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A.R. Singh Vs. Principal Secretary to the Govt. of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR876
AppellantA.R. Singh
RespondentPrincipal Secretary to the Govt. of Gujarat and anr.
Cases ReferredRam Nagina Singh and Ors. v. S.V. Sohni and Ors.
Excerpt:
- - 1. by this petition, under article 226 of the constitution of india, the petitioner, who was sub-inspector of police at mahamdabad town in kheda district at all the relevant times, challenges the order of his dismissal passed by the governor of gujarat purporting to act in exercise of the powers under clause (c) of the second proviso to article 311(2) of the constitution of india, without holding any inquiry as prescribed under the relevant act and the rules since the governor was satisfied that in the interest of security of the state of gujarat it was not expedient to hold any inquiry as enjoined by article 311(2) of the constitution. 2. broadly stated, the main ground of attack against the impugned order is that the governor has no absolute and unfettered power to impose an.....b.k. mehta, j.1. by this petition, under article 226 of the constitution of india, the petitioner, who was sub-inspector of police at mahamdabad town in kheda district at all the relevant times, challenges the order of his dismissal passed by the governor of gujarat purporting to act in exercise of the powers under clause (c) of the second proviso to article 311(2) of the constitution of india, without holding any inquiry as prescribed under the relevant act and the rules since the governor was satisfied that in the interest of security of the state of gujarat it was not expedient to hold any inquiry as enjoined by article 311(2) of the constitution. the impugned order was signed by the principal secretary in the home department to the government of gujarat. the petitioner's main.....
Judgment:

B.K. Mehta, J.

1. By this petition, under Article 226 of the Constitution of India, the petitioner, who was Sub-Inspector of Police at Mahamdabad town in Kheda district at all the relevant times, challenges the order of his dismissal passed by the Governor of Gujarat purporting to act in exercise of the powers under Clause (c) of the Second Proviso to Article 311(2) of the Constitution of India, without holding any inquiry as prescribed under the relevant Act and the Rules since the Governor was satisfied that in the interest of security of the State of Gujarat it was not expedient to hold any inquiry as enjoined by Article 311(2) of the Constitution. The impugned order was signed by the Principal Secretary in the Home Department to the Government of Gujarat. The petitioner's main grievance is that the impugned order lacks in bona fides inasmuch as it has been made on extraneous consideration for victimising the petitioner who was the leader of the Police Karmachari Mandal which and presented a charter of demands to improve the conditions of service of the members of the Police Force in class III services for the enforcement of which an agitation was launched in April and May 1979. The said agitation ended happily as a result of compromise arrived at between the State Government and the agitators which was reduced into writing and subscribed by the then Home Minister on behalf of the State and the petitioner on behalf of the Union wherein it was, inter alia, agreed that no employee would be victimised for participating in the movement for enforcement of their demands and the proceedings already launched against any of them would be withdrawn. However, to his surprise, on December 17, 1979 in clear violation of this agreement and particularly Article 311(2) of the Constitution and the relevant Act and the Rules in that behalf, the impugned order was made by the Governor in purported exercise of his powers under Clause (c) of second proviso to Article 311(2) of the Constitution of India. The petitioner has, therefore, moved this Court for appropriate writs, orders and directions to quash and set aside the said order.

2. Broadly stated, the main ground of attack against the impugned order is that the Governor has no absolute and unfettered power to impose an extreme penalty of dismissal since an order under Article 311(2) proviso (c) is an exercise of administrative power by the Executive and consequently, therefore, in so far as it was made in violation of Article 311(2) and the relevant provisions in the Bombay Police Act and the Bombay Police (Punishment and Appeal) Rules, 1956, the impugned order is bad in law and void.

3. The State of Gujarat, which is respondent No. 2, has opposed this petition by filing affidavit-in reply of R.V. Chandramauli, Secretary in the Home Department to the Government of Gujarat contending inter alia that the petition was incompetent since the petitioner was at all material time holding the post of Sub-Inspector during the pleasure of the Governor of Gujarat who was satisfied on consideration of relevant facts and circumstances that it was not expedient in the interest of the security of the State of Gujarat to hold an inquiry as envisaged under Article 311(2) of the Constitution, and that the petitioner was unfit to be retained in the civil services of the State Government and, therefore, he should be dismissed from the service. According to the State Government the Court cannot substitute its satisfaction in place and stead of the satisfaction of the Governor whose order made in exercise of the power under Clause (c) of the second proviso to Article 311(2) of the Constitution is not justiciable since otherwise the Governor would be deprived of the powers and confidence which the Constitution has reposed in him.

4. At the time of hearing of this petition, the learned Advocate for the petitioner raised the following five contentions:

(1) If the impugned order is made by the Governor in his absolute discretion, it is bad in law and void since he has no absolute discretion except in specified cases as held in Samsher Singh v. State of Punjab AIR 1974 SC 2192 and the power under Clause (c) of second proviso to Article 311(2) is not one of such specified absolute discretionary powers.

(2) If the impugned order is executive action of the Government, which, on principle and authority undoubtedly is, the said order is bad in law and void being admittedly contrary to Article 311(2) of the Constitution and Section 26 of the Bombay Police Act read with Rule 4 of the Bombay Police (Punishment and Appeal) Rules, 1956.

(3) The impugned order is bad in law and void since admittedly the Governor has acted without advice of the cabinet of the Ministers as required under Article 163 of the Constitution of India.

