1. The Petitioner is a civilian in the defence services. He has filed this petition under Article 226 of the Constitution to set aside an order passed by the President of India terminating his services as Lecturer in the National Defence Academy, Khadakvasla, and reverting him to the post of Section Master, Rashtriya Indian Military College, Dehra Dun, his parent department, on which post he held a lien, and a consequential order directing him to proceed to Dehra Dun on reversion to his parent department.
2. In September 1947 the Petitioner was appointed as Section Master in the Prince of Wales Royal Indian Military College at Dehra Dun (now known as 'The Rashtriya Indian Military College') in the grade of Rs. 275-50-800- with duty allowance of Rs. 100/- per month and free accommodation. This appointment was for a period of one year pending recruitment of a candidate through the Federal Public Service Commission. In 1948 three posts of Section Master and six posts of Senior Master in the Prince of Wales Royal Indian Military College, Dehra Dun, were advertised for recruitment. The revised grade of pay shown for the posts of Section Master was Rs. 350-25-500-30-560 and that for the posts of Senior Master was Rs. 230-15-400. The Petitioner submitted his application for both posts. He was, however, selected as a Senior Master by an order dated August 14, 1948 on the salary of Rs. 235/- per month in the grade of Rs. 250-15-400. Originally the said appointment was stated to be on probation, but by a subsequent order dated August 21/23, 1948 the said condition of probation was removed. On his appointment to this post, the facilities of free accommodation and allowance of Rs. 100/- per month which the petitioner was given as Section Master were not allowed to him, and further a sum of Rs. 183/- per month was directed to be deducted from his future salary. In the same year the posts of Readers and Lecturers in the National Defence Academy, Khadakvasla, (hereinafter for brevity's sake referred to as 'the Academy') were advertised by the Federal Public Service Commission. The petitioner applied for both these posts also. The Commission selected him for the post of a Lecturer, and by the letter dated December 14, 1948 from the Deputy Secretary to the Government of India he was offered a temporary appointment on five years contract as a Lecturer in English subject to the condition that he would be on probation for twelve months and would hold a Hen on his permanent post of Senior Master in the Prince of Wales Royal Indian Military College for the period of this appointment. The salary offered to him was a starting pay of Rs. 500/- per month in the scale of Rs. 500-30-800. The Petitioner accepted this appointment and joined the Academy. Thereafter a contract containing the terms and conditions of his appointment was forwarded to the Petitioner for his signature. The petitioner has contended in the Petition that this contract never came into effect inasmuch as though the Petitioner signed it the same was not signed on behalf of the President. During the course of hearing the original of this contract was produced by Mr. Advani learned counsel for the Respondents, and as it bore the signature of the Joint Secretary to the Government of India, Ministry of Finance, for and on behalf of the President, the Petitioner abandoned this contention. From the original it appears that the date typed in the body of the contract is December 16, 1948, but the stamps have been cancelled on August 16, 1952. It further appears that the contract was signed by the Petitioner on September 13, 1952. There is, however, no date under the signature of the Joint Secretary. Before adverting to the relevant terms of this contract it is necessary to refer to an order by which the terms of this contract were varied in one material respect, By a letter dated January 15, 1964 addressed to the Chief of the Army Staff and the Commander-in-Chief, Army, it was directed that candidates selected for the appointment of civilian readers and lecturers at the Academy who held permanent posts under the Central or a State Government would not be required to execute any agreement but would be treated as on deputation to the Academy from their parent service of office, Along with this letter a list of such persons was enclosed. That list contained the Petitioner's name. It was further stated in the said letter that in cases where agreements had already been executed, the phrase 'termination of services' in the contract would mean, 'reversion, to parent office'. A copy of this letter was forwarded to the Petitioner. Even if this letter were not there, the position would have been the same, for under the said contract the service which could be terminated would be the particular contractual service, and on such termination the petitioner would automatically revert to the post on which he held a Hen in his parent department.
3. The said contract is expressed to between the petitioner and the President of India. The said contract was to be for a period of five years commencing from December 16, 1948, and under clause 3 right was reserved to either party to terminate the contract at any time before the expiry of that period by a notice of three calendar months in writing without any cause being assigned. In the case of termination by the Govt. without such notice provision is made for payment of compensation to the petitioner equivalent to his pay for three months and in the event of termination by notice of a shorter period, compensation for the period by which such notice fell short of three calendar months' period, Under clause 11, if the petitioner's service is not terminated under Clause 3, the petitioner is to be continued in service on the same terms and conditions until his service is terminated by notice or payment of compensation in like manner. Clause 4 reserves the right to the Government in case the petitioner proves unsuitable for the efficient performance of his duties to terminate his service by giving one calendar month's notice or in lieu thereof, one month's pay. Clause 5 is material and requires to be set out fully. It provides as follows:--.
'If the party of the first part shall be guilty of any insubordination, intemperance or other misconduct or of any breach or non-performance of any of the provisions of these presents or of any rules pertaining to his service, it shall be lawful for the Government or their officers having authority for that purpose, immediately and without any previous notice to terminate the service of the party of the first part.' By reason of the said letter dated January, 1954, the word 'terminate' in the clause above referred to is to be read as 'revert' to the parent department.'
4. The petitioner felt that the deduction of Rs. 183 per month from his salary was not justified. He also felt himself unjustly treated in the matter of promotion. Accordingly, the petitioner made repeated representations to higher authorities each of which was turned down. It appears that he received two warnings in connection with the performance of his duties, the first in February 1959 and the second in April 1959. In November 1959, he was interviewed by the Joint Secretary, Defence Ministry, and it was explained to him that the representations made by him were not justified. He, therefore, submitted further representations to the President of India and the authorities. By the letter dated November 16, 1980, it was intimated to him that his representations contained incorrect statements and improper allegations and that he should not persist in sending them. On November 18, 1960, he was charge-sheeted for disobedience of order and after an inquiry his pay was reduced by one stage in his time-scale for a period of one year. The representations by the petitioner, however, continued. His representations were ultimately considered by the Defence Minister and by the letter dated March 4, 1963, he was informed that he bad no valid grounds for complaints. Thereafter he made further representations to the Defence Minister, the Home Minister and the President of India, By the letter of September 17, 1963, from the Deputy Secretary to the Government of India, the above facts were placed on record and he was informed that his representations repeating the same allegations would not be taken note of in the Ministry of Defence. By the said letter he was 'advised to desist from making such representations'. By way of reply to the said letter the petitioner made another representation dated October 14, 1963, to the President of India copies of which were forwarded to the Prime Minister, the Home Minister, the Defence Minister, the Chief of the Army Staff, the Chairman, Union Public Service Commission, and the former Home Minister asking for an independent judicial inquiry. In the said letter he charged that the higher-ups in the administration had not only wronged and ruined him but also meant to destroy him mentally. This was followed by another representation dated 2-4-1964, with copies thereof sent to the same Ministers in which he described the said memorandum dated September 17, 1963, as 'most arbitrary, mala fide and vilifying' and characterised the fact that his said representation dated October 14, 1963, was not replied to as being 'sheer tyranny--undeserved unjustified, unmitigated and unwarranted' and as being 'against the laws of humanity'. On July 13, 1964, he sent another representation to the President of India, again with copies to the Prime Minister, the Defence Minister and the Chairman of the Union Public Service Commission, in which he requested that his case should be referred to the Central Sadachar Samiti of the Home Minister. This letter is headed 'Appeal for Justice and Fairplay to the victim of bureaucratic mala fides and arbitrariness culminating in the ruin of his (that is, the petitioner's) name, reputation, career and profession'. On August 31, 1964 a Guest Night was held at the Academy. By the Academy Order No, 1081 dated August 28, 1964, all officers (service and civilians) and cadets were required to attend. The petitioner admittedly did not attend the Guest Night nor did he take any permission for not attending. By his letter dated September 10/18, 1964, the Principal of the Academy called upon the petitioner to intimate the specific reasons for not attending the Guest Night. By his letter dated September 21, 1964, the petitioner forwarded the original of the Principal's said letter to the Commandant of the Academy as he stated 'to reiterate the farcical and-to-me wrong use the departmental channel is being put to in dealing with personal and confidential matters, and for which there is no legal or administrative validity'. He further pointed out that he would not like to be treated as a cadet to be trained in correct attitudes and postures. He further stated that if since 1961 he had attended any Guest Night it was only to honour the Passing-Out Cadets or the Commandants on their arrival or departure on account of the love and interest which he once had for the Academy, implying that he has no love or interest for the Academy left any longer. He requested the Commandant to inform the Principal that the question of obtaining prior permission in the circumstances was not only absurd but improper and that he thought that silence on his part was the only decent thing. In the said letter he expressed his regret that he had been rendered incapable of social obligations towards the Academy. Thereafter a charge-sheet dated December 10, 1964, was served upon the petitioner. The said charge-sheet contains four charges: The first, second and the fourth charges related to the said representations respectively dated October 14, 1963, April 2, 1964, and July 13, 1964, made by the petitioner and the third charge related to his said letter dated September 21, 1964. By the said charge-sheet the petitioner was charged with submitting copies of the said representations to those not directly connected with his case in total disregard of the normal procedure and continuing to make representations and sending copies thereof to various high officials in spite of instructions to the contrary and with using intemperate and disrespectful language in the said representations. The third charge related to his not attending the Guest Night on August 31, 1964, in spite of the said Academy Order No. 1081 of August 28, 1964 and behaving in an insolent and arrogant manner not becoming an officer of his status by giving an impertinent and provocative reply in his letter dated September 21, 1964. Copies of the documents referred to in the said charge-sheet were enclosed along with such representations. He was asked to submit his written statement of defence which the petitioner did by his letter dated December 24, 1964. In that letter, he admitted having violated the normal channels of representations and using language which was not proper to such representations. He, however, stated that these faults were natural to a person who had felt strongly all these years that justice had been denied to him. So far as the letter of September 21, 1964, was concerned, ho sought to extenuate himself on the ground that at that time he was undergoing a period of intense mental and emotional strain. In the said written statement he requested that the contemplated disciplinary proceedings against him should be dropped. By an order dated June 29, 1966, after stating that an inquiry was being held against the petitioner and that the President considered that an Inquiry Officer should be appointed to inquire into the charges framed against him, the President appointed K.V. Ramanamurthi, Deputy Secretary (C.P.), Ministry of Defence, the third respondent, as Inquiry Officer to inquire into the said charges. By another order dated July 1, 1966, the President appointed the Principal of the Academy to present the case in support of the said charges before the Inquiring Officer.
