated to the Bench. The eontemner took objection against their participating in the case. He did not assign any convincing and cogent reasons. The Bench consisting of Hegde, Ray and Reddy, JJ. heard the case and found Amrik Singh guilty of contempt. In that case also the eontemner used words like 'resorting to subterfuge' as Shri B.K. Misra (eontemner) has done in Annexure-8. Their Lordships came to the conclusion that the eontemner was given to intimidating the Judges, Magistrates and Officers of the Court. In paragraph 6 their Lordships observed thus:
"It is not from any exaggerated notion of the dignity of any one of us that we are proceeding against the petitioner for contempt of Court, but because it is imposed upon this Court the duty of preventing brevi manu in contempt to interfere with the administration of justice. The petitioner has been deliberately interfering with the course of justice and for that purpose scandalising the judges,"
Their Lordships took a very serious view of the contempt committed by the petitioner. The contempt committed by him was not only grave, but his attitude in Court was contumacious. Amrik Singh was accordingly sentenced to imprisonment for six months which is the maximum sentence of imprisonment prescribed.
Facts stated by us clearly demonstrate how frivolous the objection of the eontemner to the constitution of the Bench is.
104. We have given our anxious consideration as to what should be the adequate sentence in this case. The eontemner has tried with great gusto and vehemence to justify his action in course of his arguments in Court. Even when he was facing a set of charges of contempt in this proceeding he committed further contempt in Annexure-20. Though he has functioned as a judicial officer for almost two and a half decades he has not been able to pick up the approach and attitude of a judicial officer. Though he is a part of the institution of the judiciary he was reckless to scandalise and depreciate the Court whereby the public confidence in the administration of justice by this Court has been shaken.
While upholding the conviction of the eontemner for contempt in ILR (1971) Cut 986, their Lordships observed thus in AIR 1972 SC 2466:
"The remark in the appellant's (contemner's) order found objectionable by the High Court is this: "Further, against the order we have moved the Supreme Court, and as such the matter can be safely deemed to be sub judice." It may be observed that on the date of the order nothing was pending in the Supreme Court. Only a petition was pending in the High Court for a certificate to appeal to the Supreme Court from the decision in Bhramarbar Santra, ILR (1970) Cuttack 54. The appellant has thus made wrong statement of fact. Secondly, the use of the personal pronoun "We" is also significant. It indicates that the appellant identified himself as a litigant in the case and did not observe due detachment and decorum as a quasi-judicial authority. Lastly, we agree with the High Court that it is not possible to believe that the appellant could have entertained the view that as soon as a petition for certificate to appeal to the Supreme Court was filed in the High Court against its decision, the binding character of the decision disappeared. He has had 23 years' judicial experience and he could scarcely entertain that belief. We agree with the High Court that the appellant deliberately avoided to follow its decision by giving wrong and illegitimate reasons and that his conduct was "clearly mala fide."
The history of service of the contemner shows that soon after his recruitment he started showing indisciplined conduct. Restraint, detachment, considerateness and similar other virtues which are essential requirements for a judicial officer were wanting in the contemner. The High Court as the controlling authority was obliged not to overlook the lapses of the contemner.
A little analytical survey of the history of the service of the contemner would indicate that this Court has not been as strict as it should have been in regard to him. Compassion had been introduced into the treatment of the contemner by the High Court with a genuine belief that the contemner would mould his ways, pick up the usual judicial temper and correct himself. Unfortunately, the expectations have been belied. On the other hand, the contemner instead of realising his own mistakes, developed an attitude of considering his own actions to be above board and anybody who found fault with him to be on the erring side. He took to making reckless and scurrilous allegations against his administrative superiors and even this Court. When any step was taken for correcting his lapses, he took to intimidation of this Court in answer.
He has to his credit several convictions for contempt and those cases have already been referred to. In ILR (1971) Cut 986, a Bench of this Court came to conclude that substantive sentence of imprisonment was called for; but the contemner was let off with mere admonition in open Court. A warning had been sounded to him that if he was found to be contumacious again, his contumacy would be visited with deterrent punishment. In the meantime not only his conduct has been held to be clearly mala fide in AIR 1972 SC 2466, but the sentence imposed upon him has been confirmed. In regard to other contempts he has been sentenced to various fines. Appeals are pending before the Supreme Court against his convictions for contempt and we do not propose to make use of those convictions.
The present contempt has been committed about a year after his conviction in the case reported in ILR (1971) Cut 986. A lenient treatment meted out to him before has not been fruitful. On the other band, it appears to have emboldened him to commit further contempts and of more seripus type. Keeping in view the nature of the contempt committed, his conduct as a whole, and the unusualness in a senior judicial officer in trying to throw overboard the constitutional authority of this Court, we are satisfied that the only punishment which should justly be meted out to the contemner is the maximum provided under law. He is not a layman but a senior judicial officer whose duty is to uphold the dignity of the judiciary. This again is a factor we must give due weight in the matter of fixing the quantum of punishment. His case is parallel to Amrik Singh's case, (1971) 1 SCWR 581 where their Lordships of the Supreme Court imposed the maximum sentence of six months' simple imprisonment.
We have, however, decided to take a lenient view as such gross contempt of this Court is very rare. We have not come across a parallel instance in the history of this Court and we hope one such would never occur in future. We follow what was said in paragraph 104 in AIR 1971 SC 1132, even though in that case the contemner offered unqualified apology which was not accepted and in this case no apology has at all been offered,
105. In the result, we hold that Sri B.K. Misra is guilty of contempt of this Court. He is sentenced to simple imprisonment for two months. It gives us some pain to pass a substantive sentence of imprisonment on one of our senior judicial officers. But the contempt is so gross, that we cannot help it.
We authorise and direct the Registrar to issue the necessary warrant and to take all further steps. We award no costs against the contemner.
We express our appreciation for the valuable assistance rendered by the learned Advocate-General, Shri Patnaik and Shri Mohanty.
S.K. Ray, J.
106. I agree.
107. I agree.
R.N. Misra, J.
108. I agree.
B.K. Ray, J.
109. I agree.