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Khairat HussaIn Vs. Union of India (Uoi), Through Secy. to Govt. of India Ministry of Defence, N. Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 128 of 1967
Judge
Reported inAIR1969All422; (1968)IILLJ584All
ActsConstitution of India - Articles 309, 310(1) and 311(2)
AppellantKhairat Hussain
RespondentUnion of India (Uoi), Through Secy. to Govt. of India Ministry of Defence, N. Delhi and ors.
Appellant AdvocateBashir Ahmad, Adv.
Respondent AdvocateH.N. Seth, Adv.
DispositionPetition allowed
Excerpt:
.....opportunity of showing cause - no averment that president was satisfied as to clause (c) of proviso to article 310 (1) - order challenged on ground that there was no satisfaction - satisfaction need not be part of order but when order is challenged it is incumbent upon authority passing order to prove requisite satisfaction - held, order set aside. - - clause (c) of the proviso states that where the president or the governor, as the case may be, is satisfied that in the interest of security it is not expedient to hold such an enquiry, then clause (2) of article 311 will not apply. the impugned order did not recite that the president was satisfied that in the interest of security of the state it was not expedient to hold in enquiry under article 311(2). the counter..........india terminating the petitioner's service.2. the impugned order runs as follows -'in pursuance of clause (1) of article 310 of the constitution, the president is pleased 1o direct that the services of shri khairat hussain. millwright 'c' t. no. 515/mm, ordnance factory, kanpur, a civilian in defence services, shall stand terminated with immediate effect.' for the petitioner this order was challenged on the ground that the pleasure of the president of india under clause (1) of article 310 of the constitution is subject to the rules that have been framed in virtue of article 309 of the constitution. i have repelled this submission in mohammad akhtar v. union of india, 1967 all lj 645.3. in the next place it was submitted that article 310 has been held in the decision mentioned above to be.....
Judgment:
ORDER

Satish Chandra, J.

1. This petition under Article 226 of the Constitution seeks to quash an order dated 5th September, 1966, passed by the President of India terminating the petitioner's service.

2. The impugned order runs as follows -

'In pursuance of Clause (1) of Article 310 of the Constitution, the President is pleased 1o direct that the services of Shri Khairat Hussain. Millwright 'C' T. No. 515/MM, Ordnance Factory, Kanpur, a civilian in Defence Services, shall stand terminated with immediate effect.'

For the petitioner this order was challenged on the ground that the pleasure of the President of India under Clause (1) of Article 310 of the Constitution is subject to the rules that have been framed in virtue of Article 309 of the Constitution. I have repelled this submission in Mohammad Akhtar v. Union of India, 1967 All LJ 645.

3. In the next place it was submitted that Article 310 has been held in the decision mentioned above to be subject to Article 311. Under Article 311(2) the services of a permanent employee, which the petitioner was, could not be terminated without affording him a reasonable opportunity of showing cause in respect of the charges and the penalty proposed to be inflicted upon him. The exception to the rule is given in the proviso thereof. Clause (c) of the proviso states that where the President or the Governor, as the case may be, is satisfied that in the interest of security it is not expedient to hold such an enquiry, then Clause (2) of Article 311 will not apply. The learned counsel urged that in the. present case there was nothing to indicate that Clause (c) of the proviso was attracted. The impugned order did not recite that the President was satisfied that in the interest of security of the State it was not expedient to hold in enquiry under Article 311(2). The counter affidavit filed on behalf of the respondents also does not make any such assertion. There is no averment that the President of India was satisfied as to Clause (c) of the proviso. In this situation Article 311(2) is clearly attracted. Admittedly no enquiry as contemplated by that provision was held. The impugned order thus violates Article 311(2) of the Constitution.

4. The satisfaction of the President under Clause (c) of the proviso is to his subjective opinion. It is not a justiciable issue, vide Mohammad Akhtar's case, 1967 All LJ 645 cited above. When power is conferred exercisable to the subjective opinion of an authority, such satisfaction of that authority constitutes a condition precedent to the exercise of the power. It is true that the Constitution does not require that such satisfaction should be recited in the order itself. The order would not be invalid merely on the [ground that the requisite satisfaction is not stated therein, but when the order is challenged on the ground that there was no such satisfaction, (as was done in the present case by ground No. 4), it is incumbent upon the authority passing the order to prove that the requisite satisfaction was achieved, see Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal U. P., AIR 1961 SC 1381. It was obligatory on the respondents to have clarified the point in their counter affidavit. Unfortunately there is no assertion at all that the President was satisfied In terms of Clause (c) to the proviso.

5. The petition, therefore, succeeds andis allowed. The impugned order dated 5thSeptember, 1966, is set aside. The partieswill bear their own costs.


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