REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3105 OF 2017

HARI NIWAS GUPTA …..            APPELLANT(S)

VERSUS

STATE OF BIHAR AND ANOTHER …..        RESPONDENT(S)

W I T H

CIVIL APPEAL NOS. 3106-3107 OF 2017

KOMAL RAM AND JITENDRA NATH SINGH …..            APPELLANTS

VERSUS

STATE OF BIHAR AND ANOTHER …..        RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, J.

This  common  judgment  would  dispose  of  the  above-

captioned appeals preferred by three judicial officers namely, Hari

Niwas Gupta,  Komal  Ram and Jitendra Nath Singh,  who were

working  as  Principal  Judge,  Family  Court,  Samastipur;  Chief

Judicial  Magistrate,  Araria;  and  ad-hoc  Additional  District  and

Sessions Judge, Araria, respectively.  

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2. On 29th January 2013, a news item was published in a local daily

(Udghosh),  that  on  26th January  2013  the  Nepal  Police  had

apprehended three judicial officers belonging to the State of Bihar

as they were allegedly found in a compromising position with three

Nepali women in a guest house at Biratnagar, Nepal. Thereupon

the judicial officers were brought to the district  police station in

Nepal,  but  were released on account  of  pressure from various

circles.  On  learning  about  the  incident,  the  High  Court  of

Judicature  at  Patna (‘High  Court’  for  short)  had addressed the

letter dated 18th February 2013 to the District and Sessions Judge,

Purnea to submit a report in the matter. The District and Sessions

Judge vide  report  dated  24th February  2013 had informed that

during the inquiry the three judicial officers had denied having left

India for Nepal. Komal Ram had claimed that he was in Purnea,

and in the process of vacating his quarters on transfer.  The report

had made reference to another news item published by the same

daily  on 22nd February  2013,  expressing regret  over  erroneous

reportage and that the Superintendent of Police, Araria appeared

to have held a bias against the judicial officers.  After receipt of the

report,  the High Court had addressed a letter to the Ministry of

Home  Affairs,  Government  of  India  to  collect  and  ascertain

information,  details  and  records.  By  communication  dated  20 th

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June  2013,  the  Deputy  Secretary,  Ministry  of  Home  Affairs,

Government of India, had informed the High Court that the mobile

phones of the judicial officers were simultaneously switched off for

a long time on 26th and 27th January 2013 and when the phones

were active during that period, they were within the range of the

tower at Forbesganj town, which indicated that the judicial officers

were together in proximity to Nepal, and not at the place of their

posting. The hotel bill submitted and relied upon by Komal Ram to

support his claim that he was staying at a hotel in Purnea between

26th and 27th January 2013 was considered to be fabricated based

on the handwriting and Komal Ram’s signature on the bill. Further,

the hotel was not of the standard where a judicial officer of Komal

Ram’s rank would have stayed.  

3. The Standing Committee of the High Court in its meeting held on

5th February, 2014 had resolved that the judicial officers should be

placed under suspension and also that they should be dismissed

from service without an inquiry in exercise of power under clause

(b) of the second proviso to Article 311(2) of the Constitution of

India,  read-with  Rules  14  and  20  of  the  Bihar  Government

Servants (Classification, Control and Appeal) Rules, 2005. At the

Full Court of the judges of the High Court held on 10 th February,

2014,  the  recommendation  of  the  Standing  Committee  was

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accepted and Full Court resolution was passed for dismissal of the

judicial officers from judicial service in the State Government of

Bihar,  dispensing  with  the  disciplinary  proceedings  by  invoking

clause  (b)  of  the  second  proviso  to  Article  311(2)  of  the

Constitution of India.  The recommendation of the Full Court was

accepted by the State Government and vide common order dated

12th February 2014 issued by the Governor of the State of Bihar

the judicial officers were dismissed from service.

