Law Web: Who is competent authority to dismiss judicial officer from service without disciplinary enquiry?

Learned counsel appearing for Komal Ram and Jitendra Nath

Singh had raised another contention relating to the power of the

High Court to dispense with the inquiry under clause (b) of the

second proviso to Article 311 of the Constitution. The contention is

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. Reliance was placed on

the following observations in the Constitutional Bench judgment of

this Court in State of West Bengal v. Nripendra Nath Bagchi,11:

“...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.”

17. The contention misreads the ratio in Nripendra Nath Bagchi

(supra), which rather holds to the contrary. Interpreting Articles

233 and 235 of the Constitution, and on the aspect of ‘control’ of

the High Court in matters relating to the subordinate judiciary in

Nripendra Nath Bagchi (supra), it was held:

“13. […] the history which lies behind the enactment of

these Articles indicate that “control” was vested in the

11 AIR 1966 SC 447

High Court to effectuate a purpose, namely, the

securing of the independence of the subordinate

judiciary and unless it included disciplinary control as

well the very object would be frustrated. This aid to

construction is admissible because to find out the

meaning of a law, recourse may legitimately be had to

the prior state of the law, the evil sought to be removed

and the process by which the law was evolved. The

word “control”, as we have seen, was used for the first

time in the Constitution and it is accompanied by the

word “vest” which is a strong word. It shows that the

High Court is made the sole custodian of the control

over the judiciary. Control, therefore, is not merely the

power to arrange the day to day working of the court

but contemplates disciplinary jurisdiction over the

presiding Judge. Article 227 gives to the High Court

superintendence over these courts and enables the

High Court to call for returns etc. The word “control” in

Article 235 must have a different content. It includes

something in addition to mere superintendence. It is

control over the conduct and discipline of the judges.

This conclusion is further strengthened by two other

indications pointing clearly in the same direction. The

first is that the order of the High Court is made subject

to an appeal if so provided in the law regulating the

conditions of service and this necessarily indicates an

order passed in disciplinary jurisdiction. Secondly, the

words are that the High Court shall “deal” with the

judge in accordance with his rules of service and the

word “deal” also points to disciplinary and not mere

administrative jurisdiction.

14. Articles 233 and 235 make a mention of two distinct

powers. The first is power of appointments of persons,

their postings and promotion and the other is power of

control. In the case of the District Judges,

appointments of persons to be and posting and

promotion are to be made by the Governor but the

control over the District Judge is of the High Court. We

are not impressed by the argument that the term used

is “District Court” because the rest of the Article clearly

indicates that the word “court” is used compendiously

to denote not only the court proper but also the

presiding Judge. The latter part of Article 235 talks of

the man who holds the office. In the case of the judicial

service subordinate to the District judge the

appointment has to be made by the Governor in

accordance with the rules to be framed after

consultation with the State Public Service Commission

and the High Court but the power of posting, promotion

and grant of leave and the control of the courts are

vested in the High Court. What is vested includes

disciplinary jurisdiction. Control is useless if it is not

accompanied by disciplinary powers. It is not to be

expected that the High Court would run to the

Government or the Governor in every case of

indiscipline however small and which may not even

require the punishment of dismissal or removal. These

Articles go to show that by vesting “control” in the High

Court the independence of the subordinate judiciary

was in view. This was partly achieved in the

Government of India Act, 1935 but it was given effect

to fully by the drafters of the present Constitution. This

construction is also in accord with the Directive

Principles in Article 50 of the Constitution which reads:

“50. The State shall take steps to separate

the judiciary from the executive in the public

services of the State”.

xx xx xx

17. […] That the Governor appoints District Judges and

the Governor alone can dismiss or remove them goes

without saying. That does not impinge upon the control

of the High Court. It only means that the High Court

cannot appoint or dismiss or remove District Judges. In

the same way the High Court cannot use the special

jurisdiction conferred by the two provisos. The High

Court cannot decide that it is not reasonably

practicable to give a District Judge an opportunity of

showing cause or that in the interest of the security of

the State it is not expedient to give such an

opportunity. This the Governor alone can decide. That

certain powers are to be exercised by the Governor

and not by the High Court does not necessarily take

away other powers from the High Courts. The provisos

can be given their full effect without giving rise to other

implications. It is obvious that if a case arose for the

exercise of the special powers under the two provisos,

the High Court must leave the matter to the Governor.

In this connection we may incidentally add that we

have no doubt that in exercising these special powers

in relation to inquiries against District Judges, the

Governor will always have regard to the opinion of the

High Court in the matter. This will be so whoever 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.”

18. 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.”