(4) In any case, since no material is disclosed in the affidavit in reply which would justify the decision of the Governor to dispense with the inquiry in exercise of the power under Clause (c) of second proviso to Article 311(2) of the Constitution, the impugned order is bad in law and void since it is not a speaking order.

(5) No order of dismissal can be passed against a Government servant who is said to have been engaged in activities subversive to national security without being given an opportunity to show cause against the proposed action having regard to Rules 3 and 4 of the Gujarat Civil Services (Safeguarding National Security) Rules, 1962 which empower the Governor after show cause notice to retire the Government servant who, in his opinion, is engaged in such subversive activities prejudicial to national security.

5. I will deal with first three contentions simultaneously since they are interconnected. The legal position in respect of the nature of the power conferred on the Governor under proviso (c) to Article 311(2) of the Constitution is now no more open to debate in view of the decision of the Supreme Court in Samsher Singh v. State of Punjab A.I.R. 1974 SC 2192 where two orders-one by the Governor of Punjab and another by the Governor of Punjab and Haryana-terminating the services of two judicial officers under the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and the Punjab Civil Services (Judicial Branch) Rules, 1951, respectively, were challenged by the aggrieved officers relying on the earlier decision of the Supreme Court in Sardarilal v. Union of India AIR 1971 SC 1547 contending that under Article 234 of the Constitution, the appointment as well as termination of services of the subordinate Judges is to be made by the Governor personally. Two appeals preferred by the aggrieved officers against the judgment and order of Punjab and Hariyana High Court were placed before a larger Bench to consider whether the decision in Sardarilal's case (supra) correctly laid down the law that where the President or the Governor is to be satisfied, it is his personal satisfaction. The majority view of five Judges of the seven Judges' Larger Bench was pronounced through Ray C.J. The majority Court inter alia considered the entire constitutional position pertaining to the constitutional functions and powers of Governor so nomine as well as those in the discretion of the Governor. It was contended before the Supreme Court that the power of the Governor under Article 234 of the Constitution is to be exercised by him personally for the reasons amongst others that they are not executive powers of the State within the meaning of Article 154 read with Article 162 of the Constitution and, therefore, the Governor can exercise these powers and functions without the aid and advice of his Council of Ministers when he is so specifically required by or under the Constitution to act in his discretion and, therefore, he is required to exercise his constitutional functions conferred on him so nomine as the Governor. On the other hand, on behalf of the State Government, it was contended that the President as well as the Governor are respectively constitutional heads of the Union and the State and they exercise all powers and functions conferred on them by or under the Constitution of India on the aid and advice of the Council of Ministers. The majority Court considered the relevant articles of the Constitution pertaining to the powers and functions of President as well as the Governor and while rejecting the contentions urged on behalf of the appellants Ruled as under:

26. The reason is that neither the President nor the Governor exercises the executive functions individually or personally. Executive action taken in the name of the President is the action of the Union. Executive action taken in the name of the Governor is the executive action of the State.. .. .. .. .. .. .. .. ..28. Under the Cabinet system of Government as embodied in our Constitution, the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

29. ..All powers and functions of the President except his legislative powers as for example in Article 123, viz. ordinance making power and all powers and functions of the Governor except his legislative power as for example in Article 213 being ordinance making powers are executive powers of the Union vested in the President under Article 53(1) in one case and are executive powers of the State vested in the Governor under Article 154(1) in the other case....

30. ..Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any powers or function by the President or the Governor, as the case may be, as for example in Articles 123, 213 311(2). Proviso (c) 317, 350, 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government....

33. This Court has consistently taken the view that the powers of the President and the powers of the Governor are similar to the powers of the Crown under the British parliamentary system. See Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225 at pp. 236-237 : AIR 1955 SC 549 at p. 556; A. Sanjeevi Naidu v. Staff of Madras (1978) 3 SCR 505 at. p. 511 : AIR 1970 SC 1102 at pp. 1106 and 1107; U.N. Rao v. Indira Gandhi (1971) Supp SCR 46 : AIR 1971 SC 1002....

44. ..Therefore, whether the functions exercised by the President are functions of the Union or the functions of the President they have equally to be exercised with the aid and advice of the Council of Ministers, and the same is true of the function of the Governor except those which he has to exercise in his discretion.

54. ..The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in Articles to which reference has been made To illustrate, Article 238(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such administrator independently of his Council of Ministers. The other Articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371-A(1)(b) 371-A (1)(d) and 371A(2)(b) and 371-A(2)(f). The discretion conferred on the Governor means that as the constitutional or formal head of the State the power is vested in him. In this connection, reference may be made to Article 356 which states that the Governor can send a report to the President that a situation has arisen in which the Government of the State cannot be carried so in accordance with the provisions of this Constitution....

55. ..In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers. 57. For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vest in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally....