The said order recites that the inquiry was being held under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as 'The 1965 Rules'), On July 15, 1966, the inquiring officer recorded the petitioners oral statement. In that statement the petitioner contended that the said memorandum dated September 27, 1963, did not contain any direction but merely purported to give him advice only. He also denied that the language used by him was impertinent or disrespectful and denied that he was guilty of any indiscipline in not attending the said Guest Night. On November 26, 1967, the petitioner was served with the said impugned order dated November 15, 1967. That order refers to the said charge-sheet, the petitioner's written statement of defence, correspondence and the statement made by the petitioner at the oral inquiry. By the said order, in accordance with the provisions of Clause 5 of the said agreement, the President terminated the services of the petitioner with effect from the date he was relieved of his duties at the Academy and it was further ordered that thereafter the petitioner would revert to the post of Section Master, Rashtriya Indian Military College, Dehra Dun, on which post it was stated he had a lien. That order is signed by the Deputy Secretary to the Government of India, for and on behalf of the President of India. This was followed by a movement order dated December 2, 1967, signed by the Registrar of the Academy on behalf of the Commandant granting the petitioner time up till December 21, 1967, to proceed to Dehra Dun on his reversion to his parent department namely, the Rashtriya Indian Military College. On December 7, 1967, the petitioner filed this petition against the Union of India under Article 226 of the Constitution to set aside the said two orders and for a writ of mandamus directing the respondent to drop the said disciplinary proceedings. The original respondents to this petition were the Union of India, the Commandant of the Academy, the Inquiry Officer and the Registrar of the Academy. In view of the objection taken by the respondents in their affidavit in reply that no writ petition can lie against the President of India, the description of the first respondent was amended so as to read 'The Union of India'.
5. In the petition the petitioner has alleged that after the said inquiry was completed, no further notice was issued to him proposing to show cause against the penalty proposed to be imposed upon him nor was a copy of the Inquiry Officer's report supplied to him before the said impugned orders were passed. He has contended that the said order amounts to a reduction in rank. By the amendments which he was allowed to make in the petition, the petitioner has contended that the 1965 Rules apply to him and that the said inquiry proceedings were conducted and the said impugned orders were passed in a manner which constituted a breach of the relevant rules and a violation of the principles of natural justice. The defence of the respondents is that the petitioner's service at the Academy was contractual and the 1965 Rules did not apply to him, that his service was terminated in accordance with the terms of contract and that there was no violation of the 1965 Rules or of the principles of natural justice assuming they applied to the petitioner and assuming there was any breach or violation, the same was not justifiable.
5-A, On these rival submissions the first question that arises for determination is whether the 1965 Rules apply to the petitioner, It is common ground that the petitioner holds a post connected with defence within the meaning of that expression in Article 310 of the Constitution and is a civilian in Defence services. Prior to 1985 civilians in Defence services were governed by the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, while other civilians were governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1957. Both these sets of Rules, like the 1965 Rules, were made by the President under the proviso to Article 309 of the Constitution. The 1965 Rules repealed both these sets of Rules and now Rule 3 of the 1985 Rules applied to every Government servant including every civilian Government servant in the Defence services, except those classes of Government servants specifically excluded by the said Rule 3. The only exception with which we are concerned in the present petition is that contained in Clause (e) of Rule 3 (1) which excludes from the application of the 1963 Rules 'any person for whom special provision is made in respect of matter covered by these Rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before' or after the commencement of these Rules, in regard to matters covered by such special provisions'. Thus, under Clause (e), two categories of persons are excluded: (1) those for whom special provision is made by or under any law, and (2) those in respect of whom special provision is made by or under any agreement entered into by the or with the previous approval of the President. It is immaterial whether such law was made or agreement entered into before or after the commencement of the 1965 Rules. The application of the 1965 Rules is, however, not totally excluded but excluded only in regard to matters covered by such special provisions. Thus, even in the case of Government servants for whom a special provision is made by or under any law or agreement, the 1965 Rules will apply except in so far as they are not inconsistent with what isprovided in such law or agreement. Accordingly in the case of the petitioner, the 1965 Rules will apply in so far as they are not inconsistent with the provisions of the said contract dated December 16, 1948. In support of the submission that the 1965 Rules do not apply to the petitioner, Mr. Advani, learned counsel for the respondents, has relied upon the judgment of a learned single Judge of the Calcutta High Court in Subodh Ranjan Ghosh v. Major N.A. Callaghan, : (1957)ILLJ69Cal . In that case an agreement was entered into between an employee in the Military Engineering Ser-vice and the General Engineer, Ishapore, which provided for termination of the employee's service on giving him either three calendar months' notice or payment of three months' salary. The agreement also provided for termination of service in case of gross misconduct at any time without notice. Disciplinary proceedings were started against the employee and a three months' notice of termination of his service was given to him. The employee filed a petition in the Calcutta High Court for a writ of mandamus. It was contended off behalf of the Government that by reason of Rule 3 of the Defence Services (Classification, Control and Appeal) Rules, 1952, the application of the said Rules was excluded. Clause (c) of that rule excluded from the application of the said Rules 'persons in respect of whose conditions of service, pay and allowances, pension, discipline and conduct, or any of them, special provision had been made by agreement'. The proviso to Rule 3 was as follows:--
'Provision that in respect of any matter not covered by the provisions special to him, his service or his post, these rules shall apply to any person coming within the scope of Exception (b) or (c) to whom but for either of these exceptions these rules would apply.'
The Court held that though normally a civilian employed in defence service would be governed by the said Rules, by virtue of Clause 3 (c) the said Rules had been made inapplicable to persons in respect of whose conditions of service special provision had been made by agreement, except as to matters not covered by such an agreement. Since the service of the employee was terminated by three calendar months' notice as provided by the agreement, the Court held that he could not avail himself of the provisions, of the 1952 Rules. This authority, therefore, does not lay down the proposition in such wide terms as has been canvassed by Mr. Advani. Though Clause (c) of Rule 3 of the 1952 Rules is couched in language different from that to be found in Clause (e) of Rule 3 (1) of the 1965 Rules, the effect of both these clauses is the same, namely, that the Rules will apply in respect of all matters not covered by the agreement, and in so far as they are not inconsistent withthe agreement entered into between the Government servant and the Government,
6. In the present case the petitioner's service with, the Academy was not terminated in pursuance of Clause 11 which gives to the President the right to terminate me petitioner's service by giving three calendar months' notice or payment of compensation of three months' salary. The petitioner's service is terminated under Clause 5 and he has been reverted to his parent department. We have, therefore, to consider whether Clause 5 of the agreement is inconsistent with the 1965 Rules, and, if so, to what extent. Rule 11 of the 1965 Rules provides for penalties. It defines what are minor penalties and what are major penalties. Penalty (vi), which is a major penalty, is 'reduction to a lower time-scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time-scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service'. It is not disputed that by terminating the petitioner's service with the Academy and reverting him to his parent department he has been reduced to a lower grade or post and if the 1985 Rules apply in their entirety to the petitioner, the impugned order would amount to reduction to a lower grade or post within the meaning of penalty (vi) in Rule 11. It is, however, contended by the respondent relying upon the Explanation to Rule 11 that the petitioner was on deputation to the Academy and for the said reason his reversion to the parent department did not amount to a penalty, The material portion of the said Explanation is as follows:--
'The following shall not amount to a penalty within the meaning of this rule, namely:--
x x xx x(iv) reversion of a Government servant officiating in a higher service, grade or post to a lower service, grade or post, on the ground that he is considered to be unsuitable for such higher service, grade or post or any administrative ground unconnected with his conduct;
X X X X XIt cannot be said that the petitioner was reverted to his parent department because he was considered to be unsuitable for the higher grade or post or on any administrative ground unconnected with his conduct. On the contrary, Clause 5 of the contract has specific reference to the petitioner's conduct and provides for termination of his service or rather reversion to his parent department when he is guilty of any insubordination, intemperance or other misconduct or of any breach of non-performance of any of the provisions of the agreement or of any rules pertaining to his service. The affidavit in reply expressly avers that the plaintiff was found guilty as provided by Clause 5 of the agreement. The plain-tiff's reversion was, therefore, on grounds connected with his conduct and it cannot be said this reversion was not a penalty.
7. Clause 5 of the contract, however, comes into operation only when the petitioner is found guilty of any of the acts set out in that Clause since it only provides for the penalty to be imposed upon him in such an event and the mode of imposing such penalty. We shall consider later the effect of the petitioner's case of this special provisions. Neither Clause 5 nor any other Clause in the contract makes any provision with respect to the manner in which the petitioner's guilt is to be proved or found or the mode of finding him guilty. Thus, the contract is silent on this point, and to the extent it is silent the 1965 Rules will apply. Since the contract is silent as to the mode in which plaintiffs guilt is to be found or proved, the provisions in that behalf in the 1965 Rules will apply upto the ascertainment of the petitioner's guilt. These provisions are to be found in Rule 14 of the 196S Rules. In fact, as shown by the recital in the said order dated July 1, 1966, appointing a Presenting Officer, the inquiry against the petitioner was held under Rule 14. Rule 14 (5) (c) provides for the appointment of a Government servant or a legal practitioner to present the case in support of the articles of charge. The appointment of the Inquiry Presenting Officer is also made under the 1965 Rules.
