Case Summary
| Citation | |
| Keywords | |
| Facts | |
| Issues | |
| Contentions | |
| Law Points | |
| Judgement | |
| Ratio Decidendi & Case Authority |
Full Case Details
The case involved the interpretation of Articles 309, 310 and 311 of the Constitution and
in particular the second proviso to clause (2) of Article 311 after its amendment by the
Constitution (Forty-second Amendment) Act, 1976. All the civil servants in the case had
either been dismissed or removed from service without being informed of the charges and
holding any inquiry into the charges. They were not given any opportunity of being heard in
respect of the charges. The dismissal or removal orders had been passed under one or more of
the sub-clauses of second proviso to clause (2) of Article 311 or under similar provisions in
rules made under the proviso to Article 309 or in the rules made under an Act referable to
Article 309, for instance, Rule 19 of the Central Civil Services (Classification, Control and
Appeal) Rules, 1965, Rule 14 of the Railway servants (Discipline and Appeal) Rules, 1968,
and Rule 37 of the Central Industrial Security Force Rules, 1969, or under such a rule read
with one of the clauses of the second proviso to Article 311(2).
Arguments of the government servants on the pleasure doctrine and the second proviso to
Article 311(2):
(1) The pleasure doctrine in England was a part of the special prerogative of the Crown
and had been inherited by India from England and should, therefore, be construed strictly,
that is, strictly against the government and liberally in favour of government servants.
(2) The second proviso which withdrew from government servants the safeguards
provided by clause (2) of Article 311 must be also similarly construed for, unless a liberal
construction were placed upon it, great hardship would result to government servants as they
could be arbitrarily thrown out of employment and they and their dependents would be left
without any means of subsistence.
(3) There were several stages before a government servant could be dismissed or
removed or reduced in rank, namely, serving upon him of a show cause notice or a chargesheet, giving him inspection of documents, examination of witnesses, arguments and
imposition of penalty. An inquiry starts only after a show cause notice was issued and served
upon a government servant. A show cause notice was thus preparatory to the holding of an
inquiry and even if the entire inquiry was dispensed with, the giving of a show cause notice
and asking for the explanation of the government servant with respect thereto were not
excluded.
(4) It was not obligatory upon the disciplinary authority to dispense with the whole of the
inquiry. Depending upon the circumstances of the case, the disciplinary authority could
dispense with only a part of the inquiry.
(5) Imposition of penalty was not a part of the inquiry and once an inquiry was dispensed
with, whether in whole or in part, it was obligatory upon the disciplinary authority to give an
366
opportunity to the government servant to make a representation with respect to the penalty
proposed to be imposed upon him.
(6) Article 311 was subject to Article 14. Principles of natural justice and the audi
alteram partem rule were 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 were required to be given by Article 14
and the not giving of such notices or either of them rendered the order of dismissal, removal
or reduction in rank invalid.
Submissions of the Union of India:
(1) The second proviso must be construed according to its terms It was unambiguous and
did not admit of any such interpretation
(2) Where under the second proviso, to clause (2) of Article 311 was made inapplicable,
there was no scope for holding any partial inquiry.
(3) In any event, the very contents of the three clauses of the second proviso showed that
it was not necessary, practicable or expedient that any partial inquiry could be or should be
held, depending upon which clause applies.
(4) Article 14 did not govern or control Article 311. The Constitution must be read as a
whole. Article 311(2) embodied the principles of natural justice including the audi alteram
partem rule. It thus expressly stated what was required under Article 14 as a result of the
interpretation placed upon it by recent decisions of the court. Once the application of clause
(2) was expressly excluded by the Constitution itself, there could be no question of making
applicable what had been so excluded by seeking recourse to Article 14.
(5) Consideration of sympathy for the government servants who may be dismissed or
removed or reduced in rank was irrelevant to the construction of the second proviso. The
doctrine of tenure at pleasure in Article 310 and the safeguards given to a government servant
under clauses (1) and (2) of Article 311 as also the withdrawal of the safeguard under clause
(2) by the second proviso are all enacted in public interest and where public interest conflicts
with private interest, the latter must yield to the former.
