TMI Blog1985 (7) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to this Court raise a substantial question of law as to the interpretation of Articles 309, 310 and 311 of the Constitution and in particular of what is now, after the amendment of clause (2) of Article 311 by the Constitution (Forty-second Amendment) Act, 1976, the second proviso to that clause. The Genesis of the Appeals and Writ Petitions To understand what questions fall for determination by this Court in these Appeals and Writ Petitions, it is first necessary to sketch briefly how they have come to be heard by this Constitution Bench. Article 311 of the Constitution confers certain safeguards upon persons employed in civil capacities under the Union of India or a State. The first safeguard (which is given by clause (1) of Article 311) is that such person cannot be dismissed or removed by an authority subordinate to that by which he was appointed. The second safeguard (which is given by clause (2) of Article 311) is that he cannot be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second safeguard is, however, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1975, another three-Judge Bench of this Court felt that there was a conflict between Challappan s case and an earlier decision of another three-Judge Bench of this Court, namely, M. Gopala Krishan Naidu v. State of Madhya Pradesh, [1968] 1 S.C.R. 355, and directed on November 18, 1976, that the papers in those three appeals be placed before the learned Chief Justice to enable him to refer those appeals to a larger Bench. The said appeals were thus referred to the Constitution Bench. Because of the said order all the above Appeals and Writ Petitions were also placed before this Constitution Bench. During the course of the hearing of all these matters by this Constitution Bench, the said Civil Appeals Nos. 1088, 1089 and 1120 of 1975 were, however, got dismissed on March 29, 1984, but the above Appeals and Writ Petitions were fully heard and are being disposed of by this Judgment. Civil Servants Justice Oliver Wendell Holmes in his book The Common Law , consisting of lectures delivered by him while teaching law at Harvard and published just one year before he was appointed in 1882 an Associate Justice of the Massachusetts Supreme Judicial Court, said : The Law embodies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatever and all that a court of law can do with an Act passed by Parliament is to interpret its meaning but not to set it aside or declare it void Blackstone in his Commentaries has thus described the unlimited legislative authority of Parliament(1 Bl., Comm. pp. 160,161): It hath sovereign and uncontrollable authority in the making confirming, enlarging, restraining abrogating, repealing, reviving, and expounding laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and the laws, are within the reach of this extraordinary tribunal. It can regulate or new-model the succession to the Crown; as was done in the reign of Henry VIII, and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development of the Civil Service in India. The East India Company sent out to India its own servants and so did the Crown, and from the earliest times, under the various Charters given to the East India Company, the Crown could at its pleasure remove any person holding office, whether civil or military, under the East India Company. The Court of Directors of the East India Company had also the power to remove or dismiss any of its officers or servants not appointed by the Crown. Section 35 of the Act of 1793 (33 Geo. III. c.52) made it lawful to and for a King s Majesty, his heirs and successors, by any writing or instrument under his or their sign manual, countersigned by the President of the Board of Commissioners for the affairs of India, to remove or recall any person holding any office, employment or commission, civil or military, under the East India Company; while section 36 of that Act provided that nothing contained in that Act should extend, or be construed to extend, to preclude or take away the power of the Court of Directors of the East India Company from removing or recalling any of its officers or servants and that the Court of Directors shall and may at all times ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Indian Civil Service examination. None of the above nor the Government of India (Amendment) Act, 1916 (6 7 Geo. V. c.37) made any reference to the tenure of members of the civil service in India. This was for the first time done by the Government of India Act, 1919 (9 10 Geo. v, c.101), which introduced several amendments in the 1915 Act including the insertion of Part VIIA consisting of section 96 B to 96 E. Section 96 B provided as follows:- 96 B. The civil services in India.- (1) Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty s pleasure, and may be employed in any manner required by a proper authority within the scope of his duty but no person in that service may be dismissed by any authority subordinate to that by which he was appointed, and the Secretary of State in Council may (except so far as he may provide by rules to the contrary) reinstate any person in that service who has been dismissed. If any such person appointed by the Secretary of State in Council thinks himself wronged by an order of an official superior in a governor s province ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the powers in that behalf, and are confirmed, but any such rules or provisions may be revoked, varied or added to by rules or laws made under this section. The Fundamental Rules, the Civil Service (Classification, Control and Appeal) Rules of 1930 and the Civil Service (Governors Provinces Classification) Rules are instances of rules made under authority conferred by section 96B. Section 96C provided for the establishment of a Public Service Commission. Sub-section (1) of section 96D provided for an Auditor-General to be appointed by the Secretary of State in Council who was to hold office during His Majesty s pleasure , and conferred upon the Secretary of State in Council the power to make rules providing for the Auditor- General s pay, powers, duties and conditions of employment. Sub-section (2) of section 96D provided that, subject to any rules made by the Secretary of State in Council, no officer could be added to or withdrawn from the public service and the emoluments of no post could be varied except after consultation with such finance authority as might be designated in the rules being an authority of the Province or of the Government of India, according as the post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1935 (25 26 Geo. V, c.42) was that the top echelons of the important services, especially those working under the provincial Governments, consisted of what were known as the all India services, which governed a wide variety of departments. There were, in the first place, the Indian Civil Service and the Indian Police Service, which provided the framework of the administrative machinery. In addition, there were the Indian Forest Service, the Indian Educational Service, the Indian Agricultural Service, the Indian Service of Engineers (consisting of an Irrigation Branch and a Roads and Buildings Branch), the Indian Veterinary Service, the Indian Forest Engineering Service and the Indian Medical Service (Civil). The initial appointments and conditions of service for all these services were made by the Secretary of State and each officer executed a covenant with the Secretary of State containing the terms under which he was to serve. In addition to the all-India services there were the central services under the Government of India and the Provincial services in the Provinces; and lastly the subordinate services. (See Indian Statutory (Simon) Commission Report(1930), Vol.I, para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate Legislatures to regulate the conditions of service of persons in the civil services. It is unnecessary to look into the details of these provisions as the federal structure envisaged by the 1935 Act never came into existence as it was optional for the Indian States to join the proposed Federation and they did not give their consent thereto. Chapter III of Part X provided for the setting up of a Federal Public Service Commission and a Public Service Commission for each province. A provision was also made for two or more Provinces to agree to have a joint Public Service Commission or for the Public Service Commission of one of these Provinces to serve the needs of the other provinces. In the context of the present Appeals and Writ Petitions, it is section 240 of the 1935 Act which is relevant. Section 240 provided as follows: 240. Tenure of office of persons employed in civil capacities in India.- (1) Except as expressly provided by this Act, every persons who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India holds office during His Majesty s pleasure. (2) No such person as aforesaid shall be dismissed from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil servant was dismissed or reduced in rank on ground of conduct which had led to his conviction on a criminal charge, and (b) where an authority empowered to dismiss him or reduce him in rank was satisfied that for some reason, to be recorded by that authority in writing, it was not reasonably practicable to give to that person an opportunity of showing cause. The Civil Services under the Constitution Provisions with respect to services under the Union and the states are made in Part XIV of the Constitution of India. This Part consists of two Chapters, Chapter I delaing with services and Chapter II dealing with Public Service Commission for the Union and the State. Article 308, as originally enacted, defined the expression State occurring in Part XIV as meaning, unless the context otherwise required, a State specified in Part A or B of the First Schedule. This Article was amended by the Constitution (Seventh Amendment) Act, 1956, which was passed in order to implement the scheme for reorganization of States. The amended Article 308 provides, In this Part, unless the context otherwise requires, the expression State does not include the State of Jammu and Kashmir. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals and Writ Petitions to set out in extenso the provisions of Articles 309, 310 and 311. Articles 309 and 310 were amended by the Constitution (Seventh Amendment) Act, 1956, to omit from these Articles the reference to the Rajpramukh. Articles 309 and 310, as so amended, read as follows: 309. Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o give to that person an opportunity of showing cause; or (c) where the President or Governor or Rajpramukh, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity. (3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final. The words or Rajpramukh in clause (c) of the proviso to Article 311(2) were omitted by the Constitution (Seventh Amendment) Act, 1956. By the Constitution (Fifteenth Amendment) Act, 1963. Clauses (2) and (3) of Article 311 were substituted by the following clauses: (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. From the original and amended Article 311 set out above it will be noticed that of the original Article 311 only clause (1) remains unaltered, while both the other clauses have become the subject of Constitutional amendments. No submission was founded by either party on the substitution of the present clause (3) for the original by the Constitution (Fifteenth Amendment) Act, 1963, for the obvious reason that such substitution was made only in order to bring clause (3) in conformity with clause (2) as substituted by the said Amendment Act. A comparison of Article 311 of the Constitution with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of an inquiry and even if the entire inquiry is dispensed with, the giving of a show cause notice and asking for the explanation of the government servant with respect there to are not excluded. (4) It is not obligatory upon the disciplinary authority to dispense with the whole of the inquiry. Depending upon the circumstances of the case, the disciplinary authority can dispense with only a part of the inquiry. (5) Imposition of penalty is not a part of the inquiry and once an inquiry is dispensed with, whether in whole or in part, it is obligatory upon the disciplinary authority to give an opportunity to the government servant to make a representation with respect to the penalty proposed to be imposed upon him. (6) Article 311 is subject to Article 14. Principles of natural justice and the audi alteram partem rule are part of Article 14 and, therefore, a show cause notice asking for the explanation of the government servant with respect to the charges against him as also a notice to show cause with respect to the proposed penalty are required to be given by Article 14 and the not giving of such notices or either of them renders the order of dismissal, removal or reductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and supervise all the details of administration. As it was throughout history, so it has been in England and in India. In England, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown and their services can be terminated at will without assigning any cause. By the expression the pleasure doctrine is conveyed this right of the Crown. This right is, however, subject to what may be provided otherwise by legislation passed by Parliament because in the United Kingdom, Parliament has legislative sovereignty. The Foundations of modern European civil services were laid in Prussia in the late seventeenth and eighteenth centuries and by Napoleon s development of highly organized hierarchy (a model copied by many countries in the nineteenth century); and they are the basis of modern European civil services. In England civil servants were originally the monarch s personal servants and members of the King s household. Clive s creation from 1765 of a civil service to govern such parts of India as were under the dominion of the East India Company and Macaulay s report on recruitment to the Indian Civil Service provided the inspiration for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The pleasure doctrine relates to the tenure of a government servant. Tenure means manner, conditions or term of holding something according to Webster s Third New International Dictionary, and terms of holding; title; authority according to the Oxford English Dictionary. It, therefore, means the period for which an incumbent of office holds it. It is for this reason that the statement of law relating to the pleasure doctrine in England is given in Halsbury s Laws of England, Fourth Edition, Volume 8, Para 1106, under the heading Tenure of office . The first time that a statute relating to the government of India provided that civil servants hold office during His Majesty s pleasure was the Government of India Act of 1919 in section 96B of that Act. The marginal note to section 96B did not, however, refer to the tenure of civil servants but stated The Civil Services of India . This was because section 96B in addition to dealing with the tenure of civil servants also dealt with matters relating to their recruitment, conditions of service, pay, allowances, pensions, etc. The marginal note to section 240 of the Government of India Act, 1935, however, was Tenure of offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public good that it should be capable of being determined at the pleasure of the Crown, except in certain exceptional cases where it has been deemed to be more for the public good that some restrictions should be imposed on the power of the Crown to dismiss its servants. (Emphasis supplied) In the same case Kay, L.J., said (page 120) It seems to me that the continued employment of a civil servant might in many cases be as detrimental to the interests of the State as the continued employment of a military officer. In this case as reported in the Law Times Reports series the judgments of the three learned judges who decided the case (Lord Esher, M.R., being the third judge), though in substance the same, are given in very different language and the passages extracted above do not appear in that report. The report of the case in the All England Law Reports Reprint series is with very minor variations the same as the report in the Times Law Reports series but somewhat abridged. This is because the All England Law Reports Reprint series is a revised and annotated reprint of a selection from the Law Times Reports for the years 1843 to 1935. The report from which the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. (Emphasis supplied) Ministers frame policies and legislatures enact laws and lay down the mode in which such policies are to be carried out and the object of the legislation achieved. In many cases, in a Welfare State such as ours, such policies and statutes are intended to bring about socioeconomic reforms and the uplift of the poor and disadvantaged classes. From the nature of things the task of efficiently and effectively implementing these policies and enactments, however, rests with the civil services. The public is, therefore ; vitally interested in the efficiency and integrity of such services. Government servants are after all paid from the public exchequer to which everyone contributes either by way of direct or indirect taxes. Those who are paid by the public and are charged with public and administration for public g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to suit the Constitutional set up of our Republic but because public policy requires, public interest needs and public good demands that there should be such a doctrine. It is thus clear that the pleasure doctrine embodied in Article 310 (1), the protection afforded to civil servants by clauses (1) and (2) of Article 311 and the withdrawal of the protection under clause (2) of Article 311 by the second proviso thereto are all provided in the Constitution on the ground of public policy and in the public interest and are for public good. The Scope of the Pleasure Doctrine. While under section 96B(1) of the Government of India Act of 1919 the holding of office in the civil service of the Crown in India during His Majesty s pleasure was Subject to the provisions of this Act and the rules made thereunder , under section 240(1) of the Government of India Act, 1935, the holding of such office during His Majesty s pleasure was Except as expressly provided by this Act . Similarly, the pleasure doctrine as enacted in Article 310(1) is not an absolute one and is not untrammeled or free of all fetters, but operates Except as expressly provided by this Constitution. The constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radesh Ors. v. Shardul Singh, [1970] 3 S.C.R. 302, 305-6, this Court held that the expression conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment until his retirement and even beyond it in matters like pension etc. and would include the right to dismiss such persons from service. Thus, as pointed out in Sardari Lal v. Union of India Ors., [1971] 3 S.C.R. 461, 465, a law can be made by the appropriate Legislature or a rule by the appropriate executive under Article 309 prescribing the procedure and the authority by whom disciplinary action can be taken against a government servant. Thus the functions with respect to the civil service which in England until 1968 were being performed by the Treasury and thereafter by the Civil Service Department and from mid-November 1981 are being performed partly by the Treasury and partly by the Management personnel Office are in India under Article 309 of the Constitution to be performed with respect to not only persons employed in civil capacities but with respect to all persons appointed to public services and posts in connection with the affairs of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution with respect to legislative competence and the division of legislative powers. Thus, for instance, under Entry 70 in List I of the Seventh Schedule to the Constitution, Union Public Services, all-India Services and Union Public Service Commission are subjects which fall within the exclusive legislative field of Parliament, while under Entry 41 in List II of the Seventh Schedule to the Constitution, State Public Services and State Public Service Commission fall within the exclusive legislative field of the State Legislatures. The rules framed by the President or the Governor of a State must also, therefore, conform to these legislative powers. It is, however, not necessary that the Act of an appropriate Legislature should specifically deal with a particular service. It is sufficient if it is an Act as contemplated by Article 309 by which provision is made regulating the recruitment and conditions in a service (see Ram Pal Chaturvedi v. State of Rajasthan and others.), [1970] 2 S.C.R. 559,564. It was at one time thought that the right of a government servant to recover arrears of salary fell within the ambit of the pleasure doctrine and a servant of the Crown, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Government of India Act, 1919, but that was only with respect to the authority which could dismiss him. In that section the holding of office during His Majesty s pleasure was made subject to both the provisions of that Act and the rules made thereunder. Under the Government of India Act 1935, the reference to the rules to be made under the Act was omitted and the tenure of office of a civil servant was to be during His Majesty s pleasure except as expressly provided by that Act. Article 310(1) adopts the same phraseology as in section 240 of the 1935 Act. Under it also the holding of an office is during the pleasure of the President or the Governor Except as expressly provided by this Constitution . Therefore the only fetter which is placed on the exercise of such pleasure is when it is expressly so provided in the Constitution itself, that is, when there is an express proviso in that behalf in the Constitution. Express provisions in that behalf are to be found in the case of certain Constitutional functionaries in respect of whose tenure special provision is made in the Constitution as, for instance, in clauses (4) and (5) of Article 124 with respect to Judges of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roversy in these Appeals and Writ Petitions, lifts the restriction imposed by Article 311(2) in the cases specified in the three clauses of that proviso. None of these three Articles (namely, Articles 309,310 and 311) sets out the grounds for dismissal, removal or reduction in rank of a government servant or for imposition of any other penalty upon him or states what those other penalties are. These are matters which are left to be dealt with by Acts and rules made under Article 309. There are two classes of penalties in service jurisprudence, namely, minor penalties and major penalties. Amongst minor penalties are censure, with holding of promotion and with holding of increments of pay. Amongst major penalties are dismissal or removal from service, compulsory retirement and reduction in rank. Minor penalties do not affect the tenure of a government servant but the penalty of dismissal or removal does because these two penalties bring to an end the service of a government servant. It is also now well