The present intra Court appeal has been filed against the order dated 17.08.2020 passed by the learned Single Judge in WPS No.2795 of 2016(Prabhakar Gwal v. State of Chhattisgarh and ...
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2024:CGHC:29469-DB
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 11-07-2024
Judgment delivered on : 07-08-2024
WA No. 422 of 2020
Prabhakar Gwal S/o Shri Mukti Gwal, aged about 49 years Caste- Gada
(Scheduled Caste Cadre), Occupation- Former Judge, R/o Village-
Nanakpali, Post Office- Chatti Girola, Tehsil and Police Station-
Saraipali, District- Mahasamund (Chhattisgarh)
---- Appellant
Versus
1.State of Chhattisgarh, Through Secretary, Department of Law and
Legislative Affairs, Mahanadi Khand, Nawa Raipur, Atal Nagar,
District : Raipur, Chhattisgarh
2.High Court of Chhattisgarh Through Registrar General, High Court
at Bodri, N.H. No. 200, District : Bilaspur, Chhattisgarh
---- Respondents
(Cause Title taken from Case Information System)
For Appellant : Mr. Shailendra Kumar Bajpai,
Mr. Santosh Kumar Pandey and
Mr. Mahesh Gahlot, Advocates
For Respondent No.1/State: Mr. Sangharsh Pandey, Govt. Advocate
For Respondent No.2/ : Mr. Prafull N. Bharat, Senior Advocate
High Court of Chhattisgarh assisted by Mr. Amrito Das, Advocate
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Parth Prateem Sahu , Judge
CAV JUDGMENT
Per Ramesh Sinha , Chief Justice
1.Heard Mr. Shailendra Kumar Bajpai, Mr. Santosh Kumar Pandey
and Mr. Mahesh Gahlot, learned counsel for the appellant. Also
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heard Mr. Sangharsh Pandey, learned Government Advocate,
appearing for the State / respondent No.1 and Mr. Prafull N.
Bharat, learned Senior Advocate assisted by Mr. Amrito Das,
learned counsel, appearing for respondent No.2/High Court of
Chhattisgarh.
2.The present intra Court appeal has been filed against the order
dated 17.08.2020 passed by the learned Single Judge in WPS
No.2795 of 2016 (Prabhakar Gwal v. State of Chhattisgarh and
Another), whereby the learned Single Judge has dismissed the
writ petition challenging the order dated 01.04.2016 passed by
respondent No.1, by which the writ petitioner / appellant has been
dismissed from service.
3.Brief facts relevant for filing the present appeal, according to the
appellant, are that the appellant/writ petitioner (hereinafter
referred to as "the appellant" wherever necessary) was initially
appointed as Civil Judge, Class-II through order dated 27.12.2005
issued by the Principal Secretary, State of CG, Law & Legislative
Affairs Department, Raipur. The appellant was thereafter
promoted to the post of Civil Judge, Class-l in the year 2012 and
then in the year 2015 to the post of Additional Chief Judicial
Magistrate and posted at Raipur where he was also given charge
of Special CBI Magistrate. On 17.03.2015 the wife of the appellant
made a complaint to the Registrar General and Registrar
(Vigilance) of the High Court of Chhattisgarh against the then
District & Sessions Judge, Bilaspur that he is unnecessarily
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harassing her husband/appellant thereby compelling him to
commit suicide. On 11.05.2015 the Registrar (Vigilance) issued a
Memorandum to Smt. Pratibha Gwal (wife of petitioner) for
submitting an affidavit in support of her complaint dated
17.03.2015 within seven days of its receipt.
4.On 17.07.2015 the present appellant passed a judgment in PMT
Paper Leak Scam for registration of FIR against the then
Superintendent of Police, Raipur, other police personnel and the
persons involved in the crime. On 03.08.2015 one Ramdas
Athwale, R/o Masanganj, Bilaspur (CG), made a complaint to the
Hon'ble Chief Justice of India, Hon'ble Chief Justice of this Court,
District & Sessions Judge as well as Chief Judicial Magistrate and
the Additional Chief Judicial Magistrate of Raipur (appellant
herein) for disclosure of the names of main culprits of CG PMT
Paper Leak Scam and other recruitment. This complaint was
dispatched by the complainant on 10.08.2015 and received by the
appellant on 14.08.2015. On the same day, the appellant taking
cognizance on the above complaint, forwarded the same to P.S.
Ganj, Raipur for doing the needful and informing the Court
accordingly. As per the said complaint, Chief Minister, other
Ministers of the State and officers of the State are involved in the
said scam.
5.On 07.08.2015 the appellant made a complaint to Police Station-
Civil Line, Raipur of being victimized of criminal conspiracy being
hatched by the higher police authorities and the influential political
leaders against whom the appellant had passed a judgment on
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17.07.2015 concerning the PMT Paper Leak Scam. Thereafter, on
21.08.2015 the appellant submitted an application to the Director,
Public Prosecution through the then District & Sessions Judge,
Raipur thereby seeking transfer of ADPO Shri Radheshyam
Nagwanshi as he was not cooperating with the Court and was
creating nuisance in collusion with the police authorities and the
political leaders against whom he had passed judgment in PMT
scam. When the said news was published in Dainik Bhaskar
newspaper on 25.08.2015, a Memorandum was issued by
respondent No.2/High Court of CG on 27.08.2015 to all the
District & Sessions Judges of the State, with a direction to
circulate it amongst all the concerned, regarding strict compliance
of Government Servants Conduct Rules or else face appropriate
disciplinary action. On 14.09.2015 the appellant submitted an
application to the Registrar General and the Hon'ble Chief Justice
of the Supreme Court of India through District & Sessions Judge,
Raipur and Registrar General of High Court of CG for cancellation
of his illegal transfer order whereby he was transferred from
District-Raipur to District-Sukma (CG). On 15.09.2015 (received
on 26.09.2015), the then Registrar (Vigilance) of High Court of CG
issued a show cause notice to the appellant for lodging of report
in Civil Lines Police Station, Raipur against Shri Ramlal Chouhan-
MLA, Saraipali, Shri Dipanshu Kabra, Ex.S.P., Raipur and others
without prior intimation/permission to/of the High Court and sought
his reply within seven days of its receipt.
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6.On 22.09.2015, Pratibha Gwal, wife of the appellant made a
complaint to Hon'ble the Chief Justice and Registrar General of
the Supreme Court against the then Chief Justice of High Court of
CG, one of the then Judge of High Court of CG, the then Chief
Minister of State of CG, some ministers, the then Superintendent
of Police, Shri Dipanshu Kabra and his relatives for hatching
criminal conspiracy against her husband for protecting the
persons involved in CG PMT Paper Leak Scam and for causing
loss to her husband by getting him transferred.
7.On 23.09.2015 Pratibha Gwal, wife of the appellant, made a
complaint to Hon'ble the Chief Justice of India for taking
appropriate action in the matter of corruption in the construction
work of Court buildings at Raipur and Bilaspur against the
concerned contractors, PWD Engineers, the then Chief Justice of
this High Court and and one of the then sitting Judge, the then
District & Sessions Judge, Bilaspur.
8.The High Court of CG sent a second show cause notice on
23.09.2015 to the appellant on the same subject matter with a
direction to submit reply within seven days of its receipt.
9.On 24.09.2015 the appellant made a complaint to the Station
House Officer, P.S. Civil Line, Raipur for taking action against the
unknown persons who are trying to obtain information about his
location through telephone. On the same day, appellant submitted
an application to the Registrar General of High Court of CG for
grant of additional time till 5
th
October, 2015 to join his duties at
Sukma.
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10.On 29.09.2015 a Memo was issued by the then District &
Sessions Court, Raipur to the wife of the appellant Smt. Pratibha
Gwal thereby informing about sending of intimation to the High
Court regarding lodging of complaint by the appellant at Civil Line
Police Station, Raipur against the MLA and the police officials on
07.08.2015.
11.In his Annual Confidential Report for the period from 01.04.2014
to 31.03.2015, the appellant was graded 'D' by the concerned
District Judge and accordingly, a D.O. letter was issued by the
High Court of CG on 30.09.2015 to the appellant seeking his
representation, if any, against the adverse remarks mentioned in
the said D.O. letter, within 15 days.
12.On 05.10.2015 the appellant submitted a short reply to the show
cause notice dated 15.09.2015 to the Registrar (Vigilance), High
Court of CG, through the then District & Sessions Judge,
Dantewada for want of clarity as to the contents of the notice and
the non-availability of all the relevant documents.
13.On 31.10.2015 the appellant made a complaint at Police Station-
Arang, Distt. Raipur regarding the incident of marpeet with him
and illegal recovery from him in the name of toll tax. Copy of the
complaint and FIR bearing Cr. No. 350/15 were also annexed
therewith.
14.On 19.11.2015 an order was issued by the then District &
Sessions Judge, South Bastar, Dantewada to the appellant
thereby intimating about sanction of earned leave of the appellant
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from 19.10.2015 to 09.11.2015 i.e. for total 22 days by rejecting
the earlier sanctioned earned leave from 19.10.2015 to
13.11.2015 i.e. for total 26 days.
15.On a complaint case under Section 200 of CrPC being filed by
Amit Dubey, against the appellant under Sections 294 and 506 of
IPC, the Additional Chief Judicial Magistrate, Raipur passed an
order on 01.12.2015 thereby fixing the case for primary evidence.
16.On 01.12.2015, the Director of Chhattisgarh State Judicial
Academy addressed a letter to the then District & Sessions
Judge, Dantewada thereby informing about the First State Level
Conference on Criminal Justice (Fair Investigation & Fair Trial) to
be held on 12
th
September, 2015 at Nimora, Raipur, and
circulation of this information amongst all the judicial officers of
the district.
17.On 07.12.2015, the appellant submitted an application-cum-
complaint to the the District & Sessions Judge, Dantewada for
informing the concerned higher judicial and administrative officials
about the interference of Collector, Sukma in the judicial
proceedings being conducted by the appellant. The appellant on
07.12.2015 also made a complaint to the Registrar General of
High Court of CG through District & Sessions Judge, Dantewada
against the then ADJ, Raipur and the then Civil Judge, Class-I,
Bilaspur for passing order in civil case without jurisdiction and
requested for taking appropriate action against them for their
termination from service.
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18.On 09.12.2015, the appellant also submitted a complaint to the
Registrar General of High Court of CG through the then District &
Sessions Judge, Dantewada against the then Chief Judicial
Magistrate, Bilaspur. On 22.12.2015, the appellant sent a Memo
to the Director General of Police, Raipur and the Inspector
General of Police, Jagdalpur Range, Distt. Bastar for inquiring into
the matter of illegally impleading the innocent villagers in criminal
cases. The appellant also annexed copy of the complaint dated
22.12.2015 received by him from the villagers in this regard.
19.On 29.12.2015, appellant made an application to the Station
House Officer, P.S. Arang, Distt. Raipur under Section 195 of
CrPC for filing complaint case for the offence under Sections 193
and 120B of IPC against Amit Dubey, GP Singh (Inspector
General of Police), Radheshyam Nagwanshi (ADPO), Mohd. Sajid
Khan (Advocate), Ramlal Chouhan (MLA of Saraipali), Dipanshu
Kabra (former Superintendent of Police, Raipur) and other
concerned persons.
20.On 12.01.2016, appellant submitted a complaint to the Registrar
General of High Court of CG through District & Sessions Judge,
Dantewada against the then Information Officer in Civil Court at
Sakti for illegal exercise of jurisdiction by first appellate
information officer for the last 5-6 months, without authority of law
and therefore, requested for his termination from service after
taking appropriate action. The appellant also annexed with the
said complaint, certified copy of certain orders passed by the said
judicial officer.
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21.On 18.01.2016, the Deputy Inspector General of Police, Raipur
wrote a letter to the Inspector General of Police, Range Bastar,
with regard to receipt of Memo sent by the appellant for inquiry
into the matter of false implication of the innocent villagers in
criminal cases.
22.On 25.01.2016, the Registrar (Vigilance) of High Court of CG
issued a show cause notice to the appellant to explain within
seven days of receipt of the notice as to why appropriate
disciplinary action be not initiated against him for making false
and frivolous complaints against the judicial officers named
therein.