The majority Court considered whether the principles enunciated by the Supreme Court in Sardarilal's case (supra) were correct. The five Judge's Bench has held in Sardarilal's case that the power of the President under proviso (c) to Article 311(2) of the Constitution is to be exercised by the President personally and that it cannot be delegated to any other authority. The majority Court in Shamshersingh's case did not approve of this position of law and ruled as under :

47. The decision in Sardarilal's case (1971) 3 SCR 461 : AIR 1971 SC 1547 that the President has to be satisfied personally in exercise of executive power or function and that the functions of the President cannot be delegated is with respect not the correct statement of law and is against the established and uniform view of this Court as embodied in several decisions to which reference has already been I made. These decision are from the year 1955 upto the year 1971. The decisions are (1955) 2 SCR 225 : AIR 1955 SC 549 : (1970) 3 SCR 505 : AIR 1970 SC 1102) and (1971) Supp. SCR 46 : AIR 1971 SC 1082. These decisions were neither referred to nor considered in Sardarilal's case (supra)

The majority Court, in this connection, referred to the two earlier decisiors of the Supreme Court, namely, Moti Ram Daka v. General Manager N.E.E. Rly. Malegaon AIR 1964 SC 600 and State of U.P. v. Babu Rum Upadhyaya's case AIR 1961 SC 751. In Babu Ram Upadhya's case (supra) the Supreme Court held that 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. In Babu Ram Upadhya's case (supra) it was further held that the Parliament or Legislature of the State cannot make a law abrogating or modifying, this tenure of a public servant who is at the pleasure of the Crown so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310 as qualified by Article 311. The Majority Court in Moti Ram Deka 's case (supra considered Babu Ram Upadhya 's case (supra) and held that a law can be framed prescribing procedure by which an authority by whom the said pleasure can be exercised, and the pleasure of the President or the Governor to dismiss can, therefore, no( only be delegated but also subject to Article 311. The majority Court' in Samsher Singh's case (supra), therefore, ruled as under:

32 The true position as laid down in Moti Ram Deka's case (supra) is that Article 310 and 311 must no doubt be read together but once the true scope and effect of Article 311 is determined the scope of Article 310(1) must be limited in the sense that in regard to cases falling under Article 311(2) the pleasure mentioned in Article 311(2) must be exercised in accordance with the requirements of Article 311, 53. The majority view in Babu Ram Upadhya's case (supra) is no longer good law after the decision in Moti Ram Deka's case (Supra).

6. In view of this settled legal position, it cannot, therefore, be gainsaid that the power conferred under Clause (c) of proviso to Article 311(2) of the Constitution to the President or the Governor is not one which is to be exercised by the President or the Governor, as the case may be, personally in his absolute discretion but is like any other ordinary executive actions of the Union Government or the State Government is to be exercised on the aid and advice of the Council of Ministers In other words, it is an executive act of the Union Government or the State Government. By necessary implication, therefore, it has got to be exercised subject to the limitations that may be prescribed by the law of Parliament or Legislature of the State. It is no doubt true that what has been dispensed with is the holding of the inquiry if the President or the Governor, as the case may be is satisfied that it is not expedient to bold such inquiry in the interest of the security of the State. The dispensation of obligation to hold inquiry would not absolve the Union Government or the State Government, as the case may be, from complying with the other formalities prescribed by the law of the Parliament or the Legislature of the State. The scope of inquiry, which may be dispensed with under Clause (c) of the proviso is one that is envisaged under Article 311(2). Sub-article (2) prescribes that no person who is a member of the Civil services either of the Union or of the State shall be dismissed or removed or reduced in rank without an inquiry in which he has been informed of the charge against him and given a reasonable opportunity of being heard in respect of those charges. The first proviso to Article 311(2) as substituted with effect from 3rd January 1977 by the 42nd Amendment dispenses with a second opportunity of making representation on the penalty proposed to be imposed on a delinquent Government servant held guilty of any charge levelled against him. In other words, the inquiry as envisaged in Article 311(2) and or that may be prescribed under the relevant Discipline and Appeal Rules of the Union or the State Government is not required to be gone through if the President or the Governor, as the case may be, is satisfied about its inexpediency in the interest of the security of the State. However, this is not tantamount to saying that other formalities, if any, which are required to be fulfilled under the Act of Parliament or Legislature before imposing the penalty are dispensed with.

7. I am fortified in my view by the decision of the Supreme Court in Divisional Personnel Officer Southern Railway and Anr. v. T.R. Challappan AIR 1975 SC 2215. The facts involved in the appeal before the Supreme Court were that the respondent who was a railway servant in Southern Railways was convicted under Section 51(A) of the Kerala Police Act for his disorderly drunken and indecent behaviour on a railway station platform. He was, however, given benefit under Section 3 of the Probation of Offenders Act and was released. The Disciplinary Authority of the Southern Railways by its order of January 3, 1973 removed him from service in view of the misconduct which led to his conviction. The order of removal proceeded on the basis of the conviction of the accused in the criminal case without giving the delinquent servant any opportunity of hearing. The Kerala High Court allowed the writ petition of the delinquent servant and quashed the order of removal. In two companion appeals before the Supreme Court, which were preferred by the Union of India against the judgment and order of Rajasthan High Court, the facts were similar. Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968, which governed the cases of the delinquent railway servant was, at the relevant time, in term similar to proviso (a) to Article 311(2) of the Constitution and conferred power on the appointing authority to pass an order of dismissal against an employee found guilty of a criminal offence without giving any further notice to him. Fazal Ali, J. speaking on behalf of the Court, considered what is the scops of Article 311(2) and ruled that it contemplated three stages of a departmental inquiry before imposition of penalty, namely (i) framing of charge and holding of inquiry in presence of the employee: (ii) tentative conclusion regarding the proposed penalty on the basis of the report of guilt, and (iii) actual imposition of penalty. The Supreme Court thereafter addressed to proviso (a) and found that it completely dispensed with all the three stages of departmental inquiry and when the employee is convicted of a criminal charge since the employee concerned had a full and complete opportunity to contest the allegations against him in the criminal trial and the conviction should be considered as a sufficient proof of his misconduct. What is the nature of the power under proviso (c) to Article 311(2) is thereafter considered. The three Judges Bench ruled as under:

9. ...It appears to us that proviso (a) to Article 311(2) is merely an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment I am employee is convicted. This matter is left completely to the discretion of the disciplinary authority and the only reservation made is that departmental inquiry contemplated by this provision as also by the Departmental Rules is dispensed with. In these circumstances, therefore, we think that Rule 14(i) of the Rules of 1968 only incorporates the principles enshrined in proviso (a) to Article 311(2) of the Constitution....

The Supreme Court then proceeded to consider the extent of Rule 14 which enjoined the disciplinary authority to consider the circumstances of the case and make such orders thereon as it deems fit. The view of the Rajasthan High Court which was in challenge before the Supreme Court that the word 'considered' in the rule is of wide amplitude requiring the Disciplinary Authority to make the detailed determination of the matter did not find favour with the Supreme Court since the rule only required the authority 'to consider' and not 'to determine' all the relevant circumstances. On behalf of the Railways which were appellants before the Supreme Court, it was urged that it was not necessary for the Disciplinary Authority to hear the accused and consider the matter where no provision like Rule 14 exists, since the cases where proviso (a) to Article 311(2) applies, a departmental inquiry is completely dispensed with and the Disciplinary Authority can, on the doctrine of pleasure, terminate the services of the delinquent employee. The Court refrained from expressing any opinion on this aspect of the matter, because the cases of all the employees clearly fell within Rule 14 of the Rules of 1968 and, therefore, the Court ruled as under:

21. ...The statutory provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered. This is in keeping with the sense of justice and fair-play. The disciplinary authority has the undoubted power after hearing the delinquent employee and considering the circumstances of the case to inflict, any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude and, therefore, it is not desirable or conducive in the interests of administration to retain such a person in service.

8. In view of this settled level' position, the nature of the power under Clause (c) to the second proviso to Article 311(2) is an executive power of the State and it enables the State to dispense with the holding of inquiry if the Governor or the President, as the case may be, is satisfied about the inexpediency of holding inquiry in the interest of the security of the State. None-the-less, it is an enabling power and as held by the Supreme Court in I.R. Challappan's case (supra), if there is any provision in the Service Rules like the one prescribed in Rule 14 of the Railway Servants (Discipline & Appeal) Rules, 1968 which enjoins a Disciplinary Authority before imposing penalty to hear the delinquent-servant, the State cannot, merely because it can impose penalty without holding an inquiry, dispense with that requirement prescribed under the law. It also cannot be urged successfully that the disciplinary action purported to be taken in exercise of the power conferred under Clause (c) to second proviso to Article 311(2) of the Constitution is not justiciable because it is exercised on the satisfaction of the President or the Governor for the obvious reason that it is for all intents and purposes an executive action of the State Government.

9. My attention is invited to two decisions where similar view has been taken by the High Court of Calcutta as well as High Court of Bombay. A full Bench of the Calcutta High Court in Mrinal Kanti Das Burman and Ors. v. State of W. Bengal and Ors. 1977 Lab. I.C. 628 held that an order under Article 311(2) proviso (c) is an exercise of administrative power of the executive and such exercise is subject to judicial review in the same manner as their discretionary orders are scrutinised by Courts. The Full Bench further held that Article 311(2) proviso (c) does not require persona) satisfaction of the President or the Governor but it is a satisfaction of the President or the Governor in the constitutional sense under the Cabinet system of the Government. The Full Bench further held that in course of exercise of judicial control over such acts, the Court cannot substitute its view for those of the executive as to whether or not it would be expedient in the interest of the security of the State to dispense with the erquiry under Article 311(2) since the satisfaction contemplated under the said proviso is a subjective satisfaction. None-the-less, the Court is entitled to inquire whether or not the conditions precedent to the formation of such satisfaction have any factual basis, and whether the executive acted in good faith.

10. Similarly a Division Bench of the Bombay High Court in Mahomed Tayum v. Union of India and Ors. 1977-2 Lab. I.C. 1590 was concerned with order of removal passed against a railway servant with out holding a formal inquiry in purported exercise of the power under Article 311(2) proviso (b) of the Constitution since the Disciplinary Authority was of the view that it was not reasonably practicable to hold it in the manner contemplated under the relevant Discipline and Appeal Rules. The Division Bench ruled that the reasonableness of the grounds justifying impracticability has to be tested by balancing it against the constitutional safeguards secured for the public servants, and any attempt to whittle down such safeguards will not be justified unless the circums tances enumerated in the proviso to Article 311(2) and incorporated under Rule 14(ii) of the Discipline and Appeal Rules are strictly found to exist, and though the decision about the impracticability of inquiry is left to the dismissing Authority it is always open to the judicial review of the Courts. The Division Bench further held that dispensation with inquiry merely eliminates show cause notice and opportunity of hearing but not the investigation and adjudication which are essential parts of the adjudication process.

