Ajit Kumar Vs State
of Jharkhand & Ors.
JUDGMENT
Dr. MUKUNDAKAM
SHARMA, J.
1.
Leave
granted.
2.
This
appeal is directed against the judgment and order dated 02.11.2007 passed by the
Jharkhand High Court dismissing the writ petition filed by the appellant.
3.
The
appellant herein was working as sub-ordinate Judge in Garhwa, Jharkhand when an
order was issued by the Governor of Jharkhand removing him from service by an
order issued on 31.07.2003 on the basis of a resolution of the Full Court of the
High Court of Jharkhand recommending his removal from service.
4.
The
appellant herein challenged the legality of the aforesaid order before the Jharkhand
High Court by filing a writ petition contending inter alia that the High Court
does not have any power to dispense with an enquiry as envisaged for the purpose
of removal of a judicial officer like the appellant and therefore, the impugned
order was illegal and without jurisdiction. It was also submitted that there
was no evidence on record to show that the appellant was guilty of any misconduct
and therefore the order of removal was illegal and particularly also because of
the fact that no notice was issued to the appellant before his removal from service
thereby violating the principles of natural justice. It was also submitted that
there was a total non-application of mind in passing the impugned order of removal
by exercise of power under proviso (b) to Article 311(2) of the Constitution of
India.
5.
The
aforesaid submissions were considered by the High Court in the light of the
material available on record. The High Court found that the appellant was promoted
as sub-ordinate Judge, Garhwa and that on 05.05.2003, the then Inspecting Judge
inspected the Garhwa Civil Court and inspected the records relating to the
appellant and submitted his confidential report to the then Chief Justice of the
Jharkhand High Court against the appellant stating that the appellant did not
use to prepare judgments on his own, rather he used to get it prepared through some
body else before delivering the judgments. It was also found that the then
Chief Justice, after going through the report, referred the matter to the Full
Court for considering the appropriate action. On 18.06.2003, the Full Court, after
considering the confidential report and the report of the Inspecting Judge, resolved
that the appellant can be recommended for removal from the service, without any
enquiry as it was felt that it was not practicable in the interest of the institution
to hold an inquiry since it may lead to the question of validity of several
judgments rendered by him.
6.
Consequently
the Full Court recommended for invocation of the proviso (b) to Article 311(2)
of the Constitution of India to dispense with the inquiry as against the appellant
to remove him from service, following which the Governor while exercising his power
issued the impugned order of removal of the appellant from the service which was
under challenge in the writ petition before the High Court. The High Court upheld
the order of removal passed by the Governor holding that the order was passed
on the recommendation of the resolution of the Full Court by invoking the proviso
(b) to Article 311(2) of the Constitution of India which permits the dispensation
of an enquiry on the grounds that it is not reasonably practical to hold an enquiry.
The High Court also held that the aforesaid exercise of power under Article 311(2)
(b) of the Constitution of India is permissible and therefore the action taken removing
the appellant from service was legal and justified.
7.
Being
aggrieved by the aforesaid order the present appeal was filed on which we have heard
learned counsel appearing for the parties.
8.
Within
the scheme of the Constitution of India, provisions relating to public service
may be found in Articles 309, 310 and 311. It is important to note that these
provisions (namely Arts. 310 and 311) afford protection to public servants from
being dismissed, removed or reduced in rank without holding a proper inquiry or
giving a hearing.
9.
Article
311 provides for the protection to public servant against punitive action being
taken against them by an authority subordinate to one who appointed him. Exceptions
to Article 311 has been provided in clause (a), (b) and (c) to clause (2) of
Article 311 itself, which provide that the said Article shall not apply to such
employees who have been punished for conviction in a criminal case, where inquiry
is not practicable to be held for reasons to be recorded in writing or where the
President or the Governor as the case may be is satisfied that such an inquiry
is not to be held in the interest of the security of the State.
10.
