B. C. Das Vs. State of Assam & Ors
[1971] INSC 124 (23 April 1971)
DUA, I.D.
DUA, I.D.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
CITATION: 1971 AIR 2004 1971 SCR 477 1971 SCC
(2) 168
ACT:
Constitution of India, Arts. 311(2) (c) and
320 (3) (2)- Governor passing order of dismissal-Order reciting Governor's
satisfaction that it was not expedient to give opportunity to show cause
against action proposed Recital must be held to imply that Governor was also
satisfied that it was not expedient to hold inquiry-Article 311(2) as amended
in 1963 only clarifies what was judicially held to be implied in original
article-Consultation with Public Service Commission by Governor before passing
order of dismissal not necessary-Chief Secretary's authentication of Governor's
order does not show that Governor was influenced by Chief Secretary Mala fides
not established.
HEADNOTE:
The appellants were dismissed from the
service of the Government of Assam by two separate orders passed by the
Governor on April 1, 1965. The orders recited that the appellants were unfit to
be retained in the public service, that they ought to be dismissed from service
and that the Governor was satisfied in terms of Art. 311(2) (c) of the
Constitution that it was not expedient to give them opportunity to show cause
against the action proposed to be taken in regard to them as stated above. The
appellants challenged the orders of dismissal in writ petitions under Art. 226
of the Constitution which were dismissed by the High Court. In appeals by
certificate the contentions of the appellants were: (i) that the impugned
orders were not in compliance with the terms of Art. 311(2) as amended by the
Constitution Fifteenth Amendment Act which had come into force on October 6,
1963; (ii) that the orders were bad because they were passed without consulting
the Public Service Commission ; (iii) that the orders were passed mala fide at
the instance of the Chief Secretary and the Finance Minister who were annoyed
with the appellants.
HELD: (i) Per Shelat and Dua, JJ. According
to the decisions of this Court the expression "reasonable opportunity of
showing cause against the action proposed to be taken" in the unamended
Art. 311(2) included an opportunity to show cause against the guilt of the
government servant concerned. This opportunity to show cause against the guilt
seems to correspond to the reasonable opportunity of being heard in respect of
the charges in the course of the inquiry contemplated by the amended
sub-article. The amendment in 1963 was made principally to put in clearer
language the result of the judicial decisions construing s. 240(3) of the
Government of India Act, 1935 and unamended Art. 311(2) of the Con- stitution.
It could not be doubted that the Governor in the present case was fully alive
to the interest of the security of the State when he expressed his satisfaction
about the inexpediency of giving an opportunity to the appellants to show cause
against their guilt as contemplated by cl. (2) of Art. 311 and intended that
this clause shall not apply to their cases. Merely because the form of the
order was expressed in the language used in the un amended Art. 311(2) it did
not detract from its effectiveness as operating to exclude the applicability of
the amended cl. (2) of Art. 311 as a whole. The use of the words in conformity
with the un amended article served to convey the same intention as was
contemplated by the 478 amended article and the difference in the language
which seemed to be inconsequential did not have the effect of nullifying the
impugned orders. The words 'as stated above' in the orders did not have the
effect of restricting the ambit of the show cause notice to the question of
penalty which may be imposed after the inquiry into the unfitness of the
appellants to be retained in the public service. [482C- H; 483E-G] Khem Chand
v. Union of India & Ors. [1958] S.C.R. I Secretary of State for India v.
I.M. Lal, [1945] F.C.R. 10 and High Commissioner for India v. I.M. Lall, L.R.
(1948) 75 I.A. 225, referred to.
Per Bhargava, J. (dissenting) The "action
proposed as stated above" in the impugned orders clearly was the order
imposing the penalty of dismissal from service. In the order itself preceding
the recording of the satisfaction there was no other action proposed, except
the action of dismissal from service. The satisfaction recorded by the
Governor, therefore, related to the third step to be taken under cl.
(2) of Art. 311 of the Constitution. The
Governor confirmed his satisfaction to the inexpediency of giving opportunity
to the appellants to show cause against the penalty proposed. No satisfaction
was recorded that it was inexpedient to hold the inquiry required by cl. (2) of
Art.
311 as amended. Under sub-cl. (c) of the
proviso, what was needed was a satisfaction that it was inexpedient to hold the
inquiry. No such satisfaction having been recorded it was necessary that the
provisions of the principal cl. (2) of Art. 311 should have been complied with
before passing an order of dismissal. The order of dismissal was therefore void
and liable to be struck down. [489C-E] Case-law referred to.