11. A Division Bench of this Court consisting of P.D. Desai land C.V. Rana J. (as he then was) in Jayantilal L. Patel and Anr. v. Mahinder Singh Sr. Divisional Commercial Superintendent W. Rly Baroda and Ors. 1977 (1) S.L.R. 10 was concerned with an order of dismissal of railway servant without holding an inquiry in purported exercise of the power under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968. The Division Bench of this Court, speaking through P.D. Desai J., held that the satisfaction which has to be reached under Clause (b) to the proviso to Article 311(2) and that to be reached under Rule 14(ii) of the Discipline and Appeal Rules, 1968 is substantially different and unless the Disciplinary Authority is satisfied that it is not reasonably practicable to hold any inquiry in the manner prescribed under the Rules and also it is not reasonably practicable to hold any inquiry as envisaged under Article 311(2), a delinquent servant could not be visited with the major penalty of dismissal.

12. I am, however, not concerned with a situation where one comes across the corresponding provision like the one provided under second proviso to Article 311(2) in the relevant service Rules since it is a common ground that there is no corresponding provision in the Discipline and Appeal Rules governing the petitioner which empowers the Disciplinary Authority to dispense with the Rules on the ground of impracticability of holding any inquiry. The present case before me stands on the same footing as the one which arose before the Supreme Court in T.R. Challappana 's case (supra) where there was some what similar provisions as prescribed in the proviso to Section 26 of the Bombay Police Act, 1951.

13. In view of this constitutional provision, it is to be judged whether the impugned order was legal and valid. The material part of the impugned order reads as under:

AND WHEREAS the Governor of Gujarat, after considering all the facts, relevant materials and the circumstances of your case is satisfied under Clause (c) of the second proviso to Clause (2) of Article 311 of the Constitution that in the interest of the security of the State of Gujarat it is not expedient to hold in relation to you such inquiry as is referred to in Clause (2) of the said Article 311 of the Constitution.

AND WHEREAS the Governor, after considering all the facts, relevant materials and the circumstances of your case is satisfied that you are unfit to be retained in the civil service of the State and ought to be dismissed from the service NOW THEREFORE, the Governor of Gujarat is pleased to dismiss you from service with immediate effect.

By order and in the name of the

Governor or of Gujarat

Sd/-

(K. Sivaraj)

Principal Secretary to the

Government of Gujarat, Home Department.

14. In the affidavit-in-reply of R.V. Chandramauli, Secretary to the Government of Gujarat, Home Department filed on behalf of the State Government, it has been stated as under after referring to the impugned order having been made by the Governor of Gujarat in purported exercise of the power under Clause (c) to second proviso of Article 311 of the Constitution of India:

3. ..I submit that as per the settled legal position, exercise of the said power is not a justiciable issue. I also respectfully submit that what the Constitution requires is the satisfaction of the Governor and, therefore, any inquiry into the said satisfaction would mean substituting satisfaction of the Hon'ble Court in place and stead of the satisfaction of the Governor. I further respectfully submit that if the Hon'ble Court were to demand proof of such satisfaction and the evidence of material on which the satisfaction was reached, the Hon'ble Court would be virtually depriving the Governor of the powers and the confidence which the Constitution has reposed in the Governor. In view of the above, I submit that there is a constitutional bar to the maintainability of the present petition.

7. I submit that as per the settled legal position, in India every person, who is a member of a public service of a State, holds office during the pleasure of the Governor. This tenure is subject to only these limitations or qualifications which are expressly mentioned in the Constitution itself. In view of the above, it has been judicially held that any limitations on the power of Governor should be founded on express provisions of the Constitution, if any, and not on the Rules or Statutes enacted by the Legislatures. The Bombay Police Act, 1951 was enacted by the then State of Bombay and the same is in force in the State of Gujarat also; but as submitted hereinabove, the provisions of the said Act, do not impinge upon the powers of Governor conferred by Article 310 read with Article 311 of the Constitution of India. Similarly, the Bombay Police (Punishments and Appeals) Rules, 1956 which have been framed in exercise on the powers conferred by Sub-clause (c) of Sub-section (2) of Section 25 read with Section 5(8) of the Bombay Police Act, 1951 do not and cannot be interpreted so as to permit an encroachment on the powers given to the Governor by Article 310 read with Article 311 of the Constitution of India...

10. ...I further clarify that the order in question has not been passed by respondent No. 1 as alleged by the petitioner in the petition. It is the order passed by Hon'ble the Governor and has been signed by the respondent No. 1 by order and in the name of the Governor of Gujarat.

Respondent No. 1, who is the Principal Secretary to the Government of Gujarat in Home Department and has signed the impugned order has not filed any affidavit-in-reply. The only affidavit-in-reply filed on behalf of the State Government is that of R.V. Chandramauli, Secretary in Home Department. It is now, therefore, more or less an admitted position that the impugned order has been made by the Governor personally and the State of Gujarat which is respondent No. 2, does not appear to have made any order. The legal position ascerted in the affidavit-in-reply filed on behalf of the State Government seems to rest on Sardarilal's case (supra) where the five Judges' Bench ruled that the scope and width of the power exercisable under Clause (c) to second proviso to Article 311(2) is that while Article 310 provides far the tenure at the pleasure of the President or the Governor, Article 309 which enable the Legislature or the executive, as the case may be, to make any law or rule in regard inter alia, to conditions of service, cannot impinge upon the overriding power recognized under Article 310 read with Article 311 of the Constitution. It was further held in Sardarilal's case (supra) that under Clause (c) of the second proviso to Article 311(2), it is the President or the Governor, as the case may be, who has to be satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry, and that the said function cannot be delegated by the President to anyone else in the case of civil servant of the Union. In other words, in effect, it has been held that in the opinion of the Constitution Makers, a matter in which the security of the State has to be considered should receive the personal attention of the President or the head of the State and he should be himself satisfied an inquiry under the substantive part of Clause (2) of Article 311 was not expedient for reasons stated in Clause (c) of the proviso.