established that compulsory retirement by way of penalty amounts to removal from service. So this penalty also affects the tenure of a government servant. Reduction in rank does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law laying down and regulating the scope and content of the doctrine of reasonable opportunity embodies in Article 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 there-under would likewise be efficacious within the said limits. The question came to be reconsidered by a larger Bench of Seven Judges in Moti Ram Deka s case. While referring to the judgment of the majority in Babu Ram Upadhya s case the Court observed as follows (at pp.731-2) : What the said Judgment has held is that while Article 310 provides for a tenure at pleasure of the President or the Governor, Article 309 enables the legislature or the executive, as the case may be, to make any law or rule in regard inter alia, to conditions of service without impinging upon the overriding power recognised under Article 310. In other words, in exercising the power conferred by Article 309, the extent of the pleasure recognised by Article 310 cannot be affected, or impaired. In fact, while stating the conclusions in the form of proposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) was that the Governor could not delegate his pleasure to any officer nor could any law provide for the exercise of that pleasure by an office with the result that pleasure by any officer with the result that statutory rules governing dismissal are binding on every officer though they were subject to the overriding pleasure of the Governor. This would mean that the officer was bound by the Rules but the Governor was not. In Babu Ram Upadhya s case(supra) the majority view stated seven propositions at page 701 of the report. Proposition No. 2 is 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. Propositions No. 3 and 4 are these. The tenure of a public servant is subject to the limitations or qualifications mentioned in Article 311 of the Constitution. The Parliament or the Legislatures of States cannot make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310 as qualified by Article 311. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister as 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 position, therefore, is that the pleasure of the President or the Governor is not required to be exercised by either of them personally, and that is indeed obvious from the language of Article 311. Under clause (1) of that Article a government servant cannot be dismissed or removed by an authority subordinate to that by which he was appointed. The question of an authority equal or superior in rank to the appointing authority cannot arise if the power to dismiss or remove is to be exercised by the President or the Governor personally. Clause (b) of the second proviso to Article 311 equally makes this clear when the power to dispense with an inquiry is conferred by it upon the authority empowered to dismiss, remove or reduce in rank a government servant in a case where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting, it is not reasonably practicable to hold such inquiry; and (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. The Construction to be placed upon the second proviso and the scope and effect of that proviso were much debated at the Bar. In Hira Lal Rattan Lal etc. v. State of U.P. Anr., [1973] 2 S.C.R. 502 this Court observed (at page 512) ; In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All that we have to see at the very outset is what does that provision say? If the provision is unambiguous and if from that provision, the legislative intent is clear, we need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislature intention is not clear. Ordinarily a proviso to a section is intended to take out a part of the main section for special treatment. It is not expected to enlarge the scope of the main section. But cases have arisen in which this Court has held that despite the fact that a provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while dealing separately with each of the three clauses. The paramount thing, however, to bear in mind is that the second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all, because Article 311 (2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned government servant is such as justifies the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an inquiry. The extent to which a government servant can be denied his right to an inquiry formed the subject-matter of considerable debate at the Bar and we, therefore, now turn to the question whether under the second proviso to Article 311(2) even though the inquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was a case of mistaken identity and he was not the person who had been convicted but was an altogether different individual. It was urged that there could be no practical difficulty in serving such charge-sheet to the concerned government servant because even if he were sentenced to imprisonment, the charge-sheet or notice with respect to the proposed penalty can always be sent to the jail in which he is serving his sentence. So far as clause (b) is concerned, it was argued that even though it may not be reasonably practicable to hold an inquiry, the explanation of the government servant can at least be asked for with respect to the charges made against him so that he would have an opportunity of showing in his written reply that he was not guilty of any of those charges. It was also argued that assuming such government servant was absconding, the notice could be sent by registered post to his last known address or pasted there. Similar arguments as in case of clause (b) were advanced with respect to clause (c). It was submitted that the disciplinary authority could never make up its mind whether to dismiss or remove or reduce in rank a government servant unless such minim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of showing cause against the action proposed to be taken in regard to him. In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Before that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servants the opportunity for which sub-s.3 makes provision. Their Lord ships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more that one stage. If the civil servant has been through an inquiry under rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry. On this view of the proper construction of sub-s.3 of s.240, it is not disputed that the respondent has not been given the opportunity to which he is entitled thereunder, and the purported r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights. In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him. He may say for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishments of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case. To summarise : the reasonable opportunity envisages by the provision under consideration includes - (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts were, however, conferred upon government servants by the above amendment because it merely declared the rights which a government servant already possessed under the original clause (2) of Article 311 as interpreted by this Court in Khem Chand s case. This amendment, therefore, was merely declaratory, but in a way it was also clarificatory because it restricted the right of representation on the proposed penalty to a representation only on the basis of the evidence adduced during the inquiry. This clarification perhaps became necessary because, as pointed out by this Court in Suresh Koshy George v. The University of Kerala Ors. [1969] 1 S.C.R. 317, 326., there prevailed an erroneous impression in certain quarters, evidently influenced by the provisions of the unamended Article 311(2) that every disciplinary proceeding must consist of two inquiries, one before issuing a show cause notice to be followed by another inquiry thereafter. This amendment, therefore, made it expressly clear that the inquiry to be held against a government servant was to be one in which a charge-sheet or a show-cause notice was to be issued to him informing him of the charges against him and giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Parliament. The opening words of the second proviso remain the same except that the word further was inserted after the word Provided , because the original proviso by reason of the insertion of another proviso before it became the second proviso. It should be borne in mind that the show cause notice at the punishment stage was originally there as a result of the interpretation placed by the Judicial Committee in Lal s case and by this Court in Khem Chand s case upon the phrase a reasonable opportunity of showing cause against the action proposed to be taken in regard to him . Clause (2) as substituted by the Constitution (Fifteenth Amendment) Act merely reproduced the substance of what was held in Khem Chand s case. The words which originally found a place in clause (2), a reasonable opportunity of showing cause against the action proposed to be taken in regard to him , do not any more feature in clause (2). All that clause (2) now provides is an inquiry in which the government servant is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Clause (2) taken by itself even without the first proviso does not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighly improbable. As in all other organization, there is in government service an extremely active grapevine, both departmental and interdepartmental, which is constantly active, humming and buzzing with service news and office gossip, and it would indeed be strange if the news that a member of a department was facing prosecution or had been convicted were to remain a secret for long. Assuming such a case occurs, the government servant is not without any remedy. He can prove in a departmental appeal which service rules provide for, save in exceptional cases, that he has been wrongly mistaken for another. Similarly, it is not possible to accept the argument that unless a written explanation with respect to the charges is asked for from a government servant and his side of the case known, the penalty which would be imposed upon him, could be grossly out of proportion to his actual misconduct. The disciplinary authorities are expected to act justly and fairly after taking into account all the facts and circumstances of the case and if they act arbitrarily and impose a penalty which is unduly excessive, capricious or vindictive, it can be set aside in a departmental appeal. In any even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided in clause (1) and (2) of Article 311 have been. It is in public interest and for public good that government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. It is equally in public interest and for public good that where his offence is such that he should not be permitted to continue to hold the same rank, that he should be reduced in rank. Equally, where a public servant by himself or in concert with others has brought about a situation in which it is not reasonably practicable to hold an inquiry and his conduct is such as to justify his dismissal, removal or reduction in rank, both public interest and public good demand that such penalty should forthwith and summarily be imposed upon him; and similarly, where in the interest of the security of the State it is not expedient to hold an inquiry, it is in the public interest and for public good that where one of the three punishments of dismissal, removal or reduction in rank is called for, it should be summarily imposed upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... majority