TMI Blog1960 (11) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed - Civil Appeal No. 119 of 1959 - - - Dated:- 25-11-1960 - GAJENDRAGADKAR, P.B., SARKAR, A.K., SUBBARAO, K., WANCHOO, K.N. AND MUDHOLKAR, J.R., JJ. For the Appellant: C. B. Agarwala and C. P. Lal For the Respondent : G. S. Pathak, Achru Ram, S. N. Andley, Rameshwar Nath, J. B. Dadachanji and P. L. Vohra JUDGMENT SUBBA RAO, J.- This is an appeal by special leave against the judgment of the High Court of Judicature at Allahabad, Lucknow Bench, allowing the petition filed by the respondent under Art. 226 of the Constitution. The respondent was appointed a Sub-Inspector of Police in December, 1948, and was posted at Sitapur in June, 1953. On September 6, 1953, the respondent went to village Madhwapur in connection with an investigation of a case of theft. On the evening of the said date when he was returning, accompanied by one Lalji, an ex-patwari of Mohiuddinpur, he saw one Tika Ram coming from the side of a canal and going hurriedly towards a field. As the movements of Tika Ram appeared to be suspicious and as he was carrying something in the folds of his dhoti, the respondent searched him and found a bundle containing currency notes. The respondent c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that effect. On February 28, 1955 the Inspector General of Police confirmed that order; and the revision filed by the respondent against that order to the State Government was also dismissed in August 1955. Thereafter the respondent filed a petition under Art. 226 of the Constitution before the High Court of Judicature at Allahabad, Lucknow Bench, for quashing the said orders and the same was heard by a division bench consisting of Randhir Singh and Bhargava, JJ. The learned judges held that the provisions of para 486 of the Police Regulations had not been observed and, therefore, the proceedings taken under s. 7 of the Police Act were invalid and illegal. On that finding, they quashed the impugned orders; with the result that the order dismissing the respondent from service was set aside. The State Government, the Deputy Inspector General of Police, Lucknow, and the Inspector General of Police, Uttar Pradesh, Lucknow, have preferred the present appeal against the said order of the High Court. We shall now proceed to consider the various contentions raised by learned counsel in the order they were raised and argued before us. At the outset Mr. C. B. Agarwala, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Police clearly disclosed that no offence was alleged to have been committed by the respondent and that this Court would, therefore, be justified, even at this very late stage, to accept the contention of the appellants. But the contents of the said information do not in any way support the assertion. Paragraph 3 of the application given by Tika Ram to the Superintendent of Police, Sitapur, reads thus: "That on Sunday last dated 6th September, 1953 the applicant had with him the currency notes of Rs. 650. The opposite party as well as Shri Babu Ram met the applicant on the west of Rampur near the Canal. The opposite-party said to the Sub-Inspector "This man appears to be clad in rags but is possessed of considerable money." After saying this the person of the applicant was searched. The Sub-Inspector, having opened the bundle of notes, handed over the (notes) one by one to the opposite party." This statement clearly indicates that either the Sub-. Inspector or both the Sub Inspector and Lalji searched the person of Tika Ram, that the Sub-Inspector took the bundle of notes and handed the same over, one by one, to Lalji for being returned to the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of trust" and s. 409 thereof prescribes the punishment for the criminal breach of trust by a public servant. Under s. 405 of the Indian Penal Code, "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any person so to do, commits "criminal breach of trust". To constitute an offence under this section, there must be an entrustment of property and dishonest misappropriation of it. The person entrusted may misappropriate it himself, or he may wilfully suffer another person to do so. In the instant case the respondent, being a police officer, was legally entitled to search a person found under suspicious circumstances; and Tika Ram in handing over the bundle of notes to the police officer must have done so in the confidence that he would get back the notes from him when the suspicion was cleared. In these circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be moved to take cognizance of the case under the Criminal Procedure Code..." The argument is that the words "an offence under s. 7 of the Police Act" take in a cognizable offence and that, therefore, this rule provides for a procedure alternative to that prescribed under r. I. We do not think that this contention is sound. Section 7 of the Police Act empowers certain officers to dismiss, suspend or reduce any police officer of the subordinate rank whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same. The grounds for punishment are comprehensive: they may take in offences under the Indian Penal Code or other penal statutes. The commission of such offences