(1) After I had delivered judgment in this case (on June 24th and 25th, 1959) in the case of Balkrishna Bapuji Karkhanis v. State of Bombay, Suit No. 276 of 1954, Mr. R. L. Dalal on behalf of the State contended that by reason of the provisions of Article 310 of the Constitution, the plaintiff in that case was not entitled to maintain his action for a declaration that the order of termination of his services was wrongful and that he was continuing in service in spite of that order. Mr. Dalal relied upon the decision of this Court in Jagdish Dajiba v. Accountant General of Bombay, : (1959)ILLJ117Bom in support of that contention. That suit was after considerable arguments settled in Court. This contention appeared to me to be a contention which ought to have been argued and considered in this case. The parties had asked for adjournment of this suit for ascertaining the amount which would be payable by the defendants to the plaintiff in accordance with the judgment. The matter accordingly was not finally disposed of.
(2) On this suit coming up for hearing on July 13th, 1959. Mr. Baptista raised the contention that the plaintiff's suit was not maintainable. He based his contention on the provisions in Article 310 of the Constitution. He in that connection applied for an amendment of the written-statement in terms of the draft which is now on the record of this suit. The contention was a contention of law and in my view covered by the issues Nos. 11 and 13 in this suit. I accordingly held that the amendment to be unnecessary and refused the application made for amendment. The Defendant's Counsel were aware that this contention would be made and were prepared to meet the same.
(3) Mr. Baptista has drawn my attention to the provisions of Articles 309 to 313 of the Constitution. His contention is that the tenure of employment of a Government servant is only during the pleasure of the President and/or the Governor and that in respect of his dismissal from service he can have no justiciable cause of action unless there is express provision in the Constitution under which he is entitled to protection. To appreciate this contention it is necessary to refer to the provisions in Articles 310 and 311 of the Constitution. Relevant parts of Articles 310 and 311 provides as follows:
'310 (1) Except as expressly provided by this Constitution, every person who is a member of a xx xx civil service xx xx or any civil post under the Union, holds office during the pleasure of the President x x x x x
(2) xx xx xx
311 (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:
Provided that this clause shall not apply
(a) x x x x x x
(b) x x x x x x
(c) where the President or Governor as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.'
(4) It is now well settled that the phrase 'except as expressly provided by this Constitution' with which Article 310 begins does not include or refer to Rules or regulations which are continued in force under Article 313 of the Constitution. Whatever be the authority of the Rules or Regulations, they could not be equated with 'the express provisions of the Constitution'.
(5) A question similar to the question that is now raised by Mr. Baptista was before the Court in the case of : (1959)ILLJ117Bom . The services of the petitioner in that case were terminated by an order made by the President of India and one of the contentions raised on behalf of the petitioner was
'that Article 310 of the Constitution did not permit the President of India to exercise his pleasure so as to commit breach of any law of the land and thus single out the petitioner in contravention of the provisions of the Rules, and in so acting and passing the impugned order the action of the President offended Art. 14 of the Constitution.'
It was also contended that 'if rule 52 of the Civil Services Rules gives power to the President' of depriving the petitioner of a right of appeal as provided in the Rules then that rule itself was void being in contravention of Art. 14 of the Constitution. In connection with the arguments made on behalf of the petitioner the provision and effect of Art. 310 came to be considered and it was held that the rules or regulations continue in force so far as they are consistent with the provisions of the Constitution and that the rules cannot be classed 'as being the express provision in the Constitution' simply because they have been continued in force by virtue of Article 313 of the Constitution. Relying on these observations and also the observations of the Privy Council in the case of Venkat Rao v. Secy. of State , Mr. Baptista contended that I should hold that the plaintiff could have no cause of action to maintain this suit.
(6) The contention of the plaintiff appellant before the Privy Council in the case of Venkat Rao was based on the provisions of section 96B of the Government of India Act, 1915. The relevant part of Section 96B provided that
'subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure ...........................'.
