Ajit Kumar vs State Of Jharkhand & Ors

Ajit Kumar .... Appellant

Versus

State of Jharkhand & Ors. ...Respondents

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

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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

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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

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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

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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

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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

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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.

7 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

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question 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

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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

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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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