The Supreme Court has observed that the High Courts have power to dispense with the disciplinary proceedings by invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India, by recording reasons, for
In this case, a 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 action was after they were allegedly found in a compromising position with three women in a guest house at city in Nepal.
In a petition filed by these judicial officers, the Division bench of the Patna High Court found 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. However, the bench granted liberty 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.
Before the Apex Court, the judicial officers challenged this portion of the order on the ground that the liberty so granted permits the High Court to record reasons post the earlier order of dismissal which is contrary to law and the Constitution.
The bench noted that it was held in Jaswant Singh v. State of Punjab 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. The contention raised was regarding the power of the High Court to dispense with the inquiry under clause (b) of the second proviso to Article 311 of the Constitution. It was urged 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. The bench said:
"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. This is clear from the last portion of paragraph 17 in Nirpendra Nath Bagchi (supra) which records "that the Governor will always have regard to the opinion of the High Court in the matter. This will be the inquiring authority in the State. But this does not lead to the further conclusion that the High Court must not hold the enquiry any more than that the Governor should personally hold the enquiry.""
The bench also referred to the judgment in Ajit Kumar v. State of Jharkhand in which it was held that 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.
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