In
order to appreciate the power to be exercised under Article 311 of the
Constitution of India it would be appropriate to look at Article 310 of the Constitution
of India. Under the doctrine of pleasure, which has been recognized under our Constitutional
framework, all civil posts under the Government are held at the pleasure of the
Government under which they are held and are terminable at its will. The
aforesaid power is what the doctrine of pleasure defines, which was recognized
in the United Kingdom and also received the constitutional sanction under our Constitution
in the light of Article 310 of the Constitution of India. However, it is to be noticed
that in India the same is subject to other provisions of the Constitution which
include the restrictions imposed by Article 310 (2) and Article 311(1) (2). Therefore,
under the Indian constitutional framework, dismissal of civil servants must comply
with the procedure laid down in Article 311 and Article 310(1) cannot be invoked
independently with the object of justifying a contravention of Article 311(2). There
is an exception provided by way of incorporation of Article 311 (2) with
sub-clauses (a), (b) and (c). No such enquiry is required to be conducted for
the purposes of dismissal, removal or reduction in rank of persons when the
same related to dismissal on the ground of conviction or where it is not
practicable to hold an enquiry for the reasons to be recorded in writing by that
authority empowered to dismiss or removed a person or reduce him in rank or it
is not practicable to hold an enquiry for the security of the State. These
three exceptions are well recognized for dispensing with an enquiry, which is
required to be conducted under Article 311 of the Constitution of India when
the authority takes a decision for dismissal or removal or reduction in rank in
writing. In other words, although there is a pleasure doctrine, however, the
same cannot be said to be absolute and the same is subject to the conditions that
when a government servant is to be dismissed or removed from service or he is
reduced in rank, a departmental enquiry is required to be conducted to enquire into
his misconduct and only after holding such an enquiry and in the course of such
enquiry if he is found guilty then only a person can be removed or dismissed
from service or reduced in rank. As stated herein such constitutional provision
for holding an enquiry as set out under Article 311 of the Constitution of India
could also be dispensed with under the exceptions provided to Article 311(2) of
the constitution where clause (a) relates to a case where upon a conviction of
a person by a criminal court on certain charges he could be removed from service
without holding an enquiry. Similarly, under clause (c) an enquiry to be held against
the government employee could be dispensed with if it is not possible to hold such
an enquiry in the interest of the security of the State. Sub-clause (b) on the
other hand provides that such an enquiry could be dispensed with by the concerned
authority, after recording reasons, for which it is not practicable to hold an enquiry.
The aforesaid power is an absolute power of the disciplinary authority who after
following the procedure laid down therein could resort to such extra ordinary power
provided it follows the pre-conditions laid down therein meaningfully and
effectively.
11.
In
the case in hand, the officer concerned was working as sub-ordinate Judge and
during the course of inspection by the Inspecting Judge it was found that he did
not use to prepare judgments on his own, he used to get it prepared through
some body else before delivering the judgments. Undisputedly, the inspecting Judge
submitted his report to the Chief Justice of the High Court. The High Court
considered the said report and thereafter was of the opinion that it is not
possible to hold an enquiry in the case of the appellant and that holding of such
enquiry should be dispensed with in view of the fact that if an enquiry is held
the same may lead to the question of validity of several judgments rendered by the
appellant. The aforesaid reason recorded by the High Court was a legal and
valid ground for not holding an enquiry. There was therefore also no necessity
of giving him any opportunity of hearing as the scope of holding an enquiry and
giving him an opportunity of hearing was specifically dispensed with.
12.
Consequently,
the High Court recommended the removal of the appellant from service. Subsequent
to that, the Governor decided to invoke the provisions of Article 311(2) (b) of
the Constitution of India as holding of enquiry may lead to 8question of the validity
of several judgments delivered by the appellant. The procedure and the pre-conditions
laid down for invoking the extra-ordinary power under Article 311(2) (b) having
been complied with and properly exercised within the parameters of the provisions,
the order passed by the competent authority removing the appellant from the services
cannot be held to be without jurisdiction and power.
13.
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 sub-ordinate
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.
14.
Article
233 clearly lays down that appointments and promotions of district judges in
any State is 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 - 236, have been incorporated in the Constitution of India inter
alia to secure the independence of judiciary from the executive and the same
deals with the scope of separation of power of the three wings of the State.
15.
It
cannot be disputed that the power under the aforesaid Articles is to be
exercised by the Governor in consultation with the High Court. Under the scheme
of the Indian Constitution the High Court is vested with the power to take decision
for appointment of the sub-ordinate judiciary under Articles 234 to 236 of the
Constitution. The High Court is also vested with the power to see that the high
traditions and standards of the judiciary are maintained by the selection of proper
persons to run the district judiciary. If a person is found not worthy to be a member
of the judicial service or it is found that he has committed a misconduct he
could be removed from the service by following the procedure laid. Power could
also be exercised for such dismissal or removal by following the pre-conditions
as laid down under Article 311(2) (b) of the Constitution of India.
Even for imposing a punishment
of dismissal or removal or reduction in rank, the High Court can hold disciplinary
proceedings and recommend such punishments. The Governor, alone is competent to
impose such punishment upon persons coming under Articles 233 - 235 read with
Article 311(2) of the Constitution of India. Similarly, such a power could be exercised
by the High Court to dispense with an enquiry for a reason to be recorded in writing
and such dispensation of an enquiry for valid reasons when recommended to the
Governor, it is within the competence of the Governor to issue such orders in terms
of the recommendation of the High Court in exercise of power under Article 311(2)
(b) of the Constitution of India.
16.
Therefore,
we find no reason to interfere with the action taken against the appellant nor we
find any infirmity in the impugned judgment and order of the High Court. All the
contentions raised are found to be without merit.
17.
Accordingly,
we do not find any merit in this appeal and we dismiss the same but leaving the
parties to bear their own costs.
.............................................J
[Dr. Mukundakam Sharma]
.............................................J
[Anil R. Dave]
New
Delhi,
March
10, 2011.
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