of them had fought for freedom and had suffered imprisonment in the cause of liberty and they, therefore, were not likely to introduce into our Constitution any provision from the earlier Government of India Acts which had been intended purely for the benefit of a foreign imperialistic power. After all, it is not as if a government applied to him. There are two remedies open to him, servant is without any remedy when the second proviso has been applied to him. There are two remedies open to him, namely, departmental appeal and judicial review. The scope and extent of these remedies will be considered later in the course of this judgment. Article 14 and the Second Proviso The next question which false to be considered is, Does Article 14 make any difference to the consequences which flow from the second proviso to Article 311(2)? It was submitted on behalf of the government servants that Article 14 in which the principle of natural justice are comprehended permeates the entire Constitution and, therefore, Article 14 must be read into the second proviso to Article 311(2) and according if not under that proviso read by itself, under it read with Article 14 a governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state of nature; that is, a condition of society in which men universally were governed solely by a rational and consistent obedience to the needs, impulses, and promptings of their true nature, such nature being as yet underacted by dishonesty, falsehood, or indulgence of the baser passions. In ethics it consists in practical universal judgments which man himself elicits. These express necessary and obligatory rules of human conduct which have been established by the author or human nature as essential to the divine purposes in the universe and have been promulgated by God solely through human reason . There are certain basic values which man has cherished throughout the ages. But man looked about him and found the ways of men to be cruel and unjust and so also their laws and customs. He saw men flogged, tortured, mutilated, made slaves, and sentenced to row the galleys or toil in the darkness of the mines or to fight in an arena with wild an hungry beasts of the Jungle or to die in other ways a cruel, horrible and lingering death. He found judges to be venal and servile to those in power and the laws they administered to be capricious, changing with the whims of the ruler to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to distinguish between natural and legal or conventional justice and postulated that natural law had authority everywhere and was discoverable by the use of reason. The ancient Romans were not given to philosophical speculations or creative orignality in Art. They preferred to borrow these from the Greeks. The Romans were a hardheaded, practical race of conquerors, administrators and legislators. Roman jurists, therefore, used the concept of natural law, that is jus naturale (or ius naturale as the Romans wrote it because Roman alphabet had no letter J or J in it) to introduce into the body of law those parts of laws and customs of foreigners, that is, non- Roman people with whom they came in commercial contract or whom they subjugated. The Rules which the Romans borrowed from these laws and customs were those which were capable of general application and they developed then into general legal principles, which came to form jus gentium or the law of nations. In doing so they acted upon the principle that any rule of law which was common to the nations (gentes) they knew of must be basically in consonance with reason and, therefore, fundamentally just. They applied jus genti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Church on the ground that the Emperor was the legitimate successor of the Roman people and was chosen by God to rule the world. The authority of the law of nature or natural law was repeatedly sought support from during the centuries which saw the struggle for supremacy between the Popes and the General Councils of the Church and between the Popes and the Emperors and later in the struggle between the Catholics and the Protestants. Both sides in these conflicts found in natural law the interpretation of scriptural texts which supported their respective views and were, therefore, according to them, the true interpretation. Braction, in the thirteenth century, however, considered natural law as that which nature, that is, God, teaches to all animals, and though he tried to reconcile natural law with human law, he acknowledged the difficulty of doing so because he found rules of positive law which could hardly be so reconciled. Natural law was also seized upon as furnishing arguments in the struggle between the judges and Parliament for supremacy which took place in the seventeenth century. Coke in Dr, Bonham s case [1610] 8 Co. Rep. 113b, 118, said by way of obiter, when an A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bable. His theory of justice was that it served both an ethical and a sociological function. He contended that public utility was the sole origin of legal justice and the sole foundation of its merit, and that for a legal system to be useful, it must adhere to its rules even though it may cause injustice in particular cases. He did not make a formal analysis of law but distinguished equity or the general system of morality, the legal order, and law, as a body of precepts. According to him, the authority of civil law modified the rules of natural justice according to the particular convenience of each community. Blackstone, however, in his Commentaries on the Laws of England had this to say about natural law : This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the glove in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. In the nineteenth and twentieth centuries there was a reaction against natural law as the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Drew v. Drew and Leburn [1855] 2 Macq. 1,8, Lord Craworth defined it as universal justice . In James Dunbar Smith v. Her Majesty The Queen [1877-78] 3 App. Cas. 614,623 J.C., Sir Robert P.Collier, speaking for the Judicial Committee of the Privy Council, used the phrase the requirements of substantial Justice , while in Arthur John Spacmkman v. The Plumstead District Board of Works L.R. [1884-85] 10 App. Case. 229,240, Earl of Selborne, L.C., preferred the phrase the substantial requirements of justice . In Vionet and another v. Barrett and another [1885] 55 L.J. Q.B. 39,41, Lord Esher, M.R., defined natural justice as the natural sense of what is right and wrong . While, however, deciding Hopkins and another v. Smethwick Local Board of Health L.R.[1890] 24 Q.B.D. 712,716, Lord Esher, M.R., instead of using the definition given earlier by him in Vionet and another v. Barret and another chose to define natural justice as fundamental justice . In Ridge v. Baldwin and others L.R. [1963] 1. Q.B. 539,578, Harman, L.J., in the Court of Appeal equated natural justice with fair play of action , a phrase favoured by Bhagwati, J., in Maneka Gandhi v. Union of India [1978] 2 S.C.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as natural every evolutionary advance in our conception of justice. But for me, natural justice means no more that justice without any epithet. I take the essentials of justice to mean those desiderata which, in the existing stage of our mental and moral development, we regard as essential, in contradistinction from the many extra precautions, helpful to justice, but not indispensable to it, which, by their rules of evidence and procedure, our Courts have made obligatory in actual trials before themselves. Many advanced peoples have legal systems which do not insist on all these extra precaution, yet we would hardly say that they disregard the essentials of justice. Megarry, J., also found it necessary to sound a note of warning in Hounslow London Borough Council v. Twickenham garden Developments Ltd. L.R. [1971] Ch. 233, wherein he said (at page 259) : The principles of natural justice are of wide application and great importance, but they must be confined within proper limits and not allowed to run wild. (Emphasis supplied) Some judges have been faced with the contention as Maugham, L.J., was in Errington and others v. Minister of Health L.R. [1935] 1 K.B. 249, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is audi alteram partem . that is, hear the other side . At times and particularly in continental countries the form audietur et altera pars is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely, qui alliquid statuerit parte inaudita altera, aequum licet dixerit, haud aequum fecerit . that is, he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right (see Boswell s case) [1606] 6 Co. Rep. 48b,52a, or, in other words, as it is now expressed, justice should not only be done but should manifestly be seen to be done. The above two rules and their corollary are neither new nor were they the discovery of English judges. They were recognized in may civilizations and over many centuries. Roman law recognized the need for a judge to be impartial and not to have a personal interest in the case before him (Digest V.1.17) and Tacitus in his Dialogus referred to this principle. Under Roman law a judge who heard a cause in which he had an interest was liable as on a quasi-delict to the party prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament, for example, in section 3(10) of the Foreign Compensation Act, 1969, and section 6(13) of the Trade Union and Labour Reforms Act, 1974, which was later repealed by the Trade Union and Labour Relations (Amendment) Act, 1976. These rules of natural justice have been recognized and given effect to in many countries and different systems of law. They have now received international recognition by being enshrined in Article 10 of the Universal Declaration of Human Rights adopted and proclaimed by the General Assembly of the United Nations by Resolution 217A (III) of December 10,1948. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which came into force on September 3, 1953, and Article 14 of the International Covenant on Civil and Political Rights adopted by the General Assembly Resolution 2200A (XXI) of December 16, 1966, which came into force on March 23, 1976. Article 14 does not set out in express terms either of the above two well-established rules of natural justice. The question which then arises is Whether the rules of natural justice form part of Article 14 and, if so, how? Article 14 of the Constitution provides a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Declaration Human Rights of 1948, provides as follows: All are equal before the law and are entitled without any discrimination to equal protection of the law ..... Article 14 is divided into two parts. In Re The Special Courts Bill, 1978 [1979] 2 S.C.R. 476, Chandrachud, C.J., describe the two parts of Article 14 as follows (at page 534): The first part of article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favoritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances. Article 14 contains a guarantee of equality before the law to all persons and a protection to them against discrimination by any law. Sub-clause (a) of clause (3) of Article 13 defines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inately. While considering Article 14 and Article 16, Bhagwati, J., in E.P. Royappa v. State of Tamil Nadu and another [1974] 2 S.C.R. 348, in a passage which has become a classic said (at page 386): Article 14 is the genus while Article 16 is a species, Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalizing principle? It is a founding faith, to use the words of Bose, J., a way of life , and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its allembracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is qutithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to political logic and constitutional law and is there fore violative of Article. