HARI NIWAS GUPTAversusSTATE OF BIHAR AND ANOTHER

                         [2019] 15 S.C.R. 443                           443


                      HARI NIWAS GUPTA                                  A
                                 v.
               STATE OF BIHAR AND ANOTHER
                  (Civil Appeal No. 3105 of 2017)
                                                                        B
                       NOVEMBER 08, 2019
      [INDU MALHOTRA AND SANJIV KHANNA, JJ.]
       Constitution of India – Clause (b) of the second proviso to
Art.311(2) – News item published in local daily that the Nepal
Police apprehended three judicial officers-appellants belonging to      C
the State of Bihar, allegedly being found in compromising position
with three Nepali women in a guest house at Biratnagar, Nepal –
Full Court resolution passed for their dismissal, dispensing with
the disciplinary proceedings by invoking clause (b) of the second
proviso to Art.311(2) – While setting aside the order of dismissal      D
for failure to record reasons for dispensing with the enquiry, the
Division Bench gave liberty to the High Court to invoke power
under the aforesaid provision at an appropriate stage with the
requirement to record reasons – Challenge to the liberty granted
– Held: Art.311 deals with dismissal, removal or reduction in rank
of persons employed in civil capacities under the Union or a State      E
– As per the dicta in Tulsiram Patel and Jaswant Singh case, the law
in terms of clause (b) of the second proviso to Art.311(2) mandates
that the reasons for dispensing with the inquiry must be recorded
in writing before the order of dismissal – Expression ‘at appropriate
stage’ used by the Division Bench is not a direction for initiation     F
of a regular departmental inquiry nor does it prohibit recourse to
clause (b) to the second proviso of Art.311(2) in accordance with
law – Division Bench justified in not barring the High Court from
fresh application of mind – In terms of the judgment of the Division
Bench, respondents to proceed in accordance with law – No               G
opinion expressed on the merits of the allegations made against
the appellants – Bihar Government Servants (Classification,
Control and Appeal) Rules, 2005 – rr.14, 20 – Service Law.
     Constitution of India – Arts.233-236; Clause (b) of the
second proviso to Art.311(2) – ‘Control’ of the High Court in           H
                                443
444            SUPREME COURT REPORTS                      [2019] 15 S.C.R.


A     matters relating to the subordinate judiciary – Dismissal of the
      appellants-judicial officers by Full Court resolution, dispensing
      with the disciplinary proceedings by invoking clause (b) of the
      second proviso to Art.311(2) – Plea of the appellants relying on
      Nripendra Nath Bagchi that this power exclusively vests with the
B     Governor alone – Held: Said contention misreads the ratio in
      Nripendra Nath Bagchi, which rather holds to the contrary –
      Observations in the judgment 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
C     (b) of the second proviso to Art.311(2) – It refers to Art.235 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.
D            Service Law – Judicial service – Full Court resolution passed
      for dismissal of appellants-judicial officers– Dismissed from service
      by order dtd. 12.02.14, dispensing with the disciplinary proceedings
      by invoking clause (b) of the second proviso to Art.311(2) – One
      of the officer had attained superannuation during the pendency
E     of writ petitions challenging the dismissal, while the other two
      officers retired during the pendency of the present appeals –
      Contention that the order of dismissal u/clause (b) of the second
      proviso to Art.311(2) cannot be passed against the retired officer
      and thus, at best the pensionary and retirement benefits can be
F     forfeited and denied – Held: Full Court has again recommended
      dismissal of the appellants dispensing with the departmental inquiry
      in the exercise of power u/clause (b) of the second proviso to
      Art.311(2) by recommendation dated. 13.08.2015 – However, matter
      is pending with the State Government – No final order passed in
      view of the stay order dated.11.09.2015 passed by Supreme Court
G     – A challenge cannot be made in anticipation– This challenge was
      also not the subject matter of the writ petitions and would constitute
      an entirely new cause of action – Appellants have thus, reserved
      their right to challenge the order if, and as and when passed –
      Open to the respondents to examine this contention – Stay order
H     vacated – Constitution of India – Art.311(2).
  HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                       445


      Dismissing the appeals, the Court                                A
      HELD: 1.1 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. The directions and             B
observations of the judgment 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        C
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              D
Constitution at an appropriate stage, after recording reasons and
following the prescribed procedure. [Paras 8, 10] [453-A-B; 454-
C-D]
      Jaswant Singh v. State of Punjab (1991) 1 SCC
      362 : [1990] 3 Suppl. SCR 354 ; Union of India v.
                                                                       E
      Tulsiram Patel (1985) 3 SCC 398 : [1985] 2 Suppl.
      SCR 131 – relied on.
       1.2 Striking down and setting aside the earlier order dated
12 th 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        F
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       G
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. The authorities     H
446           SUPREME COURT REPORTS                    [2019] 15 S.C.R.


