Saturday, 9 November 2019

Who is competent authority to dismiss judicial officer from service without disciplinary enquiry?

 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

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

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,

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

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

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)

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3105 OF 2017

HARI NIWAS GUPTA Vs  STATE OF BIHAR 

SANJIV KHANNA, J.

Dated:NOVEMBER 08, 2019.

This common judgment would dispose of the abovecaptioned
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.

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 20th

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 10th February,
2014, the recommendation of the Standing Committee was

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.

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

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—

(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

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

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

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 12th
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.

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

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

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.”

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 aforequoted
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

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.

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

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

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,

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

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

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)

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

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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