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.