(ii) Consultation with the Public Service
Commission is not compulsory under r. 10 of the Assam Services Discipline and
Appeal Rules, 1964 and regulation 6 of the Assam Public Service Commission
(Limitation of Functions) Regulations 1951. The consultation with the
Commission is not prescribed either by the Rules or by the Regulations. The
consultation is only under Art. 320 (3) (c) of the Constitution. So far as that
consultation is concerned this Court has held that it is not mandatory. Non consultation
with the Public Service Commission could not therefore be held to vitiate the
orders impugned. [492C-493D] State of U.P. v. Manbodhan Lal Srivastava, [1958]
S.C.R. 533 and State of Bombay v. D. A. Korgaonkar, C.A. No. 289/1968 dt.
6-5-1960, relied on.
(iii) There was no charge that the Governor
had any extraneous reasons for Passing the orders of dismissal.
There was nothing on record to show that
either the Chief Secretary or the Finance Minister took any Part in the
proceedings which led to the orders of dismissal, or that they advised the
Governor. The orders were no doubt authenticated by the Chief Secretary in the
name of the Governor, but that did not mean that the Governor was in any way
influenced by any advice tendered to him by the Chief Secretary. In the
circumstances, the plea of mala fide must be rejected. [493E-F] The appeals.
had accordingly to be dismissed:
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1644 and 1645 of 1967.
Appeals from the judgment and order dated
July 26, 1967 of the Assam and Nagaland High Court in Civil Rule Nos. 192 and
208 of 1966.
479 Debabrata Mukherjee, D. N. Mukherjee and
S. K. Nandy, for the appellants (in both the appeals).
M. C. Chagla and Naunit Lal, for the respondents
(in both the appeals.
The Judgment of J. M. SHELAT and I. D. DUA,
J.J. was de- livered by DUA, J. V. BHARGAVA, J., gave a dissenting Opinion.
Dua, J.-We have read the judgment prepared by
our learned brother Bhargava, We are in complete agreement with him so far. as
decision on points Nos. (2) & (3) is concerned, but with respect we are
unable to agree with him on point No.(1).
It is unnecessary to. repeat the relevant
facts which have been set out by our learned brother in his judgment. The
impugned order dated April 1, 1965, in the case of appellant P. K. Hore may
however, be again reproduced :
"The Governor is satisfied that Shri P.
K. Hore, Superintendent, P.W.D.F.C. & I Wing against whom more charges have
been received is unfit to be retained in the public service and that he ought
to be dismissed from service.
The Governor is further satisfied under sub-
clause (c) of the. proviso to clause (2) of Article 311 of the Constitution
that in the interest of the security of the State, it is not expedient to give
the said Shri P. K. Hore an opportunity to show cause against the action
proposed to be taken in regard to him as stated above.
Accordingly, the Governor hereby dismisses
the said P. K. Hore, from service with immediate effect." On the same day
an identical order was made with respect to the dismissal of the appellant B.
C. Das except that in the order against him there is no mention of more charges
having been received against him.
It appears that when the Governor made these
two orders his attention was not invited to the amended Art. 311(2) which was
in force on that date. The impugned orders were accordingly made in terms of
Art. 311(2) as it existed before its amendment by the Fifteenth Amendment Act,
1963, which had come into force on October 6, 1963. The amended Art. 311(2) has
been reproduced in the judgment of my learned brother, it is, However,
desirable to reproduce both the amended and un-amended article 480 311(2) so as
to understand if any substantial or material change in the legal position was
intended by the amendment:
Un-amended Prior to 6-10-63 (2) No such
person as aforesaid shall be dismissed or removed or reduced in rank until he
has been given a reasonable opportunity of 'showing cause against the action
proposed to be taken in regard to him Provided 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 an 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 give to that person an opportunity
of showing cause; or (c) where the President or Governor, as the case may be,
is satisfied that in the interest of the security of the State it is not
expedient to give that person such an opportunity.
Amended After 6-10-63 (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 and where it
is proposed, after such inquiry, to impose on him any such penalty, until he
has been given a responsible opportunity of making representation on the
penalty proposed, but only on the basis of the evidence adduced during such
inquiry.
Provided 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 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 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.
The unamended sub-article except the proviso
was a reproduction of s. 240(3) of the Government of India Act, 1935. The
proviso to s. 240(3) had only two clauses corresponding to cls. (a) & (b)
of the unamended Art.