  4. The judicial officers had challenged the dismissal order by filing

separate writ petitions, which were allowed by the Division Bench

of the High Court (‘Division Bench’ for short), vide judgment dated

19th May 2015, primarily on the ground that  the Full  Court  had

contravened clause (b) of the second proviso to Article 311(2) of

the Constitution by not recording reasons for dispensing with the

disciplinary inquiry at the time of recommending dismissal of the

judicial officers.  The note relied upon by the Registry of the High

Court as purportedly recording 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  to  show  that  any  reasons  were

recorded for dispensing with the disciplinary proceedings.

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5. While  setting  aside  the  order  of  dismissal,  in  the  case  of  the

judicial  officers,  dated  12th February  2014 for  failure  to  record

reasons for dispensing with the inquiry, the Division Bench had

given the following liberty and discretion to the High Court:

“The  writ  petitions  are,  accordingly,  allowed,  and  the common order 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 2nd proviso to Article 311  (2)  of  the  Constitution  of  India,  it  shall  be  under obligation to record reasons, at the appropriate stage and follow the prescribed procedure.

It is brought to our notice that two (sic- one) of the officers have  attained  the  age  of  superannuation,  during  the pendency of the writ petitions.  We direct that as a result of the judgment in these writ petitions, the petitioner, who is already  in  service,  shall  be  deemed  to  be  under suspension,  and the  other  two would  be  deemed to  be continuing in service for the limited purpose of enabling the departmental  proceedings  to  continue.   The  High  Court shall take a decision in this behalf, within a period of two months from today.  If no decision is taken in this regard, the proceedings would lapse and the petitioners would be entitled for  all  the consequential  benefits,  as though the proceedings have been set aside in their entirety.  If, on the  other  hand,  the  proceedings  are  initiated,  the petitioners shall await the outcome thereof.  While the one who is in service shall be paid subsistence allowance, the other two shall be paid provisional pension to the extent of 25%, forthwith.

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

6. The judicial officers have challenged this afore-quoted portion and

the liberty granted to the High Court to invoke the power under

clause  (b)  of  the  second  proviso  to  Article  311(2)  of  the

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Constitution at an appropriate stage with the requirement to record

reasons and follow the prescribed procedure, on the ground that

the liberty granted permits the High Court to record reasons post

the earlier order of dismissal dated 12th 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.

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

311.  Dismissal,  removal  or  reduction  in  rank  of persons employed in civil capacities under the Union or a  State.—(1)  No person who is  a member  of  a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

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

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

Provided further that this clause shall not apply—

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(a) where  a  person  is  dismissed  or  removed  or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or  

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

Clause (1) states that persons employed in civil services or

posts under the Union or the States or members of the all-India

service shall not be dismissed, removed or reduced in rank by an

authority  subordinate  to  that  by  which  he/she  was  appointed.

Clause (2)  provides that  such a  person could  be dismissed or

removed or reduced in rank only after an inquiry in which he has

been informed of the charges against him and after being afforded

a  reasonable  opportunity  of  being  heard  in  respect  of  those

charges.  The second proviso incorporates exceptions 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,  or

reduction in rank on the satisfaction, to be recorded in writing, that

it  is  not  reasonably  practicable  to  conduct  an  inquiry  before

imposing the punishment. This Court in Jaswant Singh v. State

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of Punjab,1 relying on an earlier decision in  Union of India v.

Tulsiram Patel,2 has affirmatively held that the obligation of the

competent  authority  to  record  reasons  when  passing  an  order

under  clause  (b)  to  the  second  proviso  to  Article  311(2)  is

mandatory, and it was inter alia observed:

“5. …It was incumbent on the respondents to disclose to the  court  the  material  in  existence  at  the  date  of  the passing of the impugned order in support of the subjective satisfaction  recorded  by  respondent  3  in  the  impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material  placed  before  him that  it  is  not  reasonably practicable  to hold a departmental  enquiry.  This  is clear from the  following  observation  at  page  270  of  Tulsiram case: (SCC p. 504, para 130)

“A  disciplinary  authority  is  not  expected  to dispense  with  a  disciplinary  inquiry  lightly  or arbitrarily or out of ulterior motives or merely in order  to  avoid  the  holding  of  an  inquiry  or because  the  department’s  case  against  the government servant is weak and must fail.”