7-A. It is the petitioner's case that in the conduct of the inquiry against him, there has been violation of several provisions of Rules 14 and 15 of the 1965 Rules which vitiate the inquiry and entitled the petitioner to have the said impugned orders and the inquiry proceedings set aside, Before we consider the factual aspect of this part of the case, it is necessary to consider the constitutional question which has been raised by the respondents in answer thereto. In the respondents' submission the petitioner, being a Government servant in the service of the Union of India, holds office under Article 310 of the Constitution 'during the pleasure of the President' as he holds a post connected with defence, Article 311 does not apply to him; the impugned order terminating his service with the Academy and reverting him to his parent department was passed by the President; and assuming there was any breach or violation of the 1965 Rules, the same cannot furnish a cause of action to the petitioner and would give him no legal right to approach the Court either by way of a suit or a writ petition to redress his grievance. This is sought to be countered by the petitioner by submitting that the 1965 Rules have been made by the Presidentunder Article 309 of the Constitution and a breach of these rules is justiciable even in cases where Article 311 does not apply. This question has been strenuously and at length debated at the Bar and a largo number of authorities has been cited on both sides.
8. The phrase 'during the pleasure of the President' is not a new phrase introduced for the first time in our Constitution. It is an adaptation in phraseology appropriate to our Constitution of the well-known and familiar phrase 'at the pleasure of the Crown' in English law. From the earliest times the well-established rule of English law was that public officers and servants of the Crown hold office at the pleasure of the Crown, the theory of English constitutional law being that the king can do no wrong, and accordingly the services of a servant of the Crown could be terminated without assigning any reason and no action can be maintained in the King's Court for wrongful dismissal. The same rule appears to have been applied to the servants of the East India Company, It certainly applied to servants of the Crown after the territories of the East India Company and their administration was taken over by the British Crown. The phrase 'at the pleasure of the Crown' has its origin in the Latin phrase 'durante bene placito' (during pleasure) which means that the tenure of the office of a Civil Servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The Government of India Act, 1915, as originally enacted, contained no provision embodying this doctrine. The first statutory recognition of this rule in India is to be found in Section 96-B which was inserted along with other amendments in the Government of India Act, 1915, by the Government of India Act, 1919. Section 96-B affirmed the position that every person in the civil service of the Crown in India held office during his Majesty's pleasure subject to the provisions of the said Act and of the rules made thereunder. By Sub-section (1) of Section 98-B, one restriction was, however, introduced on the power of dismissal by providing that no civil servant could be dismissed by any authority subordinate to that by which he was appointed. Sub-section (1) also provided for a complaint by a Government servant thinking himself wronged by an order of an official superior in a Governor's province to complain to the Governor in order to obtain justice without prejudice to any other right of redress which he might have. By Sub-section (2) the Secretary of State in Council was empowered to make rules for regulating the classification of the civil services in India, the methods of their recruitment, their conditions of services, pay and allowances and discipline and conduct. The Classification of Rules made under Section 96-B (1) inter alia provides for holding ofa disciplinary inquiry at which a definite charge in writing was required to be framed, evidence in support thereof to be led, and such evidence along with any evidence which the Government servant might adduce was required to be recorded in his presence. A finding along with discussion was required to be recorded on each charge. In R. Venkata Rao v. Secy. of State , the Privy Council held that a Government servant dismissed without any inquiry being held could not obtain redress by an action in Court but only by way of appeal of official kind. The Privy Council further pointed out that if service under the Crown would not have been at the pleasure of the Crown, the remedy by suit against the Secretary of State in Council for a breach of contract of service would have been available to the Government servant aggrieved by his wrongful dismissal from service. The Government of India Act, 1919, was replaced by the Government of India Act, 1935, Sub-section (1) of Section 240 of the Government of India Act, 1935, enacted that except as expressly provided by that Act, every person who was a member of a civil service of the Crown in India, or held any civil post under the Crown in India, held office during His Majesty's pleasure. Sub-section (2) reproduced the restriction introduced by Section 96-B(1) of the 1919 Act. Sub-section (3) gave a further statutory protection to a Government servant from dismissal or reduction in rank by providing that he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The rights thus conferred by the rules made by the Secretary of State for India in Council under the 1919 Act were given constitutional recognition by Section 240(3).
9. Part XIV of the Constitution of India deals with services under the Union and the States. The relevant Articles in this part are Articles 309, 310 and 311. Articles 309 and 310 require to be quoted in extenso in view of the arguments advanced at the Bar, These articles are in the following terms:--
'309. Recruitment and conditions of service of persons serving the Union or a State.--Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating therecruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.'
'310. Tenure of office of persons serving the Union or State.--(1) Except expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India Service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of Civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor, as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.'
Article 311 provides certain constitutional safeguards to particular categories of Government servants against their dismissal, removal or reduction in rank. These safeguards are that such a Government servant cannot be dismissed or removed by an authority subordinate to that by which he was appointed and that he cannot be dismissed, removed or reduced in rank except after being informed of the charges against him and being given a reasonable opportunity of being heard in respect of those charges. Article 311 further provides that where it is proposed to impose penalty on such a Government servant of dismissal, removal or reduction in rank, he must be given a reasonable opportunity of making representation on the penalty proposed. Article 311 in express terms applies only to members of a civil service of the Union or an all-India service or a civil service of a State or who hold a civil post under the Union or a State. In the case of such civil servants, Article 311 enacts constitutional curtailments or restrictions on the rule embodied in Article 310 that civil servant holds office during the pleasure of the President or the Governor, as the case may be. Article 311, however, does not apply to a member of a defence service or to a person who holds any post connected with defence. A plain reading of these three Articles shows that Article 310 is the dominant Article. The power conferred by Article 309 upon appropriate Legislatures to pass Acts and upon the President in the case of the Union and on the Governor in the case of a State to make rules regulating the recruitment and conditions of service of Government servants is expressly made subject to the provisions of the Constitution. The Act and Rules so made would, therefore, be subject to what is provided by Articles 310 and 311. Article 310 is not made subject to the other provisions of the Constitution in the same manner as Article 309 is. Article 310 operates in its own right and by itself, the only restriction to be found therein being in the opening words 'Except as expressly provided by this Constitution . Thus, apart from the cases expressly provided for in the Constitution itself, the rule laid down in Art. 310 that every Government servant holds office during the pleasure of the President or the Governor, as the case may be, remains paramount. Such exceptions in the Constitution are to be found in Articles 124, 148, 218 and 324 in the case of tenure of Supreme Court Judges, Comptroller and Auditor-General, High Court Judges and the Chief Election Commissioner. An exception is also to be found in Article 311 in respect of the classes of Government servants specified in that Article, namely, members of the Union civil service or an all-India service or a State service or holders of a civil post under the Union or a State. Thus, under our Constitution, as under the Government of India Act, 1935, the rigour of the English rule of common law regarding the holding of the office of a public servant only during the pleasure of the Crown has been mitigated to the extent provided for by Article 311. Since, however Article 311 does not include within the scope of its constitutional safeguards a member of a defence service or the holder of any post connected with defence, the constitutional safeguards available to other Government servants are not available to members of the defence service or to civilians in the defence services. The reason for this is obvious. At all times and in all countries it has been recognised that the safety and the defence of a country and even its very freedom and independence depend upon an efficient defence service. Far stricter discipline and instant unquestioning obedience are, therefore, required from those in any manner connected with the defence of the country. The vast complex machine which the Armed Forces have become in modern times require such discipline and obedience not only from the actual combat forces but from all persons in any manner connected with defence. If it were otherwise, the consequences would be too frightening to contemplate. Not only would insubordination and indiscipline run rampant amongst the defence forces but the defence forces would lose all efficiency as a fighting machine and even the country may fall an easy prey to aggressor.
10. Even a plain reading of Articles 309 and 310 makes it obvious that Article 309 does not operate as an exception or a proviso to Article 310 just as Article 311 does. As Article 309 is expressly made subject to the provisions of the Constitution, no Act of a Legislature and no Rule made by the President or a Governor under Article 309 can impinge upon the overriding power of the President or the Governor under Article 310 except in so far as such Act or rule reproduces the provisions of an exception to Article 310 enacted in the Constitution itself. Except in these cases, any Act of a legislature or a rule made by the President or the Governor under Article 309 must remain subordinate to the overriding power conferred upon the President and the Governor by Article 310. The 1965 Rules have been made by the President under Article 309 and they can, therefore, operate only within the scope or Article 309 and cannot travel beyond its ambit. Thus, any provision in the 1965 Rules which impinges upon the pleasure of the President or the Governor under Article 310 except to the extent the same is curtailed by Article 311 would not be operative. Any action in violation of Article 311 would be a violation of the Constitution itself and would be actionable inasmuch as the aggrieved Government servant would then be seeking to enforce his constitutional right; but where Article 311 does not apply, the Government servant can have no remedy at law either by way of a suit or a writ petition. To say that he has such a remedy in the absence of a provision in that behalf in the Constitution itself would be to negative the overriding operation of Article 310.