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is a essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence....... . (Emphasis supplied) In the course of his judgment in the same case Bhagwati, J., further said (at pages 676-7): Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. On what principle can distinction be made between one and the other? Can it be said that the requirement of fair play in action in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially. The rule of natural justice with which we are concerned in these Appeals and Writ Petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence. The process of a fair hearing need not, however, conform to the judicial process in a court of law, because judicial adjudication of causes involves a number of technical rules of procedure and evidence which are unnecessary and not required for the purpose of a fair he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural justice, namely, nemojudex in causa sua em audi alteram part, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established the are none the less not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not case in a rigid mould nor can they be put in a legal strait-jacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the Constitution of the Tribunal which has to decide particular matter and rules by which such Tribunal is governed. There is no difference in this respect between the law in England and in India. It is unnecessary to refer to various English decisions which have held so. It will suffice to reproduce what Ormond, L.J., said in Norwest Holst Ltd. v. Secretary of State for Trade and others L.R. [1978]1 Ch.201 (at page 227): The House of Lords and this Court have repeatedly emphasised that the ordinary principles of natural justice must be kept flexible and must be adapted to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power In Swadeshi Cotton Mills v. Union of India [1981] 2 S.C.R. 533, Chinnappa Reddy, J., in his dissenting judgment summarized the position in law on this point as follows (at page 591): The principles of natural justice have taken deep root in the judicial conscience of our people, nurtured by Binapani, Kraipak, Mohinder Singh Gill, Maneka Gandhi etc. etc. They are now considered so fundamental as to be implicit in the concept of ordered liberty and, therefore, implicit in every decision making function, call it judicial, quasi judicial or administrative. Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other. No wider right than that provided by statute can be claimed nor can the right be narrowed. Where the statute is silent about the observance of the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional provision has expressly prohibited. Where a clause of the second proviso is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action in so applying it would be mala fide, and, therefore, void. In such a case the invalidating factor may be referable to Article 14. This is, however, the only scope which Article 14 can have in relation to the second proviso. but to hold that once the second proviso is properly applied and clause (2) of Article 311 excluded, Article 14 will step in to take the place of clause (2) would be to nullify the effect of the opening words of the second proviso and thus frustrate the intention of the makers of the Constitution. The second proviso is based on public policy and is in public interest and for public good and the Constitution - makers who inserted it in Article 311(2) were the best persons to decide whether such an exclusionary provision should be there and the situations in which this provision should apply. In this connection, it must be remembered that a government servant is not wholly without any opportunity. Rules made under the proviso to Article 309 or under Acts refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. In R.Cooper s case the majority view in Gopalan s case was overruled. In Sambbu Nath Sarkar v. The State of West Bengal Ors. [1974] 1 S.C.R. 1, after referring to both these cases, this Court observed (at page 24) : In R.C.Cooper v. Union of India the aforesaid premise of the majority in Gopalan was disapproved and therefore it no longer holds the field. Though Cooper s case dealt with the inter-relationship of Article 19 and Article 31, the basic approach to construing the fundamental rights guaranteed in the different provisions of the Constitution adopted in this case held the major premise of the majority in Gopalan to be incorrect. In Hardhan Saha and another v. The State of West Bengal and others [1975] 1 S.C.R. 832, this Court held that a law which provided for preventive detention was to be tested with regard to its reasonableness with reference to Article 19. This view was reaffirmed in Khudiram Das v. The State of West Bengal and Others [1975] 2 S.C.R. 832. All these decisions were again examined in Maneka Gandhi s Case. In that case, an order under clause (c) of sub-section (3) of section 10 of the Passports Act, 1967, impounding the petitioner s passport w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d article 19 . Under Article 31B, none of the Acts and Regulations specified in the Ninth schedule to the Constitution nor any of the provisions thereof are to be deemed to be void on the ground that such Act, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provisions of Part III. Article 31C provides that Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing . . . shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 . . . . Gan it then be contended in face of these express provisions in the Constitution that none the less Article 14 will apply to the provisions of a law specified in Article 31A(1) or 31B or 31C? Clause(2) of Article 311 is an express statement of what the right of a fair hearing guaranteed by Article 14 would require and by the opening words of the second proviso to that clause that right is expressly taken away, and R.C.Cooper s case cannot be invoked to reintroduce that right on the ground that it flows by implication from Article 14. If the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the same language or with certain variations. Such variations at times confer or have been interpreted to confer an opportunity of hearing to a government servant which is excluded by the second proviso. Three such rules are involved in the matters before us, namely, Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to in short as the Railway Servants Rules ), Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to in short as the Civil Services Rules ) and Rule 37 of the Central Industrial Security Force Rules, 1969 (hereinafter referred to in short as the CISF Rules ). It was submitted on behalf of the government servants that though an Act or rule restricting or taking away any safe guard provided by clauses (1) and (2) of Article 311 would be void, different considerations would apply when such an Act or rule liberalizes the exclusionary effect of the second proviso. It is not possible to accept this submission. The opening words of Article 309 make that Article expressly Subject to the provisions of this Constitution . Rules made under the proviso to Article 309 or under Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, Seventh Edition, at page 229. In such a case breach of such statutory provisions would not furnish any cause of action or ground of challenge to a government servant for at the very threshold, such cause of action or ground of challenge would be barred by the second proviso to Article 311(2). On behalf of the government servants support for the above contention raised by them was sought to be derived from Challappan s case. Bearing in mind what has been stated above, we will, therefore, now examine Challapan s case. Before, however, we come to that case it would be convenient to refer to the observations in M. Gopala Krishna Naidu s case, because it was by reason of the conflict between those observations and what was held in Challappan s case that these matters have all some to be decided by this Constitution Bench. M.Gopala Krishna Naidu s case was not directly a case under the second proviso to Article 311(2). In that case the appellant, who was an overseer in the Public Works Department of the Central Provinces and Berar Government, was suspended from service in 1947 and prosecuted under section 161 of the Indian Penal Code. Ultimately, on orders from the High Court, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental Rule might be said to be a consequential order following a departmental inquiry. But there are three classes of cases as laid down by the proviso in Article 311 where a departmental inquiry would not be held, viz., (a) where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such an inquiry and (c) where the President or the Governor as the case may be is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the government servant. The authority in such cases would have to consider and pass the order merely on such facts which might be placed before him by the department concerned. The order in such a case would be ex parte without the authority having the other side of the picture. In such cases the order that such authority would pass would not be a consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dules, I, II and III to the Railway Servants Rules. Rules 9 and 10 prescribe a detailed procedure for imposing major penalties while Rule 11 prescribes the procedure for imposing minor penalties. Originally, sub-rule (5) of Rule 10 required that a notice be given to a railway servant informing him of the penalty proposed to be imposed upon him and giving him an opportunity of making a representation on the proposed penalty on the basis of the evidence adduced during the inquiry held under Rule 9. The whole of that sub-rule was substituted by the Railway Servants (Discipline and Appeal) (Third Amendment) Rules, 1978, to bring sub-rule (5) in conformity with clause (2) of Article 311 as amended by the Constitution (Forty-second Amendment) Act, 1976. It may be mentioned that on the respective dates of the orders impugned in Challappan s case the original sub-rule (5) of Rule 10 formed part of the Railway Servants Rules and clause (2) of Article 311 in force was that clause as amended by the Constitution (Fifteenth Amendment) Act, 1963. This However, does not make any difference to the point which falls to be decided. Rule 14 of the Railway Servants Rules provides as follows : 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case. X X X X X X X Rule 25 confers power upon (i) the President, (ii) Railway Board, (iii) the General Manager of a Zonal Railway or an authority of that status in any other Railway Unit or Administration in the case of a railway servant serving under him or its control, (iv) the appellate authority not below the rank of a Deputy Head of Department or a Divisional Railway Manager in cases where no appeal has been preferred, or (v) any other authority not below the rank of a Deputy Head of Department or a Divisional Railway Manager in the case of a railway servant serving under its control, at anytime, either on his or its own motion or otherwise, to call for records of any inquiry and revise any order made under the Railway Servants Rules. Clause (c) of the first proviso to Rule 25(1) inter alia provides as follows :- Provided that- X X X