HARI NIWAS GUPTA versus STATE OF BIHAR AND ANOTHER on 8 November 2019

[2019] 15 S.C.R. 443

HARI NIWAS GUPTA

v.

STATE OF BIHAR AND ANOTHER

(Civil Appeal No. 3105 of 2017)

NOVEMBER 08, 2019

[INDU MALHOTRA AND SANJIV KHANNA, JJ.]

Constitution of India – Clause (b) of the second proviso toArt.311(2) – News item published in local daily that the NepalPolice apprehended three judicial officers-appellants belonging tothe State of Bihar, allegedly being found in compromising positionwith three Nepali women in a guest house at Biratnagar, Nepal –Full Court resolution passed for their dismissal, dispensing withthe disciplinary proceedings by invoking clause (b) of the secondproviso to Art.311(2) – While setting aside the order of dismissalfor failure to record reasons for dispensing with the enquiry, theDivision Bench gave liberty to the High Court to invoke powerunder the aforesaid provision at an appropriate stage with therequirement to record reasons – Challenge to the liberty granted – Held: Art.311 deals with dismissal, removal or reduction in rankof persons employed in civil capacities under the Union or a State– As per the dicta in Tulsiram Patel and Jaswant Singh case, the lawin terms of clause (b) of the second proviso to Art.311(2) mandatesthat the reasons for dispensing with the inquiry must be recordedin writing before the order of dismissal – Expression ‘at appropriatestage’ used by the Division Bench is not a direction for initiationof a regular departmental inquiry nor does it prohibit recourse toclause (b) to the second proviso of Art.311(2) in accordance withlaw – Division Bench justified in not barring the High Court fromfresh application of mind – In terms of the judgment of the DivisionBench, respondents to proceed in accordance with law – Noopinion expressed on the merits of the allegations made againstthe appellants – Bihar Government Servants (Classification,Control and Appeal) Rules, 2005 – rr.14, 20 – Service Law.

Constitution of India – Arts.233-236; Clause (b) of thesecond proviso to Art.311(2) – ‘Control’ of the High Court in

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Amatters relating to the subordinate judiciary – Dismissal of theappellants-judicial officers by Full Court resolution, dispensingwith the disciplinary proceedings by invoking clause (b) of thesecond proviso to Art.311(2) – Plea of the appellants relying onNripendra Nath Bagchi that this power exclusively vests with theGovernor alone – Held: Said contention misreads the ratio inBNripendra Nath Bagchi, which rather holds to the contrary –Observations in the judgment do not hold that the Governor, andnot the High Court, is vested with the jurisdiction and is thecompetent authority to decide whether the inquiry should bedispensed with upon recording of satisfaction in terms of clauseC(b) of the second proviso to Art.311(2) – It refers to Art.235 andstates that the control vests with the High Court, albeit order ofappointment, dismissal or removal is passed and made in the nameof the Governor who passes the formal order be it a case ofappointment, dismissal or removal.DService Law – Judicial service – Full Court resolution passedfor dismissal of appellants-judicial officers– Dismissed from serviceby order dtd. 12.02.14, dispensing with the disciplinary proceedingsby invoking clause (b) of the second proviso to Art.311(2) – Oneof the officer had attained superannuation during the pendencyEof writ petitions challenging the dismissal, while the other twoofficers retired during the pendency of the present appeals –Contention that the order of dismissal u/clause (b) of the secondproviso to Art.311(2) cannot be passed against the retired officerand thus, at best the pensionary and retirement benefits can beFforfeited and denied – Held: Full Court has again recommendeddismissal of the appellants dispensing with the departmental inquiryin the exercise of power u/clause (b) of the second proviso toArt.311(2) by recommendation dated. 13.08.2015 – However, matteris pending with the State Government – No final order passed inview of the stay order dated.11.09.2015 passed by Supreme CourtG– A challenge cannot be made in anticipation– This challenge wasalso not the subject matter of the writ petitions and would constitutean entirely new cause of action – Appellants have thus, reservedtheir right to challenge the order if, and as and when passed –Open to the respondents to examine this contention – Stay orderHvacated – Constitution of India – Art.311(2).

Dismissing the appeals, the Court

HELD: 1.1 Clause (b) of the second proviso to Article311(2) can be invoked to impose a punishment of dismissal,removal, or reduction in rank on the satisfaction, to be recordedin writing, that it is not reasonably practicable to conduct aninquiry before imposing the punishment. The directions andobservations of the judgment do not confer a new andunconventional right or power on the High Court, insteadclarifies what is an obvious and perspicuous consequence ofquashing the order of dismissal in the present case. Thedirection requires the High Court to proceed in accordance withlaw and rightly did not put any fetters on the course of actionthe High Court as a disciplinary authority would like to follow.Therefore, it is observed, more out of abundant caution ratherthan as a typical direction, that the High Court was entitled, if itdeemed it appropriate and proper, to invoke the power underclause (b) of the second proviso to Article 311(2) of theConstitution at an appropriate stage, after recording reasons andfollowing the prescribed procedure. [Paras 8, 10] [453-A-B; 454-C-D]

Jaswant Singh v. State of Punjab (1991) 1 SCC362 : [1990] 3 Suppl. SCR 354 ; Union of India v.Tulsiram Patel (1985) 3 SCC 398 : [1985] 2 Suppl.SCR 131 – relied on.