The plaintiff who had been summarily dismissed without any inquiry having been held in the manner provided in the Service Rules contended that the Statute (section 96B) gave him a right enforceable by action to hold the office in accordance with the rules and that he could only be dismissed as provided by the Rules and in accordance with the procedure prescribed thereby. The defendant-respondent contended that there was no such actionable right vested in the plaintiff-appellant. In that connection their Lordships of the Privy Council upheld the decree of dismissal of Courts. The reasons which led their Lordships to that conclusion were stated as follows:-
'Section 96B, in express terms, states that office is held during pleasure. There is therefore no need for the implication of this term and no room for its exclusion. The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far reaching to commend itself for acceptance.' That was the whole of the argument that Mr. Baptista adopted in support of his contention before me. There is hardly any difference in the provisions as regards tenure of office between section 96B of the Government of India Act, 1915 and Art. 310 of the Constitution. It may be emphasised that in Art. 310 there is no reference to rules as contained in section 96B. In accordance with the provisions in Article 310 the plaintiff's tenure of office was during pleasure. Having regard to that fact and the reasoning in the opinion of the Privy Council in the case of Venkatrao it is not permissible to consider the provisions in Security Rules as added contractual terms or binding provisions as between the plaintiff and the defendants.
(7) Mr. Baptista contended that even if the Security Rules are held to have force of a Statute or Parliamentary legislation the same cannot be given effect to as against the provisions in the Constitution viz. Article 310. He referred to the finding of the Privy Council that
'the aforesaid consideration had irresistibly led their Lordships to the conclusion that no such right of action as is contended for by the plaintiff-appellant existed'.
He further pointed out that the decision of the Privy Council has now been accepted as laying correct law by serveral decisions of the Superme Court.
(8) It this connection the following observations made by the supreme Court in the case of Parshotam Lal Dhingra v. union of India, : (1958)ILLJ544SC are relevant :
'As under S. 96B(1) of the 1915 Act and S. 240(1) of the 1935 Act, the persoons specified therein helf office during the pleasure of the Crown, so under Art. 310(1) they hold their office during the pleasure of the President or of the Governor, as the case may be. The opening words of Art. 310(1), namely, 'Except as expressly provided by this Constitution', reproduce the opening words of S. 240(1) of the 1935 Act, substituting the word 'Constitution' for the word 'Act'......'
Reference is then made to the exceptions contemplated by the Constitution. Then it is furtherobserved that:
'Subject to these exceptions our Constitution, by Art. 310(1), has adopted the English Common law rule that public servants hold office during the pleasure of the President or Governor, as the case my be and has, by Art. 311, imposed two qualifications on the exercise of such pleasure. Though the two qualifications are set out in a separate article, they quite clearly restrict the operation of the rule embodied in Art. 310(1).' At page 857 (of SCR): (at p. 47 of AIR) it is observed as follows:- 'The principle embodied in Art. 310(1) that the Government servants hold office during the pleasure of the President or the Governor, as the case may, be is qualified by the provisions of Art. 311, which give protection to the Government servants. The net result is that itis nly in those cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Art. 311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided.'
One of the decisions cited was the decision of the Privy Council in the case of .
(9) The above observations clearly reiterate the principle laid down y the Privy Council that no right of action is vested in a dimissed government servant for a dclaration that he is entitled to hols his office in accordance with the rules or that he could only be dismissed as provided by the rules and in accordance with the procedure prescribed thereby; the only exception to this principle being the cases where protection is provided in favour of the Government Servants in the Constitution iself.
