(1) Through this writ of certiorari the petitioner Satyendra Kumar Dutta has challenged his dismissal from service as a Lower Division Clerk in the Ministry of Home Affairs by order of the President dated 17th of January, 1957 (Annexure D).
(2) Concededly, the petitioner was not given an opportunity to show cause against the dismissal as required by clause (2) of Article 311 of the Constitution of India. It is the case of the respondent-Union that the applicability of clause (2) of Article 311 requiring 'reasonable opportunity of showing cause against the action' is excluded by virtue of sub-clause (c) of the proviso because 'the President............ is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.
(3) Mr. Sinha, learned counsel for the petitioner, submits that Article 311(2) has been interpreted to mean that a person holding a civil post is entitled to a dual opportunity when (1) enquiry is held, and (2) action is proposed to be taken against him. This principle has been recently affirmed in the decision of their Lordships of the Supreme Court in Khem Chand v. Union of India. AIR 1958 SC 300. Mr. Sinha then contends that sub-clause (c) of the proviso to this Article, referring as it does only to 'an opportunity' could relate only to a single opportunity. He submits, therefore, that the President can only dispense with one of the two opportunities presaged in clause (2) of Article 311. It is further argued that opportunity to deny his guilt and establish his innocence at the time of enquiry is the one which cannot be withheld even under the proviso. It is the counsel's ensuing contention on this aspect of the case that the only opportunity of which requires him to show cause why the action proposed should not be taken in respect of him.
This argument is both fallacious and untenable. In exceptional circumstances, enumerated in the proviso, the Constitution takes away the right of being afforded reasonable opportunity of showing cause under Article 311(2) and it is 'such' opportunity which the President on his satisfaction, in the interest of the security of the State, can dispense with. Manifestly, it would be a futile exception if this denial is restricted in the interest of security only to the second opportunity and a full trial is permitted to be held and the concerned official has the right to deny his guilt and establish his innocence by cross-examining the witnesses produced against him. Sub-clause (c) of the proviso would be devoid of any meaning and content if it is held that the first or even the second opportunity under Article 311(2) falls outside the purview of the President's satisfaction. The exceptions to the proviso to clause (2) of Article 311 in the peculiar circumstances referred to therein cannot be negatived by a strained construction which is sought to be put on the word 'opportunity' used in singular.
(4) Mr. Sinha's next argument is that as is always open for the aggrieved person to show that the order of dismissal is mala fide or fraudulent the petitioner must be furnished with the reasons which have led the President to come to a decision that no opportunity to show cause should be afforded to him. Reliance has been placed on a Division Bench authority of Chief Justice K. Subba Rao (as he then was) and Basi Reddy, J. in B. Eswaraiab v. State of Andhra, AIR 1958 Andh Pra 288, where it was observed that
'clause (c) of the proviso to clause (2) of Article 311 in terms confers unrestricted power on the Governor in the interest of the State to deprive a particular officer of the reasonable opportunity provided by Article 311. The power is not circumscribed by any objective standards and, therefore, it cannot be questioned in a Court of law. However, if a party establishes by placing relevant material before, the Court that the Governor made the order mala fide or for ulterior purposes, the order my be set aside on the ground that it is a fraud on power.'
Far from supporting the petitioner's contention, the authority is explicit on the point that the powers of the President are unrestricted. To hold that the order of dismissal is mala fide,, the facts of the case have to he brought out by the petitioner himself and should speak for themselves. This ruling is not an authority for the proposition contended for that the President is bound to assign reasons for depriving an aggrieved person of the opportunity under Article 311(2). A similar position was adopted by another Division Bench judgment of the same Court given by K. Subba Rao, C. J. (as he then was) and Jaganmohan Reddy, J. in Mohammad Azam v. State of Hyderabad, Air 1958 Andh Pra 619. It was held therein that
'the satisfaction that it is not expedient in the interests of the Security of the State of give that person an opportunity to show cause is the satisfaction of the Governor or the Rajpramukh, as the case may be, and no Court of law can say that the order was not given in good faith.'
Reference may also be made to a judgment of the Division Bench of the Bombay High Court consisting of Mudholkar and Badkas, JJ. in Jagadish Dajiba v. Accountant-General of Bombay, AIR 1958 Bom 283, where it was observed that the question of the satisfaction of the President is not a matter which is justiciable. The entire purpose of the proviso would indeed be frustrated if into the question whether the satisfaction of the President has been reached bona fide or otherwise.
(5) Mr. Sinha has invited my attention to a representation which was made by the petitioner to the President that he has been a victim of a confusion in identity of names, the reason being that the brother of the petitioner also having the same initials has been mixing up with the foreigners and that has perhaps given rise to a suspicion against him. The reply given to this representation (Annexure G) shows clearly that his matter was taken into consideration by the President when he rejected it.
(6) There is still left another argument of Mr. Sinha to be disposed of. It has been contended by him that the 'opportunity' under Article 311 of the Constitution does not include 'common law' opportunity which is something separate and apart from the constitutional guarantee For one thing there is no warrant to subject the concept of opportunity to such a dichotomy. Besides, the amplitude of Article 311 which has replaced section 240 of the Government of India Act is wider in its protective scope than the restricted right enjoyed by a public official under the common law which, in the last analysis, is merely the holding of a past at the pleasure of the Sovereign. I do not see how the petitioner could successfully have asserted his rights to remain in service even under the common law when the pleasure of the President has been so unequivocally expressed.
This matter has been dealt with in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36. Ad pointed out therein section 240(1) of the Government of India Act, 1935 stated explicitly that a civil post under the Crown of India is held during His Majesty's pleasure. This principle is now embodied in Article 310 of the Constitution. Sub-sections (2) and (3) of section 240 of the Government of India Act, made provision for the two constitutional guarantees which are now enshrined in Article 311 of the Constitution which as stated by their Lordships, is in effect a proviso to Article 310. As observed by the Chief Justice S. R. Das at page 41 in the report of Dhingra's case, AIR 1958 SC 36, 'the English Common Law rule regarding the holding of office by public servants only during the pleasure of the Crown has not been adopted by us in its entirety and with all its rigorous implications'. The common law rule would thus restrict rather than amplify the rights of the petitioner.
(7) There is no force in this petition which is therefore, dismissed. I would, however, make no order as to costs.
(8) Petition dismissed.