may also be a ground to hold that an officer is unfit to hold his office. Action under this section can, therefore, be taken in respect of, (i) offences only under s. 7 of the Police Act without involving any cognizable or noncognizable offences, that is, simple remissness or negligence in the discharge of duty, (ii) cognizable offences, and (iii) non-cognizable offences. Paragraph 486 of the Police Regulations makes this clear. It says that when the offence alleged against a police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of those regulations cannot possibly confer any right on, or give a cause of action to, the aggrieved Government servant to go to a court of law and vindicate his rights. Mr. Pathak, learned counsel for the respondent, in countering this argument contends that the constitution Acts in India embodied the incidents of the tenure of the Crown's pleasure in the relevant provisions and what the Parliament can do in England, the appropriate Legislatures in India also can do, that is, "the tenure at pleasure" created by the Constitution Acts can be abrogated, limited or modified by law enacted by the appropriate legislative bodies. Alternatively he contends that even if the Police Act does not curtail the tenure at pleasure, the Legislature validly made that law and the Government validly made statutory rules in exercise of the powers confered under that Act and that, therefore, the appropriate authorities can only dismiss the respondent in strict compliance with the provisions of the Act and the Rules made thereunder. To appreciate the problem presented and to afford a satisfactory answer it would be convenient to consider the relevant provisions. The Act we are concerned with in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable opportunity of showing cause against the action proposed to be taken in regard to him: see s. 240, sub-ss. (2) and (3). Another difference between the said two Acts was that while under the former Act all the services were placed in the same position, -under the latter Act special provision was made for the police force prescribing that the conditions of service of the subordinate ranks of the various police forces should be such as might be determined by or under the Acts relating to those forces respectively-vide s. 243. By the Constitution, the Act of 1935 was repealed, and, with certain changes in phraseology, cls. (1) and (2) of Art. 310 took the place of sub-ss. (1) and (4) of s. 240 respectively, and Art. 309 took the place of s. 241(2). Under Art. 313, "Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pleasure of the President or the Governor, as the case may be. The words "conditions of service" in Art. 309 in their comprehensive sense take in the tenure of a civil servant: see N. W. F. Province v. Suraj Narain (A.I.R. (1949) P.C. 112). Therefore, "the tenure at pleasure" is also one of the conditions of service. But Art. 309 opens out with a restrictive clause, namely, "Subject to the provisions of this Constitution", and if there is no restrictive, clause in Art. 310, there cannot be any difficulty in holding that Art. 309 is subject to the provisions of' Art 310; with the result that the power of the Legislature to lay down the conditions of service of persons appointed to public services would be subject to "the tenure at pleasure" under Art. 310. In that event, any law made by the Legislature could not affect the over-riding power of the President or the Governor, as the case may be, in putting an end to the tenure at their pleasure. Would the opening words of the clause in Art. 310, namely, "Except as expressly provided by this Constitution", make any difference in the matter of interpretation? It should be noticed that the phraseology of the said clause in Art. 310 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a power to dismiss at pleasure is excluded, and an Act of Parliament can abrogate or amend the said doctrine of public policy in the same way as it can do in respect of any other part of common law. The said propositions are illustrated in the following decisions: Shenton v. Smith ([1895] A.C. 229), Gould v. Stuart ([1896] A.C. 575), Reilly v. The King ([1934] A.C. 176), Terrell v. Secretary of State ((1953) 2 All E R. 490). This English doctrine was not incorporated in its entirety in the Indian enactments-vide State of Bihar v. Abdul Majid ([1954] S.C.R. 786), Parshotam Lal Dhingra v. Union of India ([1958] S.C.R. 828). Section 96-B of the Government of India Act, 1915, for the first time in 1919, by amendment, statutorily recognized this doctrine, but it was made subject to a condition or s qualification, namely, that no person in that service might be dismissed by any authority subordinate to that by which he was appointed. Section 240 of the Act of 1935 imposed another limitation, namely, that a reasonable opportunity of showing cause against the action proposed to be taken in regard to a person must be given to him. But neither of the two Acts empowered the appropriate L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with the constitutional powers of the Governor which do not form part of the executive power of the State. Article 162 says that, subject to the provisions of the