(10) In this connection reference was made to the decision of S. T. Desai J. in the case of chandrabhan . Union of India, : AIR1956Bom601 and of Chagla C. J. in appeal in theat case. Reference was also made to a judgment given by me in the case of Tara Sing v. Union of India AIR 1960 Bom 101. These matters related to what was alleged to be wrongful dismissal of plaintiffs who had been employed in defence service. In each of the cases reliance was sought to be placed on rules described as Army Instructions and/or kdepartmental rules entitiling the plaintiffs to a proper prescribed hearing. It was contended that the rules had been violated and that accordingly the orders terminating the services should be set aside. It was however held that the rules did not affect the provisions of Art. 310 of the Constitution regarding the tenure f office of persons employed in the service of the Government of India or State and that the non-observance of the rules did not give any cause of action to the plaintiff in those matters. What is clearly held in those decisions is that the tenure of office of an employee of the Union or the State is only during the pleasure of the President and/or Governor; and accordingly except as provided in the Constitution there can be no justiciable cause availble to a dismissed Government employee for getting relief in a Court of law. Reerence was also, made to the decision of the Division Bench of this Court in the matter of Spl. C. A. No 1061 of 1956 delivered on July 4th, 1956. The petitioner in that case was employed in the Ordance Factory, at Ambernath in May 1949 and his services were terminated on March 27th 1956. He was paid one month's wages in lieu of nitice. The petitoner challenged the validity of that termination on the ground that he had been retrenched without following the procedure prescribed under the Industrial Disputes Act, 1947. It was found as mtter of fact that the conditions precedent to th retrenchment of the petitioner as laid down in section 25F of the Act hd not been complied with. On behalf of the Union, a contention as in this case was raised, viz., that the President of the Union had an over-riding power conferred upon him under Article 310(1) and that by reason of that over-riding power it was open to the Union to terminate the services of any of its employees without assigning any reason and even without giving any notice. The provisions of Articles 309 and 313 must on behalf of the petitioner that Article 310 kmust be read subject to Article 309 was negatived and it was held that the Industrial Disputes Act was merely an Act o Parliament and could not be held to be included in the pharse 'except as expressly provided by this cConstitution' in Article 310. It was also held that 'even though the Parliament may regulate the conditions of service including tenure of office and even thought the Industrial Disputes Act has in fact regulated the tenure of Office of employees employed in an industry including the employees of Government, Parliament had no power to pass any law which contravened the provisions of Art. 310'.
'Even though Parliament may legislate with regard to industrial and labour disputes and in doing so, it may lay down conditions of service of employees and also conditions of tenure of office, the law that Parliament can pass must be subject to the privusuibs if Article 310. In other words, no law passed by Parliament can take away the over-riding power of the President to terminate the service of a civil servant.'
The further relevant observations in that case run as follows:-
'There is nothing to prevent Parliament under Article 309 from regulating the conditions of service of civil servants including the conditions with regard to tenure of office. On the other hand, there is nothing to prevent Government from giving effect to those conditions. As a matter of fact, all over the country the tenure off office of civil servants is regulated by rules framed which in a certain sense gives to the Government servansts secutiry of tenure. But even though a law may be passed which may apply to Government and Governent may in the ordinary course give effect to it and apply it to its own employees the ultimate power which the Constitution has advisedly conferred upon the President to terminate the service of a civil servant without notice and without any liability to pay compensation must remain unaffected. We must say that ordinarily it is the duty of Government to give effect to the policy which it enunciates and which it imposes upon private employers.'
'But if the President exercises his ver-riding power under Article 310 Government servant will be without any remedy at all'.
It was accordingly held that it was not open to the petitioner to challenge the order of retrenchment on the ground that the provisions of the Industrial Disputes Act had not been observed and were violated.
(11) Habing regard to the contentions raised by Mr. Chari thatthe order in question must be made by the President himself, it is relevant to quote there observations made in that case by Chagla c. J. :
'It was then sought to be argued that the proper authority has not exercised the power of the President under Article 310(1). It is said that there is nothing to sugget that the uperintendent of the Ordance Factory, the first respondents, is the person who can exercise the over-riding power conferred upon the President under Article 310(1). Now, Article 310(1), does not at all deal with the authority who can terminate the services of a Government servant. It only deals with the tenure of office. It was competnt to the petitioner to challenge the authority of the first respondent to terminate his services, but that challenge has not been made in the petition, and therefore as far as Article 310(1) is concerned theat question cannot and does not arise.'