23.On 26.01.2016, the appellant addressed a Memo to the Director
General of Police, Raipur and the Inspector General of Police,
Range Jagdalpur, Distt. Bastar for inquiry into the matter of illegal
impleadment of the innocent persons in the criminal cases of
naxal activities. The appellant also annexed copy of the
complaints with the said Memo.
24.On 03.02.2016, one Kailash Jain, Advocate, Sukma, made a
complaint to the Superintendent of Police, Sukma against Chief
Judicial Magistrate, Sukma for unnecessarily engaging him as
counsel for the accused persons and making him write application
on their behalf.
25.On 04.02.2016, the Registrar (I & E) of High Court of CG, issued
an order thereby withholding one annual increment of the
appellant without cumulative effect for making complaint/FIR
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against Shri Ramlal Chouhan, MLA, Saraipali and others without
prior intimation/permission to/of the High Court and considering
his reply dated 05.10.2015 to the show cause notice dated
15.09.2015.
26.On 05.02.2016, the appellant submitted a detailed reply to the
show cause notice dated 23rd and 25th January, 2016 to the
Registrar (Vigilance) and also annexed the list of witnesses
therewith. On 08.02.2016, the appellant submitted a request letter
to the then District & Sessions Judge, Dantewada thereby
informing that Shri Kailash Jain, Advocate of Sukma in hatching
criminal conspiracy against him, assisting the naxals clandestinely
and doing illegal activities in connivance with the higher police
and administrative authorities.
27.On 08.02.2016, the appellant also wrote a request letter to District
& Sessions Judge, Dantewada thereby informing that Kailash
Jain, Advocate of Sukma, is hatching criminal conspiracy,
assisting the naxalites in their activities clandestinely and
implicating the innocent ones as naxalites. On 08.02.2016 itself
the Superintendent of Police, Sukma addressed a letter to the
District & Sessions Judge, Dantewada thereby informing that the
appellant is passing arbitrary and illegal orders in respect of the
accused persons arrested in naxal activities which is encouraging
them and creating law & order problems in the district. Therefore,
necessary action was sought against the appellant. On the same
day i.e. 08.02.2016 the Superintendent of Police, Sukma also
wrote a letter to the District & Sessions Judge, Dantewada against
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the appellant for mentally harassing the investigating officers, and
annexed with the said complaint certain relevant documents.
28.On 09.02.2016, the appellant submitted an application to the
Registrar General of High Court of CG through the District &
Sessions Judge, Dantewada and thereby requested for
cancellation of the order dated 04.02.2016 after reconsideration
whereby his one annual increment was withhold without
cumulative effect.
29.On 12.02.2016, the appellant submitted application/representation
to Hon'ble the Chief Justice of India and the Registrar General of
Supreme Court of India through District & Sessions Judge,
Dantewada and Registrar General of the High Court of CG. By
the said application, the appellant requested for grant of justice by
taking effective action against certain Hon'ble Judges of the High
Court of CG alleging them to be involved in a political and criminal
conspiracy to terminate his services and are wrongly protecting
judicial officers who are indulging in wrong conduct.
30.On 12.02.2016, the appellant also submitted an application to the
Registrar General of the Supreme Court of India through District &
Sessions Judge, Dantewada and the Registrar General of the
High Court of CG and thereby requested for calling for the entire
material pertaining to him from the High Court of CG for disposal
of his original application and permitting him to appear in person
before the Supreme Court in this regard. On the same day i.e.
12.02.2016 the appellant made an application to the Director
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General of Police and Additional Police (Confidential), Police
Headquarters, Raipur for giving him police protection. On
12.02.2016 itself the Registrar (Vigilance) of High Court of CG
issued another show cause notice to the appellant for making
complaint against the then Additional District & Sessions Judge,
Sakti and sought his explanation within seven days from its
receipt or else face disciplinary action. The said notice was replied
to by the appellant on 27.02.2016.
31.On 14.03.2016 (received after dismissal), the Registrar (Vigilance)
again sent a show cause notice to the appellant for making
representation dated 12.02.2016 directly to Hon'ble the Chief
Justice of India and the Registrar General of the Supreme Court
and sought his explanation within seven days of its receipt or face
disciplinary action. On the same day i.e. 14.3.2016 (received
after dismissal), the Registrar (Vigilance) also issued a show
cause notice to the appellant for making complaint dated
23.09.2015 against some of the Hon'ble Judges of the High Court
of CG and the then District & Sessions Judge, Bilaspur and
sought his explanation within seven days from its receipt or else
face disciplinary action.
32.On 15.3.2016 (received after dismissal) the Registrar General of
the High Court of CG issued a Memo to the District & Sessions
Judge, Dantewada thereby requesting him to inform the appellant
to meet the portfolio Judge first regarding his application dated
02.03.2016 for grant of permission to represent before the Hon'ble
Chief Justice of India.
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33.On 16.03.2016, the Registrar (Vigilance) of High Court of CG
issued a Memorandum to the appellant informing him about
rejection of his representation dated 09.02.2016 for
reconsideration of the order dated 04.02.2016 issued by the High
Court withholding his one annual increment without cumulative
effect.
34.On 20.3.2016, appellant wrote an application to the Registrar
General of High Court of CG and the District & Sessions Judge,
Dantewada thereby informing them about the criminal conspiracy
being hatched against him and harassing him in the name of
enquiry at the instance of some higher police and administrative
officials named therein.
35.On 22.03.2016, the wife of the appellant Pratibha Gwal made a
complaint to the Superintendent of Police (Rural), Raipur for
taking action against the persons named therein for hatching
conspiracy against her and her family.
36.On 23.03.2016, appellant filed a criminal revision under Section
397 read with Section 399 of CrPC before the District & Sessions
Judge, Raipur against the order dated 08.03.2016 passed by the
ACJM, Raipur in Criminal Case No.595/2016 (Amit Dubey Vs.
Prabhakar Gwal) thereby directing for registration of offence
under Sections 294 and 506 Part-II of IPC against the appellant
which is still pending.
37.Thereafter, on 26.03.2016, Pratibha Gwal, wife of the appellant
filed a complaint case under Section 200 of CrPC with an affidavit
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for registration and criminal prosecution under Sections 120B,
294, 323, 506, 186, 353, 511/34 of IPC against Shri Amit Dubey
and 18 others (as detailed in para 40 of the memo of appeal).
38.On 28.03.2016, the District & Sessions Judge, Dantewada issued
a Memo to the appellant thereby informing him that after
considering his application dated 02.03.2016 seeking permission
to meet Hon'ble the Chief Justice of India for submission of
representation, he is directed to first meet his Hon'ble Portfolio
Judge of CG High Court.
39.Finally, in a meeting of the Full Court of the High Court of
Chhattisgarh held on 29.03.2016 on the basis of a report
submitted by the Registrar General in respect of a criminal
complaint case for the offence under Sections 120B, 294, 323,
186, 506, 353 &511/34 of the Indian Penal Code filed by the wife
of the appellant Smt. Pratibha Gwal before the Court of the
Additional Chief Judicial Magistrate, Raipur against Shri Amit
Dubey and 18 others, which included the then Chief Justice of the
High Court and also another senior most judge of the High Court
as an accused, it was resolved that it was not reasonably
practicable to hold a departmental enquiry against the appellant
and dispensing the same invoking the provisions of Article 311
(2)(b) of the Constitution of India, it was recommended to the
State Government to dismiss the appellant from service in public
interest. Accepting the said recommendation, the State of
Chhattisgarh vide order dated 01.04.2016 dismissed the appellant
from service in public interest with immediate effect and the said
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order dated 01.04.2016 was communicated to the appellant
through the concerned District and Sessions Judge on
04.04.2016.
40.Challenging the impugned order of dismissal from service dated
01.04.2016, the writ petitioner / appellant has preferred a writ
petition registered as Writ Petition (S) No. 2795 of 2016, which
was dismissed by the learned Single Judge vide impugned order
dated 17.08.2020. Being aggrieved by the same, the instant
appeal has been filed by the appellant.
41.Mr. Shailendra Kumar Bajpai, learned counsel for the appellant
vehemently argued that the learned Single Judge has passed the
impugned judgment by misinterpreting Article 311 of the
Constitution of India and against the settled principles of law.
Learned Single Judge has failed to appreciate the fact that
dismissal order of the appellant/petitioner has been passed by the
Additional Secretary of the Department who is subordinate to
Principal Secretary, the appointing authority of the appellant. It is
a well settled principal of administrative law that when State
Government provides any power to a particular authority/public
servant, the authority of withdrawal of such power exclusively
rests with the other authority through amendment in the particular
section and without proper amendment in the related laws or court
business rules, the Additional Secretary cannot exercise the
jurisdiction of the Principal Secretary. However, in the case in
hand, the dismissal order of the petitioner is under the signature
of the Additional Secretary. Section 16 of the MP & CG General
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Clauses Act, 1957 deals with power to appoint, and also include
power to suspend or dismiss, where, by any enactment, a power
to make any appointment is conferred, then unless a different
intention appears, the authority for the time being having power to
make the appointment shall also have power to suspend or
dismiss any person (public servant) appointed by it in exercise of
that power. But, surprisingly, in the case of the
appellant/petitioner, the impugned dismissal order has been
passed by an authority not having prima facie jurisdiction i.e.
Additional Secretary, rendering the dismissal order per se illegal,
invalid and bad in the eye of law. As such, there is also violation of
principles of delegation of powers.
42.Mr. Bajpai further submitted that the learned Single Judge did not
call for the entire record in the open court as per daily order
sheets, but mentioned about the same in para 47 of the impugned
order. The concerned relevant documents were not given to the
appellant for perusal and no opportunity was given to him for
rebuttal. Thus, the entire judicial proceedings have been nothing
but travesty of justice and grave illegality committed by the
learned Single Judge. The respondent No.1 did not file reply with
documents and affidavit and the learned Single Judge neither
waited for it nor did proceed to pass order against the State ex
parte. The learned Single Judge even did not consider it
expedient to call for the entire records concerning the case of the
appellant from respondent No.1. He also submitted that while
passing the impugned order, the learned Single Judge did not
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comply with the guidelines/format prescribed by the Hon'ble
Supreme Court of India for passing the order/judgment in its order
dated 26.07.2018 passed in Civil Appeal No.7240/2018 and as
per the prescribed principles under Order 41 Rule 31 of CPC,
1908. The learned Single Judge did not point wise dealt with all
the grounds urged by the appellant in his writ petition and no
reason whatsoever was recorded in support of the findings arrived
at by the learned Single Judge.
43.Mr. Bajpai contended that the learned Single Judge did not frame
important issues involved in this case for adjudication. The
learned Single Judge did not read, peruse and analyze all the
documents filed in this case and also did not record about the
same in the order sheets. The learned Single Judge neither even
considered the case of the appellant prima facie nor granted
interim relief or refused to grant any relief by recording any reason
and just kept on the matter pending for long. The learned Single
Judge neither read, analyze the documents and the case-law
being Union of India v. Tulsiram Patel and others, reported in
1985 (3) SCC 398 mentioned and filed by the appellant nor did
peruse the same or expressed its agreement or disagreement
with the same. The written argument submitted by counsel for the
petitioner on 19.09.2019 as well as all the oral arguments and
final argument were not discussed in the final impugned order, not
analyzed or accepted or rejected.
44.Mr. Bajpai further contended that learned Single Judge has
passed the impugned order in sheer violation of the mandatory
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provisions of Rules 187(1), 158(1) (i) of the CG High Court Rules,
2007 and Order 20 Rule 1 and Order 41 Rule 31 of C.P.C., 1908
as also CCA Rules, 1966. On many occasions, the learned Single
Judge has adjourned the matter of its own and wrongly mentioned
that the same was done at the request of the petitioner. The
learned Single Judge did not consider the principles of judicial
notice of various facts appearing in the matter. The learned Single
Judge has not even taken note of the important dates of events
nor did mention the same or recorded any finding in respect
thereof. The learned Single Judge has not mentioned in the
impugned order various important facts and its sequence which
came to the fore during the course of hearing. He also contended
that in this case, respondent No.2 has suppressed various facts
and misguided the Hon'ble Court which was ignored by the
learned Single Judge. In absence of the counsel for the petitioner
on 19.09.2019, the learned Single Judge dismissed the petition
but despite the respondents being absent on number of
occasions, the learned Single Judge did not proceed against them
ex parte at any point of time.