311(2). A bench of five Judges of this Court
in Khem Chand v. The Union of India and Others (1) [1958] S.C.R. 1080.
481 speaking through Das, C.. J., after
referring to the divergent views expressed by Spans, C. J. of the Federal Court
for himself and Zafarulla Khan, J., on the one hand, and by Varadachariar, J.,
on the other in Secretary of State for India v. I. M. Lall(1) and to the
decision of the Privy Council on appeal in High Commissioner for India v. I. M.
Lall(2) explained the Privy Council decision
and clarified the meaning scope and ambit of the unamended Art. 311(2) in these
words:
"In our judgment neither of the two
views can be accepted as a completely correct exposition of the intendment of
the provisions of s. 240(3) of the Government of India Act, 1935, now embodied
in Art. 311(2) of the Constitution. Indeed the learned Solicitor- General does
not contend that this provision is confined to guaranteeing to the government
servant an opportunity to be given to him only at the later stage of showing
cause against the punishment proposed to be imposed on him.
We think that the learned Solicitor-General
is entirely right in not pressing for such a limited construction of the
provisions under consideration. It is true that the provision does not, in
terms, refer to different stages at which opportunity is to be given to the
officer concerned. All that it says is that the government servant must be
given a reasonable opportunity of showing cause against the action proposed to
be taken in regard to him. He must not only be given an opportunity but such
opportunity must be a reasonable one. In order that the opportunity to show
cause against the proposed action may be regarded as a reasonable one, it is
quite obviously necessary that the government servant should have the
opportunity, to say, if that be his case, that he has not been guilty of any
misconduct to merit any punishment at all and also that the particular
punishment proposed to be given is much more drastic and severe than he
deserves. Both these pleas have a direct bearing on the question of punishment
and may well be put forward in showing cause against the proposed
punishment." According to this decision the expression "reasonable
opportunity of showing cause against the action proposed to be taken"
included an opportunity to show cause against the guilt of the government
servant concerned. This opportunity to show cause against the guilt seems to
correspond to the reasonable opportunity of being heard in respect of the
charges in the course of the (1) [1945] F.C.R. 103. (2) L.R. [1948 75 I.A. 225.
482 inquiry contemplated by the amended
sub-article. The question, therefore, arises if in the present case the
Governor when expressing his satisfaction under sub-clause (c) of the proviso
to cl. (2) of Art. 311 of the Constitution in the impugned order, by using the
words "it is not expedient to give the said Shri P. K. Hore an opportunity
to show cause against the action proposed to be taken in regard to him as
stated above", intended to convey his satisfaction that in the interest of
the security of the State it was not expedient to give an opportunity to P. K. Hore
to show cause only against the penalty proposed to be imposed, and that the
Governor's satisfaction did not extend to the inexpediency of giving P. K. Hore
an opportunity of showing cause against his unfitness to be retained in service
as well. In our opinion the impugned order cannot reasonably be construed to be
restricted to the narrow meaning suggested on behalf of the appellant. The
words "as stated above" on which great reliance was placed by the
learned counsel do not have the effect of restricting the ambit of the show
cause notice to the question of penalty which may be imposed after the inquiry
into P. K. Hore's unfitness to be retained in the public service. The show
cause notice about the inexpediency of which the Governor was satisfied seems
to us to extend also to the question of such unfitness of P. K. Hore. To accept
the suggestion made by the appellant's learned counsel would impute to the
Governor an intention to make what seems to be a meaningless order. It may be
recalled that the amended Art. 311(2) does not speak of any show cause notice.
The language of this sub-article refers to an inquiry in which the delinquent
government servant is to be informed of the charges against him and given a
reasonable opportunity of being heard in respect of those charges and where
after such inquiry it is proposed to impose on him a penalty he is again to be
given a reasonable opportunity of making representation on the penalty
proposed. The second stage does not speak of notice to show cause against the
action proposed to be taken. The amendment in 1963 was made principally to put
in clearer language the result of the judicial decision construing s. 240(3) of
the Government of India Act, 1935, and un-amended Art. 311(2) of the
Constitution. As already noticed, under s. 240(3) of the Act of 1935 and the un-amended
Art. 311(2) provision was made of giving a reasonable opportunity to the
government servant concerned of showing cause against the action proposed to be
taken in regard to him. This expression was construed in terms to refer to the
stage when, after such inquiry as may be necessary, and after the punishing
authority, being satisfied of the guilt of the delinquent government servant,
provisionally proposed the action to be taken against him. But in answer to
this show cause notice the government servant was held entitled also to show
cause against his guilt on the merits. Even 483 though in the earlier inquiry,
if any, the government servant had been given an opportunity of showing cause against
his guilt, the second opportunity provided by the statute was held to be
mandatory. The Privy Council in I.
