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 20thJune 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.= it was pointed out that the Full Court had subsequently again recommended dismissal of the judicial officers dispensing with the departmental inquiry in the exercise of power under clause (b) of the second proviso to Article 311(2) of the Constitution vide recommendation dated 13th August 2015. However, the matter is pending with the State Government and we were informed that no final order has been passed in view of the stay order dated 11th September 2015 passed by this Court. It was also initially urged and argued that the order of dismissal under clause (b) of the second proviso to Article 311(2) of the Constitution cannot be passed against the officer who has retired. We were informed that the other two officers had also retired during the pendency of the present appeals. Therefore, at best the pensionary and retirement benefits can be forfeited and denied, but an order of dismissal from service by invoking powers under clause(b) of the second proviso to Article 311(2) cannot be passed against the appellants – judicial officers. Subsequently, the counsel for the appellants – judicial officers did not press this contention as the matter is still pending before the State authorities, and the final order is yet to be passed. A challenge cannot be made in anticipation. Further, this challenge was also not the subject matter of the writ petitions in which the impugnedorder was passed and would constitute an entirely new cause of action. Counsels for the appellants – judicial officers have, accordingly, reserved their right to challenge the order if, and as and when it is passed. In view of the aforesaid position, we would not go into the merits of the said contention and leave the issue open. It is equally open to the respondents, that is, the State of Bihar and the High Court to examine this contention. 20. Recording the aforesaid, the appeals are dismissed and the stay order is vacated, albeit we clarify that the respondents, in terms of the judgment passed by the Division Bench, would be required to proceed in accordance with law. We also clarify that we have expressed no opinion on the merits of the allegations made against the three judicial officers. There would be no order as to costs.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3105 OF 2017
HARI NIWAS GUPTA ….. APPELLANT(S)
VERSUS
STATE OF BIHAR AND ANOTHER ….. RESPONDENT(S)
W I T H
CIVIL APPEAL NOS. 3106-3107 OF 2017
KOMAL RAM AND JITENDRA NATH SINGH ….. APPELLANTS
VERSUS
STATE OF BIHAR AND ANOTHER ….. RESPONDENT(S)
J U D G M E N T
SANJIV KHANNA, J.
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.
Civil Appeal No. 3105 of 2017 & Ors. Page 1 of 23

  1. 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
    Civil Appeal No. 3105 of 2017 & Ors. Page 2 of 23
    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.
  2. The Standing Committee of the High Court in its meeting held on
    5
    th 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
    Civil Appeal No. 3105 of 2017 & Ors. Page 3 of 23
    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.
  3. 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.
    Civil Appeal No. 3105 of 2017 & Ors. Page 4 of 23
  4. 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.”
  5. 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
    Civil Appeal No. 3105 of 2017 & Ors. Page 5 of 23
    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.
  6. The respondents, that is, the State of Bihar and the High Court,
    have not preferred any appeal and have accepted the decision.
  7. Clauses (1) and (2) of Article 311 of the Constitution, read:
  8. 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—
    Civil Appeal No. 3105 of 2017 & Ors. Page 6 of 23
    (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
    Civil Appeal No. 3105 of 2017 & Ors. Page 7 of 23
    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
    Civil Appeal No. 3105 of 2017 & Ors. Page 8 of 23
    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
    Civil Appeal No. 3105 of 2017 & Ors. Page 9 of 23
    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.
    Civil Appeal No. 3105 of 2017 & Ors. Page 10 of 23
  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
    Civil Appeal No. 3105 of 2017 & Ors. Page 11 of 23
    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
    Civil Appeal No. 3105 of 2017 & Ors. Page 12 of 23
    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.”
    Civil Appeal No. 3105 of 2017 & Ors. Page 13 of 23
    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
    Civil Appeal No. 3105 of 2017 & Ors. Page 14 of 23
    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.
    Civil Appeal No. 3105 of 2017 & Ors. Page 15 of 23
  16. 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
    Civil Appeal No. 3105 of 2017 & Ors. Page 16 of 23
    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.
  18. 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
    Civil Appeal No. 3105 of 2017 & Ors. Page 17 of 23
    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
  19. […] 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,
    Civil Appeal No. 3105 of 2017 & Ors. Page 18 of 23
    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.”
  20. 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
    Civil Appeal No. 3105 of 2017 & Ors. Page 19 of 23
    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
    Civil Appeal No. 3105 of 2017 & Ors. Page 20 of 23
  21. 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.
  22. 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)
    Civil Appeal No. 3105 of 2017 & Ors. Page 21 of 23
  23. During the course of hearing before us, it was pointed out that the
    Full Court had subsequently again recommended dismissal of the
    judicial officers dispensing with the departmental inquiry in the
    exercise of power under clause (b) of the second proviso to Article
    311(2) of the Constitution vide recommendation dated 13th August
  24. However, the matter is pending with the State Government
    and we were informed that no final order has been passed in view
    of the stay order dated 11th September 2015 passed by this Court.
    It was also initially urged and argued that the order of dismissal
    under clause (b) of the second proviso to Article 311(2) of the
    Constitution cannot be passed against the officer who has retired.
    We were informed that the other two officers had also retired
    during the pendency of the present appeals. Therefore, at best the
    pensionary and retirement benefits can be forfeited and denied,
    but an order of dismissal from service by invoking powers under
    clause(b) of the second proviso to Article 311(2) cannot be passed
    against the appellants – judicial officers. Subsequently, the
    counsel for the appellants – judicial officers did not press this
    contention as the matter is still pending before the State
    authorities, and the final order is yet to be passed. A challenge
    cannot be made in anticipation. Further, this challenge was also
    not the subject matter of the writ petitions in which the impugned
    Civil Appeal No. 3105 of 2017 & Ors. Page 22 of 23
    order was passed and would constitute an entirely new cause of
    action. Counsels for the appellants – judicial officers have,
    accordingly, reserved their right to challenge the order if, and as
    and when it is passed. In view of the aforesaid position, we would
    not go into the merits of the said contention and leave the issue
    open. It is equally open to the respondents, that is, the State of
    Bihar and the High Court to examine this contention.
  25. Recording the aforesaid, the appeals are dismissed and the stay
    order is vacated, albeit we clarify that the respondents, in terms of
    the judgment passed by the Division Bench, would be required to
    proceed in accordance with law. We also clarify that we have
    expressed no opinion on the merits of the allegations made
    against the three judicial officers. There would be no order as to
    costs.
    …………………………..J.
    (INDU MALHOTRA)
    ……………………………J.
    (SANJIV KHANNA)
    NEW DELHI;
    NOVEMBER 08, 2019.
    Civil Appeal No. 3105 of 2017 & Ors. Page 23 of 23