45.Mr. Bajpai submitted that it is surprising as to how the learned
Single Judge in the impugned order recorded a finding that
criminal case is false and frivolous without conducting any trial
whereas neither any police enquiry was conducted on the
concerned complaint nor any trial was held by the Court. The
concerned WPCR No. 88/2016 is still pending and there is an
interim order passed by this Court staying the proceedings. No
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prior opinion from the Public Service Commission was obtained
as per rules before issuing dismissal order of the
appellant/petitioner. In the process of issuance of dismissal order
against the appellant, there has been violation of government
business rules as well as the mandatory provisions of CG Civil
Services (Classification, Control & Appeal) Rules, 1966. This
apart, there has also been violation of Articles 14, 16, 21, 309,
310 & 311 and others of the Constitution of India and other
Articles, relevant mandatory provisions, according to which no
authority below the appointing authority can affect the lien. The
learned Single Judge has mentioned certain illegal, concocted
facts and conclusions in the impugned order which are not in
existence and as such, have no relevance. As per the impugned
order, if the appellant/petitioner or his wife has made false
allegations, then why no action under Section 182 of the IPC was
taken against them. As per the impugned order, if the
appellant/petitioner wanted to tarnish the image of judiciary or
used or attempted to use unparliamentary or derogatory language
or mentioned irrelevant facts, then why contempt proceedings
were not initiated against him.
46.Mr. Bajpai further submitted that on 10.08.2020 the learned Single
Judge fixed the matter for re-hearing but did not rehear the matter.
The learned Single Judge passed the impugned order with a view
to please the present 12th senior most Judge of the Hon'ble
Supreme Court namely, ‘A’ (Ex. Chief Justice of High Court of
CG), against whom a complaint case was filed by wife of the
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appellant/petitioner, and to display his over-allegiance to Justice
‘A’ and with an intent to secure promotion through him because in
para 44 of the impugned order, without mentioning the details of
the referred case being Rammurty Yadav, Diary No.29290/2018,
its excerpts have been mentioned, which is mere moral education
and nothing more.
47.It has been further submitted by Mr. Bajpai that the learned Single
Judge has ignored this important fact that when complaint case
was filed against the appellant/petitioner, no action was taken by
respondent No.2 but when Pratibha Gwal, wife of the petitioner,
filed a complaint case, then stay order was obtained by instantly
moving WPCR No.88/2016. This is clearly against the principles
of equality and as such, is contrary to the basic provision of the
Constitution of India. The learned Single Judge has played two
roles in this matter, i.e. first became the prosecutor by being a
member of the Full Court Meeting dated 29.03.2016 and then by
sitting as a Judge acted to be doing justice and by writing the
impugned order like a charge-sheet, summarily dismissed the writ
petition. The behaviour of the learned Single Judge in this matter
was like an officer or boss of the appellant, not as an impartial
Judge. The learned Single Judge even did not ask the
respondents as to why departmental enquiry in this matter was
not possible and why all the relevant documents cannot be given
to the petitioner, and by doing so, as to how the law and order
situation would be affected adversely?
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48.It has been also submitted by Mr. Bajpai that the learned Single
Judge has committed a grave error in recording a finding that for
each individual act of the wife, the husband would not be liable.
Whether in this matter the wife had consented, gave any
statement or filed any affidavit before the Court that the said act
was got done by the petitioner. In the course of consideration of
the case the learned Single Judge has committed grave illegality
by giving preference to the disciplinary matters over the criminal
matters. Even if the petitioner had allegedly committed any
heinous offence, enquiry/investigation was a must, charge sheet
mandatorily required to be issued, trial must begin, opportunity of
defence was available and then eventually being found guilty,
punishment was to be imposed. The learned Single Judge
ignored the established fundamental and principle of law that
when there is charge, enquiry is must. To the utter surprise of the
appellant/petitioner, in the present service matter, without going
through the documents, without conducting enquiry and obtaining
comments/reports, the appellant/petitioner has been dismissed
from service abruptly which is wholly illegal. The learned Single
Judge has not mentioned as to what are the facts on record
justifying the dismissal of the appellant from services dispensing
with service. The learned Single Judge ought to have considered
whether the aggrieved public servant cannot file criminal
complaint against the higher authorities of his institution on facts
as per Code of Criminal Procedure, 1973. The learned Single
Judge has to see whether prior permission is mandatory in the
22
event of an aggrieved public servant making criminal complaint
against his higher authorities on facts as per provisions of Code of
Criminal Procedure, 1973. The learned Single Judge should have
seen that there is nothing on record to form an opinion that the
appellant in order to gain publicity and tarnish the image of the
officers, the Judges and the judiciary, made various complaints to
the police and judicial authorities.
49.Mr. Bajpai also submitted that learned Single Judge has not
recorded any finding as to how the alleged complaints made by
the appellant or his wife were verified and whether any enquiry
being conducted to examine its contents, they were found false
and frivolous. If the complaint case filed by the appellant's wife
was bogus and without any substance as per law, then why no
action was taken against the said Magistrate for committing a
grave legal error. No enquiry into the authenticity and
genuineness of the allegations in the complaints was made by the
State Government or the Governor which clearly shows that the
then Chief Justice of the High Court of CG by misusing his power
and positing, got the appellant dismissed from service under
pressure. In the impugned order, the contentions raised by the
counsel for the respondents was discussed in detail whereas the
arguments/contentions of the appellant were dealt with in short
which suggests that the learned Single Judge was highly
prejudiced.
50.Mr. Bajpai lastly submitted that whether wife of any public servant
cannot make complaint against the higher authorities of the
23
institution of the public servant for enquiry into their corrupt
practices as per Anti Corruption Law, 1988. The right to appeal
available to the public servant against the punishment awarded in
service matters, is a statutory and constitutional right, which has
been violated in the present case as per CCA Rules, 1966 and
Article 235 of the Constitution of India and other relevant service
rules.
51.In support of his contention, Mr. Bajpai placed reliance on the
various judicial precedents passed by the Honble Apex Court and
different High Courts, which are as follows :
(i) Mohammad Ilyas Alvi vs. State of Maharashtra, reported in
AIR 1965 Bom 156, (1965) 67 BOMLR 170;
(ii) The State of West Bengal vs. Nripendra Nath Bagchi,
reported in 1966 AIR 447, 1966 SCR (1) 771
(iii) Anadilal Verma vs. State of Rajasthan, reported in (1967)
IILLJ 343 Raj;
(iv) Baradakanta Mishra vs. The Registrar of Orissa High Court,
reported in 1974 AIR 710, 1974 SCR (2) 282;
(v) Union of India & Another vs. Tulsiram Patel and Others,
reported in 1985 AIR 1416, 1985 SCR (Suppl) (2) 131;
(vi) Ishwar Chand Jain vs. High Court of Punjab & Haryana &
Another, reported in 1988 AIR 1395, 1988 SCR Supp. (1) 396;
(vii) K. Veeraswami vs. Union of India & Others, reported in 1991
SCR (3) 189, 1991 SCC (3) 655;
(viii) State of Rajasthan & Ors. vs. Prakash Chandra & Others,
reported in 1996 (3) WLC 585, 1996(1) WLN 212;
(ix) T. Nagappa, Mysore vs. State of Karnataka [Writ Petition
No. 30016 of 2009 (S-Dis) decided on 03.01.2012;
(x) Registrar General, High Court of Gujarat vs. Jayshree
Chamanlal Buddhbhatti [Civil Appeal No. 9346 of 2013 @ out of
24
Special Leave Petition (Civil) No. 17215/2009];
(xi) Ghanshyam Giri vs. State of Rajasthan (DB Civil Writ
Petition No. 637/2012];
(xii) Mrs. Mamoni Rajkumari & Others vs. State of Asam [WPC
No. 4476/2017];
(xiii) Central Boards of Trustees vs. M/s Indore Composite Pvt.
Ltd. [Civil Appeal No. 7240/2018 arising out of SLP (C) No.
16841/2018];
(xiv) P.S. Malik vs. High Court of Delhi & Another [Writ Petition
(Civil) No. 705/2018;
(xv) Samsul Haque vs. The State of Assam [Criminal Appeal No.
1905/2009];
(xvi) Shrirang Yadavrao Waghmare vs. The State of Maharashtra
& Ors. [Civil Appeal No. 7306/2019];
(xvii) Hari Niwas Gupta vs. State of Bihar & Another [Civil Appeal
No. 3105/2017];
(xviii) The Hon’ble High Court at Calcutta vs. Mintu Mallick &
Another [Special Leave Petition (Civil) No. 24840/2019];
(xix) Ram Murti Yadav vs. State of Uttar Pradesh & Another [Civil
Appeal No. 8875/2019];
(xx) Sadhna Choudhary vs. state of Uttarpradesh Pradesh &
Another [Civil Appeal No. 2077/2020 arising out of SLP(C) No.
8550/2019];
(xxi) P. Narsimha Chary vs. State of Telangana [Writ Appeal No.
339 of 2020 order dated 16.09.2020];
(xxii) The State of Madhya Pradesh vs. Kesar Iqbal and Another
[Special Leave to Appeal (C) No. 21596-21597/2019];
(xxiii) State of Gujarat vs. Kishanbhai etc. [Criminal Appeal No.
1485 of 2008 order dated 07.01.2014];
(xxiv) Sri M. Narasimha Prasad vs. The Registrar General [High
Court of Karnataka, Writ Appeal No. 14 & 1040-2042/2012
decided on 02.08.2019];
(xxv) Alka Rani Vs. Former Chief Justice of India Justice Ranjan
25
Gogoi [19
th
April 2019 letter to the Hon’ble Judges of Supreme
Court];
(xxvi) P.K. Gupta vs. State of Chhattisgarh & Others [CrMP No.
366 of 2015];
(xxvii) Kuldip Singh vs. State of Punjab & Ors. [Supreme Court of
India judgment dated 16.09.1996];
(xxviii) Punjab National Bank & Others Vs. Kunj Bihari Mishra, Sh.
Shanti Prasad Goel (Supreme Court of India, judgment dated
19.08.1998];
(xxix) Yoginath D. Bagde vs. State of Maharashtra & Another
(Supreme Court of India, judgment dated 16.09.1999];
(xxx) Suresh Sharma and Kuddush Ansari vs. State of Madhya
Pradesh [Writ Petition No. 22257/2021];
(xxxi) Hiren Dahyabhai Rathod vs. State of Gujarat [Special Civil
Application No. 15471 of 2020 order dated 13.04.2022]
(xxxii) Miss Akanksha Bhardwaj vs. State of Chhattisgarh &
Others [WPS No. 2206 of 2017 decided on 01.05.2024 by SB]
52.On the other hand, Mr. Sangharsh Pandey, learned Government
Advocate, appearing for the State/respondent No.1 opposed the
aforesaid submission and submitted that the grounds raised by
the appellant in the instant appeal were considered threadbare by
the learned Single Judge while passing the impugned order dated
17.08.2020. The instant appeal is a continuity of the said
proceeding, wherein the appellant has raised the same grounds
yet over again without being able to demonstrate as to how and in
what matter the findings recorded by the learned Single Judge
stand contrary to law or by any stretch be demonstrated to be
perverse. He further submitted that the insistence made by
appellant for prior consultation with the Chhattisgarh Public
26
Service Commission is absolutely misconceived and wholly
misplaced as the said issues had fallen for consideration before
the Hon’ble Division Bench of this Court in Sajjanlal Chakradhari
Vs. State of Chhattisgarh & Another, W.A. No. 419/2020 ,
decided on 06.01.2021, wherein this Court had made categoric
observation holding that where there is a resolution passed by the
Full Court in exercise of its power under Article 235 of the
Constitution of India, then there is absolutely no requirement for
appointing authority to re-consult the Public Service Commission.
He further submitted so far as the allegation that the impugned
order has been passed by an authority, who is incompetent, is
absolutely misconceived, since the decision to dismiss the
appellant from service was taken by the State Government on the
recommendation made by the Hon’ble High Court, the same was
signed and communicated by the Additional Secretary while the
decision was taken by the State Government and it was in the
name of His Excellency The Governor, who is the appointing
authority.
53.Mr. Prafull N. Bharat, learned Senior Advocate assisted by Mr.