1.2 Striking down and setting aside the earlier order dated12[th] February, 2014 under clause (b) of the second proviso toArticle 311(2) for failure to record reasons for dispensing withthe departmental inquiry annuls the earlier order, which ceasesto exist and stands obliterated, but does not adjudicate on themerits of the allegations so as to attract the bar of res judicata.Conscious of the seriousness of the allegations and the reasonfor allowing the writ petition, the Division Bench was justifiedin not barring the High Court from fresh application of mind andfrom invoking clause (b) of the second proviso to Article 311(2)if required and justified in accordance with law. The expression‘at appropriate stage’ used by the Division Bench is not adirection for initiation of a regular departmental inquiry nor doesit prohibit recourse to clause (b) to the second proviso of Article311(2) of the Constitution in accordance with law. The authorities A

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Ato invoke the power under clause (b) to the second proviso ofArticle 311(2) to dispense with a departmental inquiry mustrecord a finding that such an inquiry cannot be conducted andrecord specific reasons for the same. In this case, the DivisionBench had recorded the contention of the respondent- HighCourt as the disciplinary authority that it would be impossibleBto assimilate, collect and produce direct evidence and materialas the acts and misdeeds were in another country. The DivisionBench having found that reasons had not been recorded fordispensing with the inquiry, neither accepted nor rejected thiscontention of the High Court. It will not be appropriate andCcorrect to interpret the decision of the Division Bench by readingone or more sentences of a paragraph in isolation. The entirejudgment has to be read to understand the ratio and finding andthe observations must be read in the context in which they havebeen made. [Paras 11, 15] [454-E-G; 458-B-D]

DReena Rani v. State of Haryana and Others (2012) 10SCC 215 ; Risal Singh v. State of Haryana and Others(2014) 13 SCC 244 : [2014] 7 SCR 544 – relied on.

Mohinder Singh Gill and Another v. The Chief ElectionCommissioner, New Delhi and Others (1978) 1 SCCE405 : [1978] 2 SCR 272 ; East Coast Railway andAnother v. Mahadev Appa Rao and Others (2010) 7SCC 678 : [2010] 7 SCR 908 ; Chief Security Officerand Others v. Singasan Rabi Das (1991) 1 SCC 729 ;State of Orissa and Others v. Dinabandhu Beheta andOthers (1997) 10 SCC 383 ; Sudesh Kumar v. StateFof Haryana and Others, (2005) 11 SCC 525 ; TarsemSingh v. State of Punjab and Others (2006) 13 SCC581 – referred to.

2. The contention misreads the ratio in Nripendra NathBagchi, which rather holds to the contrary. The expression/Gwords “within the exercise of the control vested in the HighCourt, the High Court can hold enquiries, impose punishmentsother than dismissal or removal, subject however to theconditions of service, to a right of appeal if granted by theconditions of service, and to the giving of an opportunity ofHshowing cause as required by clause (2) of Article 311 unless

such opportunity is dispensed with by the Governor acting underthe provisos (b) and (c) to that clause” is not to deny the HighCourt the authority to decide whether conditions for invokingclause (b) of the second proviso to Article 311(2) are satisfied,but recognises that the resolution and recommendation ofdismissal, removal or reduction in rank or for dispensing withthe inquiry in terms of clause (b) [also clause (c)] of the secondproviso to Article 311(2) would require an order of the Governor.The observations do not hold that the Governor, and not theHigh Court, is vested with the jurisdiction and is the competentauthority to decide whether the inquiry should be dispensed withupon recording of satisfaction in terms of clause (b) of the secondproviso to Article 311(2) of the Constitution. The decision refersto Article 235 of the Constitution and states that the controlvests with the High Court, albeit order of appointment, dismissalor removal is passed and made in the name of the Governor whopasses the formal order be it a case of appointment, dismissalor removal. [Paras 17, 18] [458-G-H; 461-B-F]

State of West Bengal v. Nripendra Nath Bagchi AIR1966 SC 447: [1966] SCR 771 – followed.

3. During the course of hearing, it was pointed out that theFull Court had subsequently again recommended dismissal ofthe judicial officers dispensing with the departmental inquiry inthe exercise of power under clause (b) of the second proviso toArticle 311(2) of the Constitution vide recommendation dated13[th] August 2015. However, the matter is pending with the StateGovernment and no final order has been passed in view of thestay order dated 11[th] September 2015 passed by this Court. Itwas informed that the other two officers had also retired duringthe pendency of the present appeals. Therefore, at best thepensionary and retirement benefits can be forfeited and denied,but an order of dismissal from service by invoking powers underclause(b) of the second proviso to Article 311(2) cannot bepassed against the appellants - judicial officers. The counsel forthe appellants-judicial officers did not press this contention asthe matter is still pending before the State authorities, and thefinal order is yet to be passed. A challenge cannot be made inanticipation. Further, this challenge was also not the subjectmatter of the writ petitions in which the impugned order was AB