A     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
B     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, neither accepted nor rejected this
      contention of the High Court. It will not be appropriate and
C     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. [Paras 11, 15] [454-E-G; 458-B-D]

D          Reena Rani v. State of Haryana and Others (2012) 10
           SCC 215 ; Risal Singh v. State of Haryana and Others
           (2014) 13 SCC 244 : [2014] 7 SCR 544 – relied on.
           Mohinder Singh Gill and Another v. The Chief Election
           Commissioner, New Delhi and Others (1978) 1 SCC
E          405 : [1978] 2 SCR 272 ; East Coast Railway and
           Another v. Mahadev Appa Rao and Others (2010) 7
           SCC 678 : [2010] 7 SCR 908 ; Chief Security Officer
           and Others v. Singasan Rabi Das (1991) 1 SCC 729 ;
           State of Orissa and Others v. Dinabandhu Beheta and
           Others (1997) 10 SCC 383 ; Sudesh Kumar v. State
F          of Haryana and Others, (2005) 11 SCC 525 ; Tarsem
           Singh v. State of Punjab and Others (2006) 13 SCC
           581 – referred to.
           2. The contention misreads the ratio in Nripendra Nath
      Bagchi, which rather holds to the contrary. The expression/
G     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
H     showing cause as required by clause (2) of Article 311 unless
  HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                      447


such opportunity is dispensed with by the Governor acting under       A
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
                                                                      B
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   C
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
                                                                      D
or removal. [Paras 17, 18] [458-G-H; 461-B-F]
      State of West Bengal v. Nripendra Nath Bagchi AIR
      1966 SC 447: [1966] SCR 771 – followed.
      3. During the course of hearing, it was pointed out that the
Full Court had subsequently again recommended dismissal of            E
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 no final order has been passed in view of the
stay order dated 11th September 2015 passed by this Court. It         F
was 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
                                                                      G
passed against the appellants - judicial officers. 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          H
448           SUPREME COURT REPORTS                     [2019] 15 S.C.R.


A     passed and would constitute an entirely new cause of action.
      Counsels for the appellants-judicial officers have reserved their
      right to challenge the order if, and as and when it is passed. The
      merits of the said contention not gone into and the issue open
      is left open. It is equally open to the respondents, that is, the
      State of Bihar and the High Court to examine this contention.
B     The stay order is vacated, albeit it is clarified that the
      respondents, in terms of the judgment passed by the Division
      Bench, would be required to proceed in accordance with law. It
      is also clarified that no opinion has been expressed on the
      merits of the allegations made against the three judicial officers.
C     [Paras 19-20] [463-B-G]
            Ajit Kumar v. State of Jharkhand (2011) 11 SCC
            458 : [2011] 3 SCR 830 – relied on.
                            Case Law Reference
      [1990] 3 Suppl. SCR 354          relied on            Para 8
D
      [1985] 2 Suppl. SCR 131          relied on            Para 8
      [1978] 2 SCR 272                 referred to          Para 12
      [2010] 7 SCR 908                 referred to          Para 12
      (1991) 1 SCC 729                 referred to          Para 13
E
      (1997) 10 SCC 383                referred to          Para 13
      (2005) 11 SCC 525                referred to          Para 13
      (2006) 13 SCC 581                referred to          Para 13
      (2012) 10 SCC 215                relied on            Para 13
F
      [2014] 7 SCR 544                 relied on            Para 13
      [1966] SCR 771                   followed             Para 16
      [2011] 3 SCR 830                 relied on            Para 18
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3105
G
      of 2017.
            From the Judgment and Order dated 19.05.2015 of the High
      Court of Patna in CWJC No. 8636 of 2014.
            With
H           Civil Appeal Nos. 3106-3107 of 2017.
  HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                             449


      S. R. Singh, Nidhash Gupta, Sr. Advs., Ms. Sunita Pandit, Shivam       A
Sharma, Krishna Kumar Yadav, Ankur Yadav, Ms. Japneet Kaur,
Ms. Asha Gopalan Nair, Ravi Prakash, Aditya Dewan, Chandra
Prakash, Ms. Saroj Bala, Advs. for the Appellant.
      Pravin H. Parekh, Sr. Adv., Devashish Bharuka, Ravi Bharuka,
Ms. Sarvshree, Justine George, Ms. Tanya Chaudhry, Ms. Pratyusha             B
Priyadarshini, M/S. Parekh & Co., Advs. for the Respondents.
      The Judgment of the Court was delivered by
      SANJIV KHANNA, J.
      1. This common judgment would dispose of the above-captioned           C
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         D
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
                                                                             E
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   F
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       G
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          H
450            SUPREME COURT REPORTS                         [2019] 15 S.C.R.