Constitution, the executive power of the State shall extend to matters with respect to which the Legislature of the State has power to make laws. If the Legislature of the State has no power to make a law affecting the tenure at pleasure of the Governor, the said power must necessarily fall outside the scope of the executive power of the State. As we will presently show, the Legislature has no such power and, therefore, it cannot be a part of the executive power of the State. That apart, if the said power is part of the executive power in its general sense, Art. 162 imposes another limitation on that power, namely, that the said executive power is subject to the provisions of the Constitution and therefore, subject to Art. 310 of the Constitution. In either view, Art. 310 falls outside the scope of Art. 154 of the Constitution. That power may be analogous to that conferred on the Governor under Arts. 174, 175 and 176. Doubtless the Governor may have to exercise the said power whenever an occasion arises, in the manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an authority under a statute, for the statutory power would be always subject to the overriding pleasure of the Governor. This conclusion, the argument proceeds, would throw a public servant in India to the mercy of the executive Government while their compeers in England can be protected by legislation against arbitrary actions of the State. This apprehension has no real .basis, for, unlike in England, a member of the public service in India is constitutionally protected at least in two directions: (i) he cannot be dismissed by an authority subordinate to that by which he was appointed; (ii) he cannot be dismissed, 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. A condition similar to the first condition in Art. 311 found in s. 96-B of the Government of India Act, 1919, was hold by the Judicial Committee in R. T. Bangachari v. Secretary of State for India ((1936) L.R. 64 I.A. 40) to have a statutory force, and the second condition, which is only a reproduction of that found in sub-section (2) of s. 240 of the Government of India Act, 1935, was held in High Commissioner for Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified by Art. 311. (5) The Parliament or the Legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Art. 310 of the Constitution read with Art. 311 thereof. (6) The Parliament and the Legislatures also can make a law laying down and regulating the scope and content of the doctrine of "reasonable opportunity" embodied in Art. 311 of the Constitution; but the said law would be subject to judicial review. (7) If a statute could be made by Legislatures within the foregoing permissible limits, the rules made by an authority in exercise of the power conferred thereunder would likewise be efficacious within the said limits. What then is the effect of the said propositions in their application to the provisions of the Police Act and the rules made thereunder? The Police Act of 1861 continues to be good law under the Constitution. Paragraph 477 of the Police Regulations shows that the rules in Chapter XXXII thereof have been framed under s. 7 of the Police Act. Presumably, they were also made by the Government in exercise of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the pleasure of His Majesty. Sub-section (2) of that section empowers the Secretary of State for India to make rules laying down, among others, the conditions of service, and sub-s. (5) declares that no rules so made shall be construed to limit or abridge the power of the Secretary of State in Council to deal with the case of any person in the civil service of the Crown in India in such manner as may appear to him to be just and equitable. On a construction of these provisions the Judicial Committee held that His Majesty's pleasure was paramount and could not legally be controlled or limited by the rules. Two reasons were given for the conclusion, namely, (i) s. 96B in express terms stated that the office was held during the pleasure and there was no room for the implication of a contractual term that the rules were to be observed; and (ii) sub-s. (2) of s. 96B and the rules made careful provisions for redress of grievances by administrative process and that sub-s. (5) reaffirmed the superior authority of the Secretary of State in Council over the civil service. It may be noticed that the rules framed in exercise of the power conferred by the Act was to regulate the exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he stated at p. 1091"The position of the Government servant was, therefore, rather insecure, for his office being held during the pleasure of the Crown under the Government of India Act, 1915, the rules could not override (1) (1936) L.R. 64 I.A. 40. (3) (1948) L.R. 75 I.A. 225. (2) (1936) L.R. 64 I.A. 55. (4) [1954] S.C.R. 1150. (5) [1958] S.C.R. 1080. 