( 1 ) WE are unanimous that the Rule in this case must be made absolute.

( 2 ) WHO controls the subordinate judiciary in the State and who in particular exercises disciplinary control over members of the Subordinate Courts of the States under the Constitution of India and what principles govern the procedure of disciplinary Tribunals are the important questions raised for determination on this Reference by the Chief Justice.

( 3 ) THE petitioner Shri Nripendra Nath Bagchi, a senior member of the West Bengal Judicial Service officiating in the Higher Judicial Service and an Additional District Judge, at the fag end of his career of service extending over a quarter of a century and when about to reach 55 years, the age of compulsory retirement under his conditions of service, was served with a notice to appear before a Disciplinary Tribunal and on its findings was dismissed from service by an order of the State Government dated 25th May, 1954 after a departmental enquiry.

( 4 ) THE petitioner reached the age of superannua tion on the 31st July, 1953. Only about 10 days prior to that date he was suspended from service on the 20th July, 1953. By an order dated the 14th July, 1953, hardly a week before his suspension, the Government sanctioned his retention in the ser vice under Rule 75 (a) of the West Bengal Service Rules. The language of the order of the 14th July, 1953 numbering 2863-GA/il-14/53 substitut ing an order of the same number and date appears as follows :"i am directed to state that Government had been pleased to sanction, under Rule 75 (a) of the West Bengal Service Rules, Part I, the retention in service of Nripendra Nath Bagchi, Additional Dis- (trict and Sessions Judge, 24 Parganas for a period of two months with effect from 1st August, 1953, the date of his compulsory retirement, in the interest of the public service. "

( 5 ) NO consent of the petitioner for retaining his service was called for or obtained. The two expressions in the above Order (1) "retention in service" and (2) "in the interest of public service" do not on the facts of this case mean what they say. Here "retention in service" means suspension from service because from the date when he was "retained" in service he was suspended from service. The other expression "the interest of the public service" does not mean actual service to the public but meant only departmental enquiry against him. His service was extended from time to time with a view to enable the Government to start and conclude the departmental enquiry against him during which the petitioner was allowed to live on a bare subsistence allowance.

( 6 ) THE departmental enquiry in this case was conducted by Sri B. Sarkar, I. C. S. , Commissioner of Burdwan Division, and thereafter a member of the Board of Revenue. No formal appointment of Sri Sarkar by the Governor has been placed before us and it appears that the Chief Secretary asked him to conduct the enquiry. The Enquiring Officer submitted his report on 21-12-1953 holding him guilty of most of the eleven charges against him and absolving him from a few. The report admits that the departmental proceedings were drawn up against the petitioner under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. The Enquiring Officer concludes his report by saying that he is not in a position to suggest any punishment as that will have to be determined after considering the records of the officer. From this it follows that the Enquiring Officer could not recommend the punishment of dismissal even on the charges as found by him. No new materials have been placed before us to show what, if any, blemishes marred his long record of service other than what he had to face in this impugned and challenged departmental enquiry, and thereby merit the punishment oft dismissal which even the Tribunal could not recommend.

( 7 ) AFTER the order of dismissal the petitioner appealed to the Governor who rejected his ap