D.P. MADON, J. – The Scope of the Pleasure Doctrine:
- These articles occur in Chapter I of Part XIV of the Constitution. Part XIV is entitled
“Services under the Union and. the States” and Chapter I thereof is entitled “Services”. While
Article 309 deals with the recruitment and conditions of service of persons appointed to the
public services and posts in connection with the affairs of the Union or a State, Article 310
deals with the tenure of office of members of the defence services and of civil services of the
Union and the States and Article 311 provides certain safeguards to persons employed in civil
capacities under the Union or a State but not to members of the defence services. The first
thing which is required to be noticed about Article 309 is that it itself makes no provision for
recruitment or conditions of service of government servants but confers power upon the
appropriate Legislature to make laws and upon the President and the Governor of a State to
make rules in respect of these matters. The passing of these Acts and the framing of these
rules are, however, made “Subject to the provisions of this Constitution”. This phrase which
precedes and qualifies the power conferred by Article 309 is significantly different from the
367
qualifying phrase in Article 310(1) which is “Except as expressly provided by this
Constitution”. - As the making of such laws and the framing of such rules are subject to the provisions
of the Constitution, if any such Act or rule violates any of the provisions of the Constitution,
it would be void. Thus, as held in Moti Ram Deka case [Moti Ram Deka v. G.M., NEF
Railwa, AIR 1964 SC 600], if any such Act or rule trespasses upon the rights guaranteed to
government servants by Article 311, it would be void. Similarly, such Acts and rules cannot
abridge or restrict the pleasure of the President or the Governor of a State exercisable under
Article 310(1) further than what the Constitution has expressly done. In the same way, such
Act or rule would be void if it violates any Fundamental Right guaranteed by Part III of the
Constitution. Two instances of this may be given by way of illustration. In Kameshwar
Prasad v. State of Bihar [AIR 1962 SC 1116], Rule 4-A of the Bihar Government Servants’
Conduct Rules, 1956, insofar as it prohibited any form of demonstration was struck down by
this Court as being violative of sub-clauses (a) and (b) of clause (1) of Article 19. In O.K.
Ghosh v. E.X. Joseph [AIR 1963 SC 812], this Court struck down Rule 4-A of the Central
Civil Services (Conduct) Rules, 1955, on the ground that it violated sub-clause (c) of clause
(1) of Article 19 of the Constitution and that portion of Rule 4-A which prohibited
participation in any demonstration as being violative of sub-clauses (a) and (b) of clause (1)
of Article 19. Further, the application of Article 309 is excluded by certain provisions of the
Constitution itself which empower authorities other than those specified in Article 309 to
make appointments or to make rules relating to the conditions of service of certain classes of
public service, such as, Article 146(1) with respect to the officers and servants of the Supreme
Court, Article 148(5) with respect to persons serving in the Indian Audit and Accounts
Department, Article 229 with respect to the officers and servants of the High Courts, and
Article 324(5) with respect to Election Commissioners and Regional Commissioners. - Which would be the appropriate Legislature to enact laws or the appropriate authority
to frame rules would depend upon the provisions of the 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. - In India for the first time a fetter was imposed upon the pleasure of the Crown to
terminate the service of any of its servants by Section 96-B 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.
