AJIT KUMAR Vs STATE OF JHARKHAND .
Bench: MUKUNDAKAM SHARMA,ANIL R. DAVE, , ,
Case number: C.A. No.-002420-002420 / 2011
Diary number: 3939 / 2008
Advocates: K. S. RANA Vs
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2420 OF 2011 [Arising out of S.L.P (C) No. 12141 of 2008]
Ajit Kumar …. Appellant
Versus
State of Jharkhand & Ors. ...Respondents
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
1. Leave granted.
2. This appeal is directed against the judgment and order
dated 02.11.2007 passed by the Jharkhand High Court
dismissing the writ petition filed by the appellant.
3. The appellant herein was working as sub-ordinate Judge
in Garhwa, Jharkhand when an order was issued by the
Governor of Jharkhand removing him from service by an order
issued on 31.07.2003 on the basis of a resolution of the Full
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Court of the High Court of Jharkhand recommending his
removal from service.
4. The appellant herein challenged the legality of the
aforesaid order before the Jharkhand High Court by filing a
writ petition contending inter alia that the High Court does not
have any power to dispense with an enquiry as envisaged for
the purpose of removal of a judicial officer like the appellant
and therefore, the impugned order was illegal and without
jurisdiction. It was also submitted that there was no evidence
on record to show that the appellant was guilty of any
misconduct and therefore the order of removal was illegal and
particularly also because of the fact that no notice was issued
to the appellant before his removal from service thereby
violating the principles of natural justice. It was also
submitted that there was a total non-application of mind in
passing the impugned order of removal by exercise of power
under proviso (b) to Article 311(2) of the Constitution of India.
5. The aforesaid submissions were considered by the High
Court in the light of the material available on record. The High
Court found that the appellant was promoted as sub-ordinate
Judge, Garhwa and that on 05.05.2003, the then Inspecting
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Judge inspected the Garhwa Civil Court and inspected the
records relating to the appellant and submitted his confidential
report to the then Chief Justice of the Jharkhand High Court
against the appellant stating that the appellant did not use to
prepare judgments on his own, rather he used to get it
prepared through some body else before delivering the
judgments. It was also found that the then Chief Justice, after
going through the report, referred the matter to the Full Court
for considering the appropriate action. On 18.06.2003, the Full
Court, after considering the confidential report and the report
of the Inspecting Judge, resolved that the appellant can be
recommended for removal from the service, without any
enquiry as it was felt that it was not practicable in the interest
of the institution to hold an inquiry since it may lead to the
question of validity of several judgments rendered by him.
6. Consequently the Full Court recommended for invocation
of the proviso (b) to Article 311(2) of the Constitution of India to
dispense with the inquiry as against the appellant to remove
him from service, following which the Governor while exercising
his power issued the impugned order of removal of the
appellant from the service which was under challenge in the
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writ petition before the High Court. The High Court upheld the
order of removal passed by the Governor holding that the order
was passed on the recommendation of the resolution of the Full
Court by invoking the proviso (b) to Article 311(2) of the
Constitution of India which permits the dispensation of an
enquiry on the grounds that it is not reasonably practical to
hold an enquiry. The High Court also held that the aforesaid
exercise of power under Article 311(2) (b) of the Constitution of
India is permissible and therefore the action taken removing
the appellant from service was legal and justified.
7. Being aggrieved by the aforesaid order the present appeal
was filed on which we have heard learned counsel appearing
for the parties.
8. Within the scheme of the Constitution of India, provisions
relating to public service may be found in Articles 309, 310 and
311. It is important to note that these provisions (namely Arts.
310 and 311) afford protection to public servants from being
dismissed, removed or reduced in rank without holding a
proper inquiry or giving a hearing.
9. Article 311 provides for the protection to public servant
against punitive action being taken against them by an
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authority subordinate to one who appointed him. Exceptions to
Article 311 has been provided in clause (a), (b) and (c) to clause
(2) of Article 311 itself, which provide that the said Article shall
not apply to such employees who have been punished for
conviction in a criminal case, where inquiry is not practicable
to be held for reasons to be recorded in writing or where the
President or the Governor as the case may be is satisfied that
such an inquiry is not to be held in the interest of the security
of the State.
10. In order to appreciate the power to be exercised under
Article 311 of the Constitution of India it would be appropriate
to look at Article 310 of the Constitution of India. Under the
doctrine of pleasure, which has been recognized under our
Constitutional framework, all civil posts under the Government
are held at the pleasure of the Government under which they
are held and are terminable at its will. The aforesaid power is
what the doctrine of pleasure defines, which was recognized in
the United Kingdom and also received the constitutional
sanction under our Constitution in the light of Article 310 of
the Constitution of India. However, it is to be noticed that in
India the same is subject to other provisions of the Constitution
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which include the restrictions imposed by Article 310 (2) and
Article 311(1) (2). Therefore, under the Indian constitutional
framework, dismissal of civil servants must comply with the
procedure laid down in Article 311 and Article 310(1) cannot be
invoked independently with the object of justifying a
contravention of Article 311(2). There is an exception provided
by way of incorporation of Article 311 (2) with sub-clauses (a),
(b) and (c). No such enquiry is required to be conducted for the
purposes of dismissal, removal or reduction in rank of persons
when the same related to dismissal on the ground of conviction
or where it is not practicable to hold an enquiry for the reasons
to be recorded in writing by that authority empowered to
dismiss or removed a person or reduce him in rank or it is not
practicable to hold an enquiry for the security of the State.