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Apassed and would constitute an entirely new cause of action.Counsels for the appellants-judicial officers have reserved theirright to challenge the order if, and as and when it is passed. Themerits of the said contention not gone into and the issue openis left open. It is equally open to the respondents, that is, theState of Bihar and the High Court to examine this contention.BThe stay order is vacated, albeit it is clarified that therespondents, in terms of the judgment passed by the DivisionBench, would be required to proceed in accordance with law. Itis also clarified that no opinion has been expressed on themerits of the allegations made against the three judicial officers.C[Paras 19-20] [463-B-G]

Ajit Kumar v. State of Jharkhand (2011) 11 SCC458 : [2011] 3 SCR 830 – relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3105Gof 2017.

From the Judgment and Order dated 19.05.2015 of the HighCourt of Patna in CWJC No. 8636 of 2014.

WithHCivil Appeal Nos. 3106-3107 of 2017.

S. R. Singh, Nidhash Gupta, Sr. Advs., Ms. Sunita Pandit, ShivamSharma, Krishna Kumar Yadav, Ankur Yadav, Ms. Japneet Kaur,Ms. Asha Gopalan Nair, Ravi Prakash, Aditya Dewan, ChandraPrakash, Ms. Saroj Bala, Advs. for the Appellant.

Pravin H. Parekh, Sr. Adv., Devashish Bharuka, Ravi Bharuka,Ms. Sarvshree, Justine George, Ms. Tanya Chaudhry, Ms. PratyushaPriyadarshini, M/S. Parekh & Co., Advs. for the Respondents.

The Judgment of the Court was delivered by SANJIV KHANNA, J.

1. This common judgment would dispose of the above-captionedappeals preferred by three judicial officers namely, Hari Niwas Gupta,Komal Ram and Jitendra Nath Singh, who were working as PrincipalJudge, Family Court, Samastipur; Chief Judicial Magistrate, Araria; andad-hoc Additional District and Sessions Judge, Araria, respectively.

2. On 29[th] January 2013, a news item was published in a localdaily (Udghosh), that on 26[th] January 2013 the Nepal Police hadapprehended three judicial officers belonging to the State of Bihar asthey were allegedly found in a compromising position with three Nepaliwomen in a guest house at Biratnagar, Nepal. Thereupon the judicialofficers were brought to the district police station in Nepal, but werereleased on account of pressure from various circles. On learning aboutthe incident, the High Court of Judicature at Patna (‘High Court’ forshort) had addressed the letter dated 18[th] February 2013 to the Districtand Sessions Judge, Purnea to submit a report in the matter. The Districtand Sessions Judge vide report dated 24[th] February 2013 had informedthat during the inquiry the three judicial officers had denied having leftIndia for Nepal. Komal Ram had claimed that he was in Purnea, andin the process of vacating his quarters on transfer. The report had madereference to another news item published by the same daily on 22[nd]February 2013, expressing regret over erroneous reportage and that theSuperintendent of Police, Araria appeared to have held a bias againstthe judicial officers. After receipt of the report, the High Court hadaddressed a letter to the Ministry of Home Affairs, Government of Indiato collect and ascertain information, details and records. Bycommunication dated 20[th] June 2013, the Deputy Secretary, Ministryof Home Affairs, Government of India, had informed the High Courtthat the mobile phones of the judicial officers were simultaneously A

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Aswitched off for a long time on 26[th] and 27[th] January 2013 and whenthe phones were active during that period, they were within the rangeof the tower at Forbesganj town, which indicated that the judicialofficers were together in proximity to Nepal, and not at the place oftheir posting. The hotel bill submitted and relied upon by Komal Ramto support his claim that he was staying at a hotel in Purnea betweenB26[th] and 27[th] January 2013 was considered to be fabricated based onthe handwriting and Komal Ram’s signature on the bill. Further, the hotelwas not of the standard where a judicial officer of Komal Ram’s rankwould have stayed.

3. The Standing Committee of the High Court in its meeting heldCon 5[th] February, 2014 had resolved that the judicial officers should beplaced under suspension and also that they should be dismissed fromservice without an inquiry in exercise of power under clause (b) of thesecond proviso to Article 311(2) of the Constitution of India, read-withRules 14 and 20 of the Bihar Government Servants (Classification,DControl and Appeal) Rules, 2005. At the Full Court of the judges ofthe High Court held on 10[th] February, 2014, the recommendation of theStanding Committee was accepted and Full Court resolution was passedfor dismissal of the judicial officers from judicial service in the StateGovernment of Bihar, dispensing with the disciplinary proceedings byinvoking clause (b) of the second proviso to Article 311(2) of theEConstitution of India. The recommendation of the Full Court wasaccepted by the State Government and vide common order dated 12[th]February 2014 issued by the Governor of the State of Bihar the judicialofficers were dismissed from service.

