AJIT KUMARversusSTATE OF JHARKHAND & ORS.

                         [2011) 3 S.C.R. 830


A                          AJIT KUMAR
                                 v.
                 STATE OF JHARKHAND & ORS.
                 (Civil Appeal No. 2420 of 2011)

                          MARCH 10, 2011
B
               [DR. MUKUNDAKAM SHARMA AND
                      ANIL R. DAVE, JJ.]

        CONSTITUTION OF IND/A, 1950:
c
         Articles 310, 311(2)(b) - Sub-Judge - Removal from
    service invoking provisions of Article 311 (2)(b) - Held: In the
    facts and circumstances of the case, the High Court rightly
    held that it was not possible to hold an inquiry - Service Law.
D       Article 311 (2)(b) read with Articles 233, 234 to 236 - Sub-
  Judge - Removed from service with the recommendation of
   High Court withoui holding an inquiry - Held: A Subordinate
  Judge is also a judge within the meaning of provision of Article
   233 read with Articles 235 and 236 - High Court is vested with
E 'the power to take decision for appointments of subordinate
  judiciary under Articles 234-236 - Power could be exercised
   by High Court to dispense with an inquiry for a reason to be
   recorded in writing and such dispensation of inquiry for valid
   reasons when recommended to the Governor, it is within the
F competence of the Governor to issue such orders in tenns of
   the recommendation of the High Court in exercise of power
   under Article 311 (2)(b) - Independence of Judiciary -
   Separation of powers-Service Law.

G        An order was issued by the Governor on 31.7.2003
    for removing the appellant, a Subordinate Judge, from
    service on the basis of a resolution of the Full Court of
    the High Court. The appellant filed a writ petition before
    the High Court contending, inter alia, that the High Court
H                                 830
    AJIT KUMAR v. STATE OF JHARKHAND & ORS.               831


 did not have any power to dispense with an enquiry as           A
 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; that no notice          ~
 was issued to the appellant before his removal from
 service, thereby violating the principles of natural justice.
 The High Court dismissed the writ petition. Aggrieved,
 the writ petitioner filed the appeal.

     Dismissing the appeal, the Court                            c
       Held: 1.1. 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 and are terminable at its will. The said D
· power received the constitutional sanction in the light of
  Article 310 of the Constitution of India, and is subject to
  other provisions of the Constitution which include the
  restrictions imposed by Article 310 (2) and Articles 311(1)
  and (2). Although there is a pleasure doctrine, however, E
  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 · F
  after holding such an enquiry, if he is found guilty then
  only a person can be removed or'dismissed from service
  or reduced In rank. Therefore, under the Indian
  constitutional framework, dismissal of civil servants must
  comply with the procedure laid down in Article 311, and G
  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). Clause
  (a) relates to a case where upon a conviction of a person H
    832   SUPREME COURT REPORTS             [2011] 3 S.C.R.

A 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
B the security of the State. Sub-clause (b), on the other
   hand, provides that such an enquiry could be dispensed
  with by the authority concerned, after recording reasons,
   for which it is not practicable to hold an enquiry. The
   said power is an absolute power of the disciplinary
c 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. [Para 10] [837-C-H; 838-A-
   F]
D      1.2. 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. Undisputedly,
E 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 enqui,ry should be dispensed
F 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 reason recorded by the
  High Court was a legal and valid ground for not holding ·
  an enquiry. There was, therefore,. also no necessity of
G giving him any opportunity of hearing as the scope of
  holding an enquiry and giving him an opportunity of
  hearing was specifically dispensed with. Therefore, the
   High Court recommended the removal of the appellant
  from service. Consequently, the Governor decided to
H invoke the provisions of Article 311 (2) (b) of the
  AJIT KUMAR v. STATE OF JHARKHAND & ORS.            833

Constitution. The procedure and the pre-conditions laid     A
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 service cannot be held to be without         B
jurisdiction and power. [Para 11 and 12] [838-G-H; 839-
A-D]