M. Lall's case(1) saw "no difficulty in
the statutory opportunity being reasonably afforded at more than one
stage". The Privy Council, however, dealt with s. 240(3) of the Act of
1935 and the earlier statutory rule on the subject. This Court in Khem Chand's
case(2) after quoting a passage from the judgment of the Privy Council said:
"Therefore, in a case where there is no
rule like 55 the necessity of an enquiry was implicit in s. 240(3) and is so in
Art. 311(2) itself. Further their Lordships say that an enquiry under r. 55
"would not exhaust his statutory right and he would still be entitled to
make a representation against the punishment proposed as the result of the
findings of the enquiry". This clearly pro- ceeds on the basis that the
right to defend himself in the ,enquiry and the right to make representation
against the proposed punishment are all parts of his "statutory right"
and are implicit in the reasonable opportunity provided by the statute itself
for the protection of the government servant." It cannot be doubted that
the Governor in the present case was fully alive to the interest of the
security of the State when he expressed his satisfaction about the inexpediency
of giving an opportunity to P. K. Hore in the one case, and to B. C. Das in the
other, to show cause against their guilt as contemplated by cl. (2) of Art. 311
and intended that this clause shall not apply to their cases. Merely because
the form of the order was ,expressed in the language used in the un-amended
Art. 311(2), it does not in our view detract from its effectiveness as
operating to exclude the applicability of the amended cl. (2) of Art. 311 as a
whole. The use of the words in conformity with the un-amended article serves to
convey the same intention as is contemplated by the amended article and the
difference in the language which seems to be inconsequential does not have the
effect of nullifying the impugned order.
No doubt Art. 311(2) is intended to afford a
sense of security to government servants covered by sub-art. (1) and the
safeguards provided by sub-art. (2) are mandatory. But cl. (c) of the proviso
to this sub-article which is designed to safeguard the larger interest of the
security of the State cannot be ignored or (1) L.R. [1948] 75 I.A. 225. (2)
[1958] S.C.R. 1080.
484 considered less important,' when
construing sub-art. (2).
The interest of the security of the State
should not be allowed to suffer by invalidating the Governor's order on
unsubstantial or hyper-technical grounds which do not have the effect of
defeating the essential purpose of the constitutional safeguard of individual
government servant.
It is nobody's case before us that inquiry into
the charges against the two appellants as contemplated by the amended Art.
311(2) had already been held and the question of imposition of penalty alone
remained to be finally settled when the impugned order was made. No inquiry of
any kind as contemplated by Art. 311(2) was, according to the common case of
the parties, held against the appellants when the Governor made the impugned
orders under proviso (c) to this sub-article. In these circumstances the
impugned orders when they speak of the "action proposed to be taken"
must be construed as intended to refer to the action including inquiry into the
truth of the charges against them and the proposed penalty to be imposed after
such inquiry. The fact that cl. (c) of the proviso to the amended sub-article
only speaks of the inquiry and not of imposition of penalty is understandable
because in the absence of inquiry the question of penalty cannot arise. It also
serves to indicate that the Governor could not have intended by the impugned
order to exclude only representation against imposition of penalty, leaving
untouched the inquiry land the right of the government servant to the
opportunity of hearing with respect to the charges. Once it is borne in mind
that the Governor's attention was, for some reason or the other, drawn only to
the un-amended Art. 311 and not to the amended article, and it is further kept
in view that the amendment of Art. 311 in 1963, as already explained, was only
designed to clarify and give effect to the judicial decisions interpreting the
unamended article, the reason for the form and the language used in the
impugned orders becomes clear and there can be no difficulty in understanding
their true meaning. Reading the impugned orders in the light of what has just
been stated, they quite clearly exclude the applicability of sub-art. (2) of
Art.-311 in both cases.
These appeals accordingly fail and are
dismissed, but in the circumstances without costs.