11. The question has at times arisen whether when an authority other than the President imposes upon a Government servant the penalty of dismissal, removal or reduction in rank, he is exercising the pleasure of the President untrammelled by any restrictions other than those to be found in the Constitution itself or is exercising a power subject to the conditions contained in the Act or the Rules made under Article 309 under which he derives his power and whether in such cases the violation of the relevant statutory provisions would be justiciable in a Court of law. This question has led to a conflict of opinion among the High Courts, In the present case, however, since the impugned order is made by the President, this question does not arise for our consideration.
12. We will now examine the relevant case-law on the subject. The first important case is State of Bihar v. Abdul Majid, : (1954)IILLJ678SC . In that case, a Sub-Inspector of Police appointed by the Inspector-General of Police, Bihar and Orissa, was dismissed from service. He filed a suit against the State of Bihar for a declaration that the order of dismissal was void and for arrears of salary. The Government being of the opinion that the order was untenable, reinstated him. The question which survived for determination in the suit was whether the plaintiff had a right to recover arrears of salary, The case was governed by the provisions of the Government of India Act, 1935. The High Court in second appeal passed a decree in favour of the plaintiff against which the State preferred an appeal to the Supreme Court. On behalf of the State, the decision of the Privy Council in High Commr. for India v. I.M. Lall , was relied upon. In Lall's case , the Privy Council held that the rule or English law that a civil servant served the Crown ex gratia or in other words, that his salary was in the nature of a bounty of the Crown and not a contractual right applied in India and a civil servant could not, therefore, recover arrears of salary by an action at law. Mahajan, C.J., delivering the unanimous judgment of the Court, said:
'In our judgment, these suggestions are based on a misconception of the scope of this expression. The expression concerns itself with the tenure of office of the civil servant and it is not implicit in it that a civil servant serves the Crown 'ex gratia', or that his salary is in the nature of a bounty. It has again no relation or connection with the question whether an action can be filed to recover arrears of salary against the Crown. The origin of the two rules is different and they operate on two different fields,
The rule that a civil servant holds office at the pleasure of the Crown has its origin in the Latin phrase 'durante bene placito' (during pleasure), meaning that the tenure of office of a civil servant except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special contract has been made with the civil servant, the Crown is not bound thereby. In other words, civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal, that is that they cannot claim damages for premature termination of their services. (See Fraser's Constitutional Law, p. 186,--Shenton v. Smith 1895 AC 229 --Dunn v. The Queen (1896) 1 QB 116.
This rule of English law has not been fully adopted in Section 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows, therefore, that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown, the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the Court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure has been departed from by the statute, the Government servants are entitled to relief like any other persons under the ordinary law, and that relief, therefore, must be regulated by the Code of Civil Procedure.'
In the further discussion the Supreme Court pointed out that in England there was no provision for suing the Crown. The Supreme Court held that where the Constitution itself made the matter justiciable, the party aggrieved was entitled to receive at the hands of the Court all suitable reliefs which the procedural law of the country permitted him to sue for. In England prior to the Crown Proceedings Act, 1947, the Crown could not be sued in a Court of law, but any claim against the Crown could only be sought to be recovered by way of a petition of right. Such a restriction did not exist in Indian Law and therefore, there was no bar to the plaintiff seeking to recover his arrears of salary when his dismissal from service was unconstitutional. What could be claimed in England by a petition of right could be claimed in India by the ordinary process. This case has at times been erroneously referred to as laying down in India further restriction on the pleasure of the President so far as recovery of arrears of salary is concerned, A careful perusal of the judgment of the Supreme Court, however, does not bear this out. In express words in the passage quoted above Mahajan C. J., has stated that the expression 'Pleasure of the Crown' concerns itself with the tenure of office of the Civil servant and it is not implicit in that expression that a civil servant serves the Crown 'ex gratia' or that his salary is in the nature of a bounty. The learned Chief Justice has expressly pointed out that these are two different rules having different origins and operating in two different fields. The ground on which the Supreme Court held that arrears of salary could be recovered was that, unlike in English law, in Indian law there was no restriction on suing the Crown and, therefore, when there was a breach of the Constitution itself, the aggrieved Government servant was entitled to all his normal remedies at law. It should further be borne in mind that when the Supreme Court observed that the tenure of office of the Civil servant was during the pleasure of the Crown, except where otherwise provided by statute, it did not refer to any Act passed by an Indian Legislature. There is a vital difference between English and Indian Constitutional law. In England there is no written Constitution and the Parliament is supreme and can by legislation restrict, modify or even abrogate the rule as to the pleasure of the Crown. In India we have a written Constitution and, hence no Act of a Legislature can override the Constitution. The rule as to holding of office during the pleasure of the President is enacted in the Constitution itself and, therefore, when it is said that this rule can be modified by statute, what is meant is it can be modified only by a provision made in the Constitution itself.
13. In Shyamlal v. State of Uttar Pradesh, : (1954)IILLJ139SC , a Government servant was compulsorily retired. The Supreme Court held that since compulsory retirement did not fall within the ambit of Article 311, not being a dismissal or removal within the meaning of that Article, the order of retirement could not be challenged on the grounds that the Government servant had not been afforded full opportunity of showing cause against the action sought to be taken as provided by the Civil Services Regulations, 1920.
14. In Parshottam Lal Dhingra v. Union of India, : (1958)ILLJ544SC , the Supreme Court pointed out that the opening words of Article 310(1), namely, 'except as expressly provided by the Constitution', quite clearly referred, inter alia, to Articles 124, 148, 218 and 324 of the Constitution and that these Articles were clearly exceptions to the rules embodied in Article 311 that public servants hold office during the pleasure of the President or the Governor, as the case may be. Subject to these exceptions the Constitution, by Article 310(1) has adopted the English Common Law rule and enacted that public servants hold office during the pleasure of the President or the Governor, as the case may be, and has, by Article 311, imposed two qualifications on the exercise of such pleasure. Though these two qualifications are set out in a separate Article, they quite clearly restrict the operation of the rule embodied in Article 310(1), that is, in other words, the provisions of Article 311 operate as a proviso to Article 310(1). In Khem Chand v. Union of India, : (1959)ILLJ167SC , the Supreme Court reaffirmed the position that the provisions of Article 311 were qualifications or provisos to Article 310(1) and that the limitations thus imposed on the exercise of the power of the President or the Governor in the matter of dismissal, removal or reduction in rank constituted the measure of the constitutional protection afforded to the Government servants by Article 311(2).
15. The next important case of the Supreme Court is State of Uttar Pradesh v. Babu Ram Upadhya, : 1961CriLJ773 . It was contended before us on behalf of the Petitioner that this case makes a departure from the earlier decision of the SupremeCourt and according to the true ratio in that case, a breach of the service rules, even in cases where Article 311 does not apply, will, also be justiciable. It, therefore, becomes necessary to refer to Babu Kam's case, : 1961CriLJ773 in some detail, The Respondent in that case was a Sub-Inspector of Police. He was charge-sheeted under Section 7 of the Police Act for misappropriating a part of the moneys found on the person of a suspect. A notice was served upon him to show cause why he should not be reduced to the lowest grade of Sub-Inspector for a period of three years. In due course, after cause was shown against the action proposed to be taken against him, the Superintendent of Police, Sitapur, reduced the respondent to the lowest grade of Sub-Inspector for a period of three years. When this order came to the notice of the Deputy Inspector General of Police, Uttar Pradesh, he came to the conclusion on a consideration of the entire report that the respondent should be dismissed from service. Accordingly he made the order dismissing the respondent from service. This order was confirmed by the Inspector General of Police. The respondent thereupon filed a petition under Article 226 of the Constitution before the Allahabad High Court for quashing the said order. The Allahabad High Court held that the provisions of the Police Regulations were not complied with and quashed the impugned order. Against that judgment the State of Uttar Pradesh, the Deputy Inspector-General of Police, Lucknow, and the Inspector-General of Police, Uttar Pradesh, preferred an appeal to the Supreme Court, The Supreme Court by a majority judgment dismissed the appeal. It was argued on behalf of the appellants that the opening words of Article 310, namely, 'except as expressly provided by the Constitution' refer to the different tenures prescribed by the Constitution, namely, by Articles 124, 148, 218 and 324, and that if these provisions of the Constitution were excluded from Article 310, the purpose of the Clause 'except as otherwise provided by this Constitution' would be exhausted and thereafter Article 310 would be free from any other restrictive operation and in that event Articles 309 and 310 should be read together excluding the opening words of Article 310. It was also contended by the appellants that the operation of the opening words in Article 309, namely, 'Subject to the provisions of this Constitution' is confined to the provisions of the Constitution which empowers other authorities to make rules regulating the conditions of service of certain class of public servants, namely, Articles 145(2), 148(5) and 229(2). Negativing this contention. Subba Rao J., who spoke for the majority of the Court, said in paragraph 13 of judgment: may be so but there is no reason why Article 310 should be excluded therefrom. It follows that while Article 810 provides for a tenure at pleasure of the President or the Governor, Article 309 enables the Legislature or the executive, as the case may be, to make any law or rule in regard inter alia, to conditions of service 'without impinging upon the overriding power recognised under' Article 310.' (The underlining (here into ' ') is ours.)
Thus, far from departing from what was till then held by the Court, in Babu Ram's case, : 1961CriLJ773 , the Supreme Court expressly reaffirmed the overriding operation of Article 310. After discussing the various provisions under the earlier Government of India Acts and the Constitution and the decision of the Privy Council and the earlier decisions of the Supreme Court, Subba Rao, J., in paragraph 22 of the judgment, stated the conclusion which the Court had reached in the following seven propositions:
'(1) In India, every person who is member of a public service described in Article 310 of the Constitution holds office during the pleasure of the President or the Governor, as the case may be, subject to the express provisions therein.
