Wednesday, December 23, 2020

Supreme Court vindicates reputation of 3 judges dismissed by State of Bihar

The General Administration Department of Government of Bihar on December 21, 2020 issued a four page long notification dated December 17, 2020 regarding dismissal of three judges of the lower court -- Hari Niwas Gupta, Komal Ram and Jitendra Nath Singh -who were allegedly caught by Nepal Police with women in Metro Hotel in Nepal in 2013. The order was issued pursuant to the letter of Registrar General, Patna High Court dated September 3, 2020 in the light of Supreme Court's verdict dated November 8, 2019 in Hari Niwas Gupta v State of Bihar [Civil Appeal No. 3501 of 2017]. The fact which emerges from the verdict is that there is nothing on record to show that Nepal Police ever corroborated the allegation in question. These three judicial officers were working as Principal Judge, Family Court, Samastipur; Chief Judicial Magistrate, Araria; and ad-hoc Additional District and Sessions Judge, Araria, respectively. It is apparent from the verdict of Supreme Court's 2-Judge Bench that all the three judicial officers have retired during the pendency of the case. The order dated November 8, 2019 categorically states that "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." There is nothing on record to corroborate the veracity of the news item was published in a local Nepali daily (Udghosh) on 29th January 2013 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. The Supreme Court's verdict dated November 8, 2019 records that another news item published by the same daily on 22nd February 2013, "expressed regret over erroneous reportage."

Subsequent to these allegations Patna 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 Supreme Court's verdict  also records that "the Superintendent of Police, Araria appeared to have held a bias against the judicial officers." 

There is nothing in the Court's verdict to show that finding of the Deputy Secretary in question was placed on record for examination by the Court. Supreme Court's 23 page long order does not authenticate the claim made by a Deputy Secretary of Ministry of Home Affairs about the whereabouts of the judicial officers.

It is recorded that 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.

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.

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..."

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.  

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.

In its dismissal order, Supreme Court observes "Conscious of the seriousness of the allegations and the reason for allowing the writ petition, the Division Bench (of High Court) 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."

The Court has recorded the argument of the counsel appearing for Komal Ram and Jitendra Nath Singh  who raised a "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," It reads:“...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.” 

Responding to this contention, the Court observed that "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'."

Significantly, the Supreme Court has recorded that "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 2015 However, the matter is pending with the State Government..." 

Patna High Court had constituted a 5-member panel in this regard on May 22, 2015. Following the report of this panel dated August 3, 2015. a full court of Patna High Court sat and took a reasoned decision on August 7, 2015 which was communicated to the the Registrar General of the Patna High Court on August 13, 2015. It seems two concurrent proceedings were underway in this case. 

Hari Niwas Gupta, one of the three dismissed judges filed an appeal against the decision of the full court of the Patna High Court in the Supreme Court on September 1, 2015 which was registered as Civil Appeal. No. 3105 of 2017 on February 20, 2017. Besides this S.L.P.(C) CC No. 16385 of 2015 was registered on September 2, 2015 and SLP(C) No. 26473 of 2015 was registered on September 11, 2015 too was clubbed together. Subsequently, two other dismissed judges also filed their appeals. The fact remains that the case of Hari Niwas Gupta got admitted in the Supreme Court on January 19, 2016. 

On the very first day of hearing, on September 11, 2015, a 3-judge Bench of Chief Justice and Justices C. Nagappan and Amitava Roy had issued an order saying, "In the meantime, the operation of the impugned judgment and order shall remain stayed." 

The order of 2-judge Bench of Justices Mohan M. Shantanagoudar and Sanjiv Khanna dated  November 8, 2019 dismissing the civil appeal of Hari Niwas Gupta along with the civil appeal Nos. 3106-3017 of Komal Ram and Jitendra Nath Singh records that "we were informed that no final order has been passed in view of the stay order dated 11th September 2015 passed by this Court." 

Pursuant to the Court's order, according to the notification of the Department of General Administration dated December 17, 2020, Government of Bihar, the dismissal of these judicial officers will be effective from February 12, 2014. 

The concluding paragraph of the Supreme Court's verdict dated  November 8, 2019 states that "the appeals are dismissed and the stay order is vacated" but it does not record the fact that High Court's order was stayed by a Chief Justice headed 3-Judge Bench. Can a 2-Judge Bench vacate the stay order of 3-Judge Bench?

The fact remains the penultimate paragraph of the verdict observes: "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 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." It gave an opportunity to the State of Bihar and the High Court to review and reverse their orders which seems to have been based on unverifiable allegations. 

It also implies that Supreme Court has granted liberty to the three judicial officers to challenge the notification of General Administration Depart of Government of Bihar. All the documents and proceedings on record make it crystal clear that the dismissal was approved "without any inquiry" into the questionable allegations. It appears to be a classic case of State making an allegation and concluding that its allegations true without any inquiry. Can public institutions safeguard their legitimacy by concluding the veracity of their own allegations admittedly without any credible inquiry?  

Gopal Krishna

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