PETITIONER:
STATE OF GUJARAT
Vs.
RESPONDENT:
RAMESH CHANDRA MASHRUWALA
DATE OF JUDGMENT21/01/1977
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
KAILASAM, P.S.
CITATION:
1977 AIR 1619 1977 SCR (2) 710
1977 SCC (2) 12
ACT
Disciplinary jurisdiction of the High Court--The Regis-
trar of the Small Causes Court, Ahmedabad appointed by the
Governor, if is "in judicial service" and subject to disci-
plinary jurisdiction of the High Court--The question of
"appointing authority" is not relevant in regard to the
disciplinary jurisdiction of the High Court--Articles 235,
and 236 of the Constitution of India, Sections 9(1) (aa),
13, 14, 33 to 36 of the Presidency Small Causes Court Act
1882--Scope of.
Reasonable opportunity--Failure to give copies of docu-
ments demanded is contrary to the provisions of Art. 311.
HEADNOTE
Pursuant to the departmental enquiry conducted by the
High Court and on its recommendation, the Gujarat Governor
dismissed the respondent from the service of Registrar,
Small Causes Court, Ahmedabad. The respondent challenged by
way of a writ the said order contending: (1) The High Court
was not his appointing authority and he being the member of
general State service, the High Court has no authority to
initiate proceedings, the appointment of the enquiry offi-
cer, framing of charges of misconduct and taking discipli-
nary proceedings etc. (2) The High Court has no authority to
direct further enquiry to be made in respect of recording
the statement of one Mr. Bhatt, an advocate or to consider
the reports made by the enquiry officer and come to the
conclusion about his guilt or to issue show cause notice of
punishment. (3) The direction of the High Court that the
statement 0f Mr. Bhatt is recorded was passed without hear-
ing the petitioner and this violated the rules of natural
justice. (4) The failure to give copies of certain documents
demanded by the petitioner deprived him of a reasonable
opportunity to defend himself and, therefore, the enquiry
was contrary to the provisions of Art. 311 of the Constitu-
tion; and (5) .The impugned order was passed by the Govern-
ment without consulting the Public Service Commission and
the same was illegal and bad in law.
The High Court held: (1 ) The post of the Registrar of
Small Causes Court does not fall within the expression
"judicial service" within the meaning of Art. 235 and (2)
The High Court has no disciplinary jurisdiction over the
Registrar in view of the fact that the High Court is not the
"appointing authority".
Accepting the State’s appeal by certificate and remitting
the case, the Court,
HELD: (1 ) The Registrar of the Court of .Small Causes
is a person holding a civil judicial post inferior to the
post of District Judge and he is in judicial service.
Sections 9(1), 13 14, 33 to 36 of the Presidency Small
Causes Court Act, 1882 indicate in no uncertain manner that
the Registrar of Small Causes Court exercises judicial
powers, Inasmuch as the Registrar Small Causes Court exer-
cises his judicial function, he is a judicial officer in
judicial service and comes within the scope and intent of
Art. 235 and 236. [711 H, 712 G-H]
(2) The High Court was in error in considering the question
of "appointing authority" as relevant in regard to the
disciplinary jurisdiction of the High Court and also in
holding that it had no power to order disciplinary proceed-
ings. The High Court abdicated its own disciplinary juris-
diction. The High Court is the competent authority to hold
departmental enquiries. [711 D-E, 713 A-C].
High Court of Punjab & Haryana etc. v. State of Haryana
and Ors. [1975] (3) SCR 365 and Shamsher Singh & Anr. v.
State of Punjab [1975] (1) SCR 814, referred to.
711
(3) In the instant case the enquiry was contrary to the
provisions of Art. 311 of the Constitution due to the fail-
ure to give copies of certain documents demanded by the
Registrar, thus deprived him of a reasonable opportunity to
defend himself. [713 G]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 207 of 1975.
From the Judgment and Order dated the 19-4-74 of the
Gujarat High Court in Special Civil Appln. No. 306 of 1973.
S.T. Desai and Girish Chandra for the Appellants.
I. N. Shroff and H.S. Parihar for Respondent.
The Judgment of the Court was delivered by
RAY, C.J. This appeal is by certificate against the
judgment and order dated 19 April 1974 of the High Court of
Gujarat in Special Civil Application No. 306 of 1973.
The question for consideration in this. appeal is wheth-
er the petitioner before the High Court, who was the Regis-
trar of the Small Causes Court, Ahmedabad was subject to
the disciplinary jurisdiction of the High Court.
The Registrar was appointed on 12 September, 1969 by an
order of the Governor of Gujarat.
The High Court said that in view of the fact that the
High Court is not the appointing authority the High Court
has no disciplinary jurisdiction over the Registrar.
The High Court was in error in considering that the
question of appointing authority is relevant in regard to
the disciplinary jurisdiction of the High Court.
Under Article 235 the control over district Courts and
Courts subordinate thereto including the posting and promo-
tion of, and the grant of leave to, persons belonging to the
judicial service of a State and holding any post inferior to
the post of district judge shall be vested in the High
Court.
The expression ’judicial service’ is defined in Article
236 to. mean "a service consisting exclusively of persons
intended to fill the post of district judge and other civil
judicial posts inferior to the post of district judge".