(2) The power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer, and can be exercised by him, only in the manner prescribed by the Constitution.
(3) This tenure is subject to the limitations or qualifications mentioned in Article 311 of the Constitution.
(4) The Parliament or the Legislatures of
States cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310, as qualified by Article 311.
(5) The Parliament or the Legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 of the Constitution read with Article 311 thereof,
(6) The Parliament and the Legislature also can make a law laying down and regulating the scope and content of the doctrine of 'reasonable opportunity' embodied in Article 311 of the Constitution; but the said law would be subject to judicial review.
(7) If a statute could be made by Legislatures within the foregoing permissible limits, the rule made by an authority in exercise of the power conferred thereunder would likewise be efficacious within the said limits.'
These propositions emphasize the position that no Act or Rule made under Article 309 can modify or impinge upon the pleasure of the President or the Governor under Article 310 as qualified by Article 311 and, therefore, in cases where Article 311 does not apply, the pleasure of the President or the Governor would have a supreme overriding effect upon the tenure of a Government servant. It was also sought to be argued before the Supreme Court that Acts and Rules made thereunder were mere administrative directions and could not be enforced, and accordingly a violation of the regulations made under the Police Act would not furnish the petitioner with a cause of action, This contention was negatived. Now, in Babu Ram's case, : 1961CriLJ773 , the impugned order was made in exercise of the powers conferred upon the Deputy Inspector-General of Police and the Inspector-General of Police by the Police Act and the regulations framed thereunder. They were the statutory authorities to impose penalty. It was not an order made by the Governor of Uttar Pradesh. It was also a case to which Article 311 applied. In Babu Ram's case, : 1961CriLJ773 , the Supreme Court did not equate the Governor's pleasure with the exercise of statutory power by specified officers, but it did not make it clear that an Act of Legislature or the Rules under Article 809 cannot impinge upon the pleasure of the President or the Governor under Article 310 as qualified by the provisions of Article 311 and were subject to the overriding power of the President or the Governor under Article 310 as qualified by the provisions of Article 311. Thus, an Act or Rules made under Article 309 can only affect the pleasure of the President or the Governor to the extent that such Act or Rules reproduce the qualifications laid down on Article 310 by Article 311. Where, therefore, Article 311 has no application, Acts and Rules made under Article 309 would be subject to the unrestricted overriding power of the President or the Governor under Article 310.
16. Mr. Singhvi, learned counsel for the petitioner, has referred to certain subsequent judgments of the Supreme Court in support of his submission that Babu Ram's case : 1961CriLJ773 , has made a departure from die law as till then laid down with respect to justiciability of rules made under Article 309 even in case where Article 311 does not apply. These cases are Motiram Deka v. North-East Frontier Rly., : (1964)IILLJ467SC ; State of Mysore v. M.H. Bellary, : (1966)ILLJ50SC ; and B.S. Vadera v. Union of India, : (1970)ILLJ499SC . We do not find it possible to read these cases in the manner in which Mr. Singhvi has invited us to do. In : (1964)IILLJ467SC , the appellants were Railway servants to whom Article 311 applied. The question was as to the validity of certain rules in he Railway Establishment Code, 1951, under which the appellants' services were terminated. The Supreme Court held that the rule-making authority contemplated by Article 309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants under Article 311(2). In : (1966)ILLJ50SC , the concerned Government servant was in the civil service of the State and accordingly Article 311 applied to him. His grievance was that his reversion to another department was contrary to the Bombay Civil Services Rules. The Rules applicable were those in force prior to commencement of the Constitution and which, by virtue of the provisions of Article 313, continued to be in force. The relevant passage of the Judgment relied upon is paragraph 4 in which it is stated:
'In view of the decision of this Court of which it is sufficient to refer to : 1961CriLJ773 , it was not disputed that if there was a breach of a statutory rule framed under Article 309 or which was continued under Art. 313, in relation to the conditions of service, the aggrieved Government servant could have recourse to the Court for redress.'
In view of the fact that Article 311 governed the case, this concession was rightly made by counsel. In : (1970)ILLJ499SC , certain Railway servants challenged their reversion. Their reversion had been ordered under the Railway Establishment Code issued by the President in the exercise of his powers under the proviso to Article 309, Under Rule 157, the President directed the Railway Board to make rules of general application to non-gazetted Railway servants under their control. In pursuance of this rule the Railway Board framed a scheme. The question was whether the rules made under the said scheme could have retrospective effect. Paragraph 24 of the judgment was relied upon by Mr. Singhvi. It says;
It is also significant to note that the proviso to Article 309 clearly lays down that any rules so made shall have effect, subject to the provisions of any such Act. The clear and unambiguous expressions used in the Constitution must be given their full and unrestricted meaning unless hedged in by any limitations. The rules which have to be 'subject to the provisions of the Constitution' shall have effect 'subject to the provisions of any such Act'. That is, if the appropriate Legislature has passed an Act, under Article 309, the rules framed under the proviso will have effect subject to that Act; but in the absence of any Act of the appropriate Legislature on the matter, in our opinion the rules made by the President or by such person as he may direct are to nave full effect, both prospectively and retrospectively. Apart from the limitations pointed out above, there is none other imposed by the proviso to Article 309 regarding the ambit of the operation of sum rule. In other words, the rules, unless they can be impeached on grounds such as preach of Part III or any other constitutional provision, must be enforced if made by the appropriate authority.'
The Court held that in the absence of any Act having been passed by the appropriate Legislature on the said matter, the rules framed by the Railway Board would have full effect and if so indicated retrospectively also and that there was such indication about retrospective effect and accordingly the contention was negatived. The question for determination in Vadera's case, : (1970)ILLJ499SC , was the scope of the challenge which could be made to the validity and constitutionality of a rule made under Article 309 by a Government servant to whom admittedly Article 311 applied, The Court was not called upon to consider and did not consider the effect or justiciability of rules made under Article 309 in cases where Article 311 does not apply.
17. Turning now to the decisions of this High Court in O.S. Appeal No. 52 of 1956 (Bom.), Chandra Bhan Verma v. Union of India, decided on 11-4-1958, Chagla, C.J. and Mody, J., held that the tenure of office of a member of the defence service was at the pleasure of the President and any grievance in that connection was not justiciable. Following this decision, in S. Framji v. Union of India : (1959)ILLJ107Bom , a Division 'Bench of this Court, consisting of Chagla, C.J. and S.T. Desai, J., held that a civil servant could not assert and enforce in a Court of law any condition of service relating to his employment unless there was an infringement of Article 311 or unless he was suing for arrears of salary. In Tara Singh Ujagar Singh v. Union of India, AIR 1960 Bom 101, K.K. Desai, J., held that Army instructions were made for the purpose of guidance of military authorities in connection with civilians employed in defence service and were only directory rules and have no binding force in themselves and do not affect the provisions of Article 310 regarding the tenure of office of persons being at the pleasure of the President or the Governor, as the case may be. In K.P. Shankerlingam v. Union of India : (1960)62BOMLR1 , the same learned Judge held that the direct result of Article 310 is that no right of action is vested in the dismissed Government servant for a declaration that he is entitled to hold his office in accordance with the service rules applicable to him or that he can only be dismissed as provided by the Rules and in accordance with theprocedure prescribed thereby, the only exceptions to this principle being the cases where protection is provided in favour of the Govt. servant in the Constitution itself. It was further held that the competent authority for making orders of dismissal can be prescribed by legislation in the shape o Acts of Parliament or State and rules made thereunder and if such orders of termination are challenged as being wrongful as against the Union or the State, the Union or the State can base its defence on the provisions of Article 310.
18. It was, therefore, submitted by Mr. Singhvi that these cases were decided before the decision of the Supreme Court in Babu Ram's case, : 1961CriLJ773 , and that after the judgment the decisions of this Court have taken a different trend, and according to these later decisions 'an infringement of rules' case did not fall within Article 311. The first case referred to was First Appeal No. 109 of 1959 (Bom.) decided on December 16, 1964/February 5 and July. 1965 by K.K. Desai, J. In that case the plaintiff, who was employed in the Ordnance Depot at Sewri, claimed that there had been no break in his service and that he was entitled to be paid the salary due to him and sued for arrears of salary. The trial Court held that the suit was not maintainable since Article 311 did not apply. Before the Appeal Court it was admitted on behalf of the Government that in view of the decision of the Supreme Court in : (1954)IILLJ678SC , the suit was maintainable. As pointed out earlier, in Abdul Majid's case, : (1954)IILLJ678SC , it has been held that the doctrine of English law that every servant of the Crown receives his salary at the bounty of the Crown is not a part of the doctrine of the tenure of a Crown servant being at the pleasure of King. This decision, therefore, has no relevance to the point before us. The next case relied upon is Misc. Petn. No. 256 of 1964 (Bom.), P. Narayana Menon v. M.S. Seheran, D/-19/20-10-1965, by Mody J. In that case a cook in the 2nd Company, Southern Command, Signal Regiment, was removed from service. He contended that his removal was wrongful because the provisions of Rule 15 or the Civilians in Defence Service (Classification, Control and Appeal) Rules, 1952, were not complied with. Only one case was cited before the learned Judge, namely, Kapoor Singh Harnam Singh v. Union of India, : (1960)IILLJ536MP , in which a learned single Judge of the Madhya Pradesh High Court held that though Article 311 did not apply to a civilian employed in the Defence Service, he was governed by Army Instructions (India), 1949, and that a contravention of the said Instructions would furnish a cause of action to such an employee. None of the Supreme Court cases till then decided nor any of the decisions of this High Court above referred to were brought to the notice of the Court and accordingly the learned Judge proceeded to dispose of the petition as if : (1960)IILLJ536MP , was correctly decided. It may also be noted that in Misc. Petn. No. 256 of 1964 (Bom.), the order was not passed by the President but by the Commander, Bombay Sub-Area, while in the case before us the impugned order is that of the President himself.