Amrito Das, learned counsel, appearing for respondent No.2/High
Court of CG submitted that unfortunately, the appellant in the
instant writ appeal has made serious allegations of bias against
the Hon’ble Single Judge, despite having participated in the entire
proceeding of writ petition without demur before the learned
Single Judge. The submissions have been made on affidavit and
is nothing but an effort to scandalise the entire proceeding. The
27
said submissions are therefore, wholly outraging and highly
contemptuous.
54.Mr. Bharat further submitted that in the writ petition, the petitioner
has sought quashment of the order dated 01.04.2016 whereby he
has been dismissed from service. The petitioner has further
claimed to quash the order dated 04.02.2016 and thereafter to
grant all consequential benefits. It is the case of the petitioner that
during his service tenure he was served with five show cause
notices. The fourth and fifth show cause notice was issued when
he was on leave, before expiry of the period for reply he was
issued with the termination order. According to the petitioner, he
was acting within well judicial discretion and show cause notices
have been issued with predetermined mind. His services has
been terminated without holding any enquiry and the case of the
petitioner does not fall within the proviso of Article 311(2)(b) of the
Constitution of India. The petitioner further contends that his
services are governed by C.G. Lower Judicial Services Conduct
Rule 2006, therefore, the High Court cannot take a decision to
dispense with a departmental enquiry. The petitioner further
contends that the impugned order has been passed by a sub-
ordinate to the appointing authority and thus, the impugned order
of termination is bad in law and is liable to be set aside. The said
writ petition was dismissed vide order dated 17.08.2020.
55.Mr. Bharat also submitted that the contentions advanced by the
appellant are without any substance. It is respectfully submitted
that when the appellant was working as ACJM Raipur, he
28
registered a complaint against Shri Ram Lal Chouhan, MLA
Saraipali, and Shri Deepanshu Kabra, the then Superintendent of
Police, Raipur and others in P.S. Civil Lines, Raipur without prior
intimation / permission of the respondent No.2 for which a show
cause notice was issued to him. On the basis of reply submitted
by the appellant, he was inflicted with punishment of withholding
one annual increment with cumulative effect. Different show cause
notices were issued to the appellant for different acts. The
appellant made complaint against some of the judicial officer
which were rejected by the competent authority and show cause
notices were issued to the appellant. The Superintendent of
Police Sukma submitted a memo to the District Judge,
Dantewada regarding irregularities committed by the appellant
which was forwarded to the High Court. A distinct enquiry as
directed by the Hon'ble Portfolio Judge, Dantewada was
conducted. The appellant made a representation directly to
Hon'ble the Chief Justice of India for which the appellant was
issued a show cause notice as to why action be not taken under
Rule 3 and 3A of C.G. Civil Services (Conduct) Rules, 1965
(hereinafter referred as "Rules of 1965’) for use of intemperate
language of insubordination in his representation. Similarly he
made communications through his wife containing intemperate
language for which also a show cause notice was issued to him
under the Rules of 1965. Subsequently, the appellant was
dismissed from services in public interest on the recommendation
of the High Court of Chhattisgarh under sub clause (b) of Proviso
29
to clause (2) of Article 311 of the Constitution of India Read with
Sub Rule (3) of rule 14 of C.G. Lower Judicial Service
(Recruitment and Conditions of Services) Rules, 2006 (hereinafter
referred as "Rules of 2006”).
56.Mr. Bharat contended that the instant appeal has been preferred
by the appellant making serious allegations against the learned
Single Judge. The legal issues raised by the appellant are mainly
three fold, (a) that the order of dismissal has been passed by the
Additional Secretary who is subordinate to the appointing
authority being the Principal Secretary; and (b) that no prior
opinion was taken from the Chhattisgarh Public Service
Commission before issuance of the order of dismissal; and (c)
that the learned Single Judge who decided the writ petition played
two role, first as a prosecutor being in the Full Court Meeting on
29.03.2016 and second as a Judge deciding the writ petition.
57.Mr. Bharat also contended that the provision given under Article
235 of the Constitution of India clearly demonstrate that the
'control' vested with the High Court over subordinate judiciary is
exclusive in nature, comprehensive in extent and effective in
operation. The said provision has been engrafted in the
Constitution of India in order to subserve the basic feature of the
Constitution i.e. independency of judiciary, and to ensure that
malady is rectified. The purport and extent of Article 235 was
considered extenso in Baldev Raj Guliani v. Punjab & Haryana
High Court, reported in AIR 1976 SC 2490.
30
58.Mr. Bharat argued that a perusal of the discussion made by the
Hon'ble Supreme Court in Baldev Raj Guliani (supra) would
clearly show that it is the High Court alone which is competent
when it comes to matter of control and discipline of subordinate
judiciary. Similar arguments were considered by the Hon'ble
Division Bench in W.A. No. 419/2020, Sajjanlal Chakradhari v.
State of Chhattisgarh, decided on 06.01.2021, reported in 2021
SCC OnLine Chh 16.
59.Mr. Bharat further argued that in light of the submissions made
above, it is evident that the grounds raised by the appellant with
regard to the incompetency of the authority passing the impugned
order and the ground regarding opinion with the Chhattisgarh
PSC stands refuted.
60.Mr. Bharat also argued that so far as the contention of the
appellant that the impugned dismissal order has been passed by
the Additional Secretary who is subordinate to the appointing
authority is sans merit. The order of dismissal was passed by His
Excellency, the Governor of Chhattisgarh, who is the appointing
authority, and has been issued under the signature of the
Additional Secretary, Government of Chhattisgarh, Law and
Legislative Affairs Department, Mantralaya, Naya Raipur.
61.The State Government on the basis of recommendation of the
High Court of Chhattisgarh under sub clause (b) of proviso to
clause (2) of Article 311 and Article 235 of the Constitution of India
read with sub rule (3) of Rule 14 of the Rules of 2006 dismissed
31
the petitioner from services. He lastly submitted that thus, in the
light of above submissions, it is evident that the instant writ appeal
does not have any merit, and it is for the said reason the same
deserves to be dismissed.
62.We have heard learned counsel appearing for the parties,
considered their rival submissions made hereinabove, perused
the impugned order and other documents appended with writ
appeal and also went through the records with utmost
circumspection.
63.From perusal of the impugned order and materials available on
record, it transpires that challenging the impugned order of
dismissal from service dated 01.04.2016, the writ petitioner /
appellant has preferred a writ petition registered as Writ Petition
(S) No. 2795 of 2016 before the learned Single Judge of this
Court, mainly on three grounds; firstly that the impugned order of
dismissal has been passed by an authority inferior to the
appointing authority, hence the impugned order is per se illegal.
The second ground of challenge was that the entire action of
dismissal of the petitioner was with malafides and the petitioner
has been victimized at the hands of some of the higher ranking
officials in the State, so also in the police as well as some of the
influential persons in the society and a few senior Judges of this
High Court. The third and last ground of challenge was that the
impugned order is not sustainable on the ground of lack of
reasons in the impugned order which necessitates invoking of
32
Article 311(2)(b) of the Constitution of India and dismissing the
appellant from service without inquiry.
64.As regard to the first ground, it was the contention of the petitioner
that he was appointed by an order of the Principal Secretary, Law
and Legislative Affairs Department in the State of Chhattisgarh
vide Annexure P/2 dated 27.12.2005, whereas the order of
dismissal (Annexure P/1) dated 01.04.2016 is by an officer to the
rank of Additional Secretary. Since the Additional Secretary is an
officer, who is subordinate to the Principal Secretary and is also
an officer lower in rank in the judicial hierarchy also. According to
the petitioner, as it is a settled position of law that an order of
termination/dismissal from service cannot be issued by an officer
lower in rank, than to appointing officer, the order of dismissal in
the case of the petitioner is liable to be set-aside/quashed with
consequential reliefs.
65.So far as the second ground of malafide and victimization is
concerned, the counsel for the petitioner submitted that he was
issued with a show cause notice (Annexure P/5) dated
15.09.2015 in respect of a complaint/report lodged by the
petitioner in the Civil Lines Police Station, Raipur against a sitting
MLA as also against a senior IPS Officer without prior intimation
or permission to or from the High Court. To this show cause
notice, the petitioner had given a detailed reply on 05.10.2015
(Annexure P/6). Dissatisfied with the reply given by the petitioner,
the High Court had vide order dated 04.02.2016 imposed a
33
punishment of withholding of one annual increment without
cumulative effect. According to the petitioner, right from this stage,
the authorities in the State Government, the senior level Police
Officials and also some of the Judicial Officers of the Lower as
well as Higher Judicial Service and some Judges of the High
Court were having malafide against the petitioner and were bent
upon in implicating the petitioner in some case or other and were
looking for an occasion to dismiss him from service. According to
the petitioner, these facts could be ascertained from various
replies that the petitioner had given to the different show cause
notices that were issued to him and which finally resulted in his
dismissal in an illegal arbitrary malafide and vindictive manner.
According to the petitioner, these are not grounds sufficient
enough to dispense the departmental enquiry and impose a
punishment of dismissal without inquiry invoking Article 311(2)(b)
of the Constitution of India.
66.The third ground, on which the petitioner harped more was that
the impugned order does not reflect reasons for his dismissal.
This according to the petitioner was mandatorily required,
particularly when he has not been issued with either a show
cause notice or a charge-sheet to even know for what reason he
has been dismissed from service. According to the petitioner, in
the absence of any reason assigned in the impugned order, it is
also difficult to reach to a conclusion, whether it was reasonably
impracticable for holding a departmental enquiry. In the absence
of reasons in the impugned order, according to the petitioner, it is
34
difficult to ascertain the situations, which made things
impracticable to hold an inquiry. It was also the contention of the
petitioner that the reasons are all the more required in the
impugned order as in the absence of any reasons, the petitioner
does not have any sufficient ground available with him to
challenge the same effectively.
67.It would be relevant, at this juncture, to reproduce the Article
311(2) of the Constitution of India and its proviso :
“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 a 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
35
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.”
68.The learned Single Judge while deciding the writ petition has
observed that the aforesaid proviso (b) to clause (2) of Article 311
provides for that, if the employer is satisfied for some reason to be
recorded by that authority in writing that it is not reasonably
practicable to hold such enquiry, then under the circumstances an
employee can be dismissed from services. Further from reading
of the aforesaid proviso, what is reflected is that there should be
three things available with the authority before invoking the said
proviso clause of Article 311 (2). Those are: (a) That the
authorities should be satisfied for some reasons, (b) That those
reasons must be recorded in writing, (c) It is not reasonably
practical to hold an enquiry and hence, it is to be seen as to
36
whether the facts and circumstances of the case would attract
clause-b of the second proviso to Article 311(2) of the Constitution
of India.
69.The learned Single Judge has taken note of the various
complaints and replies submitted by the appellant in response to
the various show-cause notices that were issued to him by the
respondent No.2.
70.On 07.08.2015, while serving as an Additional Chief Judicial
Magistrate at Raipur, the appellant lodged a report against sitting
MLA Shri Ram Lal Chauhan and also lodged a complaint against
the then Superintendent of Police, Raipur, Shri Dipanshu Kabra,
an IPS Officer. Since the said lodging of report by the appellant,
being a Judicial Officer, was without any sort of intimation/
permission to/of the High Court, therefore, a show cause notice in
this regard for lodging complaint without intimation and permission
to/of the High Court was issued to him on 15.09.2015.