4. The judicial officers had challenged the dismissal order byFfiling separate writ petitions, which were allowed by the Division Benchof the High Court (‘Division Bench’ for short), vide judgment dated19[th] May 2015, primarily on the ground that the Full Court hadcontravened clause (b) of the second proviso to Article 311(2) of theConstitution by not recording reasons for dispensing with the disciplinaryinquiry at the time of recommending dismissal of the judicial officers.GThe note relied upon by the Registry of the High Court as purportedlyrecording the reasons for dispensing with the inquiry, it was observed,did not contain any date or signatures and lacked authenticity. Thus,the High Court had not been able to place on record any material toshow that any reasons were recorded for dispensing with the disciplinaryHproceedings.

5. While setting aside the order of dismissal, in the case of thejudicial officers, dated 12[th] February 2014 for failure to record reasonsfor dispensing with the inquiry, the Division Bench had given thefollowing liberty and discretion to the High Court:

“The writ petitions are, accordingly, allowed, and the commonorder dated 12.02.2014 is set aside. It is made clear that in case,the High Court intends to invoke its power under Sub-clause (b)of the 2[nd] proviso to Article 311 (2) of the Constitution of India,it shall be under obligation to record reasons, at the appropriatestage and follow the prescribed procedure.

It is brought to our notice that two (sic- one) of the officers haveattained the age of superannuation, during the pendency of thewrit petitions. We direct that as a result of the judgment in thesewrit petitions, the petitioner, who is already in service, shall bedeemed to be under suspension, and the other two would bedeemed to be continuing in service for the limited purpose ofenabling the departmental proceedings to continue. The HighCourt shall take a decision in this behalf, within a period of twomonths from today. If no decision is taken in this regard, theproceedings would lapse and the petitioners would be entitled forall the consequential benefits, as though the proceedings havebeen set aside in their entirety. If, on the other hand, theproceedings are initiated, the petitioners shall await the outcomethereof. While the one who is in service shall be paid subsistenceallowance, the other two shall be paid provisional pension to theextent of 25%, forthwith.

Interlocutory application, if any, shall stand disposed of. Thereshall be no order as to costs.”

6. The judicial officers have challenged this afore-quoted portionand the liberty granted to the High Court to invoke the power underclause (b) of the second proviso to Article 311(2) of the Constitution atan appropriate stage with the requirement to record reasons and followthe prescribed procedure, on the ground that the liberty granted permitsthe High Court to record reasons post the earlier order of dismissaldated 12[th] February 2014, which is contrary to law and the Constitution.

7. The respondents, that is, the State of Bihar and the High Court,have not preferred any appeal and have accepted the decision.

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A8. Clauses (1) and (2) of Article 311 of the Constitution, read:

311. Dismissal, removal or reduction in rank of personsemployed in civil capacities under the Union or a State.—(1) Noperson who is a member of a civil service of the Union or an all-Indiaservice or a civil service of a State or holds a civil post under the UnionBor a State shall be dismissed or removed by an authority subordinateto that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removedor reduced in rank except after an inquiry in which he has been informedof the charges against him and given a reasonable opportunity of beingCheard in respect of those charges:

Provided that where it is proposed after such inquiry, to imposeupon him any such penalty, such penalty may be imposed on the basisof the evidence adduced during such inquiry and it shall not be necessaryto give such person any opportunity of making representation on theDpenalty proposed:

Provided further that this clause shall not apply—

(a) where a person is dismissed or removed or reduced inrank on the ground of conduct which has led to hisconviction on a criminal charge; or E

(b) where the authority empowered to dismiss or remove aperson or to reduce him in rank is satisfied that for somereason, to be recorded by that authority in writing, it is notreasonably practicable to hold such inquiry; or (c) wherethe President or the Governor, as the case may be, isFsatisfied that in the interest of the security of the State itis not expedient to hold such inquiry.”

Clause (1) states that persons employed in civil services or postsunder the Union or the States or members of the all-India service shallnot be dismissed, removed or reduced in rank by an authorityGsubordinate to that by which he/she was appointed. Clause (2) providesthat such a person could be dismissed or removed or reduced in rankonly after an inquiry in which he has been informed of the chargesagainst him and after being afforded a reasonable opportunity of beingheard in respect of those charges. The second proviso incorporatesHexceptions when the need for holding an inquiry under clause (2) can be dispensed with. Clause (b) of the second proviso to Article 311(2)can be invoked to impose a punishment of dismissal, removal, orreduction in rank on the satisfaction, to be recorded in writing, that itis not reasonably practicable to conduct an inquiry before imposing thepunishment. This Court in Jaswant Singh v. State of Punjab,[1] relyingon an earlier decision in Union of India v. Tulsiram Patel,[2] hasaffirmatively held that the obligation of the competent authority to recordreasons when passing an order under clause (b) to the second provisoto Article 311(2) is mandatory, and it was inter alia observed:

“5. …It was incumbent on the respondents to disclose to thecourt the material in existence at the date of the passing of theimpugned order in support of the subjective satisfaction recordedby respondent 3 in the impugned order. Clause (b) of the secondproviso to Article 311(2) can be invoked only when the authorityis satisfied from the material placed before him that it is notreasonably practicable to hold a departmental enquiry. This isclear from the following observation at page 270 of Tulsiramcase: (SCC p. 504, para 130)

“A disciplinary authority is not expected to dispense with adisciplinary inquiry lightly or arbitrarily or out of ulterior motivesor merely in order to avoid the holding of an inquiry or becausethe department’s case against the government servant is weakand must fail.”