These three exceptions are well recognized for dispensing with
an enquiry, which is required to be conducted under Article 311
of the Constitution of India when the authority takes a decision
for dismissal or removal or reduction in rank in writing. In
other words, although there is a pleasure doctrine, however,
the same cannot be said to be absolute and the same is subject
to the conditions that when a government servant is to be
dismissed or removed from service or he is reduced in rank, a
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departmental enquiry is required to be conducted to enquire
into his misconduct and only after holding such an enquiry
and in the course of such enquiry if he is found guilty then only
a person can be removed or dismissed from service or reduced
in rank. As stated herein such constitutional provision for
holding an enquiry as set out under Article 311 of the
Constitution of India could also be dispensed with under the
exceptions provided to Article 311(2) of the constitution where
clause (a) relates to a case where upon a conviction of a person
by a criminal court on certain charges he could be removed
from service without holding an enquiry. Similarly, under
clause (c) an enquiry to be held against the government
employee could be dispensed with if it is not possible to hold
such an enquiry in the interest of the security of the State.
Sub-clause (b) on the other hand provides that such an enquiry
could be dispensed with by the concerned authority, after
recording reasons, for which it is not practicable to hold an
enquiry. The aforesaid power is an absolute power of the
disciplinary authority who after following the procedure laid
down therein could resort to such extra ordinary power
provided it follows the pre-conditions laid down therein
meaningfully and effectively.
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11. In the case in hand, the officer concerned was working as
sub-ordinate Judge and during the course of inspection by the
Inspecting Judge it was found that he did not use to prepare
judgments on his own, he used to get it prepared through some
body else before delivering the judgments. Undisputedly, the
inspecting Judge submitted his report to the Chief Justice of
the High Court. The High Court considered the said report and
thereafter was of the opinion that it is not possible to hold an
enquiry in the case of the appellant and that holding of such
enquiry should be dispensed with in view of the fact that if an
enquiry is held the same may lead to the question of validity of
several judgments rendered by the appellant. The aforesaid
reason recorded by the High Court was a legal and valid ground
for not holding an enquiry. There was therefore also no
necessity of giving him any opportunity of hearing as the scope
of holding an enquiry and giving him an opportunity of hearing
was specifically dispensed with.
12. Consequently, the High Court recommended the removal
of the appellant from service. Subsequent to that, the
Governor decided to invoke the provisions of Article 311(2) (b) of
the Constitution of India as holding of enquiry may lead to
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question of the validity of several judgments delivered by the
appellant. The procedure and the pre-conditions laid down for
invoking the extra-ordinary power under Article 311(2) (b)
having been complied with and properly exercised within the
parameters of the provisions, the order passed by the
competent authority removing the appellant from the services
cannot be held to be without jurisdiction and power.
13. The next contention raised by the appellant was that the
aforesaid power under Article 311(2) (b) of the Constitution
could not have been invoked by the High Court. The aforesaid
submission also cannot be accepted in view of the fact that a
sub-ordinate judge is also a judge within the meaning of the
provision of Article 233 of the Constitution of India read with
the provisions of Articles 235 and 236 of the Constitution of
India.
14. Article 233 clearly lays down that appointments and
promotions of district judges in any State is to be made by the
Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State. The aforesaid
provision, like Articles 234 - 236, have been incorporated in the
Constitution of India inter alia to secure the independence of
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judiciary from the executive and the same deals with the scope
of separation of power of the three wings of the State.
15. It cannot be disputed that the power under the aforesaid
Articles is to be exercised by the Governor in consultation with
the High Court. Under the scheme of the Indian Constitution
the High Court is vested with the power to take decision for
appointment of the sub-ordinate judiciary under Articles 234 to
236 of the Constitution. The High Court is also vested with the
power to see that the high traditions and standards of the
judiciary are maintained by the selection of proper persons to
run the district judiciary. If a person is found not worthy to be
a member of the judicial service or it is found that he has
committed a misconduct he could be removed from the service
by following the procedure laid. Power could also be exercised
for such dismissal or removal by following the pre-conditions as
laid down under Article 311(2) (b) of the Constitution of India.
Even for imposing a punishment of dismissal or removal or
reduction in rank, the High Court can hold disciplinary
proceedings and recommend such punishments. The Governor,
alone is competent to impose such punishment upon persons
coming under Articles 233 - 235 read with Article 311(2) of the
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Constitution of India. Similarly, such a power could be
exercised by the High Court to dispense with an enquiry for a
reason to be recorded in writing and such dispensation of an
enquiry for valid reasons when recommended to the Governor,
it is within the competence of the Governor to issue such
orders in terms of the recommendation of the High Court in
exercise of power under Article 311(2) (b) of the Constitution of
India.
16. Therefore, we find no reason to interfere with the action
taken against the appellant nor we find any infirmity in the
impugned judgment and order of the High Court. All the
contentions raised are found to be without merit.
17. Accordingly, we do not find any merit in this appeal and
we dismiss the same but leaving the parties to bear their own
costs.
.............................................J [Dr. Mukundakam Sharma]
.............................................J [Anil R. Dave]
New Delhi, March 10, 2011.
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