This legal position with reference to Articles 233 to 236 and

‘control’ of the High Court is beyond doubt as was explained in

Ajit Kumar v. State of Jharkhand12 in the following words:

“15. 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 Subordinate 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.

12 (2011) 11 SCC 458

16. Article 233 clearly lays down that appointments and

promotions of District Judges in any State are 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 to 236,

has been incorporated in the Constitution of India inter

alia to secure the independence of the judiciary from

the executive and the same deals with the scope of

separation of power of the three wings of the State.

17. It cannot be disputed that the power under the

aforesaid articles [Articles 233-236] 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 subordinate 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 down. Power could also be

exercised for such dismissal or removal by following

the preconditions 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 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.” (emphasis supplied)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3105 OF 2017

HARI NIWAS GUPTA Vs STATE OF BIHAR

SANJIV KHANNA, J.

Dated:NOVEMBER 08, 2019.

This common judgment would dispose of the abovecaptioned

appeals preferred by three judicial officers namely, Hari

Niwas Gupta, Komal Ram and Jitendra Nath Singh, who were

working as Principal Judge, Family Court, Samastipur; Chief

Judicial Magistrate, Araria; and ad-hoc Additional District and

Sessions Judge, Araria, respectively.

2. On 29th January 2013, a news item was published in a local daily

(Udghosh), that on 26th January 2013 the Nepal Police had

apprehended three judicial officers belonging to the State of Bihar

as they were allegedly found in a compromising position with three

Nepali women in a guest house at Biratnagar, Nepal. Thereupon

the judicial officers were brought to the district police station in

Nepal, but were released on account of pressure from various

circles. On learning about the incident, the High Court of

Judicature at Patna (‘High Court’ for short) had addressed the

letter dated 18th February 2013 to the District and Sessions Judge,

Purnea to submit a report in the matter. The District and Sessions

Judge vide report dated 24th February 2013 had informed that

during the inquiry the three judicial officers had denied having left

India for Nepal. Komal Ram had claimed that he was in Purnea,

and in the process of vacating his quarters on transfer. The report

had made reference to another news item published by the same

daily on 22nd February 2013, expressing regret over erroneous

reportage and that the Superintendent of Police, Araria appeared

to have held a bias against the judicial officers. After receipt of the

report, the High Court had addressed a letter to the Ministry of

Home Affairs, Government of India to collect and ascertain

information, details and records. By communication dated 20th

June 2013, the Deputy Secretary, Ministry of Home Affairs,

Government of India, had informed the High Court that the mobile

phones of the judicial officers were simultaneously switched off for

a long time on 26th and 27th January 2013 and when the phones

were active during that period, they were within the range of the

tower at Forbesganj town, which indicated that the judicial officers

were together in proximity to Nepal, and not at the place of their

posting. The hotel bill submitted and relied upon by Komal Ram to

support his claim that he was staying at a hotel in Purnea between

26th and 27th January 2013 was considered to be fabricated based

on the handwriting and Komal Ram’s signature on the bill. Further,

the hotel was not of the standard where a judicial officer of Komal

Ram’s rank would have stayed.

3. The Standing Committee of the High Court in its meeting held on

5th February, 2014 had resolved that the judicial officers should be

placed under suspension and also that they should be dismissed

from service without an inquiry in exercise of power under clause

(b) of the second proviso to Article 311(2) of the Constitution of

India, read-with Rules 14 and 20 of the Bihar Government

Servants (Classification, Control and Appeal) Rules, 2005. At the

Full Court of the judges of the High Court held on 10th February,

2014, the recommendation of the Standing Committee was

accepted and 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 recommendation of the Full Court was

accepted by the State Government and vide common order dated

12th February 2014 issued by the Governor of the State of Bihar

the judicial officers were dismissed from service.

4. The judicial officers had challenged the dismissal order by filing

separate writ petitions, which were allowed by the Division Bench

of the High Court (‘Division Bench’ for short), vide judgment dated

19th May 2015, primarily on the ground 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. The note relied upon by the Registry of the High

Court as purportedly recording the reasons for dispensing with the

inquiry, it was observed, did not contain any date or signatures

and lacked authenticity. Thus, the High Court had not been able to

place on record any material to show that any reasons were

recorded for dispensing with the disciplinary proceedings.

5. While setting aside the order of dismissal, in the case of the

judicial officers, dated 12th February 2014 for failure to record

reasons for dispensing with the inquiry, the Division Bench had

given the following liberty and discretion to the High Court:

“The writ petitions are, accordingly, allowed, and the

common order dated 12.02.2014 is set aside. It is made

clear that in case, the High Court intends to invoke its

power under Sub-clause (b) of the 2nd proviso to Article

311 (2) of the Constitution of India, it shall be under

obligation to record reasons, at the appropriate stage and

follow the prescribed procedure.