X X X (c) subject to the provisions of Rule 14, the revising authority shall- X X X X X X X (ii) where an inquiry in the manner laid down in Rule 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been complied with by the disciplinary authority, the order of removal from service of the delinquent employee was rightly quashed. The Court pointed out that clause (i) of Rule 14 merely sought to incorporate the principle embodied in clause (a) of the second proviso. The Court in the course of its judgment reproduced the provisions of clause (2) of Article 311 alongwith clause (a) to the proviso thereto, at that time clause (2) of Article 311 in force being that clause as amended by the Constitution (Fifteenth Amendment) Act, 1963, that is, clause (2) prior to its amendment by the Constitution (Forty-second Amendment) Act, 1976, and the proviso thereto being the same as the second proviso to clause (2) as amended by the Constitution (Forty-second Amendment) Act. The Court then pointed out that there were three stages in a departmental inquiry under Article 311(2) the third being the stage before actually imposing the penalty in which final notice to the delinquent employee should be given to show cause why the penalty proposed against him be not imposed on him. It then stated that clause (a) of the proviso (now the second proviso) Article 311(2), however, completely dispensed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the misconduct committed by him, the impact which his misconduct is to have on the administration and other extenuating circumstances or redeeming the features if any present in the case and so on and so forth. It may be that the conviction of an accused may be for a trivial offence as in the case of the respondent T.R. Challappan in Civil Appeal No. 1664 of 1974 where a stern warning or a fine would have been sufficient to meet the exigencies of service. It is possible that the delinquent employee may be found guilty of some technical offence, for instance, violation of the transport rules or the rules under the Motor Vehicles Act and so on, where no major penalty may be attracted. It is difficult to lay down any hard and fast rules as to the factors which the disciplinary authority would have to consider, but I have mentioned some of these factors by way of instances which are merely illustrative and not exhaustive. In other words, the position is that the conviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter because the cases of all the three respondents before us are cases which clearly fall within rule 14 of the rules of 1968 where they have been removed from service without complying with the last part of rule 14 of the Rules of 1968 as indicated above. In none of the cases has the disciplinary authority either considered the circumstances or heard the delinquent employees on the limited point as to the nature and extent of the penalty to be imposed if at all. On the other hand in all these cases the disciplinary authority has proceeded to pass the order of removal from service straightaway on the basis of the conviction of the delinquent employees by the criminal courts. (Emphasis supplied) So far as Challappan s Case is concerned, it is not possible to find any fault either with the view that neither clause (a) of the second proviso to Article 311(2) nor clause (i) of Rule 14 of the Railway Servants Rules is mandatory or with the considerations which have been set out in the judgment as being the considerations to be taken into account by the disciplinary authority before imposing a penalty upon a delinquent government servant. Where a situation envisaged in one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disciplinary authority to dispense with the inquiry contemplated by clause (2) of Article 311 in the three cases mentioned in the second proviso to that clause or any one or more of them. Such a rule, however, cannot be valid and constitutional without reference to the second proviso to Article 311(2) and cannot be read apart from it. Thus, while the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules, the source of his power to dispense with the inquiry is derived from the second proviso to Article 311 (2) and not from any service rules. There is a well-established distinction between the source of authority to exercise a power and the source of such power. The Court in Challappan s case was, therefore, in error in interpreting Rule 14 of the Railway Servants Rules by itself and not in conjunction with the second proviso (at that time the only proviso) to Article 311(2). It appears that in Challappan s case the Court felt that the addition of the words the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit warranted an interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such penalty proposed to be imposed upon him can be afforded to the delinquent government servant. Undoubtedly, the disciplinary authority must have regard to all the facts and circumstances of the case as set out in Challapan s case. As pointed out earlier, considerations of fair play and justice requiring a hearing to be given to a government servant with respect to the penalty to be imposed upon him do not enter into the picture when the second proviso to Article 311(2) comes into play and the same would be the position in the case of a service rule reproducing the second proviso in whole or in part and whether the language used is identical with that used in the second proviso or not. There are a number of orders which are of necessity passed without hearing the party who may be affected by them. For instance, courts of law can and often do pass ex parte ad interim orders on the application of a plaintiff, petitioner or appellant without issuing any notice to the other side or hearing him. Can it, therefore, be contended that the judge or judges, as the case may be, did not apply his or their mind while passing such an order? The Decision in Challappan s case is, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opportunity to show cause against the proposed penalty was done away with. Rule 19 Provides as follows 19. Special procedure in certain cases. Notwithstanding anything contained in rule 14 to rule 18- (i) where any penalty is imposed on Government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or, (iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit; Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule. The word Commission is defined by clause (d) of Rule 2 as meaning The Union Public Service Commission . Under Rule 22, no appeal is lies against any order made by the President or orders of certain nature specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udice to the generality of the foregoing powers, such rules may provide for- (a) regulating the classes, ranks, grades, pay and remuneration of supervisory officers and members of the Force and their conditions of service in the Force; X X X X X X (g) regulating the punishments and prescribing authorities to whom appeals shall be preferred from orders of punishment or remission of fines or other punishments, and the procedure to be followed for the disposal of such appeals; X X X X X X Before we turn to the CISF Rules, it is necessary to refer to certain other provisions of the CISF Act. Section 3 of the CISF Act provides for the constitution and maintenance by the Central Government of a Force to be called the Central Industrial Security Force (hereinafter referred to in short as the CIS Force ) for the better protection and security of Industrial undertakings owned by the Government. Clause(i) of section 2(1) of the CISF Act defined supervisory officer as meaning any of the officers appointed under Section 4 and includes any other officer appointed by the Central Government as a supervisory officer of the Force . Section 4 provides for the appointment of superv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower class or grade or rank or to a lower time-scale or to a lower stage in the time-scale of pay. CIS Rules do not specify which out of the penalties specified in Rule 31 are the major penalties and which are minor penalties but as these terms are well understood in service jurisdiction the same classification as in the Civil Services Rules and the Railway Servants Rules will apply here. Rule 34 prescribes the detailed procedure for imposing major penalties and Rule 35 prescribes the procedure for imposing minor penalties. Rule 32 specifies what are described as petty punishments to be awarded ordinarily in Orderly Room for petty breaches of discipline and trifling cases of misconduct by members of the CIS Force not above the rank of the Head Security Guard and Rule 36 prescribes the procedure for imposing these punishments. Rule 37 of the CIS Rules is as follows : 37. Special Procedure in certain cases- Notwithstanding anything contained in rule 34, rule 35 or rule 36, where a penalty is imposed on a member of the force- (a) on the ground of conduct which had led to his conviction on a criminal charge; or (b) where the disciplinary authority is satisfied for reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Civil Services Rules is not to be found in Rule 37 of the CISF Rules. The same interpretation as placed by us on the word consider occurring in Rule 14 of the Railway Servants Rules and Rule 19 of the Civil Services Rules must, therefore, be placed upon the word consider in Rule 37 of the CISF Rules. The last paragraph of Rule 37 of the CISF Rules is peculiar to itself and does not find a place either in the said Rule 14 or the said Rule 19. It is clumsily worded and makes little sense. To provide that a member of the CIS Force who has been convicted to rigorous imprisonment on a criminal charge shall be dismissed from service and at the same time to provide that only a notice shall be given to the party charged proposing the punishment of dismissal for his having been convicted to rigorous imprisonment and asking him to explain as to why the proposed punishment of dismissal should not be imposed , is a contradiction in terms, If either of these provisions were taken as mandatory, it would be void as violating the second proviso to Article 311(2) because the penalty contemplated by the second proviso to Article 311(2) is not the penalty of dismissal only but also of rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was wrongly convicted by the criminal court. He can, however, contend that in the facts and circumstances of the case, the penalty imposed upon him is too severe or is excessive. He can also show that he is not in fact the government servant who was convicted on a criminal charge and that it is a case of mistaken identity. Where it is a case falling under clause(b) of the second proviso or a provision in the service rules analogous thereto, the dispensing with the inquiry by the disciplinary authority was the result of the situation prevailing at that time. If the situation has changed when the appeal or revision is heard, the government servant can claim to have an inquiry held in which he can establish that he is not guilty of the charges on which he has been dismissed, removed or reduced in rank. He, however, cannot by reason of the provisions of clause(3) of Article 311 contend that the inquiry was wrongly dispensed with and it was reasonably practicable to hold an inquiry because by the said clause (3) the decision on this point of the disciplinary authority has been made final. So far as clause (c) is concerned, dispensing with the inquiry depends upon the satisfaction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond Proviso or the Relevant Service Rule in the Impugned Orders Some of the orders impugned before us refer