9. In  the  present  matter,  the  Division  Bench  vide  the  impugned

judgment has as a fact found that the High Court had failed to

record satisfaction in writing for dispensing with an inquiry before

arriving  at  its  decision  to  dismiss  the  judicial  officers.  For  this

reason, the order of dismissal dated 12th February 2014 passed by

the Governor of the State of Bihar under clause (b) of the second

proviso  to  Article  311(2)  was  quashed  and  set  aside.

Consequently, the judicial officers were to be reinstated in service.

1  (1991) 1 SCC 362 2  (1985) 3 SCC 398  

Civil Appeal No. 3105 of 2017 & Ors. Page 8 of 23

This is what has been observed in the quoted portion of the final

directions by the Division Bench, which refers to the fact that “two”

(sic-one) judicial officers had attained the age of superannuation

during  the  pendency  of  the  writ  petitions  and,  therefore,  they

would  be  deemed  to  be  continuing  in  service  for  the  limited

purpose of enabling the disciplinary proceedings to continue.  The

other officer(s)  would be deemed to be under suspension.  The

High Court was required to take a decision within two months and

if  no decision was taken, the proceedings would lapse and the

judicial officers would be entitled to all consequential benefits as if

the proceedings had been set aside in entirety. It was directed that

the judicial officer(s) who continued to be in service, would be paid

subsistence allowance, and the retired would be paid provisional

pension to the extent of 25% forthwith.

10. The directions and observations of the judgment quoted above do

not confer a new and unconventional right or power on the High

Court,  instead  clarifies  what  is  an  obvious  and  perspicuous

consequence of  quashing the order  of  dismissal  in the present

case.  The  direction  requires  the  High  Court  to  proceed  in

accordance with  law and rightly  did  not  put  any fetters  on the

course of action the High Court as a disciplinary authority would

like  to  follow.  Therefore,  it  is  observed,  more  out  of  abundant

Civil Appeal No. 3105 of 2017 & Ors. Page 9 of 23

caution rather than as a typical direction, that the High Court was

entitled, if it deemed it appropriate and proper, to invoke the power

under clause (b)  of  the second proviso to Article  311(2) of  the

Constitution at an appropriate stage, after recording reasons and

following the prescribed procedure.   

11. 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  inquiry  annuls  the  earlier  order,  which  ceases  to

exist and stands obliterated, but does not adjudicate on the merits

of  the  allegations  so  as  to  attract  the  bar  of  res  judicata.

Conscious of the seriousness of the allegations and the reason for

allowing the writ petition, the Division Bench was justified in not

barring the High Court  from fresh application of mind and from

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 a direction for

initiation  of  a  regular  departmental  inquiry  nor  does  it  prohibit

recourse to clause (b) to the second proviso of Article 311(2) of

the Constitution in  accordance with law.   We do not  see such

fetters and restrictions placed on the High Court by the Division

Bench.

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12. The  judicial officers  had referred  to  Mohinder  Singh Gill  and

Another v. The Chief Election Commissioner, New Delhi and

Others3 and  East  Coast  Railway  and  Another  v.  Mahadev

Appa Rao and Others4 to assert that this Court had rejected the

contention that reasons under clause (b) of the second proviso to

Article  311(2)  could  be  subsequently  recorded  to  support  the

order.  The  submission  does  not  bolster  the  appellants’  case

because  in  these  decisions  this  Court  had  refused  to  accept

affidavits  providing  reasons  for  dispensing  with  the  inquiry,

observing that these were post the dismissal order. The reasons

were submitted in the Court proceedings, and were not recorded

at the time of exercise of the power under clause (b) to the second

proviso to Article 311(2) of the Constitution.  As per the dicta in

Tulsiram Patel (supra) and  Jaswant Singh (supra), the law in

terms  of  clause  (b)  of  the  second  proviso  to  Article  311(2)

mandates that the reasons for dispensing with the inquiry must be

recorded in writing before the order of dismissal.  