368
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 provision 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 Supreme Court, Article 218 with respect to
Judges of the High Court, Article 148(1) with respect to the Comptroller and Auditor-General
of India, Article 324(1) with respect to the Chief Election Commissioner, and Article 324(5)
with respect to the Election Commissioners and Regional Commissioners. - Clauses (1) and (2) of Article 311 impose restrictions upon the exercise by the
President or the Governor of a State of his pleasure under Article 310(1). These are express
provisions with respect to termination of service by dismissal or removal as also with respect
to reduction in rank of a civil servant and thus come within the ambit of the expression
“Except as expressly provided by this Constitution” qualifying Article 310(1). Article 311 is
thus an exception to Article 310 and was described in Parshotam Lal Dhingra v. Union of
India [AIR 1958 SC 36] as operating as a proviso to Article 310(1) though set out in a
separate article. Article 309 is, however, not such an exception. It does not lay down any
express provision which would derogate from the amplitude of the exercise of pleasure under
Article 310(1). It merely confers upon the appropriate Legislature or executive the power to
make laws and frame rules but this power is made subject to the provisions of the
Constitution. Thus, Article 309 is subject to Article 310(1) and any provision restricting the
exercise of the pleasure of the President or Governor in an Act or rule made or framed under
Article 309 not being an express provision of the Constitution, cannot fall within the
expression “Except as expressly provided by this Constitution” occurring in Article 310(1)
and would be in conflict with Article 310(1) and must be held to be unconstitutional. Clauses
(1) and (2) of Article 311 expressly restrict the manner in which a government servant can be
dismissed, removed or reduced in rank and unless an Act made or rule framed under Article
309 also conforms to these restrictions, it would be void. The restriction placed by clauses (1)
and (2) of Article 311 are two: (1) with respect to the authority empowered to dismiss or
remove a government servant provided for in clause (1) of Article 311; and (2) with respect to
the procedure for dismissal, removal or reduction in rank of a government servant provided
for in clause (2). The second proviso to Article 311(2), which is the central point of
controversy 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, withholding of promotion and withholding 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
369
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 not terminate the employment of a government
servant, and it would, therefore, be difficult to say that it affects the tenure of a government
servant. It may, however, be argued that it does bring to an end the holding of office in a
particular rank and from that point of view it affects the government servant’s tenure in the
rank from which he is reduced. It is unnecessary to decide this point because Article 311(2)
expressly gives protection as against the penalty of reduction in rank also.
Exercise of Pleasure: - A question which arises in this connection is whether the pleasure of the President or
the Governor under Article 310(1) is to be exercised by the President or the Governor
personally or it can be exercised by a delegate or some other authority empowered under the
Constitution or by an Act or Rules made under Article 309. This question came up for
consideration before a Constitution Bench of this Court in Babu Ram Upadhya case (State of
U.P. v. Babu Ram [AIR 1961 SC 751)]. The majority of the Court the conclusions it had
reached in the form of seven propositions. These propositions arc:
(1) In India every person who is a member of a public service described in Article
310 of the Constitution holds office during the pleasure of the President or the Governor,
as the case may be, subject to the express provisions therein.
(2) 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.
(3) This tenure is subject to the limitations or qualifications mentioned in Article 311
of the Constitution.
(4) 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.
(5) The Parliament or the Legislatures of States can make a law regulating the
conditions of service of such a member which includes proceedings by way of
disciplinary action, without affecting the powers of the President or the Governor under
Article 310 of the Constitution read with Article 311 thereof.
(6) The Parliament and the Legislatures also can make a law laying down and
regulating the scope and content of the doctrine of “reasonable opportunity” embodied in
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 thereunder 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 case. While referring to the judgment of the majority in Babu Ram Upadhya case the
Court observed as follows:
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
370
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 propositions, the said judgment has
observed that the Parliament or the Legislature can make a law regulating the
conditions of service without affecting the powers of the President or the Governor
under Article 310 read with Article 311. It has also been stated at the same place that
the power to dismiss a public servant at pleasure is outside the scope of Article 154
and, therefore, cannot be delegated by the Governor to a subordinate officer and can
be exercised by him only in the manner prescribed by the Constitution. In the
context, it would be clear that this latter observation is not intended to lay down that
