# HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER

- **Citation:** [2019] 15 S.C.R. 443
- **Court:** Supreme Court of India
- **Decided:** 2019-11-08
- **Case number:** Civil Appeal No. 3105 of 2017
- **Bench:** Indu Malhotra, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hari-niwas-gupta-v-state-of-bihar-and-another-33390
- **Pages:** 21

## Headnote

Constitution of India - Clause (b) of the second proviso to
Art.311(2) - News item published in local daily that the Nepal
Police apprehended three judicial officers-appellants belonging to
the State of Bihar, allegedly being found in compromising position
with three Nepali women in a guest house at Biratnagar, Nepal -
Full Court resolution passed for their dismissal, dispensing with
the disciplinary proceedings by invoking clause (b) of the second
proviso to Art.311(2) - While setting aside the order of dismissal
for failure to record reasons for dispensing with the enquiry, the
Division Bench gave liberty to the High Court to invoke power
under the aforesaid provision at an appropriate stage with the
requirement to record reasons - Challenge to the liberty granted
- Held: Art.311 deals with dismissal, removal or reduction in rank
of persons employed in civil capacities under the Union or a State
- As per the dicta in Tulsiram Patel and Jaswant Singh case, the law
in terms of clause (b) of the second proviso to Art.311(2) mandates
that the reasons for dispensing with the inquiry must be recorded
in writing before the order of dismissal - 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 Art.311(2) in accordance with
law - Division Bench justified in not barring the High Court from
fresh application of mind - In terms of the judgment of the Division
Bench, respondents to proceed in accordance with law - No
opinion expressed on the merits of the allegations made against
the appellants - Bihar Government Servants (Classification,
Control and Appeal) Rules, 2005 - rr.14, 20 - Service Law.
Constitution of India - Arts.233-236; Clause (b) of the
second proviso to Art.311(2) - 'Control' of the High Court in
 [2019] 15 S.C.R. 443
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matters relating to the subordinate judiciary - Dismissal of the
appellants-judicial officers by Full Court resolution, dispensing
with the disciplinary proceedings by invoking clause (b) of the
second proviso to Art.311(2) - Plea of the appellants relying on
Nripendra Nath Bagchi that this power exclusively vests with the
Governor alone - Held: Said contention misreads the ratio in
Nripendra Nath Bagchi, which rather holds to the contrary -
Observations in the judgment 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 Art.311(2) - It refers to Art.235 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.
Service Law - Judicial service - Full Court resolution passed
for dismissal of appellants-judicial officers- Dismissed from service
by order dtd. 12.02.14, dispensing with the disciplinary proceedings
by invoking clause (b) of the second proviso to Art.311(2) - One
of the officer had attained superannuation during the pendency
of writ petitions challenging the dismissal, while the other two
officers retired during the pendency of the present appeals -
Contention that the order of dismissal u/clause (b) of the second
proviso to Art.311(2) cannot be passed against the retired officer
and thus, at best the pensionary and retirement benefits can be
forfeited and denied - Held: Full Court has again recommended
dismissal of the appellants dispensing with the departmental inquiry
in the exercise of power u/clause (b) of the second proviso to
Art.311(2) by recommendation dated. 13.08.2015 - However, matter
is pending with the State Government - No final order passed in
view of the stay order dated.11.09.2015 passed by Supreme Court