71.On 23.09.2015 Pratibha Gwal, wife of the appellant, made a
complaint to the Hon'ble Chief Justice of India, making certain
derogatory and obnoxious complaints and for taking appropriate
action in the matter of corruption in the construction work of Court
buildings at Raipur and Bilaspur against the concerned
contractors, PWD Engineers, the then Chief Justice of this High
Court and one of the then sitting Judge, the then District &
Sessions Judge, Bilaspur. For ready reference, the relevant
portion of the said complaint is reproduced hereinunder :
37
** ----- mijksDr fo"k;karxZr fuosnu gS fd mDr Hkouksa gsrq
djksM+ks :i;s dk vkcaVu fd;k x;k gS A ftruh jkf’k dh
vko’;drk gS] mlls dbZ xquk jkf’k Lohd`r fd;k x;k gS A eq>s
lwpuk feyh gS fd vfr’;ksDrh iwoZ [kpZ crk dj 'ks"k jkf’k dks
Bsdsnkj] laca/khr ih- Mcyw bathuh;j] phQ tLVhl xxx xxx
,oa tLVhl xxx xxx] egknso dkrqydj] ftyk ,oa l=
U;k;k/kh’k fcykliqj xcu dks vatke ns jgs gSa A ------ jk;iqj ds
fuekZ.kk/khu Hkou dks Jh xxx xxx ckj&ckj voyksdu djus vk
jgs gSa] D;k Jh fnokdj lkgc Hkou fuekZ.k fo’ks"kK gSa A
buds ?kjksa esa ;k ifjokj ds e/; Nkis ekus tkus ls
vjcksa :i;s v?kksf"kr laifRr fey ldrk gS A -------**
72.The appellant gave reply to the show cause notice issued to him
on 15.09.205 on 05.10.2015. In the reply some of the contentions
that the appellant has made would be relevant to be quoted at this
juncture which are as under:
** ------ ekuuh; mPp U;k;ky; fcykliqj] eSa fifM+r i{k gksdj eq>s
leFkZu djus ds ctk; ijks{k :i ls vijk/k djus okyksa dk]
cpko i{k dks leFkZu fd;k tk jgk gS A -------
------jkeyky pkSgku] fo/kk;d] fnika’kq dkcjk iwoZ ,l-ih-] ih-,e-Vh-
ijh{kk ?kksVkys esa Qals usrk ekuuh; mPp U;k;ky; ds dqN
U;k;k/kh’kksa dks fdl fdl fpt ls ,oa fdrus esa [kjhns gSa A ------
----- gs bZ’oj ;g fdruh cM+h fcMacuk gS fd vijk/k djus okys
pSu ls jg jgs gSa vkSj ge U;k;k/kh’kx.k vkil esa yM+ jgs gSa A**
38
73.For the said irresponsible and contemptuous language that the
appellant has used in his reply to the show cause, he was inflicted
with punishment on 04.02.2016 that of stoppage of one annual
increment without cumulative effect. Further, the appellant had
this habit of filing complaint against fellow judicial officers,
criticizing their judgments and further alleging that some of the
judicial officers do not have any knowledge of law and they are
not fit for judicial work and therefore they should be removed from
service.
74.For this act on the part of the appellant for filing repeated
complaints against fellow judicial officers, he was again issued
with show cause on 25.01.2016. In reply to the said show cause
notice vide Annexure P/14, he again makes following outrageous
and careless comments in his reply:
** ------ ;fn eSa xyr gwWa rks vuq’kklukRed dk;Zokgh ;k foHkkxh;
tkap dh vko’;drk ugha gS] lh/kk lsok lekIr dj ldrs gSa] eq>s
fdlh izdkj dh vkifRr ugha gksxh] D;ksafd eSa fdlh Hkh
vuq’kklukRed dk;Zokgh ;k foHkkxh; tkap dk lkeuk djus ds
fy, vkfFkZd o vkokxeu o vU; O;; ogu djus gsrq v{ke gwWa A
---- vr% vki esjh xyrh ekurs gsa rks esjh lsok lekIr dj nh
tk;] rkfd eSa ekuuh; lqizhe dksVZ esa U;k; gsrq ,d ckj vkosnu
izLrqr dj ldwa ;k vius ?kj esa tkdj vPNs ls vius ifjokj dks
ikyus dk iz;kl dj ldwWa A**
75.Inspite of notices being issued to the appellant, the appellant
again made a complaint against one of the senior officer in the
39
judicial service for which again the appellant was issued with a
show cause notice and in his response to the said notice, he
again makes the following reckless statement in his reply.
**-----f'kdk;r djuk esjk laoS/kkfud ekU;rk izkIr vf/kdkj gSA--------
------ fcuk dkj.k ekuuh; mPPkU;k;ky; fcykliqj O;fDrxr :fp
ysdj jktuhfrd "kM+;a= ds rgr esjs ihNs ugk /kksdj] esjs
ln~Hkkoukiw.kZ lkekU; fof/kd le> ds vk/kkj ij dh x;h
f'kdk;r ij mYVk esjs fo:) dkj.k crkvks uksfVl tkjh fd;k
tk jgk gSA------**
76.On 08.02.2016, the Superintendent of Police, Sukma made
compliant to the District & Sessions Judge, Dantewada, District -
Dantewada referring to the indecent, rough and outrageous
behavior made by the appellant towards the police personnel who
would produce accused/naxalite for remand and for appearance
in the Court, supported with various complaints from various
police personnel.
77.It further revealed that the appellant again on 12.02.2016, while
serving as a Civil Judge Class-I and also discharging the duties of
Chief Judicial Magistrate, Sukma, filed a complaint before Hon’ble
the Chief Justice of India making all sorts of false, frivolous and
obnoxious complaints without any basis whatsoever.
78.For making complaint directly to the Chief Justice of India, the
appellant was again issued with a show cause notice on
14.03.2016 and with regard to the letter written by his wife Smt.
40
Pratibha Gwal, the appellant was again issued a show cause
notice on 14.03.2016.
79.In addition to the conduct and attitude of the petitioner in making
false and obnoxious complaints and baseless allegations against
the Judges of the High Court, senior level police officers in the
State so also against some of the judicial officers working along
with the petitioner, there was yet another incident that took place
on 31.10.2015 that is when the appellant was travelling with his
family, he entered into a fight with the employees working at a Toll
Plaza, to which, again the appellant lodged a complaint at Police
Station, Arang. However, when the police authorities did not
register the case, the wife of the appellant thereafter lodged a
complaint case under Section 200 CrPC against the then Chief
Justice of High Court of Chhattisgarh xxx xxx and also a sitting
Judge of the High Court xxx xxx, against the employees of Toll
Plaza and Station House Officer of Police Station, Arang, District
Raipur, the Superintendent of Police, Raipur, Two of the Inspector
Generals of Police, Raipur, ADPO, sitting MLA, Chief Judicial
Magistrate, Raipur, District & Sessions Judge, Ambikapur,
Additional District & Sessions Judge, Raipur, Additional District &
Sessions Judge, CBI Court, Raipur, Additional District & Sessions
Judge, Mahasamund, Additional Sessions Judge, FTC, Raipur,
Civil Judge,Class-I Mahasamund, for the offence under Sections,
294, 323, 506,183, 353 and 511/34 read with Section 120-B IPC.
80.In the said criminal complaint case the Additional Chief Judicial
Magistrate, Raipur, before whom the case was presented, by its
41
order dated 26.03.2016 fixed the case for preliminary evidence of
the complainant on 18.04.2016 and intimated the same to the
higher authorities in the department. Challenging the said criminal
complainant filed by Smt. Pratibha Gwal, wife of the appellant
under Section 200 CrPC, the High Court of Chhattisgarh, through
the Registrar General filed a petition being WPCR No. 88 of 2016,
in which vide order dated 31.03.2016, the effect, operation and
execution of order dated 26.03.2016 passed by the Additional
Chief Judicial Magistrate, Raipur in Criminal Complaint Case No.
(unregistered)/2016 filed on 26.03.2016 titled as Pratibha Gwal v.
Amit Dubey and others was directed to remain stayed until further
orders.
81.Considering the aforesaid facts and circumstances and dealing
with the aforementioned issues involved for consideration, the
learned Single Judge has observed as follows :
“25. What is to be appreciated is the fact that, in
addition to the charge of the petitioner being in habit
of making all sorts of false, frivolous, fabricated and
obnoxious complaints against his colleagues in the
judicial service, is also casting aspersion against the
Judges of the High Court, further lodging criminal
complaint case against sitting MLA and also against
an IPS officers without prior intimation or permission
from the High Court, cannot be treated as prudent act
on the part of an officer in the judicial service.
26. What cannot be ignored is also the fact that once
when the petitioner being appointed as a member of
judicial service unlike other employment or
42
profession, judicial service is in itself a class apart.
Judges in the judicial service is not merely in
employment, nor are the judges mere employees,
they are the holders of a post by which they exercise
judicial powers. Their office is one with great trust and
responsibility. Any act of injustice or misdeed by a
judicial officer would lead to a disastrous and
deleterious situation having grave adverse
consequence.
27. It is always expected that a judicial officer
discharges his work and duties in tranquillity and he
has to behave and conduct in a manner as if he is a
hermit.
28. So far as the conduct part is concerned, the
Judges should always maintain and enforce a high
standard of conduct which he should personally
observe. It is always expected that a judicial officer
shall apart from maintaining high level of integrity,
should have great judicial discipline and should
always try to avoid impropriety. Judge should always
be sensitive to the situation around him and should
avoid being overactive or over-reactive. It is always
expected from a Judge to perform himself most
diligently and should not get himself engaged in
behavior that is harassing, abusive, prejudiced or
biased.
29. Talking on the elements of judicial behaviour it
has always been said that Judges shall remain
accountable for their actions and decisions. A Judge's
official conduct should be free from impropriety and
the appearance of impropriety; he should avoid
infractions of law; and his personal behaviour, not
only upon the Bench and in the performance of
43
judicial duties, but also in his everyday life, should be
beyond reproach. Accordingly an act of the Judge
whether in official or on personal capacity which
erodes the credibility of the judicial institution has to
be avoided.
30. Judges play a pivotal part in the administration of
justice and further the trial Judge has a greater role to
play in the dispensation ofjustice. The conduct of
every judicial officer should be above reproach. He
should be conscientious, studious, comprehensive,
courteous, patient, punctual, just, impartial, indifferent
to private, political or partisan influences; he should
administer justice according to law and deal with his
appointment as a public trust; he should neither allow
other affairs or his private interest to interfere with the
prompt and proper performance of his judicial duties
nor should he administer the office for the purpose of
advancing his personal ambitions or increasing his
popularity. The nature of the judicial office and the
independence of the judiciary, personal conduct and
official conduct of men who preside over this the most
important branch of state has to be approached with
care and caution.
31. One must understand that Judges are not
employees of anybody. As member of the judiciary a
Judge exercises sovereign judicial functions while
exercising the judicial powers conferred upon him. It
is therefore essential that the personality of the
Judge, which in the ultimate analysis, his behaviour
and attitude, is developed to optimise the efficiency of
the justice delivery system. At the same time what is
paramount is that the image of the establishment or
the institution in particular and the judiciary in general
should not to be tarnished in any manner at any point
44
of time while discharging and displaying his conduct
as a Judge both inside the courtroom as well as when
he's in public.
32. In one of the most recent decisions reported in
2020 SCC online SC307 in the case of Sadhna
Chaudhary Vs. State of UP and Another, the
Hon’ble Supreme Court has dealt with decisions
dealing on the topic of the behaviour of a Judge and
the standard of discipline which he has to maintain. It
would be relevant at this juncture to refer to a couple
of citations referred to in the said judgment. The
Supreme Court referring to the case of Shrirang
Yadavrao Waghmare vs State of Maharashtra 2019
(9) SCC 144, had laid down the principles often
reiterated so far as the conduct of a judicial officer is
concerned. In the said case of Sadhna Chaudhary the
Supreme Court quoting certain citations referred to in
the case of Shriranga Yadavrao (Supra), had quoted
paragraph 5,6,7 & 8 which are relevant for the facts of
the present case also and which for ready reference
is being reproduced here in under:
“5. The first and foremost quality required in
a Judge is integrity. The need of integrity in
the judiciary is much higher than in other
institutions. The judiciary is an institution
whose foundations are based on honesty
and integrity. It is,therefore, necessary that
judicial officers should possess the sterling
quality of integrity. This Court in Tarak Singh
v. Jyoti Basu [Tarak Singh v. Jyoti Basu,
MANU/SC/0975/2004MANU/SC/0975/2004 :
Integrity is the hallmark of judicial
discipline, apart from others. It is high time
the judiciary took utmost care to see that the
temple of justice does not crack from
inside,which will lead to a catastrophe in the
justice-delivery system resulting in the failure
of public confidence in the system. It must
be remembered that woodpeckers inside
45
pose a larger threat than the storm outside.
6. The behaviour of a Judge has to be of an
exacting standard, both inside and outside
the court. This Court in Daya Shankar v.
High Court of Allahabad [Daya Shankar
v.High Court of Allahabad,
MANU/SC/0620/1987
MANU/SC/0620/1987 : (1987) 3 SCC 1 :
1987 SCC (L & S) 132]held thus:
Judicial officers cannot have two
standards, one in the court and another
outside the court. They must have only one
standard of rectitude, honesty and integrity.