These two articles 235 and 236 are relevant for the
purpose. of ascertaining the extent of disciplinary juris-
diction of the High Court. The Registrar of the Court of
Small Causes is a person holding a civil judicial post
inferior to the Post of district judge and is ’in Judicial
service.’
Reference to the presidency Small Causes Courts Act
1882 is necessary to find out the powers, position and
duties of the Registrar
712
of the Small Causes Court. Section 13 of the Act states :.
"There shall be appointed an officer to be called the Regis-
trar of the Court who shall be chief ministerial officer of
the Court".
The other provisions in the Act which deal with the
Powers of the Registrar are to be found in Sections 9(1)
2(aa), 14, 33, 34, 35 and 36, which read as follows:
"9(1) (aa). The High Court may, from time to
time, by rules having the force of law empow-
er the Registrar to hear and dispose of unde-
fended suits and interlocutory applications or
matters.
14 - The Provincial Government may invest the
Registrar with the powers of a Judge under
this Act for the trial of suits in which the
amount or value of the subject-matter does not
exceed twenty rupees. And subject to the
orders of the Chief Judge, any Judge of the
Small Cause Court may, whenever he thinks
fit, transfer from his own file to the file of
the Registrar any suit which the latter is
competent to try.
33 - Any non-judicial or quasi-judicial act
which the Code of Civil Procedure as applied
by this Act requires to be done by a Judge,
and any act which may be done by a Commission-
er appointed to examine and adjust accounts
under section 394 of that Code as so applied,
may be done by the Registrar of the Small
Cause Court or by such other officer of
that Court as that Court may, from time to
time, appoint in this behalf.
34 - The suits cognizable by the Registrar
under section 14 shall be heard and determined
by him in like manner in all respects as a
Judge of the Court might hear and determine.
the same.
35 - The Registrar may receive applications
for the execution of decrees of any value
passed by the Court, and may commit and dis-
charge judgment debtors, and make any order in
respect thereof which a Judge of the Court
might make under this Act.
36 - Every decree and order made by the Regis-
trar in any suit or proceeding shall be sub-
ject to the same provisions in regard to new
trial as if made by a Judge of the Court."
These provisions of the Act indicate in no. uncertain
manner that the Registrar of a Small Causes Court exercises
judicial powers, hears suits, passes decrees and an appeal
is preferred from a decree of the Registrar.
Counsel for the appellant is right in his contention
that the Registrar, Small Causes Court, inasmuch as he
exercises judicial functions, is a judicial officer in
Judicial Service and comes within the scope and intent of
Articles 235 and 236.
713
The High Court was in error in holding ’that the High
Court had no power to order disciplinary proceedings. It is
significant that the High Court abdicated its own discipli-
nary jurisdiction. The independence of the judiciary has
been emphasised by this Court in un-mistakable terms in the
following two decisions:
1. High Court of Punjab & Haryana etc. v. State of Haryana
& Ors., reported in 1975 (3) S.C.R. 365 and
2. Shamsher Singh & Anr. v. State of Punjab, reported in
1975 (1) S.C.R.814.
The Gujarat High Court like other High Courts is compe-
tent to enquire into such disciplinary matters.
In the present appeal there were five contentions before
the High Court on behalf 0f the Registrar. The first
contention falls in view of our conclusion that the High
Court is the competent authority to hold departmental en-
quiry. The second contention of the Registrar was that the
High Court had no authority to direct further inquiry to be
made in respect of recording the statement of Bhatt or to
consider the reports made by the-inquiry officer and come to
a conclusion about the guilt of the Registrar. The third
contention of the Registrar was that the direction of the
High Court that the statement of Bhatt be recorded was
passed without hearing the Registrar and was violative of
the rule of natural justice.
It will appear that the High Court issued directions and
the statement of Bhatt was recorded by the Inquiry Officer.
Bhatt is a Lawyer. He was busy in Court. He could not
appear before the Inquiry officer on the date fixed for
taking his evidence. The High Court asked the Inquiry
Officer to record the evidence of Bhatt. The Registrar was
given a copy of the statement of Bhatt after recording of
Bhatt’s evidence. The Registrar was given an opportunity to
deal with the evidence of Bhatt. It is idle to contend that
the Registrar ought to have been heard before the High Court
directed that the statement of Bhatt should be recorded.
The fourth contention of the Registrar was that there
was failure to give copies of documents demanded by him;
therefore he did not have reasonable opportunity to defend
himself. The High Court did not go into this question in
view of the fact that the High Court did not consider this
question. Counsel for the Registrar submitted that he
wanted to address the Court on the materials which were not
available now. We are of opinion that the matter should be
remitted to the High Court only on this question viz ’fail-
ure to give copies of certain documents demanded by the
Registrar thus depriving him of a resonable opportunity to
defend himself and therefore, the inquiry was contrary to
the provisions of Article 311 of the Constitution’.
The fifth contention that the impugned order was passed
by the Government without consulting the Public Service
Commission does not survive in view of our conclusion that
the High Court is the competent authority to make departmen-
tal inquiry.
714
For the foregoing reasons the judgment of the High Court
is set aside and the matter is remitted to the High Court
for consideration only of the fourth question as indicated
above.
Parties will pay and bear their own costs.
S.R. Appeal allowed and case remitted.
715