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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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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