Bhargava, J.-These two appeals by certificate
are directed against a common judgment of the High Court of Assam and Nagaland
dismissing two writ petitions filed by the two appellants. For purposes of
dealing with the case, it is enough to give facts in respect of one of the
appellants, as the facts in the case of the other appellant are very similar,
and the points arising are common. In Civil Appeal No. 1645 of 1967, the
appellant is P. K. Hore who joined service in the Secretariat of the. Assam 485
Government on 1st November, 1946 in the post of a Lower Division Assistant. On
9th December, 1950, he was confirmed in that post. On 1st July, 1957, he was
confirmed as an Upper Division Assistant, and on further promotion, on 9th
December, 1963, he was confirmed as a Superintendent in the Secretariat with
the approval of the State public Service Commission. In the year 1964-65, he
was elected as Vice- President of the Assam Secretariat Services' Association.
This was at a time when, in the year 1964,
the report of the Pay Committee appointed by the Government was published.
The employees of the Secretariat were
dissatisfied with the recommendations of the Pay Committee and there was an
agitation against it in respect of the service conditions.
As a result, the Association took a decision
for a pen-down strike. There was also some agitation alleging that the Pay
Committee had shown undue favour to the brother of the Finance Minister of the
State Government, viz., Fakhruddin Ali Ahmed. Consequently, between 16th and
19th November, 1964, there was a debate in the Legislative Assembly regarding
the report where the Finance Minister had to give an explanation on this
charge. There was the further allegation that the appellant P. K. Hore had
taken special interest in ensuring that undesirable persons did not enter Assam
from Pakistan which was resented by the then Chief Secretary of the Government.
As a result of the agitation by the Association, of which P. K. Hore was the
Vice- President, he was suspended on 12th March, 1965. The other appellant, B.
C. Das, was suspended a few days later. In fact, including the latter, 32 other
employees were placed under suspension. On 18th March, 1965, inquiry
proceedings were drawn up against P. K. Hore and some others to show cause why
disciplinary action should not be taken against them for insubordination. P. K.
Hore was asked to submit his explanation within five days from the date of
receipt of the communication. On 26th March, 1965, he applied for extension of
time which request was accepted and time was extended up to 2nd April, 1965.
Before he could submit his explanation, however, on 31st March, 1965, P. K.
Hore, B. C.Das and three others were placed under detention by the District
Magistrate under Rule 30(1) of the Defence of India Rules. Thereafter, in the
case of P. K. Hore, the following order was passed on 1st April, 1965 :-
"The Governor is satisfied that Shri P. K.Hore, Superintendent, P.W.D.F.C.
& 1. Wing against whom more charges have been received is unfit to be
retained in the public service and that he ought to be dismissed from service.
The Governor is further satisfied under sub-
clause (C) of the proviso to clause (2) of Article 311 of the 486 Constitution
that in the interest of the security of the State. it is not expedient to give
the said Shri P. K. Hore an opportunity to show cause against the action
proposed to be taken in regard to him as stated above.
Accordingly. the Governor hereby dismisses
the said P. K. Hore from service with immediate effect." On these facts,
this order, as well as the similar order passed in the case of B. C. Das, were
challenged in the High Court of, Assam and Nagaland in petitions under Art. 226
of the Constitution on the following three grounds which have also been urged
in these appeals (1) The order of dismissal from service has been passed in
violation of Art. 311(2) of the Constitution, as the order of the Governor
did--not satisfy the requirements of sub- clause (c) of the proviso to clause
(2) of Art. 31 1;
(2) The order has been passed without
consultation with the State Public Service Commission which was compulsory
under rule 10 of the Assam Services Discipline and Appeal Rules, 1964
(hereinafter referred to as "the Rules"), and regulation 6 of the
Assam Public Service Commission (Limitation of Functions) Regulations, 1951
(hereinafter referred to as "the Regulations"), (3) The order of
dismissal has been passed mala fide. The High Court rejected all these grounds
and dismissed both the writ petitions and, consequently, the appellants have
come up to this Court in these appeals.