They cannot act even remotely unworthy of
the office they occupy.
7. Judges are also public servants. A Judge
should always remember that he is there to
serve the public. A Judge is judged not only
by his quality of judgments but also by the
quality and purity of his character.
Impeccable integrity should be reflected both
in public and personal life of a Judge. One
who stands in judgments over others should
be incorruptible. That is the high standard
which is expected of Judges.
8. Judges must remember that they are not
merely employees but hold high public
office. In R.C. Chandel v. High Court of M.P.
[R.C. Chandel v. High Court of M.P.MANU/
SC/0639/2012 MANU/ SC/0639/ 2012 :
(2012) 8 SCC 58 :(2012) 4 SCC (Civ) 343 :
(2012) 3 SCC (Cri.) 782 : (2012) 2 SCC(L &
S) 469], this Court held that the standard of
conduct expected of a Judge is much higher
than that of an ordinaryperson. The following
observations of this Court are relevant:
“29. Judicial service is not an ordinary
government service and the Judges
are not employees as such. Judges
hold the public office; their function is
one of the essential functions of the
State. In discharge of their functions
and duties,the Judges represent the
State. The office that a Judge holds is
an office of public trust. A Judge must
be a person of impeccable integrity
and unimpeachable independence.
He must be honest to the core with
46
high moral values. When a litigant
enters the courtroom, he must feel
secured that the Judge before whom
his matter has come, would deliver
justice impartially and uninfluenced
by any consideration. The standard of
conduct expected of a Judge is much
higher than an ordinary man. This is
no excuse that since the standards in
the society have fallen, the Judges
who are drawn from the society
cannot be expected to have high
standards and ethical firmness
required of a Judge. A Judge, like
Caesar's wife, must be above
suspicion. The credibility of the
judicial system is dependent upon the
Judges who man it. For a democracy
to thrive and the Rule of law to
survive, justice system and the
judicial process have to be strong and
every Judge must discharge his
judicial functions with integrity,
impartiality and intellectual honesty. ”
33. After referring to the various judicial
pronouncements as referred to above dealing on the
issue of the conduct and behaviour of a judicial officer
it would be relevant now to look into the allegations
levelled against the petitioner and for which the
punishment of dismissal was imposed. Foremost of
all what is revealed is the act on the part of the
petitioner in getting a criminal case filed in the court of
the additional judicial magistrate Raipur through his
wife without any intimation or permission or sanction
from the High Court in this regard. To make things
worse what also has to be seen is that he had made
large number of persons as accused in the said case
among whom were the then Chief Justice of the High
Court of Chhattisgarh (Justice ‘A’) and also a senior
most puisne Judge of the High Court. (Justice ‘B’). In
addition there were also large number of senior
ranking officers of the state government including 2
47
IPS officers, a sitting MLA and also many judicial
officers both of the subordinate judiciary as also of the
higher judiciary who were made accused persons in
the said criminal case.
34. Moreover the plane perusal of the criminal case
which has been filedby the petitioner through his wife
would show that there was no direct nexus or
allegations or averments against any of these
persons who have been mentioned above, except for
bald and vague allegations of they being part of a
larger conspiracy involving all the persons in the
criminal case, accusing them of deliberately with
malafide intention trying to victimise the petitioner
ensuring that he is removed from the judicial service.
35. Such an act on the part of a judicial officer that
too from a person who has put in more than 10 years
of service in the judiciary is never expected off. One
cannot imagine of filing criminal cases against the
Chief Justice and a sitting Judge with wild allegations
with no substantial materials and that too without any
intimation, sanction or permission from the High
Court. From his conduct itself it clearly reveals that
the petitioner has done it with the specific intention of
gaining cheap publicity and also with an intention to
malign the image of Judges and the officers who have
been made an accused so also tarnish the image of
the judiciary as a whole.
36. In the case of Sadhna Chaudhary (supra) the
supreme court further held in paragraph 19 as
under :-
“19. Even furthermore, there are no two ways
with the proposition that Judges, like Caesar's
wife, must be above suspicion. Judicial
officers do discharge a very sensitive and
48
important constitutional role. They not only
keep in check excesses of the executive,
safeguard citizens' rights and maintain law
and order. Instead, they support the very
framework of civilised society. It is courts,
which uphold the law and ensure its
enforcement. They instil trust of the
constitutional order in people, and ensure the
majesty of law and adherence to its principles.
Courts hence prevent people from resorting to
their animalistic instincts, and instead provide
them with a gentler and more-civilised
alternative of resolving disputes. In getting
people to obey their dicta, Courts do not make
use of guns or other (dis) incentives, but
instead rely on the strength of their reasoning
and a certain trust and respect in the minds of
the general populace. Hence, it is necessary
that any corruption or deviation from judicial
propriety by the guardians of law themselves,
be dealt with sternly and swiftly.”
37. From the above itself it is evidently clear as
reiterated by the Honourable Supreme Court that
judicial officer must aspire and adhere to a higher
standard of honesty, integrity and probity. In the given
situation if apart from the criminal case that the
petitioner got filed, if we read the replies that the
petitioner would submit to the show cause notices
issued by the High Court, we can see that the
petitioner was in the habit of using atrocious and
contemptuous language and more often making weird
submissions and allegations and would cast
insinuations against the top authorities in the state
administration as also the Judges of the High Court,
the Chief Justice and other senior judicial officers of
the subordinate judiciary as well as the higher
judiciary. The petitioner has been show caused for the
language that he would use in his reply to the earlier
show causes and in spite of being reprimanded and
being punished the petitioner as an incorrigible officer
would again repeat his act of making obnoxious reply
49
castigating allegations against the Judges of the High
Court as well as the higher authorities in the state
administration.
38. Thus, the judicial officer/the petitioner did not live
up to the expectation of his behaviors and probity
expected from him and which is totally unbecoming of
a judicial officer.
39. A judicial officer who does not respect the
institution or the authorities who run the institution and
who also tries to malign the image of the institution
and the persons higher in the hierarchy can be
pardoned for once considering it to be a folly on the
part of the officer concerned. However in spite of
repeated warnings if the officer does not correct
himself, further even after being reprimanded and
punished he does not stop from behaving in similar
manner it can be clearly held that the officer was
acting in a manner totally unbecoming of a judicial
officer. It can never be expected of a judicial officer
that too from a person who has put in about more
than 10 years of service to behave in such a manner.
40. Next what is to be seen is whether it was a case
which would attract 311 to be for terminating the
services of the petitioner. Article 311(2) particularly
the second proviso to the said article clearly
envisages that in a case where it is not reasonably
practicable to hold an enquiry, the services of an
employee can be dispensed with. As is understood by
all of us an enquiry is to be conducted in a case
where there are certain allegations or charges of
misconduct allegedly to have been committed by the
delinquent officer and which can be established or
proved by leading evidences before the enquiry
50
officer and where the delinquent also gets an
opportunity to defend himself and to rebut the
evidence which is brought by the prosecution or the
department.
41. In the instant case the allegation against the
petitioner is just not that of having committed a
misconduct rather it is a case where it is the
behaviour of the judicial officer particularly his
conduct and the manner in which he conducted
himself more, which has forced the High Court to
reach to the conclusion that the petitioner is a person
not fit to remain in judicial service.
42. An officer of the subordinate judiciary if he shows
the courage to file a criminal case against the Chief
Justice of the High Court along with another senior
Judge of the High Court and a host of senior high
ranking officers of the state government making all of
them as accused persons, it does not need any
imagination that continuing the officer in the judicial
service with his magisterial and judicial powers he
would have created havoc and would have brought
much embarrassment to the institution. If we look into
the various correspondences that the petitioner has
made to the High Court and on certain occasions
correspondences directly made to the Chief Justice of
India and the language of all would itself clearly show
that the officer was never submissive in his approach
and at the same time he was also using foul language
and most of the time the averments in his reply to the
show cause notices was out of context.
43. The Judicial officers cannot have two standards,
one in the Court and another outside the Court. They
are supposed to have only one standard of rectitude,
51
honesty and integrity. They cannot even remotely act
in a manner unworthy of the judicial officer and the
office that they occupied.
44. The Hon'ble Supreme Court in one of the recent
judgments held that “a judge is a pillar of the entire
justice system and the public has a right to
demand virtually irreproachable conduct from
anyone performing judicial functions.” The
question of whether it is reasonably practicable to
hold an inquiry as is envisaged under proviso (B) to
Article 311(2) is a matter of assessment to be made
by the Disciplinary Authority. This aspect has been
discussed by the Hon'ble Supreme Court elaborately
in AIR 1997 SC 79. When the Disciplinary Authority
finds that the act on the part of the petitioner orthe
delinquent employee is one which is an act of gross
indiscipline and also an act, which has put the entire
judiciary itself at an embarrassing position particularly
when the delinquent himself is a person, who is part
of it the power so envisaged can be enforced.
45. In the instant case from the series of
correspondences and finally the filing of a criminal
case against the Chief Justice and the senior Judge
of the High Court, clearly reflects that the contents of
those correspondences as also the filing of the
criminal case was neither out of ignorance, rather it is
a case where the same has been done deliberately
intentionally knowing fully the repercussions and with
wide open eyes. The first requirement under Article
311(2) thus gets attracted and it stands justified if the
Disciplinary Authority takes a decision to punish the
delinquent with the penalty of dismissal or removal
from service. As has been narrated in the preceding
paragraphs, it is not one act on the part of the
52
petitioner which has forced the Full Court of the High
Court to recommend dismissal of the petitioner
invoking Article 311(2), rather it is a case where there
are a series of correspondences repeatedly casting
serious insinuations, making unscrupulous allegations
and obnoxious comments all of which are false,
scurrilous and malicious against the Chief Justice of
the High Court, as also the senior Judges of the High
Court, so also against the senior Judicial Officers in
the Higher Judicial Service, as also against the
colleagues in the Lower Judicial service, which has
compelled the High Court to take such a stand. In
addition, the petitioner also has filed a criminal case
against sitting MLAs, senior IPS officers of the State
and to make things worst he lastly also got a criminal
case filed, through his wife making the Chief Justice
of the High Court and also one of the senior most
Judges of the High Court and also various other high
ranking officials in the State as accused persons.
46. It is the conduct of a delinquent which is the
criteria for a disciplinary action under Article 311(2).
What is also required to be appreciated is the fact that
there could be no explanation which the petitioner
could have provided on the act of his getting a
criminal case filed making the aforementioned
persons as accused. It is a fact on record as the said
criminal case is still pending and the proceedings of
which have been stayed by the High Court. There
was nothing by which the petitioner could have
disowned or disputed the filing of a criminal case.
47. This Court had called for the original records in
respect of the decision taken against the petitioner
and in the entire records, the narration of of the facts,
which are discussed in the preceding paragraphs are
53
reflected in the records and based upon which the
matter was placed before the Full Court of the High
Court, which had recommended to punish the
petitioner invoking Article 311(2) and the reasons why
holding of an inquiry is impracticable. As such the
reasons have been verified by this Court by calling
upon the original records. From the aforementioned
facts this Court has no hesitation in reaching to the
conclusion that there were reasons germane
available in the records, which led to the Full Court
recommending the dismissal of the petitioner invoking
under Article 311(2).
48. Given the said facts the dispensing of the inquiry
is justified and proper. The impugned order of
dismissal from service also therefore is proper, legal
and justified and does not warrant any interference.
49. The writ petition thus stands dismissed. No order
as to costs.”
82.The core question which arises for consideration would be as to
whether it was a case which would attract Article 311(2) of the
Constitution of India for terminating the services of the appellant.
Article 311(2) particularly the second proviso to the said Article
clearly envisages that in a case where it is not reasonably
practicable to hold an enquiry, the services of an employee can be
dispensed with. As is understood by all of us that an enquiry is to
be conducted in a case where there are certain allegations or
charges of misconduct allegedly to have been committed by the
delinquent officer and which can be established or proved by
leading evidences before the enquiry officer and where the
54
delinquent also gets an opportunity to defend himself and to rebut
the evidence which is brought by the prosecution or the
department.