9. In the present matter, the Division Bench vide the impugnedjudgment has as a fact found that the High Court had failed to recordsatisfaction in writing for dispensing with an inquiry before arriving atits decision to dismiss the judicial officers. For this reason, the order ofdismissal dated 12[th ]February 2014 passed by the Governor of the Stateof Bihar under clause (b) of the second proviso to Article 311(2) wasquashed and set aside. Consequently, the judicial officers were to bereinstated in service. This is what has been observed in the quotedportion of the final directions by the Division Bench, which refers tothe fact that “two” (sic-one) judicial officers had attained the age ofsuperannuation during the pendency of the writ petitions and, therefore,they would be deemed to be continuing in service for the limited purpose

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Aof enabling the disciplinary proceedings to continue. The other officer(s)would be deemed to be under suspension. The High Court was requiredto take a decision within two months and if no decision was taken, theproceedings would lapse and the judicial officers would be entitled toall consequential benefits as if the proceedings had been set aside inBentirety. It was directed that the judicial officer(s) who continued to bein service, would be paid subsistence allowance, and the retired wouldbe paid provisional pension to the extent of 25% forthwith.

10. The directions and observations of the judgment quoted abovedo not confer a new and unconventional right or power on the HighCCourt, instead clarifies what is an obvious and perspicuous consequenceof quashing the order of dismissal in the present case. The directionrequires the High Court to proceed in accordance with law and rightlydid not put any fetters on the course of action the High Court as adisciplinary authority would like to follow. Therefore, it is observed, moreout of abundant caution rather than as a typical direction, that the HighDCourt was entitled, if it deemed it appropriate and proper, to invoke thepower under clause (b) of the second proviso to Article 311(2) of theConstitution at an appropriate stage, after recording reasons andfollowing the prescribed procedure.

E11. Striking down and setting aside the earlier order dated 12[th]February, 2014 under clause (b) of the second proviso to Article 311(2)for failure to record reasons for dispensing with the departmental inquiryannuls the earlier order, which ceases to exist and stands obliterated,but does not adjudicate on the merits of the allegations so as to attractthe bar of res judicata. Conscious of the seriousness of the allegationsFand the reason for allowing the writ petition, the Division Bench wasjustified in not barring the High Court from fresh application of mindand from invoking clause (b) of the second proviso to Article 311(2) ifrequired and justified in accordance with law. The expression ‘atappropriate stage’ used by the Division Bench is not a direction forGinitiation of a regular departmental inquiry nor does it prohibit recourseto clause (b) to the second proviso of Article 311(2) of the Constitutionin accordance with law. We do not see such fetters and restrictionsplaced on the High Court by the Division Bench.

12. The judicial officers had referred to Mohinder Singh GillHand Another v. The Chief Election Commissioner, New Delhi and

Others[3] and East Coast Railway and Another v. Mahadev Appa Raoand Others[4] to assert that this Court had rejected the contention thatreasons under clause (b) of the second proviso to Article 311(2) couldbe subsequently recorded to support the order. The submission doesnot bolster the appellants’ case because in these decisions this Courthad refused to accept affidavits providing reasons for dispensing withthe inquiry, observing that these were post the dismissal order. Thereasons were submitted in the Court proceedings, and were notrecorded at the time of exercise of the power under clause (b) to thesecond proviso to Article 311(2) of the Constitution. As per the dictain Tulsiram Patel (supra) and Jaswant Singh (supra), the law in termsof clause (b) of the second proviso to Article 311(2) mandates that thereasons for dispensing with the inquiry must be recorded in writingbefore the order of dismissal.

13. Similarly reference to Chief Security Officer and Othersv. Singasan Rabi Das,[5]State of Orissa and Others v. DinabandhuBeheta and Others,[6]Sudesh Kumar v. State of Haryana andOthers,[7]Tarsem Singh v. State of Punjab and Others,[8]Reena Raniv. State of Haryana and Others,[9] and Risal Singh v. State ofHaryana and Others,[10] do not support the contention raised by thejudicial officers, but would support the contrary view. In these judgments,the orders under clause (b) to the second proviso of Article 311(2) ofthe Constitution were struck down for want of recorded reasons fordispensing with the departmental inquiry. Notwithstanding the quashing,this Court in several cases had expressly permitted the authorities toproceed further and take action in accordance with law. For example,in Reena Rani (supra), it was held, “12. In the result, the appeal is allowed. The impugned judgmentas also the order passed by the learned Single Judge are setaside and the writ petition filed by the appellant is allowed withthe direction that she shall be reinstated in service and given all

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consequential benefits. However, it is made clear that this ordershall not preclude the competent authority from taking actionagainst the appellant in accordance with law. At the same time,we deem it necessary to observe that liberty given by this Courtshall not be construed as a mandate for initiation of disciplinaryproceeding against the appellant and the competent authority shalltake appropriate decision after objectively considering the entirerecord.”

