[dropcap]T[/dropcap]HE recent news that services of two court masters, namely Manav Sharma and Tapan Kumar Chakraborty, in the Supreme Court have been terminated without an inquiry under the provisions of Article 311(2)(b) is disturbing.
To begin with, Article 311 exists to protect public servants and is intended to ensure that they do their duty without fear or favour. It is for this reason that Article 311 requires that no person who is in civil services shall be dismissed or removed by an authority subordinate to that which appointed him, and only after inquiry in which he is informed of the charges against him, and given an opportunity to be heard.
Article 311 of the Constitution of India reads as follows:
- 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 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 ins 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
There is no doubt that Article 311(2)(b) permits dismissal or removal or reduction in rank without an inquiry if the appointing authority is satisfied that for reasons to be recorded in writing, it is not reasonably practicable to hold such an inquiry. In addition, the President or the Governor can dispense with an inquiry if they are satisfied that the interest of security of state so requires, or it is not expedient to hold such an inquiry.
The two court masters who have been dismissed had the protection of Article 311. The question that arises is, why was there no inquiry conducted and no charges framed against them before their services were terminated. A person can be put under suspension pending inquiry. But dismissal dispensing with inquiry itself is a serious matter, not only because it affects the rights of person concerned, but also because it deprives the general public of the right to know what was the misconduct committed by the public servant.
On the website of the Supreme Court two orders dated January 7, 2019 are available in Vishal Garg vs. Anil Dhirubhai Ambani & Ors in Contempt Petition (Civil) Diary No(s). 122/2019, purporting to be a record of proceedings of that day. Of them, one order shows that the personal appearance of Anil Ambani, the alleged contemnor, was dispensed with [Image 1], and the other one shows that personal appearance was “not” dispensed with. This order contains “Revised” at the top of it. [Image 2]
Image 1: The tampered court order.
Image 2: Page two of the ‘revised’ and corrected court order
It is a matter of record that Anil Ambani did appear on February 12 and 13, 2019 before the Court. All that we know now is that two of court masters have had their services terminated.
The question that arises is why was a full-fledged inquiry dispensed with?
We are told that power was exercised by the Chief Justice of India (CJI) under Rule 11 of the Supreme Court Officers & Servants (Conditions of Service and Conduct) Rules, 1961.
All rules are subject to the overarching provisions of Constitution of India.
A close reading of Article of the proviso to 311(2) enables the appointing authority to dispense with the holding of inquiry “that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry”. In the facts of this case, it appears that two court masters have been dismissed for allegedly tampering with the court record. In such a situation why is not practicable for conducting an inquiry?
What are the reasons recorded in writing for taking a view that it is not practicable to conduct inquiry into this matter?
In the now famous judgment of the Supreme Court in Tulsiram Patel [1985 SCC (3) 398], which dealt with mass dismissals of Railway workers who had gone on strike, it was held that in such a situation, an inquiry could be dispensed with. However, recording of reasons for not holding an inquiry must precede the termination.
It must be noted that court also suggested it would be better if the reasons of not holding inquiry should be communicated to the person concerned to enable the government servants to challenge the order in an appropriate court.
We have not been told what the reasons for not holding an inquiry are, nor have reasons been communicated. The Supreme Court in that case also held that the public servants have right to an appeal against termination without an inquiry.
- Examined in this light, all we know is that there are two orders uploaded in the same matter on the website of the Supreme Court which are directly contrary to each other.
- Anil Ambani did appear before the Supreme Court on February 12 and 13, 2019.
- That the services of two court masters have been terminated without conducting an inquiry.
- That the alleged misconduct appears to be tampering with court’s record.
- The big question, however, remains unanswered: Who could have benefited from the tempering of court record indicating that personal appearance dispensed with? This question is capable of an easy answer: it could only be Anil Ambani, the alleged contemnor.
- However, it is not very clear under what circumstances the record of court proceedings dated January 7, 2019, was “Revised”. Someone obviously detected the error.
The Court master normally takes dictation from judges in shorthand. It is obvious that the shorthand notebook would indicate what was written down by the Court master in open Court. It is unfortunate that judges do not themselves sign these orders. This practice must change.
I have no doubt that the competent authority must have looked at the shorthand notebook, but we do not know what the contents are.
Let us assume for a moment that court record has been tampered with, the big question is at whose instance? Only a thorough inquiry under Article 311 by framing of charges, evidence being led, subjected to cross-examination would bring out the truth of matter.
If there was anyone who was responsible for causing court master to tamper with record, that person must also be held accountable and brought to book.
It is not my suggestion that those who tampered with court records should be treated with leniency. There is no doubt that it is most serious of all the misconduct by public servant charged with duty of maintaining court record. My question is why has there been no inquiry into this matter?