19. The third Bombay case upon which reliance was placed by Mr. Singhvi is Second Appeal No. 569 of 1960 D/-25-11-1966 (Bom.) decided by M.V. Paranjpe, I, In that case, a Gate Darvan in the Ordnance Factory, Bhusaval, was dismissed from service. His contention was that he was dismissed without following the procedure prescribed by the 1952 Rules. The learned Judge followed the decision of Mody, J., in Misc. Petn. No. 256 of 1964 (Bom.) and also made a passing reference to the judgment in Babu Ram's case, : 1961CriLJ773 and held that the 1952 Rules had the force of law. It appears that the plaintiff in that case was Class IV servant and here again the order was not passed by the President but by some other punishing authority designated by the 1952 Rules.
20. The last judgment of this High Court relied upon by Mr. Singhvi is a judgment of a Division Bench of this High Court consisting of Tarkunde and Wagle, JJ. in First Appeal No. 95 of 1960, D/-8-12-1967 (Bom.). This was a case in which the plaintiff, who was in military engineering service of the Government of India, challenged an order withholding his increment and in any event prayed for arrears of salary which, according to him, were due to him. The trial Court held that the plaintiff being a civil employee in the Defence Department, was not entitled to seek the protection of Article 311 and that since Article 311 did not apply, the plaintiffs contentions were not justiciable. The Division Bench pointed out that the findings of the trial Court in regard to the scope of Articles 310 and 311 had no relevance to the pleas taken in the plaint inasmuch as the impugned order was not an order which related to the tenure of the plaintiffs office nor did it involve his dismissal or removal from service or reduction in rank. On the facts the Division Bench came to the conclusion that there was no statutory rule framed under Article 309 upon which the plaintiff based his claim and that any directions upon which he relied would be only in the nature of administrative directions and the alleged breach was not justiciable and accordingly dismissed the appeal, The ground upon which the judgment proceeded is the same as in Abdul Majid's case, : (1954)IILLJ678SC . This case is, therefore, not relevant.
21. The judgment of this High Court which has a direct bearing on the point to be decided by us is Second Appeal No. 939 of 1956 (Bom.), Jugatrai Mahinchand Ajwani v. Union of India, decided by a Division Bench of this Court consisting of Patel and Palekar, JJ. on 15-10-1962. In that case, the plaintiff, who was working in the office of the Chief Engineer, Southern Command, was charge-sheeted and ultimately dismissed by the Chief Engineer, Southern Command. It was contended that unless the pleasure of the President could be evidenced by an order of dismissal made by the President himself, the order would be bad and Article 310 would afford no answer to a suit by the dismissed servant. After considering all the relevant authorities on the point, the Division Bench pointed out that very important functions can be delegated by the Governor to subordinates under Article 154, and there was therefore, no reason why functions of dismissal, removal from service and reduction in rank of Government servants could not also be delegated by the President or the Governor. Consistently with the scheme of the Constitution, which makes the President and the Governor the executive heads, the words 'at the pleasure of the President or the Governor' had been used in Article 310. The Division Bench further pointed out that in view of the fact that in the course of the judgment in Babu Ram's case, : 1961CriLJ773 , the Supreme Court emphasised the fact that it was dealing with a case covered by Article 311 and it considered all these articles together, the observations in that judgment ought to be confined to cases to which Article 311 was applicable. With respect to the contention that a breach of rules or Army Instructions which provide for an inquiry before dismissal was justiciable, the Division Bench held that these Army Instructions were not statutory rules framed under any statute and did not give a cause of action to the aggrieved Government servant if they were not complied with and that even if the rules were framed under the enabling power either under Section 241 of the Government of India Act, 1935, or under Article 309, decided cases were against that contention. On merits also the Division Bench held that there was no violation of rules of natural justice inasmuch as the plaintiff had in substance admitted the charges, and the holding of an inquiry would, therefore, have been an idle formality. The matter was carried in appeal to the Supreme Court (Civil Appeal No. 1185 of 1965 Jugatrai Mahinchand Ajwani v. Union of India, D/-6-2-1967.) With respect to the first contention. Shah, J., delivering the unanimous judgment of the Constitution Bench, composed of five learned Judges, stated as follows:--
'We need only observe that the argument which was advanced before the HighCourt that the President alone may in his exclusive personal discretion exercise the power under Article 310 has, in our judgment, no force. By Article 73 of the Constitution the executive power of the Union extends to all matters with respect to which the Parliament has power to make laws, and by Article 77(3) the President is competent to make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. If the power to determine employment under Article 310 is exercised in the name of the President in accordance with the rules framed under Article 77 of the Constitution, no objection can be raised to the validity thereof.'
With respect to the second contention the Supreme Court held that it was not necessary to consider, whether a breach of Army Instructions conferred a cause of action to the person affected thereby as they agreed with the High Court that the appellant had at no stage denied the truth of the charges made against him and, therefore, an inquiry would have been fruitless.
22. In view of the above decisions of the Supreme Court and this High Court, we do not consider it necessary to refer to decisions of other High Courts except two. In Kailashchand Ratan Chand v. The General Manager, Ordnance Factory. Khamaria, Jabalpur, : (1969)ILLJ611MP , a Division Bench of that High Court held that if the procedure laid down in Rule 15 of the Civilians in Defence Service (Classification, Central and Appeal) Rules, 1952, which procedure was substantially similar to that which had to be followed for giving a delinquent civil servant a reasonable opportunity as required by Article 311(2), was not followed and the dismissal or removal or reduction in rank was in breach of that rule, it could not be said that the order of penalty was illegal nor could the order be quashed by the High Court under Article 226 of the Constitution if Article 311(2) did not apply. The Madhya Pradesh High Court considered various cases and, after elaborately referring to the decision of the Supreme Court in Babu Ram's case, : 1961CriLJ773 , observed:
'It follows, therefore, that in cases not falling under Article 311, that is to say, in cases of persons not falling under the category of persons mentioned in Article 311(1), the pleasure of the President and the Governor is uncontrolled and when such a person is removed or dismissed from service without complying with the provisions of any rules framed under Article 309, he has no right of action against the Union or the State, as the case may be. To say that even in cases where Article 311 does not apply, an order of dismissal, removal or reduction in rank can be assailed on the groundof having been made in breach of a rule made under Article 309 of the Constitution is really to hold that the pleasure of the President or the Governor under Article 310 is controlled even in these cases by the rule. The legal enforcement of the rule would be inconsistent with Article 309, and in derogation of the provisions of Article 310 and would amount to giving to the rule-making authority contemplated by Article 309 the power to make rules so as to affect even the powers of the President or the Governor under Article 310 of the Constitution read with Article 311 thereof. As has been stated earlier, the rule-making power under Article 309 cannot be validly exercised so as to affect the provisions of the Constitution including Articles 310 and 311.
The view that in cases not falling under Article 311 an order of removal or dismissal cannot be assailed on the ground of having been made in breach of any rule laying down the procedure which must be followed before a penalty is imposed is supported by the pronouncements of the Supreme Court in various cases.' In the Madhya Pradesh case, the petitioner was a machinist in the Ordnance Factory, Khamaria, Jabalpur, and he was removed from service by an order of the General Manager of that Factory and not of the President. The Madhya Pradesh High Court held that to enforce Rule 15 of the Civilians in Defence Service (Classification, Control and Appeal) Rules, 1952, would be inconsistent with Article 309 and in derogation of the provisions of Article 310 and would have the effect of affecting even the powers of the President or the Governor under Article 310. A Full Bench of the Punjab High Court, in Sham Lal v. Director, Military Farms, Army Headquarters, New Delhi, , has disagreed with the view which found favour with the Madhya Pradesh High Court. The Full Bench also disagreed with the interpretation placed by the Madhya Pradesh High Court on Babu Ram's case, : 1961CriLJ773 . It observed that the Madhya Pradesh High Court did not notice the earlier decision of a learned single Judge of the same High Court in : (1960)IILLJ536MP . The Full Bench held that the view that a public servant who could not claim the benefit of Article 311 could not agitate in the Law Courts that the procedure laid down by rules made under Article 309 had not been followed and could seek relief only from departmental authorities can no longer be said to be good law in view of the Supreme Court decision in Babu Ram's case, : 1961CriLJ773 . The Full Bench also referred to a decision of another Full Bench of the Punjab High Court in L.P.A. No. 8-D of 1962 (Punj.) P.H. Laxminarayan v. Engineer-in-Chief, Army Headquarter, D/-23-9-1965, and tothe decision of the Supreme Court in AIR 1965 SC 668, in both of which the question of justiciability o rules under Article 309 was conceded and observed that 'It is not possible to see how the concessions which were made by eminent counsel were not well founded or were based on. any misapprehension with regard to the law laid down in Babu Ram Upadhya's case, : 1961CriLJ773 '. In the Punjab Full Bench case, the petitioner was an Assistant Supervisor in the Military Dairy Farm, Ferozepur Cantonment, and he was compulsorily retired from service as a measure of punishment. The impugned order was made not by the President but by the Director, Military Farms. With great respect to the learned Judges who decided that case, we are unable to interpret the judgment in Babu Ram's case, : 1961CriLJ773 , as widely as the Full Bench has done, A careful reading of the judgment in Babu Ram's case, : 1961CriLJ773 , would seem to support the view adopted by the Madhya Pradesh High Court. The rules with which the Supreme Court was concerned in that case were rules made under the Police Act which governed Government servants admittedly entitled to the protection of Article 311, It is in this context, that the Supreme Court judgment and the observations made therein are to be read. The concession by counsel, however eminent, cannot carry the matter further where the question is of constitutional prerogative. Bellary's case, : (1966)ILLJ50SC , was admittedly one to which Article 311 applied. The fact that the Division Bench in Kailashchand's case, : (1969)ILLJ611MP , did not notice the earlier decision of a single learned Judge of the same High Court cannot also make any difference. The Division Bench has considered the matter fully for itself. It was not bound by the judgment of another Judge of the same High Court sitting singly. We may also point out that the view adopted by the Madhya Pradesh High Court in Kailashchand's case, : (1969)ILLJ611MP , is in conformity with the view taken by our Division Bench in Ajwani's case, Second Appeal No. 939 of 1956, D/-15-10-1962 (Bom.).
