Hari Niwas Gupta vs State of Bihar and Another

(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). 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

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. 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, 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 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 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.