83.From perusal of the materials available on record, it transpires
that right from the time the appellant was appointed as a Judicial
Officer, he had a habit of making adverse comments about his
colleagues as also of his superiors. He used to make adverse
comments casting serious aspersions, allegations and
insinuations against his colleagues and higher officials in the
State Government. The appellant before being dismissed from
service was issued with various show cause notices and in
between he was also inflicted with a punishment of stoppage of
one annual increment without cumulative effect. There are also
times when the appellant has made direct representation to the
Chief Justice of India without any sanction, permission or approval
from the superior authorities. Finally, the appellant got a criminal
complaint case lodged through his wife in the Court of A.C.J.M.,
Raipur for the offences punishable under Section 120B, 294, 323,
506, 186, 353 and 511 read with 34 of the I.P.C. The said
complaint case was lodged against the then Chief Justice of the
High Court and also against another senior Judge of the High
Court and also against many senior level officials in the State
administration, which included two I.P.S officers of the rank of
Inspector General of Police, one ADPO, a sitting M.L.A and many
judicial officers of the Sub-ordinate Judicial Service as also of the
Higher Judicial service. It is then that the High Court convened a
55
Full Court meeting on the 29.03.2016 and the Full Court
recommended for dismissal of the appellant from service, invoking
the provisions of Article 311 (2)(b) of the Constitution of India.
Thus, it is evidently clear that he was not fit to be a judicial officer.
84.In the instant case, the allegation against the appellant is just not
that of having committed a misconduct rather it is a case where it
is the behaviour of the judicial officer particularly his conduct and
the manner in which he conducted himself more, which has forced
the High Court to reach to the conclusion that the appellant is a
person not fit to remain in judicial service. An officer of the
subordinate judiciary if he shows the courage to file a criminal
case against the Chief Justice of the High Court along with
another senior Judge of the High Court and a host of senior high
ranking officers of the State Government making all of them as
accused persons, it does not need any imagination that continuing
the officer in the judicial service with his magisterial and judicial
powers he would have created havoc and would have brought
much embarrassment to the institution. If we look into the various
correspondences that the appellant has made to the High Court
and on certain occasions correspondences directly made to the
Chief Justice of India and the language of all would itself clearly
show that the officer was never submissive in his approach and at
the same time, he was also using foul language and most of the
time the averments in his reply to the show cause notices was out
of context. The Judicial officers cannot have two standards, one in
the Court and another outside the Court. They are supposed to
56
have only one standard of rectitude, honesty and integrity. They
cannot even remotely act in a manner unworthy of the judicial
officer and the office that they occupied.
85.While upholding the punishment of compulsory retirement
imposed on a judicial officer, the Hon’ble Supreme Court in one of
the recent judgments observed that the standard or yardstick for
judging the conduct of the judicial officer has necessarily to be
strict and held that “a judge is a pillar of the entire justice
system and the public has a right to demand virtually
irreproachable conduct from anyone performing judicial
functions.” The question whether it is reasonably practicable to
hold an inquiry as is envisaged under proviso (b) to Article 311(2)
is a matter of assessment to be made by the Disciplinary
Authority. This aspect has been discussed by the Hon'ble
Supreme Court elaborately in Kuldip Singh vs State Of Punjab
& Ors, reported in AIR 1997 SC 79. When the Disciplinary
Authority finds that the act on the part of the delinquent employee
is one which is an act of gross indiscipline and also an act, which
has put the entire judiciary itself at an embarrassing position
particularly when the delinquent himself is a person, who is part of
it the power so envisaged can be enforced.
86.Considering the aforesaid facts and circumstances of the case,
the learned Single Judge observed that in the instant case from
the series of correspondences and finally the filing of a criminal
case against the Chief Justice and the senior Judge of the High
Court, clearly reflects that the contents of those correspondences
57
as also the filing of the criminal case was neither out of ignorance,
rather it is a case where the same has been done deliberately
intentionally knowing fully the repercussions and with wide open
eyes. The first requirement under Article 311(2) thus gets attracted
and it stands justified if the Disciplinary Authority takes a decision
to punish the delinquent with the penalty of dismissal or removal
from service. As has been narrated in the preceding paragraphs, it
is not one act on the part of the petitioner which has forced the
Full Court of the High Court to recommend dismissal of the
petitioner invoking Article 311(2), rather it is a case where there
are a series of correspondences repeatedly casting serious
insinuations, making unscrupulous allegations and obnoxious
comments all of which are false, scurrilous and malicious against
the Chief Justice of the High Court, as also the senior Judges of
the High Court, so also against the senior Judicial Officers in the
Higher Judicial Service, as also against the colleagues in the
Lower Judicial service, which has compelled the High Court to
take such a stand. In addition, the petitioner also has filed a
criminal case against sitting MLAs, senior IPS officers of the State
and to make things worst he lastly also got a criminal case filed,
through his wife making the Chief Justice of the High Court and
also one of the senior most Judges of the High Court and also
various other high ranking officials in the State as accused
persons.
87.For the aforementioned facts and circumstances of the case, the
Court is of the considered opinion that there were sufficient
58
germane reasons available on records, which led to the Full Court
recommending the dismissal of the appellant invoking under
Article 311(2)(b) of the Constitution of India, dispensing with the
departmental enquiry and further, the learned Single Judge has
not committed any illegality, irregularity or jurisdictional error in the
impugned order warranting interference by this Court.
88.The entire appeal have been preferred by the appellant making
serious allegations against the learned Single Judge. The legal
issues raised by the appellant are mainly four fold, (a) that the
order of dismissal has been passed by the Additional Secretary
who is subordinate to the appointing authority being the Principal
Secretary; and (b) that no prior opinion was taken from the
Chhattisgarh Public Service Commission before issuance of the
order of dismissal; (c) that whether wife of any public servant
cannot make complaint against the higher authorities in institution
of the public servant for enquiry into their corrupt practices and (d)
that the Hon'ble Single Judge who decided the writ petition played
two role, first as a prosecutor being in the Full Court Meeting on
29.03.2016 and second as a Judge deciding the writ petition.
89.In order to address the said issues raised by the appellant, it is
imperative to refer to the various provisions under the Constitution
of India which provides for control and superintendence of lower
judiciary with the High Court. Article 235 provides for the control
over subordinate courts. It reads as under:
59
“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 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.”
90.Perusal of the said provision clearly demonstrate that the 'control'
vested with the High Court over subordinate judiciary is exclusive
in nature, comprehensive in extent and effective in operation. The
said provision have been engrafted in the Constitution of India in
order to subserve the basic feature of the Constitution i.e.
independency of judiciary, and to ensure that malady is rectified.
The purport and extant of Article 235 was considered extenso in
Baldev Raj Guliani v. Punjab & Haryana High Court, reported
in AIR 1976 SC 2490. It was held as under:
"31. It is true that under Article 235 as well as under
the Appointment and Punishment Rules the
Governor is the appointing and punishing authority.
But under Article 235 the High Court is the sole
custodian over the discipline of the judicial officers.
There is no warrant for introducing another
extraneous body between the Governor and the High
Court in the matter of disposal of a disciplinary
proceeding against a judicial officer. It is submitted
on behalf of the appellants that Article 320(3)(c)
60
provides that the Public Service Commission shall be
consulted on all disciplinary matters affecting a
person serving under the Government of a State in a
civil capacity. Judicial Officers although holding posts
in civil capacity are not serving under the
Government of a State. They hold posts in
connection with the affairs of the State but are
entirely under the jurisdiction of the High Court for
the purpose of control and discipline. There is,
therefore, no constitutional justification or sanction
for the Governor, even if he wishes, to consult the
Public Service Commission under Article 320(3) (c)
in respect of judicial officers. Consultation with the
Public Service Commission in this case and
preference accorded to its advice ignoring the
recommendation of the High Court have introduced a
serious constitutional infirmity in the final order of
reinstatement passed by the Governor.
35. The matter should not be considered from the
angle of supremacy of one organ over the other.
That will be an entirely erroneous approach. The
Constitution reposes certain power in the Governor
even under Article 235. He is the authority to pass
the order of removal, albeit, on the recommendation
of the High Court. That is the constitutional scheme.
The Governor, however, cannot pass any order, as
has been done in this case, without reference to the
High Court and except on its recommendation.
Solution must be found in harmony and not in cold
war between the two organs.
36. The Governor could not have passed any order
on the advice of the Public Service Commission in
this case. The advice should be of no other authority
than the High Court in the matter of judicial officers.
61
This is the plain implication of Article 235. Article
320(3)(c) is entirely out of place so far as the High
Court is concerned dealing with judicial officers. To
give any other interpretation to Article 320(3)(c) will
be to defeat the supreme object underlying Article
235 of the Constitution specially intended for
protection of the judicial officers and necessarily the
independence of the subordinate judiciary. It is
absolutely clear that the Governor cannot consult the
Public Service Commission in the case of judicial
officers and accept its advice and act accordingly to
it. There is no room for any outside body between
the Governor and the High Court.
91.Perusal of the above discussion by the Hon'ble Supreme Court
would clearly show that it is the High Court alone which is
competent when it comes to matter of control and discipline of
subordinate judiciary. Similar arguments were considered by the
co-ordinate Bench of this Court in W.A. No. 419/2020, Sajjanlal
Chakradhari v. State of Chhattisgarh, decided on 06.01.2021,
reported in 2021 SCC OnLine Chh 16, wherein the co-ordinate
Bench repelled identical arguments after referring to the judgment
of the Hon'ble Supreme Court in Baldev Raj Guliani (supra). It
was observed as under:
“6. So far as the ground raised by the learned
counsel for the appellant with regard to the authority
of Principal Secretary in issuing Annexure P-1 ie.
order of dismissal from services, perusal of order
Annexure P-1 would clearly show that it is not the
Principal Secretary who passed the order but he has
signed the order to be and in the name of his
excellency Governor who is the appointing authority.
62
In view of the above, the first ground raised by the
learned counsel for the appellant that the impugned
order Annexure P-1 is passed by the authority
subordinate to appointing authority is not correct and
is misconceived. The first ground raised by the
learned counsel for the appellant for the reasons
mentioned therein is hereby repelled. The second
ground raised by the learned counsel for the
appellant that the committee of Three-judge has not
taken any decision but it is the Full Court, resolved
for dismissal of the appellant is contrary to law.
Article 235 of the Constitution of India envisages for
control of subordinate Court wherein the entire
control including posting, promotion etc. belonging to
the Judicial Services of a State is vested in the High
Court.
7. In this case, as per Annexure R-2/8 and R-2/9
placed on record shows that the Full Court resolved
for dismissal of the appellant from services and that
order is in consonance with Article 235 of
Constitution of India. So far as the other ground
raised by the learned counsel for the appellant with
regard to Rule 15(3) of CCS Rule 1966 that before
passing an order of dismissal, Public Service
Commission was not consulted. When there is
resolution passed by the Full Court in exercise of its
power under Article 235, then there is absolutely no
requirement for the appointing authority to re-consult
with the PSC.
92.In light of the aforesaid discussions, it is evident that the ground
(a) raised by the appellant with regard to the competency of the
authority passing the impugned order and the ground (b)
regarding opinion with the Chhattisgarh PSC stands refuted. The
63
contention of the appellant that the impugned dismissal of order
has been passed by the Additional Secretary who is sub-ordinate
to the appointing authority is misconceived. The order of dismissal
was passed by His Excellency, the Governor of Chhattisgarh, who
is the appointing authority and has been issued under the
signature of Additional Secretary, Government of Chhattisgarh,
Law and Legislative Affairs Department, Mantralaya, Naya Raipur.
Before passing the impugned order of dismissal the matter was
placed by the Registrar General before the full court on
29.03.2016 where it was resolved that:
(i) from the material it does not appear
reasonably practicable to hold a departmental
enquiry against Shri Prabhakar Gwal
(ii) the departmental enquiry is dispensed with and
Shri Prabhakar Gwal is recommended to be
dismissed from service in public interest under Article
311 (2) (b) of the Constitution of India.
(iii) all administrative and judicial powers of Shri
Prabhakar Gwal, presently posted as Civil Judge,
Class-1 and Chief Judicial Magistrate, Sukma are
seized with immediate effect.
