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The Indian Constitution Judge who did not himself wrote judgment and got it written by others can be dismissed - the Supreme Court.

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The Indian Constitution: Judge who did not himself wrote judgment and got it written by others can be dismissed - the Supreme Court.
By: C.A. DEV KUMAR KOTHARI
April 1, 2012

Related links and references:

Ajit Kumar vs. State of Jharkhand (Supreme Court) - http://judis.nic.in/supremecourt/CaseRes1.aspx

Articles 233 – 236, 309 - 311 of the Indian Constitution.

The related provisions of the Indian Constitution are reproduced below with highlights:

Article.233. Appointment of district judges.-

(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

Article.234. Recruitment of persons other than district judges to the judicial service.-

Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.

Article.235. Control over subordinate courts.-

The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

Article.236. Interpretation.-

In this Chapter-

(a) the expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions Judge;

(b) the expression "judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.

Article.309. Recruitment and conditions of service of persons serving the Union or a State.-

Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.

Article.310. Tenure of office of persons serving the Union or a State.-

(1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.

(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor , as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.

Article.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.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.]

The case of judge Ajit Kumar (Appellant before the Suprem Court):

He was working as sub-ordinate Judge in Garhwa, Jharkhand.

An order was issued by the Governor of Jharkhand removing him from service by an order issued on 31.07.2003.

The removal from service was  on the basis of a resolution of the Full Court of the High Court of Jharkhand recommending his removal from service. 

In his case the Inspecting Judge had  inspected the records of the Civil Court and submitted a confidential report to the Chief Justice of the Jharkhand High Court.

As per the report of the Inspecting Judge, he did not use to prepare judgments on his own, rather he used to get it prepared through some body else before delivering the judgments.

The Chief justice 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 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.

Hence, 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.

The Governor while 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 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 appellant from service was legal and justified.

Major contentions raised in Writ Petition before High Court and the supreme Court:

Shri Ajit Kumar raised the following major contentions:

  1. that the High Court does not have any power to dispense with an enquiry as envisaged for the purpose of removal of a judicial officer
  2. the impugned order was illegal and without jurisdiction.
  3. that there was no evidence on record to show that  he  was guilty of any misconduct and therefore the order of removal was illegal
  4. that no notice was issued to him before his removal from service thereby violating the principles of natural justice.
  5. 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.

Observations of Courts:

  1. Submissions were considered by the High Court in the light of the material available on record.
  2. The High Court found that the appellant was promoted as sub-ordinate Judge, Garhwa  on 05.05.2003,
  3. the then Inspecting 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 prepared through somebody else before delivering the judgments.
  4. It was also found that the then Chief Justice, after going through the report, referred the matter to the Full Court for considering the appropriate action.
  5. On 18.06.2003, the Full Court, after considering the confidential report and the report 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.
  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 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.
  7. 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 Constitution of India which permits the dispensation of an enquiry on the grounds that it is not reasonably practical to hold an enquiry.
  8. 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 appellant from service was legal and justified.

Additional observations of the Supreme Court:

The supreme Court has upheld the judgment of the High Court, therefore, we analyse additional observations and reasonings of the Supreme Court as follows:

  1. The Supreme Court heard learned counsel appearing for the parties.  
  2.  within the scheme of the Constitution of India, provisions relating to public service may be found in Articles 309, 310 and 311.
  3. 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 proper inquiry or giving a hearing.
  4.  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 236 of the Constitution.
  5.  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.
  6.  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.
  7. 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.
  8. Even for imposing a punishment of dismissal or removal or reduction in rank, the High Court can hold disciplinary proceedings and recommend such punishments.
  9. 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.
  10. 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.
  11.  It would be appropriate to look at Article 310 of the Constitution of India.
  12. 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 under which they are held and are terminable at its will.

m. The aforesaid power is what the doctrine of pleasure defines, which was recognized in the United Kingdom and also received the constitutional sanction under our Constitution in the light of Article 310 of the Constitution of India.

  1. 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, dismissal of civil servants must comply with the procedure laid down in Article 311 and Article 310(1) cannot be invoked independently with the object of justifying a contravention of Article 311(2).
  2. There is an exception provided by way of incorporation of Article 311 (2) with sub-clauses (a), (b) and (c).
  3. 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 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 dismissal or removal or reduction in rank in writing.
  4. though 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 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 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) 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 recording reasons, for which it is not practicable to hold an enquiry.
  5.  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.
  6.  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 somebody else before delivering the judgments.
  7. 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 enquiry should be dispensed 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 aforesaid reason recorded by the High Court was a legal and valid ground for not holding an enquiry.
  8. 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 was specifically dispensed with.
  9.  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) 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 competent authority removing the appellant from the services cannot be held to be without jurisdiction and power.
  10.  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 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 India.
  11. 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 provision, like Articles 234 – 236, have been incorporated in the Constitution of India inter 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.
  12.  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 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. 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 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.
 
By: C.A. DEV KUMAR KOTHARI - April 1, 2012
 
 
 

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