A     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
B
      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
C     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,
D     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
E     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
F     filing separate writ petitions, which were allowed by the Division Bench
      of the High Court (‘Division Bench’ for short), vide judgment dated
      19 th 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.
G
      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
H     proceedings.
  HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                             451
                [SANJIV KHANNA, J.]

       5. While setting aside the order of dismissal, in the case of the     A
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,    B
      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   C
      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
                                                                             D
      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           E
      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      F
      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       G
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.                H
452            SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A           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
B     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
C     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
D     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
E
              (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
F                 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
G     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
H     exceptions when the need for holding an inquiry under clause (2) can
     HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                               453
                   [SANJIV KHANNA, J.]

be dispensed with. Clause (b) of the second proviso to Article 311(2)             A
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
                                                                                  B
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
                                                                                  C
         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             D
         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             E
         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
                                                                                  F
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. This is what has been observed in the quoted
portion of the final directions by the Division Bench, which refers to            G
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
1
    (1991) 1 SCC 362
2
    (1985) 3 SCC 398                                                              H
454             SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A     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
B     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
C     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
D
      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.

E             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
F     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
G     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
H     and Another v. The Chief Election Commissioner, New Delhi and
    HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                            455
                  [SANJIV KHANNA, J.]

Others3 and East Coast Railway and Another v. Mahadev Appa Rao                A
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        B
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       C
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. Dinabandhu
Beheta and Others, 6 Sudesh Kumar v. State of Haryana and                     D
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        E
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,
                                                                              F
       “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
3
   (1978) 1 SCC 405                                                           G
4
   (2010) 7 SCC 678
5
   (1991) 1 SCC 729
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                                                         H
456            SUPREME COURT REPORTS                         [2019] 15 S.C.R.


A           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
B
            take appropriate decision after objectively considering the entire
            record.”
            Similarly, in Risal Singh (supra), it was observed as under:
            “10. Consequently, we allow the appeal and set aside the order
C           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
D           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
E           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.”

F            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
G           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
H           task, either at the inception or half way-through, that a decision
  HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                             457
                [SANJIV KHANNA, J.]

      could have been taken to dispense with the enquiry; by recording       A
      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.”
                                                                             B
      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
afore-quoted portion refers to the legal position that normally              C
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              D
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     E
      (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        F
      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
                                                                             G
      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   H
458               SUPREME COURT REPORTS                        [2019] 15 S.C.R.


A              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
B     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
C
      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.
D            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
E     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,
F              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
G              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
      11
H          AIR 1966 SC 447
  HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                             459
                [SANJIV KHANNA, J.]

Court in matters relating to the subordinate judiciary in Nripendra Nath     A
Bagchi (supra), it was held:
      “13. […] the history which lies behind the enactment of these
      Articles indicate that “control” was vested in the High Court to
      effectuate a purpose, namely, the securing of the independence
      of the subordinate judiciary and unless it included disciplinary       B
      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      C
      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           D
      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.
                                                                             E
      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        F
      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
                                                                             G
      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       H
460      SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A     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
B     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
C     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:
D
      “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
E     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
F     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
G     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
H     District Judges, the Governor will always have regard to the
     HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                            461
                   [SANJIV KHANNA, J.]

         opinion of the High Court in the matter. This will be so whoever      A
         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          B
         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         C
         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       D
         (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      E
         (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     F
         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.”           G
      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:
12
     (2011) 11 SCC 458                                                         H
462      SUPREME COURT REPORTS                         [2019] 15 S.C.R.


A     “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
B     the provisions of Articles 235 and 236 of the Constitution of India.
      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
C     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
D     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
E     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
F     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
G     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
H     issue such orders in terms of the recommendation of the High
  HARI NIWAS GUPTA v. STATE OF BIHAR AND ANOTHER                                 463
                [SANJIV KHANNA, J.]

      Court in exercise of power under Article 311(2)(b) of the                  A
      Constitution of India.” (emphasis supplied)
       19. 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              B
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            C
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            D
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            E
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         F
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
                                                                                 G
expressed no opinion on the merits of the allegations made against the
three judicial officers. There would be no order as to costs.

Divya Pandey                                                Appeals dismissed.

                                                                                 H