Similarly, in Risal Singh (supra), it was observed as under:

“10. Consequently, we allow the appeal and set aside the orderpassed by the High Court and that of the disciplinary authority.The appellant shall be deemed to be in service till the date ofsuperannuation. As he has attained the age of superannuation inthe meantime, he shall be entitled to all consequential benefits.The arrears shall be computed and paid to the appellant within aperiod of three months hence. Needless to say, the respondentsare not precluded from initiating any disciplinary proceedings, ifadvised in law. As the lis has been pending before the Court,the period that has been spent in Court shall be excluded for thepurpose of limitation for initiating the disciplinary proceedings asper rules. However, we may hasten to clarify that ourobservations herein should not be construed as a mandate to theauthorities to initiate the proceeding against the appellant. We mayfurther proceed to add that the State Government shall conductitself as a model employer and act with the objectivity which isexpected from it. There shall be no order as to costs.”

14. The second contention raised by the judicial officers is withreference to the earlier observation of the Division Bench while dealingwith the third issue or point (c) to the following effect:

“In the instant case, the High Court did undertake a preliminaryenquiry and got possession of certain materials; be it in the formof the paper clippings, report of the District Judge, Purnea orletter from the Home Ministry, Government of India. When itwas possible for the High Court to undertake such an enquiry, itwould have been equally possible to frame charges, and thenattempt to proceed with the departmental enquiry. It is only whenconducting of departmental enquiry was turning out to be a difficulttask, either at the inception or half way-through, that a decision could have been taken to dispense with the enquiry; by recordingspecific reasons. The judgments of the Hon’ble Supreme Courtin Tarsem Singh (supra) and Tulsi Ram Patel (supra) throwlight upon this. On applying the principles laid therein, it becomesclear that there is patent violation in the impugned proceedings.Therefore, we hold this point also in favour of the petitioners.”

Learned counsel, referring to the portion, submits that the DivisionBench has held that the departmental inquiry was possible and couldnot have been dispensed with.

15. The observations in our opinion are being misread as theafore-quoted portion refers to the legal position that normallydepartmental inquiry should be held. It also refers to the scenario wherea departmental inquiry cannot be conducted that is, “when conductingof departmental enquiry was turning out to be a difficult task”, in whichcase a “decision could have been taken to dispense with the enquiry;by recording specific reasons”. It is observed that the principles laiddown in Tulsiram Patel (supra) and Tarsem Singh (supra) have tobe kept in mind. Appropriate in this regard, would be a reference tothe following observations in Tulsiram Patel (supra), which read:

“130. The condition precedent for the application of clause (b)is the satisfaction of the disciplinary authority that “it is notreasonably practicable to hold” the inquiry contemplated by clause(2) of Article 311. What is pertinent to note is that the wordsused are “not reasonably practicable” and not “impracticable”.According to the Oxford English Dictionary “practicable”means “Capable of being put into practice, carried out in action,effected, accomplished, or done; feasible”. Webster’s Third NewInternational Dictionary defines the word “practicable” interalia as meaning “possible to practice or perform: capable of beingput into practice, done or accomplished: feasible”. Further, thewords used are not “not practicable” but “not reasonablypracticable”. Webster’s Third New International Dictionarydefines the word “reasonably” as “in a reasonable manner: to afairly sufficient extent”. Thus, whether it was practicable to holdthe inquiry or not must be judged in the context of whether itwas reasonably practicable to do so. It is not a total or absoluteimpracticability which is required by clause (b). What is requisiteis that the holding of the inquiry is not practicable in the opinion A

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Aof a reasonable man taking a reasonable view of the prevailingsituation.”

Thus, the authorities to invoke the power under clause (b) to thesecond proviso of Article 311(2) to dispense with a departmental inquirymust record a finding that such an inquiry cannot be conducted andBrecord specific reasons for the same. In this case, the Division Benchhad recorded the contention of the respondent- High Court as thedisciplinary authority that it would be impossible to assimilate, collectand produce direct evidence and material as the acts and misdeeds werein another country. The Division Bench having found that reasons hadnot been recorded for dispensing with the inquiry, has neither acceptedCnor rejected this contention of the High Court. It will not be appropriateand correct to interpret the decision of the Division Bench by readingone or more sentences of a paragraph in isolation. The entire judgmenthas to be read to understand the ratio and finding and the observationsmust be read in the context in which they have been made.D

16. Learned counsel appearing for Komal Ram and JitendraNath Singh had raised another contention relating to the power of theHigh Court to dispense with the inquiry under clause (b) of the secondproviso to Article 311 of the Constitution. The contention is that thispower exclusively vests with the Governor alone who has to satisfyEhimself and record in writing the reasons why it is not reasonablypractical to hold an inquiry. Reliance was placed on the followingobservations in the Constitutional Bench judgment of this Court in Stateof West Bengal v. Nripendra Nath Bagchi,[11]:

“...within the exercise of the control vested in the High Court,Fthe High Court can hold enquiries, impose punishments other thandismissal or removal, subject however to the conditions of service,to a right of appeal if granted by the conditions of service, andto the giving of an opportunity of showing cause as required byclause (2) of Article 311 unless such opportunity is dispensed withby the Governor acting under the provisos (b) and (c) to thatGclause.”

