HARI NIWAS GUPTA versus STATE OF BIHAR AND ANOTHER

Citation: [2019] 15 S.C.R. 443 · Decided: 08-11-2019 · Supreme Court of India · Bench: INDU MALHOTRA, SANJIV KHANNA · Disposal: Dismissed

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Judgment (excerpt)

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HARI NIWAS GUPTA
v.
STATE OF BIHAR AND ANOTHER
(Civil Appeal No. 3105 of 2017)
NOVEMBER 08, 2019
[INDU MALHOTRA AND SANJIV KHANNA, JJ.]
Constitution of India – Clause (b) of the second proviso to
Art.311(2) – News item published in local daily that the Nepal
Police apprehended three judicial officers-appellants belonging to
the State of Bihar, allegedly being found in compromising position
with three Nepali women in a guest house at Biratnagar, Nepal –
Full Court resolution passed for their dismissal, dispensing with
the disciplinary proceedings by invoking clause (b) of the second
proviso to Art.311(2) – While setting aside the order of dismissal
for failure to record reasons for dispensing with the enquiry, the
Division Bench gave liberty to the High Court to invoke power
under the aforesaid provision at an appropriate stage with the
requirement to record reasons – Challenge to the liberty granted
– Held: Art.311 deals with dismissal, removal or reduction in rank
of persons employed in civil capacities under the Union or a State
– As per the dicta in Tulsiram Patel and Jaswant Singh case, the law
in terms of clause (b) of the second proviso to Art.311(2) mandates
that the reasons for dispensing with the inquiry must be recorded
in writing before the order of dismissal – Expression ‘at appropriate
stage’ used by the Division Bench is not a direction for initiation
of a regular departmental inquiry nor does it prohibit recourse to
clause (b) to the second proviso of Art.311(2) in accordance with
law – Division Bench justified in not barring the High Court from
fresh application of mind – In terms of the judgment of the Division
Bench, respondents  to proceed in accordance with law – No
opinion expressed on the merits of the allegations made against
the appellants – Bihar Government Servants (Classification,
Control and Appeal) Rules, 2005 – rr.14, 20 – Service Law.
Constitution of India – Arts.233-236; Clause (b) of the
second proviso to Art.311(2) –  ‘Control’ of the High Court in
   [2019] 15 S.C.R. 443
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SUPREME COURT REPORTS
[2019] 15 S.C.R.
matters relating to the subordinate judiciary – Dismissal of the
appellants-judicial officers by Full Court resolution, dispensing
with the disciplinary proceedings by invoking clause (b) of the
second proviso to Art.311(2) – Plea of the appellants relying on
Nripendra Nath Bagchi that this power exclusively vests with the
Governor alone – Held: Said contention misreads the ratio in
Nripendra Nath Bagchi, which rather holds to the contrary –
Observations in the judgment 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 Art.311(2) – It refers to Art.235 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.
Service Law – Judicial service – Full Court resolution passed
for dismissal of appellants-judicial officers– Dismissed from service
by order dtd. 12.02.14, dispensing with the disciplinary proceedings
by invoking clause (b) of the second proviso to Art.311(2) – One
of the officer had attained superannuation during the pendency
of writ petitions challenging the dismissal, while the other two
officers retired during the pendency of the present appeals –
Contention that the order of dismissal u/clause (b) of the second
proviso to Art.311(2) cannot be passed against the retired officer
and thus, at best the pensionary and retirement benefits can be
forfeited and denied – Held: Full Court has again recommended
dismissal of the appellants dispensing with the departmental inquiry
in the exercise of power u/clause (b) of the second proviso to
Art.311(2) by recommendation dated. 13.08.2015 – However, matter
is pending with the State Government – No final order passed in
view of the stay order dated.11.09.2015 passed by Supreme Court
– A challenge cannot be made in anticipation– This challenge was
also not the subject matter of the writ petitions and would constitute
an entirely new cause of action – Appellants have thus, reserved
their right to challenge the order if, and as and when passed –
Open to the respondents to examine this contention – Stay order
vacated – Const

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