(12) On behalf of the defendant Mr. Chari contended that for the purpose of this defence the defendants were bound to make a submission that every order of any authorised officer was an order of the President and/or the Governor within the meaning of Article 310 of the Constitution and that the dismissal under such an order of a government employee should be held to be dismissal by the President and/or Governor. Mr. Chari contended that such could not be the position and in that connection he referred to Article 75(2) of the constitution which provided that the Ministers of the Union Government hold office durring the pleasure of the President. He contended that the same meaning should be given to the words 'during the pleasure of the Prrdifrny' in Articles 75(2) and 310 of the Constitution. His contention was that the power as regatds the dismissal of Ministers and the employees of the Government was a power personal to the President and there was no question of the same being exercised through other competent authorities under different statutes and rules made thereunder. It appears to me that a similar contention was raised in Spl. C. A. 1061 of 1956 referred to above and has been dealt with effectively. Art. 310 refers to the pleasure of the President in relationwith the tenure of office of an employee of the Union and the State. The direct result of that provision is that in fact there is no actionable right for holding office vested in an employee of the Union or the State save and except as expressly provided by reason of the provisions in the constitution. The competent authority for making orders of dismissal will be prescribed by legislation in the shape of Acts of Parliament or State and Rules made thereunder. If such orders of termination are challenged as being wrongful as against the Union or the State I see no difficulty in the Union or the State basing its defence on the provisions of Article 310.
(13) In this connection Mr. Chari referred to the Security Rules and pointed out that in fact in the plaintiff's case the competent authority was Chief Mechanical Engineer and not the President. The impugned order of termination was of the Chief Mechanical Engineer and not of the President. that however in my view does not detract in any manner from the ratio of the several decisions already referred to by me that there would be no enforceable cause of action in favour of the plaintiff. In this connection it is also relevant to point out that in his case the Chief Mechanical Engineer had no authority to pass the impugne order of termination. until he had obtained the approal of the Pesident. As a matter of fact the President approved of the termination of the service of the plaintiff and conveyed his approval by letter dated July 15, 1953 from the joint Director, Establishment, Railway Board to the General Manager, Central Railway. The impugned order of termination was in fact passed by the Chief Mechnical Engineer only after he had secured the approval of the President in the aforesaid manner. This is therefore not a case where it can be argued that the President has not exercised his ploeasure in the matter of termination of service of the plaintiff. There is clear proof that this order is made in pursuance of the approval of the President and the argument of Mr. Chari that the order in this case must not be held to be that of the President cannot be accepted. In that view of the matter provisions of Art. 310(1) directly became applicable to the facts of the case and there is no question that the plaintiff has no (justiciable cause which can be agitated in this Court.
(14) As regards the decisions of the Division Bench in Spl. C. A. 1061 of 1956 and in the case of : AIR1956Bom601 and other such similar cases the only distinction which Mr. Chari sought to make was that I must consider the defence services as in a separate category. The question in each of these cases was regarding the true construction of the provisions of Article 310 and not only with reference tothe defence services. I have therefore not appreciated distinctions sought to be made by Mr. Chari.
(15) Mr. Chari also relied upon the decision of S. T. Desao J. in the case of Mohansingh v. D. C. Dey, Misc. Appln. No. 38 of 1953 The petitioner in that case was employedas a Sub-Inspector of Telephones, Bombay district. after certain inquiries hald under Central civil Service (Safe-guarding of National Security) Rules 1949 the services of the petitioner were terminated. the pertitioner challenged the order of termination inter alia on the ground that there was nothing in the whole record before the Court to show that after making the dur inquiry under Rule 4 the competent authorit had come to the conclusion that the petitioner's retention in service was prejudicial to national security. It was found that a finding to that effect was absolutely essential before an order of termination could be made and that such a finding having not been made the petitioner was entitled to a finding that the order of termination was bad and inoperative. Relief was granted accordingly to the petitioner as prayed. mr. Chari has rightly pointed out that the Court gave a relief in that case and contended that I was similarly bound to give relief to the plaintiff in this case having regard to the findings already made. The contention as is now before me was not raised before