Clause (2) of Art. 311 of the Constitution,
as it stands after amendment by the Constitution (Fifteenth Amendment) Act,
1963 reads as follows :- "311. (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 and where it is proposed, after such
inquiry, to impose on him any such penalty, until he has been given a
reasonable opportunity of making representation on the penalty proposed, but
only on the basis of the evidence adduced during such inquiry :
Provided that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of
conduct 487 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
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." Under this provision, if an order of dismissal or removal or
reduction in rank is to be passed in respect of any Government servant, three
steps have to be taken. The first step is to direct that an inquiry be held
against him; the second is that, in that inquiry he has to be informed of the
charges against him and given a reasonable opportunity of being heard in
respect of those charges; and, finally, after such inquiry, the third step to
be taken is that, if it is proposed to impose on him any penalty of dismissal,
removal or reduction in rank, he has to be given a reasonable opportunity of
making a representation on the penalty proposed, but only on the basis of the
evidence adduced during such inquiry. Under the three sub-clauses of the
proviso, this principal clause ceases to apply altogether in case the
conditions laid down in those sub-clauses are satisfied. Sub-clause (c), which
is relevant in this case, lays down that, 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 the inquiry under the principal clause, that
clause shall not apply. In order, therefore, to enable the Governor to pass an
order of dismissal without holding an inquiry, without informing the government
servant of the charges against him and without giving him an opportunity of
being heard in respect of those charges, and without giving him a reasonable
opportunity of making a representation against the penalty proposed, the
Governor must be satisfied that, in the interest of the security of the State,
the holding of such an inquiry is not expedient. In the present case, in the
impugned order dated 1st April, 1965, the satisfaction of the Governor was
recorded in the following words :- "It is not expedient to give the said
Shri P.K. Hore an opportunity to show cause against the action proposed to be
taken in regard to him as stated above." There was no mention of any
inquiry and the Governor did not record any satisfaction that it was not
expedient to hold the inquiry envisaged by the principal clause (2) of Art.
311. It is specially to be noted that, in the
first paragraph of the order, the 488 Governor's satisfaction is recorded on
two points. One is that the Governor is satisfied that P. K. Hore, against whom
more charges had been received, is unfit to be retained in the public service,
and the second is that he ought to be dismissed from service. Obviously, this
paragraph envisaged that the Governor had already formed an opinion that the
penalty of dismissal from service should be awarded to P. K.Hore. Having
arrived at that opinion, it was expressed in so many words in the first
paragraph of the order and, then, in the second paragraph, the Governor's
satisfaction is recorded to the effect that it is not expedient to give P.K.
Hore an opportunity to show cause against the action proposed as stated above.
The "action proposed as stated above" in the order clearly is the
order imposing the penalty of dismissal from service. In the order itself
preceding the recording of this satisfaction, there is no other action
proposed, except the action of dismissal from service. The satisfaction
recorded by the Governor, therefore, related to the third step to be taken
under clause (2) of Art. 311 as enumerated above. The Governor confined his
satisfaction to the inexpediency of giving an opportunity to P. K. Hore to show
cause against the penalty proposed. No satisfaction is recorded that it is
inexpedient to hold the inquiry required by clause (2) of Art. 31 1. Under
sub-clause (c) of the proviso, what was needed was a satisfaction that it was
inexpedient to hold the inquiry. No such satisfaction having been recorded, it
was necessary that the provisions of the principal clause (2) of Art. 311
should have been complied with before passing an order of dismissal.
Mr. Chagla appearing on behalf of the
respondent, however, relied on the fact that the satisfaction of the Governor
was recorded in the language in which the provision in Art.
311(2) stood prior to its amendment by the
Constitution (Fifteenth Amendment) Act, 1963, and which was as follows
"311. (2) No such person as aforesaid shall be dismissed of removed or
reduced in rank until he has been given a reasonable opportunity of showing
cause against the action proposed to be taken in regard to him Provided 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;
(b) where an 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 give to that person an opportunity of showing cause; or 489 (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 give to that
person such an opportunity." Under the un amended clause (2) of Art. 311,
what was required to be done was that a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him had to be given to the
government servant, and, under the proviso, the Governor's satisfaction
required was that in the interest of the security of the State it was not
expedient to give that person such an opportunity. The satisfaction under the
unamended provision, therefore, that the Governor had to arrive at was that it
was not expedient to give the government servant an opportunity of showing
cause against the action proposed to be taken in regard to him. This is the
language used in the order impugned. The words used in the Article, before the
amendment, were interpreted by this Court in Khem Chand v. The Union of India
and Others.(3) Summarising the position, the Court held :- "The reasonable
opportunity envisaged by the provision under consideration includes- (a) An
opportunity to deny his guilt and establish his innocence, which he can only do
if he is told what the charges levelled against him are and the allegations on
which such charges are based-.