15. The legal position asserted on behalf of the State in this affidavit in reply does not hold good now in view of the decision of the Supreme Court in Samsher Singh's case (supra). The obvious result is that the exercise of power under Clause (c) of the second proviso to Article 311(2) is not discretionary power of the Governor or the President, as the case may be, but is to be exercised in the same manner in which any other executive action of the State Government can be performed and a fortiori is subject to same conditions as may be prescribed in the statutory rules or the Act laying down the conditions of service including the disciplinary and appeal procedure. The learned Government Pleader, appearing on behalf of the State, urged that the Court has no jurisdiction, power or authority to inquire into whether any advice or aid was tendered by the Minister to the Governor before the impugned order was made. In support of his contention he relied on the decision of Patna High Court in Ram Nagina Singh and Ors. v. S.V. Sohni and Ors. AIR 1976 Patna 36 where a Division Bench of the Court was concerned with the validity of appointment of Lokayukta under the Bihar Lokayukta Act, 1974. The Division Bench negatived the contention that the power invested in the Governor to appoint Lokayukta was one which was to be exercised by the Governor personally since the notification in the relevant Act pointed otherwise. The Division Bench, however, rejected the contention that since admittedly there was no advice by the Minister, the Act of the Governor in appointing Lokayukta was ultra vires his powers. The Division Bench held that Article 163(3) of the Constitution prevents the Court from inquiry whether any advice was given by the Council of Ministers to the Governor in exercise of his functions and such an inquiry is not warranted even when admittedly no advice has been given since there is no reasonable basis for making the differenciation of the two situations where advice is given and where advice is not given. On the basis of this ruling it has been urged vehemently that this Court also cannot decide the Act to be ultra vires because admittedly no advice was given by the Council of Ministers since that would be tentamount to indirectly inquiring into and deniding whether or not any advice was given. A fact can be established by evidence or admission and, therefore, even if there is an admission, the Court cannot inquire into the fact, whether the advice was given or not. This is too subtle a distinction which the learned Government Pleader, appearing on behalf of the State, advances by relying on the decision of Patna High Court in Ram Nagina Singh's case (supra).

16. Assuming that the learned Government Pleader is correct in this contention, the question before the Court is not to examine whether any advice, or if so what advice, was given to the Governor in respect of the impugned order. The pertinent question is, whether it is an act which the Governor can perform personally or it is an executive action of the State Government and what are the limitations on such action. If the power under Clause (c) of the second proviso to Article 311(2) is an executive power of the State Government to be exercised by the Governor on the aid and advice of the Council of Ministers, it is subject to all limitations that may be prescribed under the Constitution or under the Act or the Rules, save and except to the extent to which the proviso to Article 311(2) removes the embargo of the limitation prescribed either in the Constitution or in the Statute for the protection of civil servants.

17. In that view of the matter, therefore, the impugned order being an executive action of the Government, it cannot be successfully claimed by the State that the limitations prescribed if any in the Bombay Police Act, 1951 or the Bombay Police (Punishment and Appeal) Rules, 1956 circumscribing this power which is enabling in its nature can be overlooked. Though the obligation to hold inquiry as envisaged in Article 311(2) of the Constitution is dispensed with in cases referred to in Clauses (a), (b) and (c) of the 2nd proviso, if there are further limitations either in the Act or in the Rules which oblige the State Government to perform the Act in a particular manner, I do not think that the State Government can circumvent the said limitations. It is, therefore, to be examined, whether there is any limitation in the Act or in the Rules besides the prescribed inquiry on the disciplinary power of the State Government. Section 26 of the Bombay Police Act, 1951 is relevant on the point. It reads as under:

26. When any officer passes an order for finding, suspending, reducing, removing or dismissing a Police Officer, he shall record such order or cause the same to be recorded together with the reasons therefore and a note of inquiry made, in writing, under his signature.

Provided that no order for reducing removing or dismissing a Police Officer shall be passed without giving him a reasonable opportunity of showing cause against the action proposed to be taken against him except in cases referred to in the proviso (a) to Clause (2) of Article 311 of the Constitution.