only to one or the other of the three clauses of the second proviso to Article 311(2) for dispensing with an inquiry without referring to the relevant service rule, some refer both to a clause of the second proviso and the relevant service rule, while the others refer only to the relevant service rule without making any mention of the particular clause of the second proviso which has been applied. The question is whether the omission to mention the particular clause of the second proviso or the relevant service rule makes any difference. As pointed out earlier, the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules while the source of his power to dispense with the disciplinary inquiry is derived from the second proviso to Article 311(2). There cannot be an exercise of a power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The exercise of a power is, therefore, alw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by itself. Once the disciplinary authority reaches the conclusion that the government servant s conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that situation. In all such cases neither public interest nor public good requires that salary or subsistence allowance should be continued to be paid out of the public exchequer to the concerned government servant. It should also be borne in mind that in the case of a serious situation which renders the holding of an inquiry not reasonably practicable, it would be difficult to foresee how long the situation will last and when normalcy would return or be restored. It is impossible to draw the line as to the period of time for which the suspension should continue and on the expiry of that period action should be taken under clause (b) of the second proviso. Further, the exigencies of a situation may require that prompt action should be taken and suspending the government servant cannot serve the purpose. Sometimes not taking prompt action may result in the trouble spreading and the situation worsening and at times becoming uncontrolable. Not taking prompt action may also be construed by the troublemakers and agitators as sign of weakness on the part of the authorities and thus encourage them to step up the tempo of their activities or agitation. It is true that when prompt act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause(3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department s case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently during he course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word inquiry in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2). The second con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would, however, be better for the disciplinary authority to communicate to the government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the government servant and the matter comes to the court, the court can direct the reasons to be produced, and furnished to the government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority s decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security of the State are the gravest. Danger to the security of the State may arise from without or within the State. The expression security of the State does not mean security of the entire country or a whole State. It includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the State can be affected. The way in which security of the State is affected may be either open or clandestine. Amongst the more obvious acts which affect the security of the State would be disaffection in the Armed Forces or para-military Forces. Disaffection in any of these Forces is likely to spread, for disaffected or dissatisfied members of these Forces spread such dissatisfaction and disaffection among other members of the Force and thus induce them not to discharge their duties properly and to commit acts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er discharge of their duties and the maintenance of discipline among them. Thus, the discharge of their duties by the members of these Forces and the maintenance of discipline amongst them is considered of such vital importance to the country that in order to ensure this the Constitution has conferred upon Parliament to restrict or abrogate to them. The question under clause (c), however, is not whether the security of the State has been affected or not, for the expression used in clause (c) is in the interest of the security of the State . The interest of the security of the State may be affected by actual acts or even the likelihood of such acts taking place. Further, what is required under clause (c) is not the satisfaction of the President or the Governor, as the case may be, that the interest of the security of the State is or will be affected but his satisfaction that in the interest of the security of the State, it is not expedient to hold an inquiry as contemplated by Article 311(2). The satisfaction of the President or Governor must, therefore be with respect to the expediency or inexpediency of holding an inquiry in the interest of the security of the State. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of clause (b) of the second proviso, clause (3) of Article 311 makes the decision of the disciplinary authority that it was not reasonably practicable to hold the inquiry final. There is no such clause in Article 311 with respect to the satisfaction reached by the President or the Governor under clause (c) of the second proviso. There are two reasons for this. There can be no departmental appeal or other departmental remedy against the satisfaction reached by the President or the Governor; and so far as the Court s power of judicial review is concerned, the Court cannot sit in judgment over State policy or the wisdom or otherwise of such policy. The court equally cannot be the judge of expediency or inexpediency. Given a known situation, it is not for the Court to decide whether it was expedient or inexpedient in the circumstances of the case to dispense with the inquiry. The satisfaction reached by the President or Governor under clause (c) is subjective satisfaction and, therefore, would not be a fit matter for judicial review. Relying upon the observations of Bhagwati, J., in State of Rajasthan and others etc. etc. v. Union of India etc.etc., [1978] 1 S.C.R. 1, 82, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court can examine whether the satisfaction of the President or the Governor, as the case may be, was arrived at mala fide or based on wholly extraneous and irrelevant grounds so that such satisfaction would in law amount to no satisfaction at all. It was further submitted that if the Government does not voluntarily disclose such materials it can be compelled by the Court to do so. Whether this should be done or not would depend upon whether the documents in question fall within the class of privileged documents and whether in respect of them privilege has been properly claimed or not. It is unnecessary to examine this question any further because in the cases under clause (c) before us though at first privilege was claimed, at the hearing privilege was waived and the materials as also the advice given by the Ministers to the Governor of Madhya Pradesh who had passed the impugned orders in those cases were disclosed. The Nature of the Challenge to the Impugned orders In all matters before us the challenge to the validity of the impugned orders was confined only to legal grounds, the main ground being based upon what was held in Challappan s case and the application of principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h an inquiry. For these reasons and in view of the directions we propose to give while disposing of these matters, we will while dealing with facts refrain from touching any aspect except whether the particular clause of the second proviso to Article 311(2) or an analogous service rule was properly applied or not. C.A. No. 6814 of 1983 Civil Appeal No. 6814 of 1983 is the only matter before us under clause (a) of the second proviso to Article 311(2). The respondent, Tulsiram Patel, was a permanent auditor in the Regional Audit Officer, M.E.S., Jabalpur. It appears that orders were issued by Headquarters, C.D.A. C.C., Meerut, stopping the increment of the Respondent for one year. One Raj Kumar Jairath was at the relevant time the Regional Audit Officer, M.E.S., Jabalpur. On July 27,1976, the Respondent went to Raj Kumar s office and demanded an explanation from him as to why he had stopped his increment whereupon Raj Kumar replied that he was nobody to stop his increment. The Respondent then struck Raj Kumar on the head with an iron rod. Raj Kumar fell down, his head bleeding. The Respondent was tried and convicted under section 332 of the Indian Penal Code by the First Class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f dismissal or removal from service but of compulsory retirement and, therefore, clause (a) of Article 311(2) did not apply. The argument cannot be accepted. The compulsory retirement of the Respondent was not by reason of his reaching the age of superannuation or under other rules which provide for compulsorily retiring a government servant on his completing the qualifying period of service. The order of compulsory retirement in this case was under clause (i) of Rule 19 of the Civil Services Rules and was by way of imposing upon him one of the major penalties provided for in Rule 11. It is now well settled by decisions of this Court that where an order of compulsory retirement is imposed by way of penalty, it amounts to removal from service and the provisions of Article 311 are attracted. (See State of U.P. v. Shyam Lal Sharma, [1972] 1 S.C.R. 184,189 and the cases referred to therein). The second ground upon which the High Court rested its decision is equally unsustainable. The circumstances which were taken into consideration by the disciplinary authority have been sufficiently set out in the order of compulsory retirement, they being that the Respondent s conviction under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Madhaya Pradesh High Court. Before dealing with the relevant facts, we may mention that the counter affidavit filed to the writ petition in both the said High Courts were unsatisfactory. At the hearing of these Appeals an application was made on behalf of the Appellants for leave to file a supplementary return. This application was granted by us in the interest of justice and the supplementary Return annexed to the said application was taken on the record. We will now briefly set out the facts which led to the passing of the impugned orders. The Respondents in Civil Appeal No. 3484 of 1982 are dismissed members of the CISF Unit at Bokaro Steel Plant of the Bokaro Steel Limited situate at Bokaro in the State of Bihar temporary security guard in the CISF Unit posted at Security Paper Mill at Hoshangabad in the State of Madhya Pradesh. We will first deal with the facts of Civil Appeal No. 3484 of 1982. The members of the CISF Unit at Bokaro had formed an all-India association in March 1979 and one Sadanand Jha, Respondent No. 1, was elected as its General Secretary. Thereafter, a country wide agitation was carried on for recognition of the said association. In June 1979 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmoury. Inspite of giving repeated warnings by the authorities to give up charge of the Armoury, the agitators did not give up arms, but, instead, resorted to violence. The agitators started firing at 0320 hours at the Army. The Army returned the fire. The said exchange of fire continued for 3 hours before the Army could spell out the violent retaliation of the agitators. The said violent exchange of fire resulted in the instant death of one Army Major and 2 more Army personnel were also killed as a result of firing by the CISF personnel. 