13. Similarly  reference  to  Chief  Security  Officer  and  Others  v.

Singasan  Rabi  Das,5 State  of  Orissa  and  Others  v.

3  (1978) 1 SCC 405 4  (2010) 7 SCC 678 5  (1991) 1 SCC 729

Civil Appeal No. 3105 of 2017 & Ors. Page 11 of 23

Dinabandhu Beheta and Others,6 Sudesh Kumar v. State of

Haryana and Others,7 Tarsem Singh v. State of Punjab and

Others,8 Reena  Rani  v.  State  of  Haryana  and  Others,9 and

Risal Singh v. State of Haryana and Others,10 do not support

the contention raised by the judicial officers, but would support the

contrary view. In these judgments, the orders under clause (b) to

the  second  proviso  of  Article  311(2)  of  the  Constitution  were

struck down for want of recorded reasons for dispensing with the

departmental inquiry. Notwithstanding the quashing, this Court in

several cases had expressly permitted the authorities to proceed

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 judgment as also the order passed by the learned Single Judge  are  set  aside  and  the  writ  petition  filed  by  the appellant  is  allowed with  the  direction  that  she shall  be reinstated in service and given all consequential benefits. However, it is made clear that this order shall not preclude the  competent  authority  from  taking  action  against  the appellant  in  accordance with law.  At the same time,  we deem it  necessary  to  observe  that  liberty  given  by  this Court shall not be construed as a mandate for initiation of disciplinary  proceeding  against  the  appellant  and  the competent  authority  shall  take appropriate  decision after objectively considering the entire record.”

6  (1997) 10 SCC 383 7  (2005) 11 SCC 525 8  (2006) 13 SCC 581 9  (2012) 10 SCC 215 10  (2014) 13 SCC 244

Civil Appeal No. 3105 of 2017 & Ors. Page 12 of 23

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

“10. Consequently, we allow the appeal and set aside the order passed by the High Court and that of the disciplinary authority. The appellant shall be deemed to be in service till the date of superannuation. As he has attained the age of superannuation in the meantime, he shall be entitled to all consequential benefits. The arrears shall be computed and paid to the appellant within a period of three months hence.  Needless  to  say,  the  respondents are  not precluded  from initiating  any  disciplinary  proceedings,  if advised in  law.  As the lis  has  been pending  before  the Court,  the period that  has been spent  in  Court  shall  be excluded  for  the  purpose  of  limitation  for  initiating  the disciplinary  proceedings as per rules.  However,  we may hasten to clarify that our observations herein should not be construed as a mandate to the authorities to initiate the proceeding against the appellant. We may further proceed to add that the State Government shall conduct itself as a model  employer  and  act  with  the  objectivity  which  is expected from it. There shall be no order as to costs.”

14. The  second  contention  raised  by  the  judicial  officers  is  with

reference to the earlier observation of the Division Bench while

dealing with the third issue or point (c) to the following effect:

“In  the  instant  case,  the  High  Court  did  undertake  a preliminary  enquiry  and  got  possession  of  certain materials; be it in the form of the paper clippings, report of the District Judge, Purnea or letter from the Home Ministry, Government of India.  When it was possible for the High Court to undertake such an enquiry,  it  would have been equally  possible  to  frame  charges,  and  then  attempt  to proceed with  the departmental  enquiry.   It  is  only  when conducting of departmental enquiry was turning out to be a difficult  task,  either  at  the inception or  half  way-through, that a decision could have been taken to dispense with the enquiry; by recording specific reasons.  The judgments of the Hon’ble Supreme Court in  Tarsem Singh (supra) and Tulsi Ram Patel (supra) throw light upon this.  On applying the principles laid therein,  it  becomes clear that there is patent violation in the impugned proceedings.  Therefore, we hold this point also in favour of the petitioners.”