a law cannot be made under Article 309 or a rule cannot be framed under the proviso
to the said article prescribing the procedure by which, and the authority by whom, the
said pleasure can be exercised. This observation which is mentioned as proposition
number (2) must be read along with the subsequent propositions specified as (3), (4),
(5) and (6). The only point made is that whatever is done under Article 309 must be
subject to the pleasure prescribed by Article 310. - While we are on this point we may as well advert to the decision of this Court in
Sardari Lal v. Union of India [AIR 1971 SC 1547]. In that case it was held that where the
President or the Governor, as the case may be, if satisfied, makes an order under clause (c) of
what is now the second proviso to Article 311 (2) that in the interest of the security of the
State it is not expedient to hold an inquiry for dismissal or removal or reduction in rank of an
officer, the satisfaction of the President or the Governor must be his personal satisfaction. The
correctness of this view was considered by a seven-Judge Bench of this Court in Samsher
Singh v. State of Punjab [AIR 1974 SC 2129]. It was categorically stated in that case that the
majority view in Babu Ram Upadhya case was no longer good law after the decision in Moti
Ram Deka case. Referring to these two cases the Court observed:
This Court in State of U.P. v. Babu Ram Upadhya held that the power of the
Governor to dismiss at pleasure, subject to the provisions of Article 311, is not an
executive power under Article 154 but a constitutional power and is not capable of being
delegated to officers subordinate to him. The effect of the judgment in Babu Ram
Upadhya case 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 officer with the result that
statutory rules governing dismissal were 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 case the majority view stated seven propositions at p. 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 Nos. 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. Proposition No. 5 is that the
Parliament or the Legislatures of States can make a law regulating the conditions of
371
service of such a member which includes proceedings by way of disciplinary action,
without affecting the powers of the President or the Governor under Article 310 of the
Constitution read with Article 311. Proposition No. 6 is that the Parliament and the
Legislatures also can make a law laying down and regulating the scope and content of the
doctrine of “reasonable opportunity” embodied in Article 311, but the said law would be
subject to judicial review. All these propositions were reviewed by the majority opinion
of this Court in Moti Ram Deka case and this Court restated that proposition No. 2 must
be read along with the subsequent propositions specified as propositions Nos. 3, 4, 5 and - The ruling in Moti Ram Deka case is that a law can be framed prescribing the
procedure by which and the authority by whom the said pleasure can be exercised. The
pleasure of the President or the Governor to dismiss can therefore not only be delegated
but is also subject to Article 311. The true position as laid down in Moti Ram Deka case
is that Articles 310 and 311 must no doubt be read together but once the true scope and
effect of Article 311 is determined the scope of Article 310(1) must be limited in the
sense that in regard to cases falling under Article 311(2) the pleasure mentioned in
Article 310(2) must be exercised in accordance with the requirements of Article 311.
The majority view in Babu Ram Upadhya case is no longer good law after the
decision in Moti Ram Deka case. The theory that only the President or the Governor is
personally to exercise pleasure of dismissing or removing a public servant is repelled by
express words in Article 311 that no person who is a member of the civil service or holds
a civil post under the Union or a State shall be dismissed or removed by authority
subordinate to that by which he was appointed. The words “dismissed or removed by an
authority subordinate to that by which he was appointed” indicate that the pleasure of the
President or the Governor is exercised by such officers on whom the President or the
Governor confers or delegates power,
The Court then stated its conclusion as follows:
For the foregoing reasons we hold that the President or the Governor acts on the aid
and advice of the Council of Ministers with the Prime Minister 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
vests 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 (6) 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 such authority is satisfied that
for some reason, to be recorded by that authority in writing, it is not reasonably practicable to
hold such inquiry, because if it was the personal satisfaction of the President or the Governor,
the question of the satisfaction of any authority empowered to dismiss or remove or reduce in
rank a government servant would not arise. Thus, though under Article 310(1) the tenure of a
government servant is at the pleasure of the President or the Governor, the exercise of such
pleasure can be either by the President or the Governor acting with the aid and on the advice
372
of the Council of Ministers or by the authority specified in Acts made under Article 309 or in
rules made under such Acts or made under the proviso to Article 309; and in the case of
clause (c) of the second proviso to Article 311(2), the inquiry is to be dispensed with not on
the personal satisfaction of the President or the Governor but on his satisfaction arrived at
with the aid and on the advice of the Council of Ministers.
