AJIT KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Ajit Kumar, the petitioner herein, who was working as a Subordinate Judge in Garhwa, was removed from service by an order issued by the Governor, State of Jharkhand dated 31.07.2003 on the basis of the resolution of the Full Court (High Court) recommending for removal of the petitioner from service.

(2.) CHALLENGING the same, the petitioner has filed this writ petition with the following two prayers: (i) Praying for quashing the order of removal passed by the Governor on 31.07.2003 from service with effect from 31.07.2003, which was issued finding that his service is no longer required in public interest; (ii) Praying for quashing of the resolution and recommendation of the Full Court through memo dated 24.07.2003 for removal of the petitioner by the Governor without inquiry as the High Court Full Court felt that it would not be reasonably practicable to hold inquiry in the interests of the institution and also in public interest, thereby dispensing with enquiry under proviso to Article 311(2) of the Constitution of India.

(3.) THE short submissions made by Shri V. Shivnath, learned Senior Counsel for the petitioner are as follows: (i) The Governor is the appointing authority of the petitioner and other officers of the Subordinate Judiciary. Therefore, he is the competent authority to dismiss or remove the petitioner. As per Article 311(2)(b) proviso, the only authority empowered to dismiss or remove a person is competent to record in writing that it is not reasonably practicable to hold the enquiry against petitioner. So the Governor alone is the appointing authority as well as dismissing authority who is competent to decide about the practicability to conduct enquiry. (ii) The High Court can hold enquiry, impose punishment other than dismissal, removal or reduction in rank. So, the High Court is not competent to remove the petitioner and as such it cannot decide about the practicability to hold enquiry against the petitioner. (iii) Exercising the powers under Articles 233, 234 and 235 of the Constitution, the power of removal and dismissal is exclusively required to be exercised only by the Governor. The Governor alone is competent to pass an order in terms of proviso (b) to Article 311(2) of the Constitution of India to record that it is not practicable to hold regular enquiry. Therefore, the resolution passed by the Full Court (High Court) to dispense with the regular enquiry is without jurisdiction as the Governor, who is competent to pass the order of removal or dismissal or reduction of rank, alone has to be satisfied with the material placed to dispense with the regular enquiry. (iv) Chapter VI of the Constitution consists of five Articles, No. 233 to 237. Article 236 means the expression District Judge includes other judges also. The expression judicial services means a service exclusively of a person intending to fill the post of District Judge and other civil judicial post inferior to the District Judge. Article 235 relates to recruitment of persons other than District Judge to judicial services and the same shall be made by the Governor of the State in accordance with the Rules made by him after consultation with the State Public Service Commission and with the High Court. (v) The power of the Governor under Article 235 cannot be curtailed by the rules framed by the State under Article 234. Even for the sake of argument it is admitted that the High Court has the right to decide to dispense with the regular enquiry, the said decision of the High Court can stand the scrutiny of the High Court under judicial review. (vi) Even when such a decision is taken by the High Court to dispense with the enquiry, the petitioner shall be given opportunity by issuance of notice of charges and to submit explanation and deny the charges. Without such an enquiry, the decision taken by the High Court to dispense with the enquiry is arbitrary.