Civil Appeal No. 3105 of 2017 & Ors. Page 13 of 23

Learned counsel, referring to the portion, submits that the Division

Bench has held that the departmental inquiry was possible and

could not have been dispensed with.  

15. The observations in our opinion are being misread as the afore-

quoted  portion  refers  to  the  legal  position  that  normally

departmental inquiry should be held. It also refers to the scenario

where a departmental inquiry cannot be conducted that is, “when

conducting of departmental enquiry was turning out to be a difficult

task”,  in  which  case  a  “decision  could  have  been  taken  to

dispense with  the  enquiry;  by  recording  specific  reasons”.  It  is

observed that the principles laid down in  Tulsiram Patel (supra)

and Tarsem Singh (supra) have to be kept in mind. Appropriate in

this regard, would be a reference to the 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 not reasonably practicable to hold” the inquiry contemplated  by  clause  (2)  of  Article  311.  What  is pertinent  to  note  is  that  the  words  used  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 New International Dictionary defines the word  “practicable”  inter  alia  as  meaning  “possible  to practice or perform: capable of being put into practice, done  or  accomplished:  feasible”.  Further,  the  words

Civil Appeal No. 3105 of 2017 & Ors. Page 14 of 23

used  are  not  “not  practicable”  but  “not  reasonably practicable”.  Webster’s  Third  New  International Dictionary defines  the  word  “reasonably”  as  “in  a reasonable manner:  to a fairly sufficient extent”.  Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable  to  do  so.  It  is  not  a  total  or  absolute impracticability which is required by clause (b). What is requisite  is  that  the  holding  of  the  inquiry  is  not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.”

Thus, the authorities to invoke the power under clause (b) to

the  second  proviso  of  Article  311(2)  to  dispense  with  a

departmental  inquiry must record a finding that  such an inquiry

cannot be conducted and record specific reasons for the same. In

this case, the Division Bench had recorded the contention of the

respondent- High Court as the disciplinary authority that it would

be impossible to assimilate, collect and produce direct evidence

and material as the acts and misdeeds were in another country.

The  Division  Bench  having  found  that  reasons  had  not  been

recorded for dispensing with the inquiry, has neither accepted nor

rejected this contention of the High Court. It will not be appropriate

and  correct  to  interpret  the  decision  of  the  Division  Bench  by

reading one or more sentences of a paragraph in isolation. The

entire judgment has to be read to understand the ratio and finding

and the observations must be read in the context in which they

have been made.  

Civil Appeal No. 3105 of 2017 & Ors. Page 15 of 23

16. Learned  counsel  appearing  for  Komal  Ram and  Jitendra  Nath

Singh had raised another contention relating to the power of the

High Court to dispense with the inquiry under clause (b) of the

second proviso to Article 311 of the Constitution. The contention is

that this power exclusively vests with the Governor alone who has

to satisfy himself and record in writing the reasons why it is not

reasonably practical to hold an inquiry.    Reliance was placed on

the following observations in the Constitutional Bench judgment of

this Court in State of West Bengal v. Nripendra Nath Bagchi,11:

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

17. The  contention  misreads  the  ratio  in  Nripendra  Nath  Bagchi

(supra),  which rather  holds to the contrary.  Interpreting Articles

233 and 235 of the Constitution, and on the aspect of ‘control’ of

the High Court in matters relating to the subordinate judiciary in

Nripendra Nath Bagchi (supra), it was held:  

“13. […] the history which lies behind the enactment of these Articles indicate that “control” was vested in the