705 or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself." To state it differently, the Government of India Act, 1915, as amended in 1919, and that of 1935 expressly and clearly laid down that the tenure was at pleasure and therefore the rules framed under that Act must be consistent with the Act and not in derogation of it. These decisions and the observations made therein could not be understood to mark a radical departure from the fundamental principle of construction that rules made under a statute must be treated as exactly as if they were in the Act and are of the same effect as if contained in the Act. There is another principle equally fundamental to the rules of construction, namely, that the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are not inconsistent with the provisions thereof We have already negatived the contention of learned counsel that the Governor exercises his pleasure through the officers specified in s. 7 of the Police Act, and therefore, it is not possible to equate the Governor's pleasure with that of the specified officers' statutory power. If so, it follows that the inquiry under the Act shall be made in accordance with its provisions and the rules made thereunder. Then learned counsel contends that even if the said rules have statutory force, they are only directory and the noncompliance with the rules will not invalidate the order of dismissal made by the appropriate authority. Before we consider the principles governing the question whether the rules are mandatory or directory, it would be convenient at this stage to notice broadly the scope and the purpose of the inquiry contemplated by the rules. Section 2 of the Police Act constitutes the police establishment; s. 7 empowers specified officers to punish specified subordinate officers who are remiss or negligent in discharge of their duties or unfit for the same; s. 46 enables the Government to make rules. to regulate the procedure to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it provides further that in such cases, and in, other cases until and unless a magisterial inquiry is ordered, inquiry will be made under the direction of the Superintendent of Police in accordance with the rules given thereunder. Under rule I thereof, "Every information received by the police relating to the commission of a cognizable offence by a police officer shall be dealt with in the first place under Chapter XIV, Criminal Procedure Code, according to law, a case under the appropriate section being registered in the police station concerned". There are six provisos to that rule. Rule II provides for the inquiry of a non-cognizable offence; and rule III prescribes the procedure in regard to an offence only under s. 7 of the Police Act or a noncognizable offence of which the Superintendent of Police considers unnecessary at that stage to forward a report in writing to the District Magistrate. Paragraph 488 deals with a judicial trial and para. 489 with a departmental trial. Paragraph 489 says: "A police officer may be departmentally tried under section 7 of the Police Act- (1) after he has been tried judicially; (2) after a magisterial inquiry under the Criminal Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truing it the one way or the other......" This passage was approved by this Court in State of U. P. v. Manbodhan Lal Srivastava (supra)). In Craies on Statute Law, 5th edition, the following passage appears at p. 242: "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed." A valuable guide for ascertaining the intention of the Legislature is found in Maxwell on "The Interpretation of Statutes", 10th edition, at p. 381 and it is: "On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of dismissal will not affect the public in general and the only consequence will be that the officer will have to be proceeded against in the manner prescribed by the rules. What is more, para. 487 and para. 489 make it abundantly clear that the police investigation under the Criminal Procedure Code is a condition precedent for the departmental trial. Paragraph 477 emphasizes that no officer appointed under s. 2 of the Police Act shall be punished by executive order otherwise than in the manner provided under chapter XXXII of the Police Regulations. This is an imperative injunction prohibiting inquiry in non-compliance with the rules. Paragraph 489 only empowers the holding of a departmental trial in regard to a police officer only after a police investigation under the Criminal Procedure Code. When a rule says that a departmental trial can be held only after a police investigation, it is not permissible to hold that it can be held without such investigation. For all the foregoing reasons, we hold that para. 486 is mandatory and that, as the investigation has not been held under chapter XIV of the Criminal Procedure Code, the subsequent inquiry and the order of dismissal are ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Indian Penal Code against the respondent and therefore the procedure provided by r. 486 ought to have been followed. It further held that r. 486 had been framed under s. 7 of the Police Act and was a statutory provision, which had the force of law. As such, following the earlier view taken by the High Court in two other cases it held that a dismissal as a result of departmental proceedings which took place without complying with r. 486 would be illegal. In consequence, the writ petition was allowed. The appellant then applied for a certificate to enable it to appeal to this Court, which was refused. Thereupon special leave was prayed for from