17. The contention misreads the ratio in Nripendra Nath Bagchi(supra), which rather holds to the contrary. Interpreting Articles 233and 235 of the Constitution, and on the aspect of ‘control’ of the High H11 AIR 1966 SC 447

Court in matters relating to the subordinate judiciary in Nripendra NathBagchi (supra), it was held:

“13. […] the history which lies behind the enactment of theseArticles indicate that “control” was vested in the High Court toeffectuate a purpose, namely, the securing of the independenceof the subordinate judiciary and unless it included disciplinarycontrol as well the very object would be frustrated. This aid toconstruction is admissible because to find out the meaning of alaw, recourse may legitimately be had to the prior state of thelaw, the evil sought to be removed and the process by which thelaw was evolved. The word “control”, as we have seen, wasused for the first time in the Constitution and it is accompaniedby the word “vest” which is a strong word. It shows that theHigh Court is made the sole custodian of the control over thejudiciary. Control, therefore, is not merely the power to arrangethe day to day working of the court but contemplates disciplinaryjurisdiction over the presiding Judge. Article 227 gives to the HighCourt superintendence over these courts and enables the HighCourt to call for returns etc. The word “control” in Article 235must have a different content. It includes something in additionto mere superintendence. It is control over the conduct anddiscipline of the judges. This conclusion is further strengthenedby two other indications pointing clearly in the same direction.The first is that the order of the High Court is made subject toan appeal if so provided in the law regulating the conditions ofservice and this necessarily indicates an order passed indisciplinary jurisdiction. Secondly, the words are that the HighCourt shall “deal” with the judge in accordance with his rules ofservice and the word “deal” also points to disciplinary and notmere administrative jurisdiction.

14. Articles 233 and 235 make a mention of two distinct powers.The first is power of appointments of persons, their postings andpromotion and the other is power of control. In the case of theDistrict Judges, appointments of persons to be and posting andpromotion are to be made by the Governor but the control overthe District Judge is of the High Court. We are not impressedby the argument that the term used is “District Court” becausethe rest of the Article clearly indicates that the word “court” isused compendiously to denote not only the court proper but alsothe presiding Judge. The latter part of Article 235 talks of the A

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man who holds the office. In the case of the judicial servicesubordinate to the District judge the appointment has to be madeby the Governor in accordance with the rules to be framed afterconsultation with the State Public Service Commission and theHigh Court but the power of posting, promotion and grant of leaveand the control of the courts are vested in the High Court. Whatis vested includes disciplinary jurisdiction. Control is useless if itis not accompanied by disciplinary powers. It is not to beexpected that the High Court would run to the Government orthe Governor in every case of indiscipline however small andwhich may not even require the punishment of dismissal orremoval. These Articles go to show that by vesting “control” inthe High Court the independence of the subordinate judiciary wasin view. This was partly achieved in the Government of IndiaAct, 1935 but it was given effect to fully by the drafters of thepresent Constitution. This construction is also in accord with theDirective Principles in Article 50 of the Constitution which reads:

“50. The State shall take steps to separate the judiciary from theexecutive in the public services of the State”.

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17. […] That the Governor appoints District Judges and theGovernor alone can dismiss or remove them goes without saying.That does not impinge upon the control of the High Court. It onlymeans that the High Court cannot appoint or dismiss or removeDistrict Judges. In the same way the High Court cannot use thespecial jurisdiction conferred by the two provisos. The High Courtcannot decide that it is not reasonably practicable to give a DistrictJudge an opportunity of showing cause or that in the interest ofthe security of the State it is not expedient to give such anopportunity. This the Governor alone can decide. That certainpowers are to be exercised by the Governor and not by the HighCourt does not necessarily take away other powers from the HighCourts. The provisos can be given their full effect without givingrise to other implications. It is obvious that if a case arose forthe exercise of the special powers under the two provisos, theHigh Court must leave the matter to the Governor. In thisconnection we may incidentally add that we have no doubt thatin exercising these special powers in relation to inquiries againstDistrict Judges, the Governor will always have regard to the opinion of the High Court in the matter. This will be so whoeverbe the inquiring authority in the State. But this does not lead tothe further conclusion that the High Court must not hold theenquiry any more than that the Governor should personally holdthe enquiry.”