23. Now, in this petition as the impugned order is made by the President and not by any statutory authority, we are not concerned with the real question before the Madhya Pradesh Division Bench and the Punjab Full Bench, namely, whether when the punishing authority is other than the President or the Governor, any breach of the rules made under Article 309, providing for procedure to be followed at disciplinary inquiry would furnish an aggrieved Government servant to whom Article 311 does not apply with a cause of action. The order in the present case is made by the President himself, and any observations in any judgment to the effect that the statutory authority must act in conformity with the requirements of the relevant statute and if not, its action would be justiciable cannot help the petitioner. Mr. Singhvi, however, contested the position that the impugned order of reversion was passed by the President. This contention cannot be accepted. In the petition, particularly ground (B) in paragraph 24. the impugned order or reversion is referred to as being an order of the first respondent. As mentioned before, the original first respondent to the petition was 'the President of India' and it is only by a subsequent amendment that the description of the first respondent has been amended to 'the Union of India'. No point has been raised in the petition that the order, though expressed to be made by the President, was in fact not an order of the President but of the actual signatory of the said order, namely, K. Venugopalan, Deputy Secretary to the Government of India. Further, under the Constitution, unless expressly provided otherwise, acts and orders of the President are not required to be signed by the President. Article 77(2) provides that orders and other instruments made and executed in the name of the President shall be authenticated in such manner as will be specified in rules to be made by the President and the validity o an order or instrument thus authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. It is admitted that Joint Secretaries to the Government of India and Deputy Secretaries to the Government of India have been authorised to authenticate orders and instruments made and executed in the name of the President. It is, therefore, not open to the petitioner to contend that the impugned order was not made by the President. In fact, it is expressly stated in the body of the order that 'the President hereby terminates the services of Shri J.N. Wanchoo with effect from the date he is relieved of his duties at the N.D.A. Thereafter, Shri J.N. Wanchoo will revert to the post of Section Master, R.I.M.C., Dehra Dun, on which post he holds a lien.' In this connection, the passage quoted earlier from the judgment of Shah, J., in Civil Appeal No. 1185 of 1965, D/-6-2-1967 (SC), by a Constitution Bench of the Supreme Court consisting of five Judges, is apposite. Whenever the Constitution requires that an act should be that of the President personally, it expressly so provides; for example appointments of Judges of the Supreme Court under Article 124(2) and of the Judges of the High Court under Article 217(1) are required to be made by the President by warrant under his hand and seal, An order of dismissal, removal or reduction in rank of an employee in a defence service or a person holding any post connected with the defence is not required to be so made. In our opinion, therefore, the impugned order was made by the President or India and was an order made in the exercise of the pleasure of the President under Article 310 and the petitioner not being entitled to the protection conferred by Article 311, any breach of the 1965 Rules is not justiciable at the instance of the petitioner.
24. Mr. Singhvi, learned counsel for the petitioner, next submitted that in any event the impugned order could be challenged on the ground that the procedure adopted at the inquiry violated the principles of natural justice and that violation of the principles of natural justice would furnish a cause of action to a Government servant even if he could not claim the protection of Article 311. In support of this submission Mr. Singhvi relied upon Makhanlal Dey v. Union of India (1967) 2 Lab LJ 782. In that case the plaintiff, who was an estimator in the Military Engineering Service, was dismissed by an order made by the Chief Engineer, Eastern Command. It was not disputed that in the disciplinary inquiry held in his case the directions contained in the Army Instructions were disregarded. The matter came in second appeal before a Division Bench of the Calcutta High Court consisting of S.K. Datta and A.C. Gupta, JJ., who allowed the plaintiff's appeal. The Court held that the Army Instructions were mere directions as they were not framed under any statute and, therefore, did not furnish a cause of action to the plaintiff. Datta, J., rested his judgment on the short ground that the order in question was not an order made by the President, since it was an order made by the Chief Engineer, Eastern Command. He held that the Courts were debarred from examining the pleasure of the President but were not debarred for examining whether in fact the pleasure had been exercised by the President or by some one who was duly authorised by the Constitution to act on his behalf. He found that the President had expressed no pleasure either way but an executive officer of the Union of India had expressed his pleasure by dismissing the plaintiff. The pleasure of the executive officer did not enjoy the immunity which had been granted to the President and that the pleasure of the President could not be delegated. It is not necessary for our purpose to make any observations on this findings. Gupta, J., while he agreed with this finding, proceeded further to hold that the order of dismissal was passed without observing the rules of natural justice. He observed:
'Sri Roy at one stage of his arguments said that making it obligatory on the enquiry authority to observe the rules of natural justice means introducing through backdoor the protection of Article 311 to which the appellant was admittedly not entitled. I do not think this argument is sound. It is not correct to think that apart from Article 311 one has no right to complain even if the most elementary principles of justice are disregarded. . . . Article 311 is not in the Constitution just to keep a class of persons out of the scope of application of fundamental rules of justice recognized in that Article.'
With great respect to the learned Judge, we find ourselves unable to agree with these observations. Where an Act of Legislature or the rules made under Article 309 are powerless to impinge upon or override the pleasure of the President or the Governor, unless in so far as such Act or Rules give effect to the provisions of Article 311 in cases where that Article applies, it would be startling if rules of natural justice could restrict, modify or curtail the pleasure of the President or the Governor under Article 310 when not qualified by Article 311. Rules of natural justice would only be relevant in a case where Article 311 applies for the purpose of ascertaining whether a reasonable opportunity of showing cause was afforded to a Government servant. In our opinion, it is equally not open to the petitioner to assail the impugned order on the ground that the rules of natural justice were not observed.
25. Turning to the factual aspect of the case, even on the merits we find that the petitioner has not made out any case. It is the petitioner's grievance that several provisions of Rules 14 and 15 of the 1965 Rules were not complied with. We find that in the circumstances of this case it was not necessary to do so and such non-compliance has not caused any prejudice to the petitioner. The first irregularity in the conduct of the enquiry alleged by the petitioner is that the charge-sheet was not framed by the disciplinary authority, the disciplinary authority in the present case being the President. Under Rule 14 (3), a charge-sheet is not required to be drawn up by the disciplinary authority but it is to be drawn up or caused to be drawn up by the disciplinary authority. Though the charge-sheet in the present case is signed by the Commandant of the Academy, the said orders dated June 29, 1966 and July 1, 1986, show that the charge-sheet was caused to be drawn up and was accepted as being such by the President. It is not the petitioner's allegation that the charge-sheet was not caused to be drawn up by the President. The ground as urged was not even taken by the petitioner either in his written statement of defence to the charge-sheet or in the oral statement made by him before the Inquiry Officer. It was for the first time taken in the amendments made in the petition. We, therefore, find no substance in this contention.
