Judgement

BHAGWATI J. : This Appeal with certificate under Art. 134(1)(c) of the Constitution arises out of an application under S. 2, Contempt of Courts Act (32 of 1952) and S. 8, Public Servants (Inquiries) Act (37 of 1850) read with Art. 227 of the Constitution filed by the respondent against the appellant in the High Court of Judicature at Patna and raises an important question as to whether the Commissioner appointed under Act 37 of 1850 is a Court.

2. The respondent is a Member of the Bihar Civil Service (Executive Branch). The State Government received reports to the effect that the respondent had been guilty of serious misconduct and corrupt practices in the discharge of his official duties while employed as Sub-Divisional Officer at Aurangabad and they accordingly decided that an inquiry into the truth of the various charges against him should be made under the provisions of the Public Servants (Inquiries) Act 1850 (Act 37 of 1850, hereinafter referred to as the Act) and Mr. Anjani Kumar Saran who was the then Additional District and Sessions Judge, Gaya, and was thereafter the District and Sessions Judge of that place was appointed Commissioner under the Act for making the inquiry.

Gaya was fixed as the venue of the inquiry and the State Government also ordered that, during the tendency of the inquiry, the respondent will remain under suspension. The Government made the appointment aforesaid after obtaining the concurrence of the High Court on its administrative side which was obtained on the condition that an extra - temporary post of Additional District and Sessions Judge was created by the Government for the period Mr. Saran was occupied with the inquiry. The appointment was made on 2-6-1952 and it was expected that Mr. Saran would be able to complete the inquiry during a period of three months. The respondent, however, adopted dilatory tactics.

He made various representation to the Government, one of 6-6-1952 demanding that a Judge of the High Court be appointed as Commissioner under the Act to make the inquiry against him and that inquiry be made at Patna and not at Gaya, another on 10-7-1952 protesting against the appointment of Mr. Saran as Commissioner to hold that inquiry against him and demanding that a confirmed District and Sessions Judge be appointed as Commissioner in his place, and a third on 17-11-1952 in which he requested the Government to appoint three Commissioners instead of one for holding the inquiry against him and also to pay the entire cost of his defence at the same rates at which the Special Public Prosecutor engaged by the Government was being paid and also to reimburse other incidental expenses to be incurred by him.

All these representations were turned down by the Government. Being thus thwarted in his attempts to put off the inquiry on some pretext or the other, the respondent tried to evade the same and failed and neglected to reply to the queries made from him by the Commissioner. The Commissioner also could not communicate to him the orders passed by him from time to time because the respondent did not stay at the headquarters and did not leave his proper address for communication either at Gaya or at Motihari.

On 24-11-1952 the Commissioner passed an order calling upon the parties to attend the hearing of the proceedings before him on 8-12-1952 and forwarded a copy of this order to the appellant for communication to the respondent. The District Magistrates of Champaran and Gaya who were requested to serve a true copy of the order upon the respondent could not do so as he was available neither at Motihari nor at Gaya and it was with great difficulty that he could be traced at Patna and the order served upon him.

On 18-12-1952, the Commissioner passed another order recording that he was feeling great difficulty in contacting the respondent and in communicating his orders to him. He observed that this was a highly undesirable state of affairs and that it was necessary that his orders should