     2.1 It cannot be said that the power under Article
311 (2) (b) of the Constitution could not have been
invoked by the High Court. A Sub-ordinate judge is also C
a judge within the meaning of the provision of Article 233
read with the provisions of Articles 235 and 236 of the
Constitution. 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 D
consultation with the High Court exercising jurisdiction
in relation to such State. The said provisions, like
Articles 234 - 236, have been incorporated in the
Constitution inter alia to secure the independence of
judiciary from the executive and the same deals with the E
scope of separation of powers of the three wings of the
State.. It cannot be disputed that the power under these
Articles is to be exercised by the Governor in
consultation with the High Court. [Para13, 14 and 15]
[839-E-H; 840-A]                                           F
     2.2. Under the scheme of the Constitution the High
Court is vested""with the power to take decision for
appointments 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   G
standards of the judiciary are maintained by selection of
proper persons to run the district judiciary. If a person
is found not worthy to be amember of the judicial service
or if it is found that he has committed a misconduct, he
                                                            H
    834      SUPREME COURT REPORTS               [2011] 3 S.C.R.


A 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.
    Even for imposing a punishment of dismissal or removal
B . or reduction in rank, the High Court can hold disciplinary
    proceedings and recommend such punishments.
    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 enqujry
c 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. [Para 15] [840-B-F]
D        2.3. Therefore, there is no reason to interfere with the
    action taken against the appellant nor is there any
    infirmity in the impugned judgment and order of the High
    Court. [Para 16] [840-F-G]
E       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2420 of 2011.
        From the Judgment & Order dated 2.11.2007 of the High
    Court of Jharkhand at Ranchi in W.P. (S) No. 4582 of 2003.
F       N.S. Gahlot, Vijay Pratap Singh, K.S. Rana for the
    Appellant.
        Ratan Kumar Chaudhuri, Krishnanand Pandeya for the
    Respondents.
G         The Judgment of the Court was delivered by
          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
H dismissing the writ petition filed by the appellant.
  AJIT KUMAR v. STATE OF JHARKHAND & ORS.                    835
        [DR. MUKUNDAKAM SHARMA, J.]
     3. The appellant herein was working as sub-ordinate             A
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.                                                B

      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           C
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      D
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.                 E

     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            F
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               G
prepared through some body else before delivering the
judgments. It was also found that the then Ch!ef 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      H
     836      SUPREME COURT REPORTS                    [2011] 3 S.C.R.

  A 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.
  8
            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
  C 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
· D 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
  E 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.
 F       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
 G 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
 H 311 has been provided in clause (a), (b) and (c) to clause (2)
  AJIT KUMAR v. STATE OF JHARKHAND & ORS.                    837
        [DR. MUKUNDAKAM SHARMA, J.]
of Article 311 itself, which provide that the said Article shall not A
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 · B
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
                                                                    c
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 D
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, , E.
dismissal of civil servants must comply with the procedure laid
down in Article 311 and Article 310(1) cannot      I
                                                      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). F
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 G
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 H
    838      SUPREME COURT REPORTS                  [2011] 3 S.C.R.

A 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
B 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
c 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)
0
  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 recoiding reasons, for
E 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.
F
       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
G 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
H enquiry should be dispensed with in view of the fact that if an
  AJIT KUMAR v. STATE OF JHARKHAND & ORS.                   839
        [DR. MUKUNDAKAM SHARMA, J.]
enquiry is held the same may lead to the question of validity of   A
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     B
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)   C
of the Constitution of India as holding of enquiry may lead to
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              D
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 E
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 F
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   G
provision, like Articles 234 - 236, have been incorporated in
the Constitution of India irter 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.
                                                                   H
    840      SUPREME COURT REPORTS                   [2011] 3 S.C.R.

A         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
B   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
C   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
0
    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
E   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.
F
        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.
G
         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.
    R.P.                                         Appeal dismissed.
H