(Emphasis supplied)

The limitation prescribed under Section 26 of the Bombay Police Act on a disciplinary power of the State Government is two-fold. In the main enactment of the section, the Disciplinary Authority has to record the order with the reasons therefor and a note of the inquiry made in writing under his signature. In the proviso, the Disciplinary Authority is obliged to give a reasonable opportunity to the delinquent officer of showing cause against the proposed action save and except only in cases referred to in Clause (a) of the second proviso to Article 311(3). It should be recalled that the obligation contained in the proviso is one similar to be found in Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 considered and explained by the Supreme Court, in T.R. Challappana's case (supra). Neither the main enactment of Section 26 of the Bombay Police Act, 1951 nor the proviso obliges a detailed inquiry as envisaged by Article 311(2) of the Constitution which the proviso to the said Article dispenses with in cases prescribed under Clauses (a), (b) and (c) thereof. The obligation to record reasons in the order for the proposed action and a reasonable opportunity to show cause against the action proposed to be taken are not the parts and parcels of the inquiry envisaged under Article 311(2) of the Constitution. It should be further emphasised, and, as a matter of fact, the position was fairly conceded by the learned Government Pleader that the provisions made in Clauses (a), (b) and (c) of the second proviso to Article 311(2) are merely enabling powers and, therefore, they can be circumscribed by the law of Legislature or Parliament, as the case may be, and those limitations will operate on the State powers, save and except to the extent to which the obligation of holding inquiry as envisaged in Article 311(2) is dispensed with by the proviso. The learned Government Pleader, however, urged that the obligation to follow the procedure before imposing a penalty as laid down in the Act or the Rules flows from the provisions of Article 311 of the Constitution and they lay down merely a procedure for matters covered by Article 311 of the Constitution, and if an order under Clause (c) of the Second Proviso to Article 311(2) dispenses with the opportunity to show cause against the action proposed to be taken, it must be construed as intended to refer not only to the action including inquiry into the truth of the charge against the delinquent servant but also the proposed penalty to be imposed after such inquiry. The width and scope of the inquiry envisaged under Article 311(2) has been explained in T.R. Challappana's case (supra) as comprising three stages of departmental inquiry before imposition of penalty, namely (i) framing of charge and holding of inquiry in presence of the employee; (ii) tentative conclusion regarding the proposed penalty on the basis of the report of guilt, and (iii) actual imposition of penalty. It is no doubt true that a Government servant was entitled to the constitutional right of hearing at two stages; first, at the stage of inquiry of the charge; and, second, at the stage of imposition of penalty. The second right of a Government servant is now taken away by the 42nd Amendment to the Constitution, and, therefore, it cannot be claimed by a Government servant as his constitutional right to have hearing at the stage of imposition of penalty. Notwithstanding with the dispensation with this second opportunity if an act of a Legislature enjoins the Disciplinary Authority to give an opportunity to a police officer before any major penalty is imposed against him of showing cause against the proposed action and further enjoins the said Authority to make a reasoned order, it cannot be urged successfully that the Disciplinary authorities are under no obligation to comply with those formalities prescribed by the Act. The proviso to Section 26 of the Bombay Police Act incorporates a rule of natural justice that before taking final action in the matter, the delinquent Government servant should be heard and a reasoned order should be made in that behalf so that the concerned Government servant cannot only point out circumstances for satisfying the Disciplinary authority that extreme penalty is not warranted and in case is circumstances do not impress the Disciplinary Authority to take the matter in appeal assailing the reasoning of the Disciplinary Authority on the basis of which the penalty is imposed. These are the minimum requirements of the principles of natural justice and fair play and these requirements cannot be equated with the inquiry envisaged either under Article 311(2) or prescribed under the service rules and, therefore, it cannot be contended that since such an inquiry is dispensed, with the authorities are under no obligation to hear the delinquent Government servant and to make a speaking order in the matter of penalty. I am of the opinion that it is not open to contend as the learned Government Pleader did since the Supreme Court in T.R. Challappana's case (supra) ruled that the power envisaged under Clause (a) of the second proviso to Article 311(2) is merely an enabling provision and the penalty order does not follow necessarily upon the contingency referred to in Clause (a), and the matter is left to the discretion of the Disciplinary Authority to decide as to whether the delinquent servant is guilty of and what penalty should be imposed and in view of Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 the Disciplinary Authority must give an opportunity to a delinquent servant to state the circumstances against the proposed action of penalty. Assuming that the learned Government Pleader is right in his submission, even then the dispensation of inquiry will only include the dispensation of an opportunity to state the circumstances against the penalty which is described under proviso to Section 26. It, however, cannot be urged successfully that the main enactment of Section 26 which enjoins the Disciplinary Authority to record reasons before making the order of penalty is also dispensed with. The impugned order, is therefore, bad in law and void since it has been admittedly made without complying with the obligations prescribed in Section 26 of the Bombay Police Act. In that view of the matter, therefore, the third contention need not be gone into at all.

18. As regards the 4th contention, I am of the opinion that no material whatsoever has been placed on the record before this Court to indicate much less justify that there was any material before the Governor warranting exercise of the power under Clause (c) of the second proviso to Article 311(2) of the Constitution. It is no doubt the decision of the Governor arrived at on the aid and advice of the Council of Ministers whether or not the dispensation is justified and the Court cannot substitute its view for those of the executive as to whether it would be expedient in the interest of the security of the State to dispense with the inquiry. The Court is, however, entitled to inquire whether the conditions precedent to the formation of the satisfaction have any factual basis or that the executive had acted in good faith or on relevant materials upon which the power has been exercised (vide: Mrinal Kanti Das Burmcm's case - supra), Since no material has been placed before this Court to indicate that there was any material placed before the Governor pertaining to the security of the State; either there is anything to show that in fact there were materials before the Governor indicating that the petitioner undermined the security of the State, and that in the larger interest of the security of the State the Governor must exercise the power. The petitioner has, in his petition averred that the order does not show as to how the security of the State would be affected by holding departmental inquiry against an officer of subordinate rank like Police Sub-Inspector and that the relevant material on the basis of which such power can be exercised was conspicuous by its absence and no reasonable person could come to such a decision on mere apprehension, if there is any. The petitioner also reserved his right to amend the petition in case the respondent-State produced any material or disclosed any ground justifying the impugned order. These averments have been made in paragraph 10, 11 and 12 of the petition.