It is brought to our notice that two (sic- one) of the officers

have attained the age of superannuation, during the

pendency of the writ petitions. We direct that as a result of

the judgment in these writ petitions, the petitioner, who is

already in service, shall be deemed to be under

suspension, and the other two would be deemed to be

continuing in service for the limited purpose of enabling the

departmental proceedings to continue. The High Court

shall take a decision in this behalf, within a period of two

months from today. If no decision is taken in this regard,

the proceedings would lapse and the petitioners would be

entitled for all the consequential benefits, as though the

proceedings have been set aside in their entirety. If, on

the other hand, the proceedings are initiated, the

petitioners shall await the outcome thereof. While the one

who is in service shall be paid subsistence allowance, the

other two shall be paid provisional pension to the extent of

25%, forthwith.

Interlocutory application, if any, shall stand disposed of.

There shall be no order as to costs.”

6. The judicial officers have challenged this afore-quoted portion and

the liberty granted 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, on the ground that

the liberty granted permits the High Court to record reasons post

the earlier order of dismissal dated 12th February 2014, which is

contrary to law and the Constitution.

7. The respondents, that is, the State of Bihar and the High Court,

have not preferred any appeal and have accepted the decision.

8. Clauses (1) and (2) of Article 311 of the Constitution, read:

311. Dismissal, removal or reduction in rank of

persons employed in civil capacities under the Union

or a State.—(1) No person who is a member of a civil

service of the Union or an all-India service or a civil service

of a State or holds a civil post under the Union or a State

shall be dismissed or removed by an authority subordinate

to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or

removed or reduced in rank except after an inquiry in

which he has been informed of the charges against him

and given a reasonable opportunity of being heard in

respect of those charges:

Provided that where it is proposed after such inquiry, to

impose upon him any such penalty, such penalty may be

imposed on the basis of the evidence adduced during such

inquiry and it shall not be necessary to give such person

any opportunity of making representation on the penalty

proposed:

Provided further that this clause shall not apply—

(a) where a person is dismissed or removed or

reduced in rank on the ground of conduct which

has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or

remove a person or to reduce him in rank is

satisfied that for some reason, to be recorded by

that authority in writing, it is not reasonably

practicable to hold such inquiry; or (c) where the

President or the Governor, as the case may be,

is satisfied that in the interest of the security of

the State it is not expedient to hold such inquiry.”

Clause (1) states that persons employed in civil services or

posts under the Union or the States or members of the all-India

service shall not be dismissed, removed or reduced in rank by an

authority subordinate to that by which he/she was appointed.

Clause (2) provides that such a person could be dismissed or

removed or reduced in rank only after an inquiry in which he has

been informed of the charges against him and after being afforded

a reasonable opportunity of being heard in respect of those

charges. The second proviso incorporates exceptions when the

need for holding an inquiry under clause (2) can be dispensed

with. Clause (b) of the second proviso to Article 311(2) can be

invoked to impose a punishment of dismissal, removal, or

reduction in rank on the satisfaction, to be recorded in writing, that

it is not reasonably practicable to conduct an inquiry before

imposing the punishment. This Court in Jaswant Singh v. State

of Punjab,1 relying on an earlier decision in Union of India v.

Tulsiram Patel,2 has affirmatively held 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, and it was inter alia observed:

“5. …It was incumbent on the respondents to disclose to

the court the material in existence at the date of the

passing of the impugned order in support of the subjective

satisfaction recorded by respondent 3 in the impugned

order. Clause (b) of the second proviso to Article 311(2)

can be invoked only when the authority is satisfied from

the material placed before him that it is not reasonably

practicable to hold a departmental enquiry. This is clear

from the following observation at page 270 of Tulsiram

case: (SCC p. 504, para 130)

“A disciplinary authority is not expected to

dispense with a disciplinary inquiry lightly or

arbitrarily or out of ulterior motives or merely in

order to avoid the holding of an inquiry or

because the department’s case against the

government servant is weak and must fail.”

9. In the present matter, the Division Bench vide the impugned

judgment has as a fact found that the High Court had failed to

record satisfaction in writing for dispensing with an inquiry before

arriving at its decision to dismiss the judicial officers. For this

reason, the order of dismissal dated 12th February 2014 passed by

the Governor of the State of Bihar under clause (b) of the second

proviso to Article 311(2) was quashed and set aside.

