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2011 (2) Supreme 309
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and Anil R. Dave, JJ.
Ajit Kumar — Appellant
versus
State of Jharkhand & Ors. — Respondents
Civil Appeal No. 2420 of 2011
[Arising out of S.L.P (C) No. 12141 of 2008]
Decided on : 10-3-2011
Constitution of India,1950-Article 311 - Scope and Ambit of-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 (Para 9)
Constitution of India,1950-Aricles 234,235,236, 311(2)- Appellant working as sub-ordinate Judge in Garhwa, Jharkhand was removed from service by an order on the basis of a resolution of the Full Court of the High Court of Jharkhand recommending his removal from service- Writ Petition thereagainst-Dismissed by High Court-Appeal- Plea of appellant that power under Article 311(2) (b) of the Constitution could not have been invoked by High Court-Held Under the scheme of Indian Constitution High Court is vested with power to take decision for appointment of sub-ordinate judiciary under Articles 234 to 236 of the Constitution- High Court is also vested with the power to see that high traditions and standards of judiciary are maintained by selection of proper persons to run the district judiciary- Even for imposing a punishment of dismissal or removal or reduction in rank, 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 Constitution - Similarly, such a power could be exercised by 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 recommendation of the High Court in exercise of power under Article 311(2) (b) of Constitution –Hence no reason found to interfere with action taken against appellant -No infirmity found in impugned judgment and order of High Court- Appeal dismissed (Paras 15 to 17)
Facts of the Case :
Appellant working as sub-ordinate Judge in Garhwa, Jharkhand was removed from service herein in the instant case by an order on the basis of a resolution of the Full Court of the High Court of Jharkhand recommending his removal from service.Writ Petition thereagainst was Dismissed by High Court.
2. Present appaeal has been filed against said order of High Court.
Findings of the Court :
Instantly, officer concerned was working as sub-ordinate Judge and during the course of inspection by 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, inspecting Judge submitted his report to Chief Justice of High Court. High Court considered said report and thereafter was of the opinion that it was not possible to hold an enquiry in the case of appellant and that holding of such enquiry should be dispensed with in view of fact that if an enquiry is held the same may lead to the question of validity of several judgments rendered by the appellant. Said reason recorded by 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. Consequently, High Court recommended removal of appellant from service. Subsequent to that, Governor decided to invoke the provisions of Article 311(2) (b) of Constitution as holding of enquiry may lead to question of validity of several judgments delivered by appellant. The procedure and pre-conditions laid down for invoking extra-ordinary power under Article 311(2) (b) having been complied with and properly exercised within parameters of provisions, order passed by competent authority removing appellant from services could not be held to be without jurisdiction and power.
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 with
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