11  AIR 1966 SC 447

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High  Court  to  effectuate  a  purpose,  namely,  the securing  of  the  independence  of  the  subordinate judiciary and unless it included disciplinary control as well  the  very  object  would  be  frustrated.  This  aid  to construction  is  admissible  because  to  find  out  the meaning of a law, recourse may legitimately be had to the prior state of the law, the evil sought to be removed and the process by which the law was evolved.  The word “control”, as we have seen, was used for the first time in the Constitution and it is accompanied by the word “vest” which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court but  contemplates  disciplinary  jurisdiction  over  the presiding Judge.  Article 227 gives to the High Court superintendence  over  these  courts  and  enables  the High Court to call for returns etc. The word “control” in Article 235 must have a different  content.  It  includes something  in  addition  to  mere  superintendence.  It  is control over the conduct and discipline of the judges. This  conclusion  is  further  strengthened by two other indications pointing clearly in the same direction. The first is that the order of the High Court is made subject to an appeal  if  so provided in the law regulating the conditions of service and this necessarily indicates an order passed in disciplinary jurisdiction. Secondly, the words  are  that  the  High  Court  shall  “deal”  with  the judge in accordance with his rules of service and the word  “deal”  also  points  to  disciplinary  and  not  mere administrative jurisdiction.

14. Articles 233 and 235 make a mention of two distinct powers. The first is power of appointments of persons, their postings and promotion and the other is power of control.  In  the  case  of  the  District  Judges, appointments  of  persons  to  be  and  posting  and promotion  are  to  be  made  by  the  Governor  but  the control over the District Judge is of the High Court. We are not impressed by the argument that the term used is “District Court” because the rest of the Article clearly indicates that the word “court” is used compendiously to  denote  not  only  the  court  proper  but  also  the presiding Judge. The latter part of Article 235 talks of the man who holds the office. In the case of the judicial

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service  subordinate  to  the  District  judge  the appointment  has  to  be  made  by  the  Governor  in accordance  with  the  rules  to  be  framed  after consultation with the State Public Service Commission and the High Court but the power of posting, promotion and grant  of  leave and the control  of  the courts  are vested  in  the  High  Court.  What  is  vested  includes disciplinary  jurisdiction.  Control  is  useless  if  it  is  not accompanied  by  disciplinary  powers.  It  is  not  to  be expected  that  the  High  Court  would  run  to  the Government  or  the  Governor  in  every  case  of indiscipline  however  small  and  which  may  not  even require the punishment of dismissal or removal. These Articles go to show that by vesting “control” in the High Court  the  independence  of  the  subordinate  judiciary was  in  view.  This  was  partly  achieved  in  the Government of India Act, 1935 but it was given effect to fully by the drafters of the present Constitution. This construction  is  also  in  accord  with  the  Directive Principles in Article 50 of the Constitution which reads:

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

xx           xx           xx

17. […] That the Governor appoints District Judges and the Governor alone can dismiss or remove them goes without saying. That does not impinge upon the control of the High Court.  It  only means that the High Court cannot appoint or dismiss or remove District Judges. In the same way the High Court cannot use the special jurisdiction  conferred  by  the  two  provisos.  The  High Court  cannot  decide  that  it  is  not  reasonably practicable to give a District Judge an opportunity  of showing cause or that in the interest of the security of the  State  it  is  not  expedient  to  give  such  an opportunity. This the Governor alone can decide. That certain  powers  are to  be  exercised  by the Governor and not by the High Court does not necessarily take away other powers from the High Courts. The provisos can be given their full effect without giving rise to other implications. It is obvious that if  a case arose for the exercise of the special powers under the two provisos,

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the High Court must leave the matter to the Governor. In  this  connection  we  may  incidentally  add  that  we have no doubt that in exercising these special powers in  relation  to  inquiries  against  District  Judges,  the Governor will always have regard to the opinion of the High Court in the matter. This will be so whoever be the inquiring authority in the State. But this does not lead to the further conclusion that the High Court must not hold the enquiry any more than that the Governor should personally hold the enquiry.”  