19. In the affidavit-in-reply of Shri R.V. Chandramaali, the aforesaid averments have been sought to be repelled by bare denial made in paragraph 15 thereof. No material has been disclosed much less any relevant material to justify the impugned order though the State Government had an opportunity to produce the same. A significant fact cannot be overlooked since it has been specifically pleaded that the impugned order has been made to victimise the petitioner who was the leader of the Police Karmachari Mandal and as such led the police agitation launched in April-May, 1979. As a matter of fact, he was one of the signatories on the agreement arrived at between the State Government and the said Police Karmachari Mandal which has been signed by the then Home Minister on behalf of the State and one Shri Palkhiwala who was advising the Union at that time. It was, inter alia, agreed, as recorded in Clause (b) of the said agreement that no member of the Police staff who might have taken part in the agitation would be victimised and proceedings initiated against any of them would be withdrawn. The petitioner has averred in paragraph 7 of his petition that the impugned order was mala fide in as much as it was made with a view to victimise the petitioner with ulterior motive of crushing down the union activities and to strike panic amongst the members of the Union and, has, therefore, been made an extraneous considerations then those stated apparently in the impugned order. In reply to these averments, nothing substantial has been stated in the affidavit-in-reply and it is really surprising that inspite of the settled legal position, the State Government has not sought to meet with such serious allegations in the affidavit-in-reply of the Home Secretary Shri Chandramauli. It gives an unhappy impression that the State Government has rested satisfied, I am afraid, with the bare denials of much serious allegations against the State Government under some misapprehensions as to the correct position of law. The result, therefore, is that the 4th contention of the petitioner also must be upheld and the impugned order should also on that count be held to be bad in law and void.

20. It is also necessary to refer shortly to the 5th contention urged on behalf of the petitioner. The Governor of Gujarat has in exercise of the powers conferred by proviso to Article 309 and proviso to Clause (3) of Article 320 of the Constitution and in supersession of the earlier corresponding rules, enacted rules known as the Gujarat Civil Services (Safeguarding National Security) Rules, 1962, These rules are applicable to all persons serving in connection with the affairs of the State of Gujarat. Rule 3 which prescribes the liability of a Government Servant to compulsory retirement reads as under:

3. Liability of Government Servants to Compulsory retirement - Where the Governor is of opinion that a Government servant is engaged in or is reasonably suspected to be engaged in subversive, activities or is associated with others in subversive activities and that his retention in the service is on that account prejudicial to national security, the Governor may make an order compulsorily retiring such Government servant from service.

Rule 4 prescribes a procedure before any order can be made under Rule 3. Clause (a) of Rule 4 enjoins that the Competent Authority, which according to the definition of the term is the head of the department in case of Government servants appointed by him and the Governor in case of other Government Servants, shall inform in writing the concerned Government servant the action proposed to be taken in regard to him and give an opportunity to make written representation against that action to the Governor within specified period. Clause (b) enjoins the Governor to take such representation into consideration. Rule 5 empowers the Government to suspend such delinquent Government Servant, or, in the alternative allow him to proceed on leave before taking action. Rule 6 provides that nothing contained in the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 would apply to the aforesaid action. Rule 7 provides that it would not be necessary for the Government to consult the Public Service Commission in respect of any such order. Rule 8 entitles any Government servant compulsorily retired from the service to such benefits of compensation, pension, gratuity, provident fund as would be admissible to him under the rules as if he is discharged from the service. The contention urged by the learned Advocate for the petitioner is that, in the first place, a person who is acting in a manner prejudicial to national security, which includes the security of the State, also cannot be visited by any punishment other then that of compulsory retirement. I am afraid this is too tall a submission to which one can adhere to. It is stated for merely rejecting it since the person guilty of such subversive activities cannot claim as a matter of right to all the retirement benefits as if he is discharged. In a given case, it may be necessary for the State Government to inflict a higher penalty such as dismissal or removal from service then that of compulsory retirement. The learned Advocate for the petitioner, therefore, contended that no order of dismissal can be passed against a Government servant without atleast an opportunity to show cause against the proposed penalty of dismissal even if the action is proposed to be taken in exercise of the powers under Clause (c) of the second proviso to Article 311(2) of the Constitution because it would amount to an absurd situation that a person engaged in subversive activities affecting the national security is entitled to an opportunity of hearing before he is compulsorily retired while another Government servant is denied an opportunity of hearing on ground of inexpediency of such opportunity in the interest of State security. I think that there is some force in this contention but since the proviso to Section 26 of the Bombay Police Act requires such an opportunity, I do not think it is necessary to rely on these rules for the view that a delinquent Government servant must be given an opportunity of hearing.

21. In the result, therefore, the petition is allowed and the impugned order of dismissal of December 17, 1979 (Annexure 'A' to the petition) is quashed and set aside by appropriate writ, and it is declared that the petitioner continues in service of the State Government all along as if the impugned order has not been made.

22. Rule is made absolute accordingly with no order as to costs.


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