93.The State Government on the basis of recommendation of the
High Court of Chhattisgarh under sub clause (b) of proviso to
clause (2) of Article 311 and Article 235 of the Constitution of India
read with sub rule (3) of Rule 14 of the Rules of 2006 dismissed
the petitioner from services. It was specifically mentioned in the
order of dismissal that:
64
"Whereas, the Hon'ble High Court of Chhattisgarh,
on the basis of material available on record, has
resolved that it does not appear reasonably
practicable to hold a departmental enquiry against
Shri Prabhakar Gwal, therefore, the departmental
enquiry is dispensed with and Shri Prabhakar Gwal
is recommended to be dismissed from service in
public interest under sub-clause (b) of proviso to
clause (2) of Article 311 of the Constitution of India.
Now therefore, in exercise of the powers
conferred by sub-clause (b) of proviso to clause (2)
of Article 311 and Article 235 of the Constitution of
India read with sub-rule (3) of Rule 14 of the
Chhattisgarh Lower Judicial Service (Recruitment
and Conditions of Service) Rules, 2006 and on
recommendation of the High Court of Chhattisgarh,
State Government, hereby, dismisses Shri Prabhakar
Gwal, Member of Lower Judicial service, Civil Judge,
Class-I and Chief Judicial Magistrate, Sukma, from
service in public interest with immediate effect."
94.With regard to ground (c) raised by the learned counsel for the
appellant that whether wife of any public servant cannot make
complaint against the higher authorities in institution of the public
servant for enquiry into their corrupt practices is concerned, the
same is impermissible in view of the reasons mentioned
hereinbelow.
95.In the matter of K. Veeraswami v. Union of India and others,
reported in (1991) 3 SCC 655, Their Lordships have clearly held
that without prior approval/consultation of Hon’ble the Chief
Justice of India no criminal case shall be registered against a
65
Hon’ble Judge of the High Court and Hon’ble the Chief Justice of
the High Court by directing as under:-
“We therefore, direct that no criminal case shall be
registered under Section 154 Cr.P.C. against a Judge
of the High Court, Chief Justice of High Court or
Judge of the Supreme Court unless the Chief Justice
of India is consulted in the matter. Due regard must
be given by the government to the opinion expressed
by the Chief Justice. If the Chief Justice is of opinion
that it is not a fit case for proceeding under the
Act,the case shall not be registered.”
96.Similar is the law laid down by the Supreme Court in the matter of
State of Rajasthan v. Prakash Chandra, reported in (1998) 1
SCC 1 in which it has been held as under:-
“34. Even otherwise, it is a fundamental principle of
our jurisprudence and it is in public interest also that
no action can lie against a Judge of a Court of
Record for a judicial act done by the Judge. The
remedy of the aggrieved party against such an order
is to approach the higher forum through appropriate
proceedings. This immunity is essential to enable the
Judges of the Court of Record to discharge their
duties without fear or favour, though remaining within
the bounds of their jurisdiction. Immunity from any
civil or criminal action or a charge of contempt of
court is essential for maintaining independence of the
judiciary and for the strength of the administration of
justice........”
97.In the matter of Baradakanta Mishra v. The Registrar of Orissa
High Court and others, reported in (1974) 1 SCC 374, the
Supreme Court has held in no uncertain terms that the disciplinary
66
control exercised by the High Court over the subordinate judiciary
in their judicial administration is essentially exercised for
furtherance of administration of justice. Their Lordships held as
under:-
“46. ........In the State of West Bengal v. Nripendra
Nath Bagchi4, this Court has pointed out that control
under Article 235 is control over the conduct and
discipline of the Judges. That is a function which, as
we have already seen, is undoubtedly connected with
administration of justice. The disciplinary control over
the misdemeanours of the subordinate judiciary in
their judicial administration is a function which the
High Court must exercise in the interest of
administration of justice. It is a function which is
essential for the administration of justice in the wide
connotation it has received and, therefore,when the
High Court functions in a disciplinary capacity, it only
does so in furtherance of administration of justice.”
98.The complaint filed by the wife of the appellant is statutorily barred
by provision contained in Section 195(1)(a)(i) of the CrPC which
clearly provides that no court shall take cognizance of any offence
punishable under Section 186 of the IPC except on the complaint
in writing of the public servant concerned as admittedly the
complainant is not a public servant. Since disciplinary action(s)
and other proceedings have been taken against the appellant and
in one proceeding, punishment has also been imposed against
the appellant, therefore as a counter-blast such a criminal
complaint has been filed on behalf of his wife.
67
99.In the light of judgment passed by the Hon’ble Supreme Court
Supreme Court in the matter of K.Veeraswami (supra) with
regard to registration of criminal case qua the Hon’ble Judge of
the High Court, further following the law laid down in the Supreme
Court in the matter of Baradakanta Mishra (supra) with respect
to nature of disciplinary jurisdiction exercised by the High Court
under Article 235 of the Constitution of India, taking note of law
laid down by the Supreme Court in the matter of Prakash
Chandra (supra) indicating the immunity from criminal and civil
action available to Hon’ble Judge of the High Court and taking into
consideration the specific provision contained in Section 195(1)(a)
(i) of the CrPC for filing complaint except by public servant for
offence under Section 186 of the IPC, we are of the considered
opinion that such complaints which have been filed by Smt.
Pratibha Gwal, wife of the appellant, who is not a public servant
and has no locus and authority to file such a criminal complaint
and it has been filed at the instance of his husband, the appellant,
who is an in disciplined judicial officer, only to scandalize the
entire judicial institution and designed to malign and lower the
image of state judiciary in public view which is wholly illegal,
without jurisdiction and without authority of law.
100.Appellant in this writ appeal has also raised a ground that learned
Single Judge has played two roles, one of a prosecutor being a
member in the meeting of Full Court dated 29.03.2016 in which
recommendation was made for termination of service of appellant
(judicial officer) and, another as a Judge while hearing writ petition
68
filed by appellant against the order of termination. To advert this
ground, we have called for the record of proceedings of the Full
Court and perusal of which revealed that meeting of Full Court
was held on 29.03.2016, on the said date there were total nine
sitting Judges in the High Court, out of which eight participated in
the meeting and one learned Judge, who could not participate in
the meeting, stood retire and demitted the office on 31.05.2016.
Writ petition filed by petitioner/appellant is dated 28.06.2016,
however, from the endorsement appearing in writ petition with
respect to receipt of advance copy in the office of the Advocate
General would show that copy of writ petition was served on
30.06.2016 and thereafter writ petition was filed. Petition was
listed on 11.07.2016 for the first time before the Court having the
roster of service matters. The order sheets of petition would show
that learned Single Judge having roster made exception of the
case and thereafter the matter was listed before the concerned
learned Single Judge having roster of service matter. No specific
ground is raised before this Court during the course of arguments
that case was heard by the learned Judge even upon raising
objection, oral or by way of filing an application, that the case
ought not to be heard by learned Single Judge, who was having
roster of service matter. Perusal of the proceedings would show
that decision of termination of service of petitioner/appellant was
unanimous based on the proceedings and documents before the
Full Court. This ground is being raised for the first time in the
appeal.
69
101.Considering the nature of ground raised in appeal and the
pleadings made as also making allegation of biasness against
learned Single Judge, who decided writ petition, we have minutely
gone through the impugned order as also documents placed
along with writ petition and available in the proceeding before the
Full Court. True it is that one of the facet of principles of natural
justice is that ‘one man should not be judge of his own cause’. As
the petitioner/ appellant has not raised any such ground at the
initial stage when his writ petition was heard by learned Single
Judge as per roster, in the facts of the case, the impugned order
cannot be set aside only on making bald allegations. This Court
looking into the seriousness of issue find it appropriate to examine
the grounds raised, minutely, taking into consideration the entire
facts and circumstances of the case.
102.Hon’ble Supreme Court in the case of Chairman, Board of
Mining Examination and Chief Inspector of Mines vs. Ramjee,
reported in AIR 1970 SC 965 has observed that “natural justice is
no unruly horse, no lurking land mine, nor a judicial cure-all. If
fairness is shown by the decision-maker to the man proceeded
against, the form features and the fundamentals of such essential
processual propriety being conditioned by the facts and
circumstances of each situation no breach of natural justice
can be complained of. Unnatural expansion of natural justice
without reference to the administrative realities and other factors
of a given case, can be exasperating. Courts cannot look at law in
the abstract or natural justice as a mere artifact. Nor can the, fit
70
into a rigid mould the concept of reasonable opportunity. If the
totality of circumstances satisfies the Court that the party visited
with gelverse order has not suffered from denial of reasonable
opportunity the Court will decline to be punctilious or fanatical as
if the rules of natural justice were sacred scriptures”.
103.In the case of State Bank of Patiala vs. S.K. Sharma, reported in
(1996) 3 SCC 364, Hon’ble Supreme Court has observed that
“Justice means justice between both the parties. The interests of
justice equally demand that the guilty should be punished and that
technicalities and irregularities which do not occasion failure of
justice are not allowed to defeat the ends of justice. Principles of
natural justice are but the means to achieve the ends of justice.
They cannot be perverted to achieve the very opposite end. That
would be a counter-productive exercise.”
104.In the case of Satyavir vs. Union of India and others, reported
in AIR 1986 SC 555, the Hon’ble Supreme Court has observed
that “The principles of natural Justice must be confined within their
proper limits and not allowed to run wild. The concept of natural
justice is a magnificient thoroughbred on which this nation gallops
forwards towards its proclaimed and destined goal of JUSTICE,
social, economic and political. This thoroughbred must not be
allowed to turn into a wild and unruly horse, careering off where it
lists, unsaddling its rider, and bursting into fields where the sign
no pasaran is put up.”
71
105.In the light of above rulings of Hon’ble Supreme Court on the
principle of natural justice and considering the facts of the case in
hand, we have again thoroughly perused the order passed by the
learned Single Judge and perusal of impugned order would show
that learned Single Judge has considered the facts and
circumstances on which the Full Court took decision, the grounds
raised by petitioner/appellant herein and also decisions relied
upon, discussed the facts and circumstances of case elaborately
and also extracted the portion of correspondences made by
petitioner/ appellant at different point of times. Upon going
through the impugned order, in view of the grounds raised before
this Court, we found that the decision rendered by learned Single
Judge is upon application of judicious mind taking into
consideration the law applicable to the facts of present case and
also relying upon the precedents on the subject.
106.For the foregoing discussions, the ground raised by learned
counsel for appellant, which is for the first time raised in the
appeal proceeding that learned Single Judge being one of the
members of Full Court, ought not to have heard writ petition, is not
sustainable.
107.From perusal of the record, it further appears that the appellant
has also preferred a transfer petition before the Hon’ble Supreme
Court for transferring the instant appeal to any Court of competent
jurisdiction, particularly in High Court of Judicature at Madras, but
the said fact has not been pointed out by the learned counsel for
72
the appellant when the matter was being finally heard. However,
from perusal of the website of the Hon’ble Supreme Court about
the status of the case, as per the details given in the said transfer
petition, it is found to be dismissed vide order dated 24.07.2023.
The operative portion of the said order, reads as follows :
“SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Transfer Petition (Civil) No. 1279/2023
PRABHAKAR GWAL
Petitioner(s)
VERSUS
THE STATE OF CHHATTISGARH & ANR.
Respondent(s)
(FOR ADMISSION and IA No. 98796/2023 – EXEMPTION
FROM FILING O.T.)
Date : 24-07-2023 This matter was called on for hearing today.
CORAM :
xxx xxx xxx
xxx xxx xxx
For Petitioner (s)
xxx xxx xxx
xxx xxx xxx
For Respondent(s)
UPON hearing the counsel the Court made the
following
ORDER
The transfer petition is dismissed.
Pending application stands disposed of.
Sd/- Sd/-”
108.There is no quarrel with regard to the ratio laid down in the
judgments cited by the learned counsel for the appellant referred
in para 51 of the present judgment, however, the same may not
be applicable to the present case as they are distinguishable on
facts.
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109.In view of above facts and circumstances of the case, we do not
find any merit in the appeal and none of the grounds raised in
support of the same could be held as tenable. The appeal stands
dismissed accordingly.
Sd/- Sd/-
(Parth Prateem Sahu) (Ramesh Sinha)
Judge Chief Justice
Judgment Date : 07/08/2024
Chandra
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Head-Note
Where it is reasonably not practical to hold the departmental
inquiry, the employer is empowered to dismiss or remove a
person under clause (2)(b) of Article 311 of the Constitution of
India.
Legal Notes
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