(b) an opportunity to defend himself by
cross-examining the witnesses produced against him and by examining himself or
any other witnesses in support of his defence; and finally (c) an opportunity
to make his representation as to why the proposed punishment should not be
inflicted on him, which he can only do if the competent authority, after the
enquiry is over and after applying his mind to the gravity or otherwise of the
charges proved against the government servant tentatively proposes to inflict
one of the three punishments and communicates the same to the government
servant." This interpretation was reiterated by the Court in Hukum Chand
Malhotra v. Union of India.(1) It was urged by Mr. Chagla that, in interpreting
the order of the Governor dated 1st April, 1965, it should be held that, in
stating that it is not expedient [1958] S. C. R. 1080. (2) [1959] Suppl. S. C.
R.
892.
490 to give P. K. Hore an opportunity to show
cause against the action proposed to be taken in regard to him, he must have
used these words in the sense in which they were used in the Constitution prior
to its amendment and in the light of the interpretation placed on those words
by this Court in the two decisions cited above. For two reasons, this
submission made by Mr. Chagla appears to be unacceptable. The first reason is
that it is too much to hold that the Governor, while passing an order under the
amended Art. 311(2), would be consciously thinking of and basing his order on
the language which was used earlier in the unamended Article and on the
interpretation placed on that unamended article by this Court. In fact, in the
counter-affidavit filed on behalf of the State, the assertion made by the Chief
Secretary again is "that the Governor of Assam was satisfied on the basis
of materials before him that in the interest of security of the State, it was
not expedient to give the petitioner to show cause against the order of
dismissal." He, thus, reiterates that the Governor's satisfaction was
confined to the inexpediency of permitting the petitioner to show cause against
the proposed order of dismissal which was the proposed penalty. This statement
in the affidavit gains importance when reference is made to a subsequent
paragraph in it in which the Chief Secretary puts forward his submissions. It
is in the submissions that the Chief Secretary says that the Governor was
satisfied that it was not expedient to hold the inquiry. If, in fact, the
Governor was so satisfied, there is no reason why the Chief Secretary should
not have stated it on oath in the earlier paragraph, instead of merely making a
submission of his in a subsequent paragraph. The second reason is that in the
order, when recording his satisfaction, the Governor has stated that it is not
expedient to give P. K. Hore an opportunity to show cause against the action
proposed to be taken in regard to him as stated above. The last three words
"as stated above" have great significance. As has been mentioned
earlier, the only action proposed to be taken, which was stated earlier in that
order, was the action of dismissal from service. Obviously, therefore, the
language used can bear no other interpretation except that the Governor, in
recording the satisfaction, confined it to the inexpediency of giving an
opportunity to P. K. Hore to show cause against dismissal from service which
would be an opportunity to show cause against the penalty proposed only.
No satisfaction was recorded with regard to
the inexpediency of holding an inquiry.
It was argued that this interpretation, which
is being placed on the order of the Governor, is too strict and technical, and
it should be held that, in fact, the Governor intended to record his
satisfaction on the question of inexpediency of holding the inquiry as required
by the amended Art. 311(2). It has to be 491 remembered that the satisfaction
of the Governor under sub- clause (c) of the proviso has the effect of
depriving a government servant of a very valuable right of ;having an
opportunity to prove his innocence as well as opportunity to make a
representation against the penalty proposed to be inflicted on him. The effect
of such satisfaction is that the government servant is dismissed without even
being told of the charges against him. When such serious consequences follow,
it is necessary that the precondition laid down by sub-clause (c) of the
proviso to Art. 311 (2) is strictly satisfied so as to justify deprivation of
the valuable right of the government servant mentioned above. I do not think,
therefore, that it would be enough merely to infer the intention of the
Governor and, thereupon, take away the right. There having been no proper
compliance with the requirements of sub clause (c) of the proviso to Art.
311(2), the order of dismissal passed against P. K. Hore is void and must be
struck down. It may be mentioned that the same High Court in a later case of
Zatia v. The State of Assam and Others(1) has arrived at the same decision,
though on a different reasoning which does not appear to be sound. This
decision applies equally to the case of B. C. Das, as, in his case also, the
order passed by the Governor for his dismissal is exactly similar and was made
in exactly similar circumstances as in the case of P. K. Hore.
In view of the decision on the first point
raised in these appeals, it is not necessary to deal with the other two points.
However, since they were argued in detail by both parties, I may indicate that,
in my opinion, there is no force in either of them.
So far as non-compliance with rule 10 of the
Rules and regulation 6 of the Regulations is concerned, I am unable to accept
the submission put forward by counsel for the appellants that the rule or the
regulation lays down any requirement that the Public Service Commission must be
consulted before a government servant is dismissed. Rule 10 is as follows :-
"Special procedure in certain cases.-Not with- standing anything contained
in Rule 9- (i) where a penalty is imposed on a Government servant on the ground
of conduct which has led to his conviction on a criminal charge; or (ii) were
the Disciplinary Authority is satisfied for reasons to be recorded in writing
that it is not reasonably practicable to follow the procedure prescribed in the
said rule; or (1) [1969] Vol. I Pt. VI Assam Law Reports 192.