6. It may also be stated that there were 22 death in the course of the said pitched battle, which went on for three hours between the violent armed agitators and the Army. 7. In regard to the aforesaid violent activities and the commission of offences, about 800 personnel were rounded up by the Army and later on arrested by the local police. It is pertinent to mention here that at the relevant time, about 1900 personnel were deployed in CISF Unit, Bokaro Steel Plant, Bokaro. More than 1000 personnel participated in the aforesaid agitational activities. Besides the persons arrested by the authorities concerned, a substantial number of agitato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any inquiry in accordance with the rules was reasonably impracticable and impugned orders were passed in view thereof. We see no reason to doubt the above statements made by Shri Madan Gopal in the Supplementary Return for these statements are supported by documents which have been annexed to the Supplementary Return. The facts set out in the above paragraphs of the Supplementary Return are eloquent and speak for themselves. They are also reflected in the impugned order. All the impugned orders are in the same terms apart from the mention of the name and service number of the particular member of the said CISF Unit against whom the order is made. By way of a specimen we set out below the impugned order dated June 29, 1979, made in the case of Sadanand Jha. The said order is as follows : Whereas a large group of members of Central Industrial Security Force (hereinafter referred to as the Force) of CISF Unit, Bokaro Steel Ltd., Bokaro have indulged and still continue to indulge in acts of insubordination and indiscipline, dereliction of duty, absenting from PT and parade, taking out processions and raising slogans such as INQULAB ZINDABAD . VARDI VARDI VARDI BHAI BHAI LARK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sector, showing the necessity thereof, depute such number of supervisory officers and members of the CIS Force as the Inspector- General may consider necessary for the protection and security of that industrial undertaking and any installation attached thereto. The purpose of constituting the CIS Force is set out in the Statement of Objects and Reasons to the Bill which when enacted became the CISF Act. The said Statement of Objects and Reasons is published in the Gazette of India Extraordinary dated August 2, 1966, Part II, Section 2, at page 435, and is as follows : At present security arrangements at important industrial undertakings in the public sector are handled by the Watch and Ward staff of the Organization concerned. The Watch and Ward staff is generally engaged in guarding the entrances or the perimeter of the industrial undertaking and in preventing entries of unauthorized persons. Unplanned recruitment, inadequate supervision, training and discipline have made the existing watch and ward staff ill equipped to discharge its responsibilities. It is considered necessary to strengthen the security arrangements in vital industrial undertakings. For that purpose it is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isaffection) Act, 1922, applies to supervisory officers and members of the CIS Force as it applies to members of a Police Force. Under section 20, neither the Payment of Wages Act, 1936, nor the Industrial Disputes Act, 1947, nor the Factories Act, 1948, nor any corresponding State Act applies to the member of the CIS Force. The facts set out in the Supplementary Return of Shri Mohan Gopal and in the impugned orders show that there was a total breakdown of discipline in the CIS Force. There was a wilful and deliberate disobedience of orders of the supervisory officers and gherao of such officers. There was a hunger strike, dharna, shouting of revellious slogans and threats of violence and bodily harm to supervisory officers and acts tending to intimidate the supervisory officers and loyal members of the staff. There were acts of insubordination and deliberate neglect and wilful violation of their duties by a very large section of the members of the CIS Force stationed at Bokaro. All these acts virtually amounted to a mutiny and how grave the situation was can be judge from the fact that the army had to be called out and a pitched battle took place between the army and the memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants were reinstated. We do not know how far this is correct nor the reasons for allowing such appeals, but if what is stated is ture, it is not fair and the remaining appeals should be disposed of as early as possible. The impugned order in Civil Appeal No. 3512 of 1982 is in the same terms as the impugned orders in Civil Appeal No. 3484 of 1982. The situation at Hoshangabad was very much the same as at Bokaro and in our opinion clause (b) of Rule 37 of the CISF Rules and clause (b) of the second proviso to clause (2) of Article 311 were properly applied to the case of the Respondent. Both these Appeals, therefore, require to be allowed. Railway Service Matters Civil Appeals Nos. 3231 of 1981 and 4067 of 1983 and all the writ petitions filed in this Court (except Writ Petitions Nos. 1953 of 1981, 7393,1392 and 2022 of 1981) and all Transferred Cases, that is, writ petitions filed in High Courts and transferred to this Court, relate to railway servants who were either dismissed or removed from service by applying to their cases either clause (ii) of Rule 14 of the Railway Servants Rules or clause (b) of the second proviso to Article 311(2) or clause (ii) of Rule 14 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to resort to a strike. A strike is only legal if an Act permits it and only if it is called in compliance with the conditions prescribed by the Act. The definition of public utility service in clause (n) of section 2 of the Industrial Disputes Act, 1947, includes and railway service. The term strike is defined in clause (q) of section 2 of the said Act. The said clause (q) is as follows : strike means a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment . Under sub-section (1) of section 22 of the said Act, no person employed in a public utility service can go no strike in breach of contract without giving to his employer a notice of strike as prescribed by that section. Under section 24 a strike is illegal if it is commenced or declared in contravention of section 22. Under section 26(1) any workman who commences, continues or otherwise acts in furtherance of a strike which is illegal under the said Act, commits an offence punishable with imprisonment for a term whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erly applied. All these matter therefore require to be dismissed. The Madhya Pradesh Police Forces Matters The matters which now remain to be dealt with are Writ Petitions Nos. 1953,7393,1392 and 2022 of 1981. The Petitioners belonged either to the Madhya Pradesh District Police Force or the Madhya Pradesh special Armed Force. The Petitioners were dismissed by orders of the Governor of Madhya Pradesh by applying clause (c) of the second proviso to Article 311(2) to them. All the orders are in the same terms except for the same and designation of the concerned policeman. One of the orders may be reproduced as a specimen. That order is as follows: As the Governor of M.P. Under article 311(2) C clause 2, sub-clauses (c) of the proviso of Constitution is satisfied, that it is not expedient in the interest of the security of State that in case of Shri Karan Singh const. no. 602, 2nd Bn. SAF the alleged charges to be told, enquiry to be conducted, or opportunity to show cause is to be provide as per provisions of clause (2) of the above article, And, as Governor of M.P. is satisfied that the conduct, which appears from his actions or omissions, is such that it is sufficient ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant of bail to an accused but here we have the paradoxical situation of some of the highest police and district officers going at midnight to the Magistrate s house to apply for bail for the accused. The police are the guardians of law and order. They stand guard at the border between the green valleys of law and order and the rough and hilly terrain of lawlessness and public disorder. If these guards turn law-breakers and create violent public disorder and incite others to do the same, we can only exclaim with Juvenal, Quis custodiet ipsos Custodes? - who is to guard the guards themselves? (Satires, VI,347). These facts leave no doubt that the situation was such that prompt and urgent action was necessary and the holding of a inquiry into the conduct of each of the Petitioners would not have been expedient in the interest of the security of the State. All these four Petitions, therefore deserve to be dismissed. Final Orders in the Appeals and Writ Petitions For the reasons set out above, we pass the following orders in the above matters : (1) Civil Appeal No. 6814 of 1983 is allowed and the judgment and order appealed against are reversed and set aside and the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether or not to overrule it. A give and take of ideas, with due respect for the holders of the opposite point of view (in a true democratic spirit of tolerance), with willingness to accord due consideration to the same, would not have impaired the search for the true solution or hurt the cause of justice. The holders of the rival view points could have, perhaps, successfully persuaded and converted the holders of the opposite point of view or got themselves persuaded and converted to the other point of view. Brother Madon, J, to whom the judgment was assigned by the learned Chief Justice, also appears to suffer heart-ache on the same score, for, in his covering letter dated July 6, 1985 forwarding the first instalment of 142 pages he says : ...... I regret to state that the draft judgment could not be sent to you earlier. The reason was that as we did not have a meeting to discuss this matter, I did not know what would be the view of my other Brothers on the large number of points which fall to be determined in these cases, except partly in the case of two of my Brothers with whom by chance I got an opportunity to discuss certain broad aspects...... . If only there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eemed necessary. For the present, therefore, suffice it to say, I am unable to persuade myself to fall in line with the majority in overruling Challappan and unable to concur with the consequential orders being passed in that context. I am also unable to associate myself with the exposition of law in regard to the true meaning and content of the pleasure doctrine and its implications and impact. The sphere in which I am able to agree with the proposed judgment is in regard to the matters arising out of orders passed in exercise of powers under Article 311(2) (c) of the Constitution of India and the orders proposed to be passed therein. In the result: I Following the law laid down in Challappan the under mentioned appeals are dismissed with no order as to costs:- Civil Appeal No. 6814 of 1983 Union of India Anr. v. Tulsiram Patel Civil Appeal No. 3484 of 1982 Union of India Ors. v. Sadanand Jha Ors. Civil Appeal No. 3512 of 1982 Union of India Ors. v. G.P. Koushal II Following the law laid down in Challappan , the Writ Petitions and allied appeals and the companion matters hereafter mentioned are allowed and the impugned orders agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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