Consequently, the judicial officers were to be reinstated in service.

1 (1991) 1 SCC 362

2 (1985) 3 SCC 398

This is what has been observed in the quoted portion of the final

directions by the Division Bench, which refers to the fact that “two”

(sic-one) judicial officers had attained the age of superannuation

during the pendency of the writ petitions and, therefore, they

would be deemed to be continuing in service for the limited

purpose of enabling the disciplinary proceedings to continue. The

other officer(s) would be deemed to be under suspension. The

High Court was required to take a decision within two months and

if no decision was taken, the proceedings would lapse and the

judicial officers would be entitled to all consequential benefits as if

the proceedings had been set aside in entirety. It was directed that

the judicial officer(s) who continued to be in service, would be paid

subsistence allowance, and the retired would be paid provisional

pension to the extent of 25% forthwith.

10. The directions and observations of the judgment quoted above do

not confer a new and unconventional right or power on the High

Court, instead clarifies what is an obvious and perspicuous

consequence of quashing the order of dismissal in the present

case. The direction requires the High Court to proceed in

accordance with law and rightly did not put any fetters on the

course of action the High Court as a disciplinary authority would

like to follow. Therefore, it is observed, more out of abundant

caution rather than as a typical direction, that the High Court was

entitled, if it deemed it appropriate and proper, to invoke the power

under clause (b) of the second proviso to Article 311(2) of the

Constitution at an appropriate stage, after recording reasons and

following the prescribed procedure.

11. Striking down and setting aside the earlier order dated 12th

February, 2014 under clause (b) of the second proviso to Article

311(2) for failure to record reasons for dispensing with the

departmental inquiry annuls the earlier order, which ceases to

exist and stands obliterated, but does not adjudicate on the merits

of the allegations so as to attract the bar of res judicata.

Conscious of the seriousness of the allegations and the reason for

allowing the writ petition, the Division Bench was justified in not

barring the High Court from fresh application of mind and from

invoking clause (b) of the second proviso to Article 311(2) if

required and justified in accordance with law. The 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 Article 311(2) of

the Constitution in accordance with law. We do not see such

fetters and restrictions placed on the High Court by the Division

Bench.

12. The judicial officers had referred to Mohinder Singh Gill and

Another v. The Chief Election Commissioner, New Delhi and

Others3 and East Coast Railway and Another v. Mahadev

Appa Rao and Others4 to assert that this Court had rejected the

contention that reasons under clause (b) of the second proviso to

Article 311(2) could be subsequently recorded to support the

order. The submission does not bolster the appellants’ case

because in these decisions this Court had refused to accept

affidavits providing reasons for dispensing with the inquiry,

observing that these were post the dismissal order. The reasons

were submitted in the Court proceedings, and were not recorded

at the time of exercise of the power under clause (b) to the second

proviso to Article 311(2) of the Constitution. As per the dicta in

Tulsiram Patel (supra) and Jaswant Singh (supra), the law in

terms of clause (b) of the second proviso to Article 311(2)

mandates that the reasons for dispensing with the inquiry must be

recorded in writing before the order of dismissal.

13. Similarly reference to Chief Security Officer and Others v.

Singasan Rabi Das,5 State of Orissa and Others v.

3 (1978) 1 SCC 405

4 (2010) 7 SCC 678

5 (1991) 1 SCC 729

Dinabandhu Beheta and Others,6 Sudesh Kumar v. State of

Haryana and Others,7 Tarsem Singh v. State of Punjab and

Others,8 Reena Rani v. State of Haryana and Others,9 and

Risal Singh v. State of Haryana and Others,10 do not support

the contention raised by the judicial officers, but would support the

contrary view. In these judgments, the orders under clause (b) to

the second proviso of Article 311(2) of the Constitution were

struck down for want of recorded reasons for dispensing with the

departmental inquiry. Notwithstanding the quashing, this Court in

several cases had expressly permitted the authorities to proceed

further and take action in accordance with law. For example, in

Reena Rani (supra), it was held,

“12. In the result, the appeal is allowed. The impugned

judgment as also the order passed by the learned Single

Judge are set aside and the writ petition filed by the

appellant is allowed with the direction that she shall be

reinstated in service and given all consequential benefits.

However, it is made clear that this order shall not preclude

the competent authority from taking action against the

appellant in accordance with law. At the same time, we

deem it necessary to observe that liberty given by this

Court shall not be construed as a mandate for initiation of

disciplinary proceeding against the appellant and the

competent authority shall take appropriate decision after

objectively considering the entire record.”