492 (iii) where the Governor is satisfied
that in the interest of the security of the State, it is not expedient to
follow such procedure,- the Disciplinary Authority may consider the
circumstances of the case and pass such orders thereon as it deems fit :
Provided that the Commission shall be
consulted before passing such orders in any case in which such consultation is
necessary." The main part of this rule only enumerates cases where orders
can be passed without consulting the Public Service Commission. It is only the
proviso that mentions consultation; but it does not make it compulsory for the
Commission to be consulted. All it says is that the Commission shall be
consulted in any case in which such consultation is necessary. This clearly
envisages that the necessity for consultation must be found in some other
provision. This rule itself does not lay down that in all cases, other than
those mentioned in the principal clause or in rule 9, consultation with the
Public Service Commission is made mandatory. Similarly, regulation 6 only
enumerates cases where it is not necessary to consult the Commission.
It is true that consultation with the
Commission, in cases where the Governor himself passes an original order
imposing the penalty of dismissal on a, government servant, is not dispensed
with. This regulation has obviously been made by the Governor in exercise of
his power under the proviso to Art. 320(3) of the Constitution. It is the
principal clause of Art. 320(3) which lays down when the Public Service
Commission shall be consulted. Sub-clause (c) of clause (3) of Art. 320 is the
relevant provision under which consultation with the Public Service Commission
is required on all disciplinary matters affecting a person serving under the
Government of a State. The regulations, as indicated above, do not dispense
with this requirement of Art.
320(3)(c) in cases where the Governor is
himself the original dismissing authority. The argument of learned counsel that
regulation 6 itself lays down by implication that there must be consultation
with the Public Service Commission in such cases cannot, therefore, be
accepted.
Regulation 6 not having exempted consultation
with the Public Service Commission in such cases, all that can be held is that
the consultation required by Art. 320(3)(c) continues to be in force and
applicable. Counsel also drew attention to illustration (4) in regulation 6
which is as follows :- "It is proposed to dismiss a State Service Officer
or to reduce his pension. The Commission must be consulted before an order is
passed by the Governor." 493 This illustration again merely indicates the
correct legal position that the Commission must be consulted as required by
Art. 320(3)(c). The illustration by itself cannot be read as a statutory rule
laying down that there must be consultation with the Commission. The illustration
is to the main provisions of regulation 6 which only lay down cases in which
consultation with the Commission is dispensed with and this illustration has
been put down as one of the examples where the consultation has not been
dispensed with.
The consultation, therefore, with the
Commission is not prescribed either by the Rules or by the Regulations. The
consultation is only under Art. 320(3)(c) of the Constitution. So far as that
consultation is concerned, this Court has already held that it is not mandatory
and that this Article does not confer any rights on a public servant, so that
the absence of consultation or any irregularity in consultation does not afford
him a cause of action in a court of law, vide State of U. P. v. Manbodhan Lal
Srivastava.(1) That decision was further affirmed in the State of Bombay v. D.
A. Korgaonkar.(2) Non-consultation with the Public Service Commission cannot,
therefore, be held to vitiate the orders impugned.
The third ground of mala fides has, on the
face of it, no force at all, because it is based on allegations that the Chief
Secretary and the Finance Minister were annoyed with the appellants. But there
was no charge that the Governor bad any extraneous reasons for passing the
orders of dismissal. There is nothing on the record also to show that either
the Chief Secretary or the Finance Minister took any part in the proceedings
which led to the orders of dismissal, or that they advised the Governor. The
orders are, no doubt, authenticated by the Chief Secretary in the name of the
Governor; but that does not mean that the Governor was in any way influenced by
any advice tendered to him by the Chief Secretary. In the circumstances, the
plea of mala fide must also be rejected.
As a result, the appeals are allowed with
cost and the orders of dismissal in both the cases are quashed as having been
passed in violation of Art. 311(2) of the Constitution.
ORDER In accordance with the majority
judgment, the appeals fail and are dismissed but in the circumstances of the
case without costs.
G.C.
(1) [1958] S. C. R. 533.
(2) Civil Appeal No. 289 of 1958 decided on
6th May, 1960.
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