18. The expression/words “within the exercise of the controlvested in the High Court, the High Court can hold enquiries,impose punishments other than dismissal or removal, subjecthowever to the conditions of service, to a right of appeal ifgranted by the conditions of service, and to the giving of anopportunity of showing cause as required by clause (2) of Article311 unless such opportunity is dispensed with by the Governoracting under the provisos (b) and (c) to that clause” is not todeny the High Court the authority to decide whether conditionsfor invoking clause (b) of the second proviso to Article 311(2)are satisfied, but recognises that the resolution andrecommendation of dismissal, removal or reduction in rank or fordispensing with the inquiry in terms of clause (b) [also clause(c)] of the second proviso to Article 311(2) would require an orderof the Governor. The observations do not hold that the Governor,and not the High Court, is vested with the jurisdiction and is thecompetent authority to decide whether the inquiry should bedispensed with upon recording of satisfaction in terms of clause(b) of the second proviso to Article 311(2) of the Constitution.The decision refers to Article 235 of the Constitution and statesthat the control vests with the High Court, albeit order ofappointment, dismissal or removal is passed and made in thename of the Governor who passes the formal order be it a caseof appointment, dismissal or removal. This is clear from the lastportion of paragraph 17 in Nirpendra Nath Bagchi (supra)which records “that the Governor will always have regard to theopinion of the High Court in the matter. This will be the inquiringauthority in the State. But this does not lead to the furtherconclusion that the High Court must not hold the enquiry any morethan that the Governor should personally hold the enquiry.”

This legal position with reference to Articles 233 to 236 and‘control’ of the High Court is beyond doubt as was explained in AjitKumar v. State of Jharkhand[12]in the following words:

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“15. The next contention raised by the appellant was that theaforesaid power under Article 311(2)(b) of the Constitution couldnot have been invoked by the High Court. The aforesaidsubmission also cannot be accepted in view of the fact that aSubordinate Judge is also a Judge within the meaning of theprovision of Article 233 of the Constitution of India read withthe provisions of Articles 235 and 236 of the Constitution of India.

16. Article 233 clearly lays down that appointments andpromotions of District Judges in any State are to be made bythe Governor of the State in consultation with the High Courtexercising jurisdiction in relation to such State. The aforesaidprovision, like Articles 234 to 236, has been incorporated in theConstitution of India inter alia to secure the independence of thejudiciary from the executive and the same deals with the scopeof separation of power of the three wings of the State.

17. It cannot be disputed that the power under the aforesaidarticles [Articles 233-236] is to be exercised by the Governor inconsultation with the High Court. Under the scheme of the IndianConstitution the High Court is vested with the power to takedecision for appointment of the subordinate judiciary underArticles 234 to 236 of the Constitution. The High Court is alsovested with the power to see that the high traditions and standardsof the judiciary are maintained by the selection of proper personsto run the District Judiciary. If a person is found not worthy tobe a member of the judicial service or it is found that he hascommitted a misconduct he could be removed from the serviceby following the procedure laid down. Power could also beexercised for such dismissal or removal by following thepreconditions as laid down under Article 311(2)(b) of theConstitution of India. Even for imposing a punishment ofdismissal or removal or reduction in rank, the High Court canhold disciplinary proceedings and recommend such punishments.The Governor alone is competent to impose such punishmentupon persons coming under Articles 233-235 read with Article311(2) of the Constitution of India. Similarly, such a power couldbe exercised by the High Court to dispense with an enquiryfor a reason to be recorded in writing and such dispensationof an enquiry for valid reasons when recommended to theGovernor, it is within the competence of the Governor toissue such orders in terms of the recommendation of the High Court in exercise of power under Article 311(2)(b) of theConstitution of India.” (emphasis supplied)

19. During the course of hearing before us, it was pointed outthat the Full Court had subsequently again recommended dismissal ofthe judicial officers dispensing with the departmental inquiry in theexercise of power under clause (b) of the second proviso to Article311(2) of the Constitution vide recommendation dated 13[th] August 2015.However, the matter is pending with the State Government and we wereinformed that no final order has been passed in view of the stay orderdated 11[th] September 2015 passed by this Court. It was also initiallyurged and argued that the order of dismissal under clause (b) of thesecond proviso to Article 311(2) of the Constitution cannot be passedagainst the officer who has retired. We were informed that the othertwo officers had also retired during the pendency of the present appeals.Therefore, at best the pensionary and retirement benefits can beforfeited and denied, but an order of dismissal from service by invokingpowers under clause(b) of the second proviso to Article 311(2) cannotbe passed against the appellants - judicial officers. Subsequently, thecounsel for the appellants - judicial officers did not press this contentionas the matter is still pending before the State authorities, and the finalorder is yet to be passed. A challenge cannot be made in anticipation.Further, this challenge was also not the subject matter of the writpetitions in which the impugned order was passed and would constitutean entirely new cause of action. Counsels for the appellants - judicialofficers have, accordingly, reserved their right to challenge the orderif, and as and when it is passed. In view of the aforesaid position, wewould not go into the merits of the said contention and leave the issueopen. It is equally open to the respondents, that is, the State of Biharand the High Court to examine this contention.

20. Recording the aforesaid, the appeals are dismissed and thestay order is vacated, albeit we clarify that the respondents, in termsof the judgment passed by the Division Bench, would be required toproceed in accordance with law. We also clarify that we haveexpressed no opinion on the merits of the allegations made against thethree judicial officers. There would be no order as to costs.

Divya Pandey

Appeals dismissed.

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