this Court, which was granted; and that is how the matter has come up before us. Mr. C. B. Aggarwala on behalf of the appellant urges the same two points before us. So far as the first point is concerned, we are of opinion that there is no force in it. There is no doubt that in the complaint made by Tika Ram, the name of the respondent was not shown in the heading; but from the facts disclosed in the body of the complaint it is clear that the sub-inspector searched the person of Tika Ram and recovered a bundle containing currency-note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police officer of the subordinate ranks who discharges his duty in a careless or negligent manner or who by any act of his own renders himself unfit for the discharge thereof. In the present case we are concerned with dismissal and what we shall say hereafter should be taken to be confined to a case of dismissal. Section 7 shows that the power of dismissal conferred by it on the four grades of police officers is to be exercised subject to such rules as the State Government may from time to time make under the Police Act. The contention on behalf of the respondent is that the power of dismissal has to be exercised subject to rules and therefore, when r. 486 of the Police Regulations (framed under s. 7) provided a certain procedure to be followed with respect to cases in which a cognizable offence was involved it was not open to the authority concerned to disregard that procedure. In effect, it is urged that r. 486 is a mandatory provision and noncompliance with it would invalidate the departmental proceedings. It is not in dispute in this case that the procedure provided by r. 486 was not followed. That procedural provision is that where a report of a cognizable crime is made again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bordinate to that by which he was appointed. It was this section, which came for consideration before the Privy Council in Venkata Rao's case (1) and the Privy Council held that in spite of the words ".subject to the rules made under the Government of India Act," Venkata Rao's employment was not of a limited and special kind during pleasure with an added contractual term that the procedure prescribed, by the Rules must be observed; it was by the express terms of s. 96-B held "during His Majesty's pleasure" and no right of action as claimed by Venkata Rao existed. The Privy Council further held that the terms of s. 96-B assured that the tenure of office, though at pleasure, would not be subject to capricious or arbitrary action but would be regulated by the rules which were manifold in number, most minute in particularity and all capable of change; but there was no right in the -public servant enforceable by action to hold his office in accordance with those rules and he could therefore be dismissed notwithstanding the failure to observe the procedure prescribed by them. The main point which was urged in Venkata Rao's case ((1936) L.R. 64 I. A. 55) was that under r. XIV of the Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Pakistan v. 1. M. Lall ((1948) L.R. 75 I.A. 225) and it was held that it was a mandatory provision and qualified the pleasure tenure and provided a condition precedent to the exercise of power by His Majesty provided by sub-s. (1) of s. 240. Thus by the Government of India Act, 1935, there were two statutory guarantees to public servants against the exercise of the pleasure of his Majesty; but it is clear from s. 240 of the Government of India Act, 1935, that the pleasure of His Majesty to dismiss was not otherwise subject to rules framed under the subsequent provisions of the Government of India Act appearing in Chapter 11 of Part X dealing with public services. This position continued till we come to the Constitution. Article 310(1) of the Constitution provides for what was contained in s. 240(1) of the Government of India Act, 1935, and is in these terms: "(1) Except as expressly provided by this Constitution, every person who -is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence, or any civil post under the Union, holds office during the pleasure of the President, and every pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clear immediately that Art. 309 is subject to the provisions of the Constitution and therefore subject to Art. 310 and therefore, any law passed or rules framed under Art. 309 must be subject to Art. 310 and cannot in any way affect the pleasure-tenure laid down in Art. 310. The words "except as expressly provided by this Constitution" appearing in Art. 310 clearly show that the only exceptions to the pleasure tenure are those expressly contained in the Constitution and no more. These exceptions, for example, are contained inter alia in Arts. 124. 