S. T. Dessi J., and I am accordingly not getting any guidance from the reasoning in that judgment in respect of the contention raised before me. It is entirely true that inseveral writ petition relief has been granted by this Court where violation of prescribed rules of procedure in connection with the departmental inquiry has taken place. This court has in its writ juridiction and in its supervisory jurisdiction always insisted that judicial and quasi-judicial tribunals must observe the prescribed rules of procedure and must not violate rules of natural justice in proceeedings before such tribunals. I have accordingly called upon counsel for the plaintiff to submit to ne for guidance decisions of courts where in applications for writs or in suits reliance is placed on behalf of the government of Article 310(1) of the Constitution and the contention of the government that there can be no justiciable cause of action has been negatived. Mr. Chari for the plaintiff has drawn my attention only to these decisions of the High Courts (of Andhra, Madras and Rajasthan) in that connection. In the case of State of Andhra Pradesh v. Kameshwara Rao, (S) AIR 1957 Ap 794 reliace was placed on behalf of theState of AndhraPradesh on Art. 310 of the Constitution in connection with the application of the petitioner challenging order of dismissal on the ground of violation of Services Rules. Umamaheshwaram J. at page 804 of the report whilst dealing with the contention of the Government Pleader that the plaintiff's appointment was at the pleasure of the President and tat his services could be terminated withot assigning any reasons stated that a similar contention was raised in the case of T. Ramayya Suri v. State of Madras, (W.P. No. 817 of 1952 (Andhra) and was negatived. He also stated that it was pointed out in that casethat the rules framed under secton 241 (of the Government of India Act, 1935 have statutory force and are binding on the State Government and that the Government is not entitled to act in violation of these ruled. Mahohar Prasad J. also referred to this contention raised on behalf of the Government and dealt with te same in exactly the same way asUmamaheshwaram J. I have therefore not been able to get any guidance from that decision of the High Court of Andhra Pradesh. In the case of Dwarkachand v. State of Rajasthan, on behalf of the Government reliane was placeed on Art 310. The grievance of the petitioner in that case was that in a departmental inquiry in accordance with the rules he had been exoneratd and the second departmental inquiry sought to be held was contrary to the provisions in the rules and that accordingly he was entitled to relief. Whilst dealing with the contention raised on behalf of the Government Wanchoo J. at page 39 observed as follows:-
'It is true that a public servant like the applicant holds office during the pleasure of the Governor, vide Art. 310 of the Constitution. But this matter was examined by this court in Union of India v. Askaran (First Appeal No. 25 of 1954) and it was pointed out there that Art. 310 is subject to two restrictions. One of these restrictions is contained in Art. 311 and the other in Art. 309 which provides for framing rules. x x x x It was pointed out in Askaran's case (F. A. No. 25 of 1954) that Art. 309 has the same effect as S. 96-B of the government of India Act and there is a constitutional guarantee that the pleasure of the Governor provided in Art. 310 shall be exercised according to law or rules framed under Art. 309 and not arbitrarily or capriciously.'
The petitioner was granted relief as prayed in that case. The ratio of that decision appears to be that the tenure of employment of an employee by the Union or the State as provided in the Constitution can be limited by legislation by Parliament and/or State and rules made thereunder. That however is directly contrary to the decisions of this Court and I am theefore unabe to follow.
(16) In the case of G. Sambandam v. General Manager, South Indian Railway ILR (1953) Mad 229 : AIr 1953 Mad 54 to which reference has already been made reliance was placed on behalf of the government on Article 310. In that case also the impugned order of terminatin was as order made under the Security Rules. In connection with the contention made on behalf of the Government after considering the deciions of the Privy Council in the case of Venkatraman Ayyar J. has observed as follows:
'It will follow from the above that the Govrnment has a right to terminate the services of a civil servant at will and the only restrictions on this power are those expressly enacted in the Constitution. there is accordingly considerble force in the argument of the respondent that he has a right to terminate the services of the employees under rule 148 of the Indian Railway Estblishment Code and that there is nothing in the Constitution which restrict such a right.'
After these observations were made it was held that the impugned order of termination was in violation of the provisions of the Secuirty Rules and and illegal and inoperative. The decision appears to me to be directrly contradictory of the above quoted observations. Having regard to the dicisions which I have already referred to, I prefer to content myself by accepting the observations quoted above from that decision as the only correct position which must be applicable to the plaintiff's case.