26. The second irregularity which is alleged is that no evidence was recorded in support of the charges made against the petitioner, even though the petitioner had denied the same. In this connection Rule14(14) of the 1965 Rules is relied upon, That rule is in the following terms:--
'On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.' Now, even a cursory reading of this rule will show that the evidence which is required to be produced by or on behalf of the disciplinary authority is the evidence, oral or documentary, by which the articles of charge are proposed to be proved. The charges made against the petitioner related to making the said three representations respectively dated October 14, 1963, April 2, 1964 and July 13, 1964, in spite of being asked to desist from making such representations by the said memorandum dated September 17, 1963, communicated to him by the letter dated September 28, 1963 and absenting himself from the said Guest Night on August 21, 1964, at which by the said Academy Order No. 1081 dated August 28, 1964 all officers (service and civilians) and cadets were asked to attend and when reasons for his absence were asked for and sending the said letter dated September 21, 1964, couched in impertinent and insolent language. Thus, the only questions of fact which arose at the said inquiry were (1) whether the said memorandum dated September 17, 1963, was communicated to the petitioner, (2) whether the said representations were made by the petitioner, (3) whether the said Academy Order was in fact issued, (4) whether the petitioner was absent from the said Guest Night held on August 21, 1984 and (5) whether he wrote the said letter dated 21-9-1964, Now, both in his written statement of defence and in the oral statement made by him before the inquiry officer, all these facts are admitted, The only question which, therefore, remained was whether the sending of the said representations and the tone and the language of the said representations and the said letter and not attending the said Guest Night amounted to acts of insubordination or misconduct. The decision of this question turned upon the construction of the relevant rules and instructions and of the said representations and reply. The petitioner himself admitted that in sending the said representations he had not followed the normal channel of representation and had used the language which was not proper. He, however, sought to extenuate his conduct on the ground that all through the years ho harboured an overpowering sense of grievance and that his faults were natural to a person who felt strongly for so many years that justice had been denied to him. He also sought to extenuate the language used in the said letter of September 21, 1964, on the ground that at that time he was going through a period of intense mental and emotional strain. The effect of these admitted facts and whether to accept his plea in extenuation or not were not matters of evidence. These were matters to be considered and decided by the Inquiry Officer and the disciplinary authority. This Court cannot substitute its judgment for theirs. We may, however, observe that the Academy is an establishment for the training of Defence personnel, and in such establishment the last person from whom indiscipline and insubordination can be tolerated is a member of the teaching staff, While considering this ground, it is also pertinent to note that Rule 14 (10) provides that 'the inquiring authority shall return a finding of guilt in respect of those articles of charge to which the Government servant pleads guilty'. It is true that in express words the petitioner did not plead guilty, but the effect of his written statement of defence and his oral statement in substance amounted to an admission of guilt. It is also pertinent to note that by the said charge-sheet dated December 10, 1984, in addition to being required to submit a written statement, the petitioner was asked (1) to state whether he desired to be heard in person, (2) to state whether he desired an oral inquiry to be held, (3) to furnish the names of witnesses whom he wished to call in support of his defence, and (4) to furnish a list of documents upon which he wished to rely in support of his defence. He was also offered inspection of such documents of which he desired inspection. The petitioner did not desire any of these things. He also did not desire to take inspection. He did not even desire that an inquiry should be held. In his written statement, after admitting the charges made against him, he attempted to put forward some excuse for his conduct and on the strength of such excuse requested that the proceedings against him should be dropped. The excuse put forward by him was also not such as could either exculpate him or extenuate his guilt. In these circumstances, leading evidence to prove the charges became wholly unnecessary. Mr. Singhvi, however, relying upon the decision of the Supreme Court in Calcutta Dock Labour Board v. Jaffer Imam, : 1966CriLJ189 , submitted that unless the relevant statutory provisions are complied with it cannot be said that there was a proper inquiry. That decision does not lay down the proposition in such wide terms. What was held in that case that the circumstances relied upon by the inquiry authority for not holding a full inquiry did not justify not complying with the statutory provisions. In that case certain Dock workers, attached to the Port of Calcutta and governed by the Calcutta Dock Workers (Regulation of Employment) Scheme 1951 made by the Central Government under the Dock Workers (Regulation of Employment) Act, 1948, were detained under the Preventive Detention Act, 1950. On their release from detention the Calcutta Dock 'Labour Board commenced disciplinary proceedings against them. No specific allegations, however, were made against them nor was any evidence led in the inquiry. Only the detention orders were produced, but no attempt made to prove the allegations made therein. Thereafter orders terminating their services were passed. It was contended, that the Board was justified in acting upon suspicion, the basis for the suspicion being the detention of the workers. The Supreme Court held that the services of the workers could not be terminated without a proper inquiry and the circumstances that they happened to be detained could afford no justification for not complying with the relevant statutory provisions and not following the principles of natural justice. This decision has no application to the facts before us. In the present case, the order passed against the Petitioner was not passed on mere suspicion as in the Calcutta Dock Labour Board's case, : 1966CriLJ189 , but on the Petitioner's own admission of guilt. The two decisions of the Supreme Court which are relevant are Jai Ram v. Union of India, : AIR1954SC584 and Ajwani's case, Second Appeal No, 939 of 1956, D/-15-10-1962 (Bom), referred to earlier by us in another connection. In Jai Ram v. Union of India, : AIR1954SC584 , a Civil servant had confessed his inability to work and had asked to be retired and was consequently allowed to retire. He changed his mind subsequently and sought reinstatement alleging that an inquiry ought to have been held against him before passing the order of compulsory retirement against him. The Supreme Court observed that in view of his confessed inability to work 'it would be a useless formality to ask him to show cause as to why his services should not be terminated.' In Second Appeal No. 939 of 1956, D/- 15-10-1962 (Bom), the plaintiff who was in the Military, Engineer Service was examined as a witness in an inquiry against another officer. In the course of his evidence he admitted that he did commit certain gross irregularities. He was served with a charge-sheet, At the inquiry he was supplied with copies of muster-roll of labourers which he was charged with filling up falsely and of the -incriminatory statements made by him as also by one Mukund Lall in the previous inquiry. These two statements were the only matters relied upon in the charge-sheet. Though in his written statement the plaintiff did not expressly admit the charges, he did not categorically state that the charges were untrue nor did he state that the statement made either by him or by the said Mukund Lall in the earlier inquiry was untrue. He also did not demand any inquiry as such. A Division Bench of this High Court consisting of Patel and Palekar, JJ. held that it would 'seem impossible to contend that with his own sworn statement and that of Mukund Lall in the earlier inquiry, there could be much of inquiry. Since the statement was at no stage retracted by the plaintiff, an inquiry would have been fruitless and dismissal was justified.' This conclusion was upheld by the Supreme Court (Civil Appeal No. 1185 of 1965, D/-6-2-1967 (SC). The Supreme Court held that 'the appellant never denied the truth of the statements attributed to him, and those statements established the case of the State against him. It would be difficult to hold that because the Enquiry Officer did not act strictly according to the Rules a fresh inquiry should be directed to enforce compliance with the Rules.' In the present case also, since the Petitioner had admitted the charges, it would have been a mere idle formality to lead any evidence.
27. The third irregularity which is alleged is the failure to furnish to the Petitioner with a copy of the report of the Inquiry Officer and to serve upon him a notice to show cause against the penalty proposed. The purpose for which a copy of the Inquiry Officer's report is required to be furnished is set out by the Supreme Court in State of Maharashtra v. Bhaishankar Avalram Joshi reported in : 3SCR917 , upon which Mr. Singhvi has relied in support of his submission that failure to supply a copy of the Inquiry Officer's report would vitiate the inquiry. In the Supreme Court case the respondent, who held the permanent post of Senior Jailor, Surenderanagar, and who was at the material time working as an accountant at the Rajkot Central Jail, was charge-sheeted and after the inquiry was concluded a notice was issued to him by the Inspector-General of Prisons to show cause why he should not be dismissed. No copy of the Inquiry Officer's report was furnished to him. He made a representation and thereafter by an order made by the Inspector-General of Police he was dismissed from service. In appeal the High Court held that this amounted to a denial of reasonable opportunity contemplated by Article 311(2). The Supreme Court confirmed the decision of the High Court pointing out that by non-supply of a copy of the report the respondent was prejudiced in making a proper representation to the Inspector-General of Police who had to decide the guilt of the respondent and the punishment to be imposed upon him. The representation referred to by the SupremeCourt was the representation to the second show cause notice required to be given by Article 311(2), that is the notice to show cause against the proposed infliction of the penalty of dismissal, removal of reduction in rank. Under Rule 15 (4) (1) of the 1965 Rules, a copy of the report of the Inquiry Officer is required to be furnished to the Government Officer only when the disciplinary authority proposes to impose a major penalty. In the case before us, however, the penalty as also the mode of procedure for imposing it where the case falls under Clause 5 of the contract entered into between the Petitioner and the Resident, that is, in cases of misconduct, insubordination, etc., is contained in the said Clause 5. Clause 5, therefore, is a special provision in that behalf in the contract and this provision, therefore, under Rule 3 (1) (i) excludes the provisions in that behalf contained in the 1965. Rules. Under Clause 5 if the Petitioner is guilty of any insubordination, misconduct, etc., the Government has the right immediately and without any previous notice to terminate his service. By reason of the said order dated January 15, 1964 the word 'termination' has to be read as 'reversion to the parent department.' Thus, the only penalty which could be inflicted upon the Petitioner was the penalty of reversion to his parent department and that too immediately and without any previous notice to him. Even assuming the said order dated January 15, 1964 did not have the effect of varying the contract the provisions of tile said contract would really amount to the same thing. Under the contract his Services were engaged for a particular period upon certain special terms. It is that service only which could be terminated under the said contract, On the termination of his service under the said contract, the Petitioner would automatically revert to his parent department to the post of Section Master on which he held a lien. The Petitioner having in substance admitted all the charges made against him, there was also nothing for him to represent with respect to the question of his guilt. This report was also not necessary to enable him to file any appeal. The impugned order was passed by the President and there was no one, therefore, to whom the Petitioner could have appealed. Rule 22 of the 1965 Rules expressly provides that no appeal shall lie against any order passed by the President. Mr. Singhvi also relied upon a decision of the Privy Council in B. Surinder Singh Kenda v. Govt. of the Federation of Malaya, 1962 AC 322, on appeal from the Court of Appeal of the Supreme Court of the Federation of Malaya. Under Article 135(2) of the Constitution of the Federation of Malaya a reasonable opportunity of being heard is required to be given to a Government servant in answer to a charge against him. In that case two men were charged in the Supreme Court at Penang for uttering forged lottery tickets. The prosecution failed because it called a number of witnessess, including Police Officer, whose evidence was palpably false. The Commissioner of Police thereupon ordered an inquiry to be held. After considering the report of the inquiry, the Commissioner of Police decided that disciplinary proceedings should be taken against the appellant. The Commissioner appointed an adjudicating officer to inquire into the charges. A copy of the report of inquiry held before the disciplinary proceedings commenced was furnished to the adjudicating Officer, but not the appellant. This report contained matters highly prejudicial to the appellant The Privy Council held that this amounted to the Court hearing evidence or receiving representation from one side behind the back of the other and amounted to a denial of natural justice. Now, the facts of that case were wholly different from the facts before us. There, the report in question was the report of a preliminary inquiry held to enable the Commissioner of Police to decide whether disciplinary proceedings should be initiated. It was not a report containing the findings of the adjudicating officer. This authority also, therefore, cannot help the Petitioner,
28. Thus, all the contentions raised by the Petitioner even on the merits must also fail,
29. In the result, we dismiss the petition and discharge the rule with costs.
30. Petition dismissed.