## Text

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HARI NIWAS GUPTA
v.
STATE OF BIHAR AND ANOTHER
(Civil Appeal No. 3105 of 2017)
NOVEMBER 08, 2019
[INDU MALHOTRA AND SANJIV KHANNA, JJ.]
Constitution of India - Clause (b) of the second proviso to
Art.311(2) - News item published in local daily that the Nepal
Police apprehended three judicial officers-appellants belonging to
the State of Bihar, allegedly being found in compromising position
with three Nepali women in a guest house at Biratnagar, Nepal -
Full Court resolution passed for their dismissal, dispensing with
the disciplinary proceedings by invoking clause (b) of the second
proviso to Art.311(2) - While setting aside the order of dismissal
for failure to record reasons for dispensing with the enquiry, the
Division Bench gave liberty to the High Court to invoke power
under the aforesaid provision at an appropriate stage with the
requirement to record reasons - Challenge to the liberty granted
- Held: Art.311 deals with dismissal, removal or reduction in rank
of persons employed in civil capacities under the Union or a State
- As per the dicta in Tulsiram Patel and Jaswant Singh case, the law
in terms of clause (b) of the second proviso to Art.311(2) mandates
that the reasons for dispensing with the inquiry must be recorded
in writing before the order of dismissal - 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 Art.311(2) in accordance with
law - Division Bench justified in not barring the High Court from
fresh application of mind - In terms of the judgment of the Division
Bench, respondents to proceed in accordance with law - No
opinion expressed on the merits of the allegations made against
the appellants - Bihar Government Servants (Classification,
Control and Appeal) Rules, 2005 - rr.14, 20 - Service Law.
Constitution of India - Arts.233-236; Clause (b) of the
second proviso to Art.311(2) - 'Control' of the High Court in
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443
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matters relating to the subordinate judiciary - Dismissal of the
appellants-judicial officers by Full Court resolution, dispensing
with the disciplinary proceedings by invoking clause (b) of the
second proviso to Art.311(2) - Plea of the appellants relying on
Nripendra Nath Bagchi that this power exclusively vests with the
Governor alone - Held: Said contention misreads the ratio in
Nripendra Nath Bagchi, which rather holds to the contrary -
Observations in the judgment 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 Art.311(2) - It refers to Art.235 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.
Service Law - Judicial service - Full Court resolution passed
for dismissal of appellants-judicial officers- Dismissed from service
by order dtd. 12.02.14, dispensing with the disciplinary proceedings
by invoking clause (b) of the second proviso to Art.311(2) - One
of the officer had attained superannuation during the pendency
of writ petitions challenging the dismissal, while the other two
officers retired during the pendency of the present appeals -
Contention that the order of dismissal u/clause (b) of the second
proviso to Art.311(2) cannot be passed against the retired officer
and thus, at best the pensionary and retirement benefits can be
forfeited and denied - Held: Full Court has again recommended
dismissal of the appellants dispensing with the departmental inquiry
in the exercise of power u/clause (b) of the second proviso to
Art.311(2) by recommendation dated. 13.08.2015 - However, matter
is pending with the State Government - No final order passed in
view of the stay order dated.11.09.2015 passed by Supreme Court
- A challenge cannot be made in anticipation- This challenge was
also not the subject matter of the writ petitions and would constitute
an entirely new cause of action - Appellants have thus, reserved
their right to challenge the order if, and as and when passed -
Open to the respondents to examine this contention - Stay order
vacated - Constitution of India - Art.311(2).
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Dismissing the appeals, the Court
HELD: 1.1 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. The directions and
observations of the judgment 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. [Paras 8, 10] [453-A-B; 454C-D]
Jaswant Singh v. State of Punjab (1991) 1 SCC
362 : [1990] 3 Suppl. SCR 354 ; Union of India v.
Tulsiram Patel (1985) 3 SCC 398 : [1985] 2 Suppl.
SCR 131 - relied on.
1.2 Striking down and setting aside the earlier order 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. The authorities
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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, 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. [Paras 11, 15] [454-E-G; 458-B-D]
Reena Rani v. State of Haryana and Others (2012) 10
SCC 215 ; Risal Singh v. State of Haryana and Others
(2014) 13 SCC 244 : [2014] 7 SCR 544 - relied on.
Mohinder Singh Gill and Another v. The Chief Election
Commissioner, New Delhi and Others (1978) 1 SCC
405 : [1978] 2 SCR 272 ; East Coast Railway and
Another v. Mahadev Appa Rao and Others (2010) 7
SCC 678 : [2010] 7 SCR 908 ; Chief Security Officer
and Others v. Singasan Rabi Das (1991) 1 SCC 729 ;
State of Orissa and Others v. Dinabandhu Beheta and
Others (1997) 10 SCC 383 ; Sudesh Kumar v. State
of Haryana and Others, (2005) 11 SCC 525 ; Tarsem
Singh v. State of Punjab and Others (2006) 13 SCC
581 - referred to.
2. The contention misreads the ratio in Nripendra Nath
Bagchi, which rather holds to the contrary. 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
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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. [Paras 17, 18] [458-G-H; 461-B-F]
State of West Bengal v. Nripendra Nath Bagchi AIR
1966 SC 447: [1966] SCR 771 - followed.
3. During the course of hearing, 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 no final order has been passed in view of the
stay order dated 11th September 2015 passed by this Court. It
was 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. 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
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passed and would constitute an entirely new cause of action.
Counsels for the appellants-judicial officers have reserved their
right to challenge the order if, and as and when it is passed. The
merits of the said contention not gone into and the issue open
is left open. It is equally open to the respondents, that is, the
State of Bihar and the High Court to examine this contention.
The stay order is vacated, albeit it is clarified that the
respondents, in terms of the judgment passed by the Division
Bench, would be required to proceed in accordance with law. It
is also clarified that no opinion has been expressed on the
merits of the allegations made against the three judicial officers.
[Paras 19-20] [463-B-G]
Ajit Kumar v. State of Jharkhand (2011) 11 SCC
458 : [2011] 3 SCR 830 - relied on.
Case Law Reference
[1990] 3 Suppl. SCR 354
relied on
Para 8
[1985] 2 Suppl. SCR 131
relied on
Para 8
[1978] 2 SCR 272
referred to
Para 12
[2010] 7 SCR 908
referred to
Para 12
(1991) 1 SCC 729
referred to
Para 13
(1997) 10 SCC 383
referred to
Para 13
(2005) 11 SCC 525
referred to
Para 13
(2006) 13 SCC 581
referred to
Para 13
(2012) 10 SCC 215
relied on
Para 13
[2014] 7 SCR 544
relied on
Para 13
[1966] SCR 771
followed
Para 16
[2011] 3 SCR 830
relied on
Para 18
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3105
of 2017.
From the Judgment and Order dated 19.05.2015 of the High
Court of Patna in CWJC No. 8636 of 2014.
With
Civil Appeal Nos. 3106-3107 of 2017.
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S. R. Singh, Nidhash Gupta, Sr. Advs., Ms. Sunita Pandit, Shivam
Sharma, Krishna Kumar Yadav, Ankur Yadav, Ms. Japneet Kaur,
Ms. Asha Gopalan Nair, Ravi Prakash, Aditya Dewan, Chandra
Prakash, Ms. Saroj Bala, Advs. for the Appellant.
Pravin H. Parekh, Sr. Adv., Devashish Bharuka, Ravi Bharuka,
Ms. Sarvshree, Justine George, Ms. Tanya Chaudhry, Ms. Pratyusha
Priyadarshini, M/S. Parekh & Co., Advs. for the Respondents.
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
1. This common judgment would dispose of the above-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.
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
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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.
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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 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.
HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER
[SANJIV KHANNA, J.]
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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
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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. 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
1 (1991) 1 SCC 362
2 (1985) 3 SCC 398
HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER
[SANJIV KHANNA, J.]
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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
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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. 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
3 (1978) 1 SCC 405
4 (2010) 7 SCC 678
5 (1991) 1 SCC 729
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
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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."
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
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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
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 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
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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
11 AIR 1966 SC 447
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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 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.