(17) Reliance can be placed on behalf of the plaintiff in this connection on the above-quoted observations of the supreme Court in the Case of P. Balakotiah v. Union of India, : 1SCR1052 viz.,
'then if action is taken thereunder but the procedure prescribed therein is not followed, the order must be held to be bad, as the protection intended to be given has been denied to the employee'.
As already mentioned that was a tentative observation and the suprme Court refused to express final opinion. On prima facie grounds it is observed that where prescribed procedure is not followed the resulting order n an enquiry would be invalid. In that case the suprme Court was not considering whether a suit for declaration of the nature claimed in this suit was maintainable. The Supreme Court has, as already mentioned on several occasions, accepted the ratio of the dicision of the Privy Council in the case of Venkat Rao, as correct. It appears to me that there is no dstinction of principle on which I am not bound to follow in this case the principle laid down by the Pivy Council in the case of Venkat Rao. It is also relevant to notice that ordinarily as between master and servant there can b no question of servant being entitled to a declaration that he continues in service in spite of his dismissal by master; and that the employees of the governmen have been able to seek such declaations because of protection provided in the Constitution Acts. It is important to point out that according to : 1SCR1052 termination of service under the Security Rules does not involve punishment as mentioned in Article 311 of the Constitution.
(18) As I have already observed the decision of Badkas J. in the case of : (1959)ILLJ117Bom it clear in the finding that the plaintiff in that case had no cause of action for the declaration that the impugned orde made by the President was illegal because it violated the prescribed rules of procedure and that the suit was not sustainable. The scope and ambit of the Services Rules came to be considered by Chagla C. J. in the case of Framji v. Union of India 60 Bom LR 1302 : AIR 1960 Bom 14. The plaintiffin that suit contended that he was by reason of the Service Rules entitled to a particular grade in the services of the B. B. and C. I. Railway and claimed relief on that footing. the defendant relied uponArticle 310 of the Constitution and contended that the plaintiff had no cause of action against the Union of India. The question which arose was stated as follows:
'Can a servant of the State Sue the State in respect of any condition of service relaing to his employment? To put the question in a different way, would it be correct to say that the statutory rules framed by the Railway conferred any right upon a Government servant, which right he can assert and enforce in a Court of law?'
On behalf of the plaintiff reliance was placed on Articles 309 and 313 and it was contendedthat the Service Rules were by reason of the provisions in Articles 309 and 313 binding on the Government is respect of tenure of office of its employee. It was conceded that if there was any grievance as available by reason of the provisions of Article 311 the plaintiff would cerainly have an enforceable cause of action. After considering all the provisions and the decisions of the Privy Council in the cases of Venkat Rao and Ranganchari it was first held that
'there was no doubt that if the government of India Act was in force and the Court had to consider the provisions of sections 240 and 241 the plaintiff's suit would not be maintainable'. It was further held that there was nothing in the language of Articles 309 and 313 which brought about any change from the position which obtained under the Government of India Act.
(19) As regards the observations of the Aupreme Court in the case of State of Bihar v. Abdul Majid, : (1954)IILLJ678SC it was explained that the Supreme court had in that case held:
'It is only to this limited extent, to the extent that in India the Union could beused for arrears of salary, that the doctrine of a Government servant being employed at the King's pleasure has been cut down or limited. There is no suggestion in this judgment of the Supreme Court that the prionciple enunciated by the Privy Council in Venkat Rao's or Rangachar's case, no longer obtains'.
It was further observed that if the Court took the view that the President, under the doctrine of every servant of his holding office during hispleasure, cannot be bound by any contract, then no further question survied. The ratio of the decision in that case is that the statutory rules contained in the Indian Railway Establishment Code did not constitute a contract between the Union of India and its employees and that those rules by themselves did not confer any right upon the employees which they could assert and enforce in a Court of law. In my view the observations in that case are directly applicable even to the facts of this case, the only difference being that in this case the rules are Security Rules and in this case the rules were rules in the 'Indian Railway Establishment Code'.
(It was therefore held that the contention raised on behalf of the defendants was correct and that the plaintiff was not entitled to maintain the suit as regards the impugned order dated August 12th 1953. - Rest of the judgment is not material for reporting.)
(20) Order accordingly.