148, 280 and 324 and also in Art. 310 (2). Therefore, unless there is an express provision in the Constitution cutting down the pleasure tenure, every public servant holds office during the pleasure of the President or the Governor, as the case may be. We cannot accept the argument that a law passed under Art. 309 prescribing conditions of service would become an express provision of the Constitution and would thus cut down the pleasure tenure contained in Art. 310. As the Privy Council pointed in Venkata Rao's case ((1936) L.R. 64 I.A. 55), the rules framed under Art. 309 or the laws passed thereunder amount to a statutory and solemn a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded from the operation of the pleasure tenure by any provision of the Constitution; they, therefore, hold office during the pleasure of the Governor and the only protection that they can claim are the two guarantees contained in Art. 311. It is true that s. 7 lays down that the four grades of officers empowered to dismiss will act according to rules framed by the State Government; but that does not in our opinion mean that these rules could introduce any further fetter on the pleasure tenure under which the police officers of the subordinate ranks are in service. It was necessary to provide for the framing of rules because the section envisages conferment of, powers of punishment of various kinds on four grades of officers relating to various cadres of police officers in the subordinate ranks. It was left to the rules to provide which four grades of officers would dismiss police officers of which subordinate rank or would give which punishment to a police officer of which subordinate rank. Such rules would in our opinion be mandatory as they go to the root of the jurisdiction of the four grades of police officers empowered to act under s. 7. But further rules may be framed under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Governor's pleasure of dismissal under Art. 310 and therefore their action in dismissing an officer is subject to all the rules framed for their guidance. We are of opinion that this argument is fallacious. Article 310 defines the pleasure tenure and by necessary implication gives power to the Governor to dismiss at pleasure any public servant subject to the exceptions contained in Art. 310 and also subject to the guarantees contained in Art. 311. This power of the Governor to dismiss is executive power of the State and can be exercised under Art. 154(1) by the Governor himself directly or indirectly through officers subordinate to him. Thus it is open to the Governor to delegate his power of dismissal to officers subordinate to him; but even when those officers exercise the power of dismissal, the Governor is indirectly exercising it through those to whom he has delegated it and it is still the pleasure of the Governor to dismiss, which is being exercised by the subordinate officers to whom it may be delegated. Further though the Governor may delegate his executive power of dismissal at pleasure to subordinate officers he still retains in himself the power to dismiss at pleas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissal was by an, officer subordinate to the Governor of Madras; but' that dismissal was also held to be an indirect exercise I of His Majesty's pleasure to dismiss, and that is why it was held that if r. XIV of the Classification Rules was not complied with, a public servant had no right of action against an order dismissing him at His Majesty's pleasure. Therefore, whenever a subordinate officer exercises the power to dismiss, whether that power is delegated by the Governor, or is delegated under a law made under Art. 154(2)(b) or under an existing law analogous to that, he is merely exercising indirectly the power of the Governor to dismiss at pleasure and his action -is subject only to the two guarantees contained in Art. 311. The fact therefore that the police officer in this case made the order of dismissal by virtue of s. 7 will make no difference and he will be deemed to be exercising the power of the Governor to dismiss at pleasure by delegation to him by law of that power. We may add that even where there is delegation by law of the power of the Governor to dismiss at pleasure, the power of the Governor himself to act directly and dismiss at pleasure cannot be taken aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be that after such an investigation, the authority concerned may come to the conclusion that there in no case either' to send the case to court or to hold a departmental inquiry. But that in our opinion is what would happen in any case of complaint against a public servant in any department of Government. No authority entitled to take action against a public servant would straightaway proceed to put the case in court or to hold a departmental inquiry. It seems to us axiomatic if a complaint is received against any public servant of any department, that the authority concerned would first always make some kind of a preliminary inquiry to satisfy itself whether there is any case for taking action at all; but that is in our opinion for the satisfaction of the authority and has nothing to do with the protection afforded to a public servant under Art. 311. Rule 486 of the Police Regulations also in our opinion is meant for this purpose only and not meant to carry out the object contained in Art. 311(2). The opportunity envisaged by Art. 311(2) will be given to the public servant after the the authority has satisfied itself by preliminary inquiry that there is a case for taking action ..... X X X X Extracts X X X X X X X X Extracts X X X X
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