6 (1997) 10 SCC 383

7 (2005) 11 SCC 525

8 (2006) 13 SCC 581

9 (2012) 10 SCC 215

10 (2014) 13 SCC 244

Similarly, in Risal Singh (supra), it was observed as under:

“10. Consequently, we allow the appeal and set aside the

order passed by the High Court and that of the disciplinary

authority. The appellant shall be deemed to be in service

till the date of superannuation. As he has attained the age

of superannuation in the meantime, he shall be entitled to

all consequential benefits. The arrears shall be computed

and paid to the appellant within a period of three months

hence. Needless to say, the respondents are not

precluded from initiating any disciplinary proceedings, if

advised in law. As the lis has been pending before the

Court, the period that has been spent in Court shall be

excluded for the purpose of limitation for initiating the

disciplinary proceedings as per rules. However, we may

hasten to clarify that our observations herein should not be

construed as a mandate to the authorities to initiate the

proceeding against the appellant. We may further proceed

to add that the State Government shall conduct itself as a

model employer and act with the objectivity which is

expected from it. There shall be no order as to costs.”

14. The second contention raised by the judicial officers is with

reference to the earlier observation of the Division Bench while

dealing with the third issue or point (c) to the following effect:

“In the instant case, the High Court did undertake a

preliminary enquiry and got possession of certain

materials; be it in the form of the paper clippings, report of

the District Judge, Purnea or letter from the Home Ministry,

Government of India. When it was possible for the High

Court to undertake such an enquiry, it would have been

equally possible to frame charges, and then attempt to

proceed with the departmental enquiry. It is only when

conducting of departmental enquiry was turning out to be a

difficult task, either at the inception or half way-through,

that a decision could have been taken to dispense with the

enquiry; by recording specific reasons. The judgments of

the Hon’ble Supreme Court in Tarsem Singh (supra) and

Tulsi Ram Patel (supra) throw light upon this. On applying

the principles laid therein, it becomes clear that there is

patent violation in the impugned proceedings. Therefore,

we hold this point also in favour of the petitioners.”

Learned counsel, referring to the portion, submits that the Division

Bench has held that the departmental inquiry was possible and

could not have been dispensed with.

15. The observations in our opinion are being misread as the aforequoted

portion refers to the legal position that normally

departmental inquiry should be held. It also refers to the scenario

where a departmental inquiry cannot be conducted that is, “when

conducting of departmental enquiry was turning out to be a difficult

task”, in which case a “decision could have been taken to

dispense with the enquiry; by recording specific reasons”. It is

observed that the principles laid down in Tulsiram Patel (supra)

and Tarsem Singh (supra) have to be kept in mind. Appropriate in

this regard, would be a reference to the following observations in

Tulsiram Patel (supra), which read:

“130. The condition precedent for the application of

clause (b) is the satisfaction of the disciplinary authority

that “it is not reasonably practicable to hold” the inquiry

contemplated by clause (2) of Article 311. What is

pertinent to note is that the words used are “not

reasonably practicable” and not “impracticable”.

According to the Oxford English Dictionary “practicable”

means “Capable of being put into practice, carried out in

action, effected, accomplished, or done; feasible”.

Webster’s Third New International Dictionary defines the

word “practicable” inter alia as meaning “possible to

practice or perform: capable of being put into practice,

done or accomplished: feasible”. Further, the words

used are not “not practicable” but “not reasonably

practicable”. Webster’s Third New International

Dictionary defines the word “reasonably” as “in a

reasonable manner: to a fairly sufficient extent”. Thus,

whether it was practicable to hold the inquiry or not must

be judged in the context of whether it was reasonably

practicable to do so. It is not a total or absolute

impracticability which is required by clause (b). What is

requisite is that the holding of the inquiry is not

practicable in the opinion of a reasonable man taking a

reasonable view of the prevailing situation.”

Thus, the authorities to invoke the power under clause (b) to

the second proviso of Article 311(2) to dispense with a

departmental inquiry must record a finding that such an inquiry

cannot be conducted and record specific reasons for the same. In

this case, the Division Bench had recorded the contention of the

respondent- High Court as the disciplinary authority that it would

be impossible to assimilate, collect and produce direct evidence

and material as the acts and misdeeds were in another country.

The Division Bench having found that reasons had not been

recorded for dispensing with the inquiry, has neither accepted nor

rejected this contention of the High Court. It will not be appropriate

and correct to interpret the decision of the Division Bench by

reading one or more sentences of a paragraph in isolation. The

entire judgment has to be read to understand the ratio and finding

and the observations must be read in the context in which they

have been made.

16. Learned counsel appearing for Komal Ram and Jitendra Nath