18. The expression/words “within the exercise of the control vested in

the  High  Court,  the  High  Court  can  hold  enquiries,  impose

punishments other than dismissal or removal, subject however to

the conditions of  service,  to a right  of  appeal if  granted by the

conditions  of  service,  and  to  the  giving  of  an  opportunity  of

showing cause as required by clause (2)  of  Article  311 unless

such opportunity is dispensed with by the Governor acting under

the provisos (b) and (c) to that clause” is not to deny the High

Court  the  authority  to  decide  whether  conditions  for  invoking

clause (b) of the second proviso to Article 311(2) are satisfied, but

recognises that the resolution and recommendation of dismissal,

removal or reduction in rank or for dispensing with the inquiry in

terms  of  clause  (b)  [also  clause  (c)]  of  the  second  proviso  to

Article  311(2)  would  require  an  order  of  the  Governor.   The

observations  do  not  hold  that  the  Governor,  and  not  the  High

Court, is vested with the jurisdiction and is the competent authority

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to  decide  whether  the  inquiry  should  be  dispensed  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 states that  the control vests

with  the  High  Court,  albeit  order  of  appointment,  dismissal  or

removal is passed and made in the name of the Governor who

passes the formal order be it a case of appointment, dismissal or

removal.   This is clear from the last portion of paragraph 17 in

Nirpendra Nath Bagchi (supra) which records “that the Governor

will  always have regard to the opinion of the High Court in the

matter.  This will  be the inquiring authority in the State. But this

does not lead to the further conclusion that the High Court must

not  hold  the  enquiry  any  more  than  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

Ajit Kumar v. State of Jharkhand12 in the following words:

“15.  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 Subordinate 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.

12  (2011) 11 SCC 458

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16. Article 233 clearly lays down that appointments and promotions of  District  Judges in any State are 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 to 236, has been incorporated in the Constitution of India inter alia to secure the independence of the judiciary from the executive and the same deals with the scope of separation of power of the three wings of the State.

17. It  cannot  be  disputed  that  the  power  under  the aforesaid articles [Articles 233-236] 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 subordinate 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 down. Power could also be exercised  for  such dismissal  or  removal  by  following the preconditions 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  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.” (emphasis supplied)

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19. During the course of hearing before us, it was pointed out that the

Full Court had subsequently again recommended dismissal of the

judicial  officers  dispensing  with  the  departmental  inquiry  in  the

exercise of power under clause (b) of the second proviso to Article

311(2) of the Constitution vide recommendation dated 13th August

2015.  However, the matter is pending with the State Government

and we were informed that no final order has been passed in view

of the stay order dated 11th September 2015 passed by this Court.

It was also initially urged and argued that the order of dismissal

under clause (b)  of  the second proviso to Article  311(2) of  the

Constitution cannot be passed against the officer who has retired.

We were  informed  that  the  other  two  officers  had  also  retired

during the pendency of the present appeals. Therefore, at best the

pensionary and retirement benefits can be forfeited and denied,

but an order of dismissal from service by invoking powers under

clause(b) of the second proviso to Article 311(2) cannot be passed

against  the  appellants  -  judicial  officers.   Subsequently,  the

counsel  for  the  appellants  -  judicial  officers  did  not  press  this

contention  as  the  matter  is  still  pending  before  the  State

authorities, and the final order is yet to be passed. A challenge

cannot be made in anticipation. Further, this challenge was also

not the subject matter of the writ petitions in which the impugned

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order was passed and would constitute an entirely new cause of

action.  Counsels  for  the  appellants  -  judicial  officers  have,

accordingly, reserved their right to challenge the order if, and as

and when it is passed. In view of the aforesaid position, we would

not go into the merits of the said contention and leave the issue

open. It is equally open to the respondents, that is, the State of

Bihar and the High Court to examine this contention.  

20. Recording the aforesaid, the appeals are dismissed and the stay

order is vacated, albeit we clarify that the respondents, in terms of

the judgment passed by the Division Bench, would be required to

proceed in  accordance with  law.  We also  clarify  that  we have

expressed  no  opinion  on  the  merits  of  the  allegations  made

against the three judicial officers. There would be no order as to

costs.

................................J. (INDU MALHOTRA)

.................................J. (SANJIV KHANNA)

NEW DELHI; NOVEMBER 08, 2019.  

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