The Second Proviso to Article 311(2): - Clause (2) of Article 311 gives a constitutional mandate to the principles of natural
justice and the audi alteram partem rule by providing that a person employed in a civil
capacity under the Union or a State shall not be dismissed or removed from service or
reduced in rank until after an inquiry in which he has been informed of the charges against
him and has been given a reasonable opportunity of being heard in respect of those charges.
To this extent, the pleasure doctrine enacted in Article 310(1) is abridged because Article
311(2) is an express provision of the Constitution. This safeguard provided for a government
servant by clause (2) of Article 311 is, however, taken away when the second proviso to that
clause becomes applicable. The safeguard provided by clause (1) of Article 311, however,
remains intact and continues to be available to the government servant. The second proviso to
Article 311(2) becomes applicable in the three cases mentioned in clauses (a) to (c) of that
proviso. - The language of the second proviso is plain and unambiguous. The keywords in the
second proviso are “this clause shall not apply”. By “this clause” is meant clause (2). As
clause (2) requires an inquiry to be held against a government servant, the only meaning
attributable to these words is that this inquiry shall not be held. There is no scope for any
ambiguity in these words and there is no reason to give them any meaning different from the
plain and ordinary meaning which they bear. The resultant effect of these words is that when
a situation envisaged in any of the three clauses of the proviso arises and that clause becomes
applicable, the safeguard provided to a government servant by clause (2) is taken away. As
pointed out earlier, this provision is as much in public interest and for public good and a
matter of public policy as the pleasure doctrine and the safeguards with respect to security of
tenure contained in clauses (1) and (2) of Article 311. - Before, however, any clause of the second proviso can come into play the condition
laid down in it must be satisfied. The condition for the application of each of these clauses is
different. In the case of clause (a) a government servant must be guilty of conduct deserving
the penalty of dismissal, removal or reduction in rank which conduct has led to him being
convicted on a criminal charge. In the case of clause {b) the disciplinary authority must be
satisfied that it is not reasonably practicable to hold an inquiry. In the case of clause (c) the
President or the Governor of a State, as the case may be, must be, satisfied that in the interest
of the security of the State, it is not expedient to hold an inquiry. When these conditions can
be said to be fulfilled will be discussed later 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
373
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 inquiry is dispensed with, some opportunity
at least should not be afforded to the government servant so that he is not left wholly without
protection. As most of the arguments on this part of the case were common to all the three
clauses of the second proviso, it will be convenient at this stage to deal at one place with all
the arguments on this part of the case, leaving aside to be separately dealt with the other
arguments pertaining only to a particular clause of the second proviso.
The Extent of Denial of Opportunity under the Second Proviso: - It was submitted on behalf of the government servants that an inquiry consists of
several stages and, therefore, even where by the application of the; second proviso the full
inquiry is dispensed with, there is nothing to prevent the disciplinary authority from holding
at least a minimal inquiry because no prejudice can be caused by doing so. It was further
submitted that even though the three clauses of the second proviso are different in their
content, it was feasible in the case of each of the three clauses to give to the government
servant an opportunity of showing cause against the penalty proposed to be imposed so as to
enable him to convince the disciplinary authority that the nature of the misconduct attributed
to him did not call for his dismissal, removal or reduction in rank. For instance, in a case
falling under clause (a) the government servant can point out that the offence of which he was
convicted was a trivial or a technical one in respect of which the criminal court had taken a
lenient view and had sentenced him to pay a nominal fine or had given him the benefit of
probation. It was further submitted that apart from the opportunity to show cause against the
proposed penalty it was also feasible to give a further opportunity in the case of each of the
three clauses though such opportunity in each case may not be identical. Thus, it was argued
that the charge-sheet or at least a notice informing the government servant of the charges
against him and calling for his explanation thereto was always feasible. It was further argued
that though under clause (a) of the second proviso an inquiry into the conduct which led to the
conviction of the government servant on a criminal charge would not be necessary, such a
notice would enable him to point out 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 (i) 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
374
in rank a government servant unless such minimal opportunity at least was afforded to the
government servant. Support for these contentions was sought to be derived from (1) the
language of Article 311(2) and the implications flowing therefrom, (2) the principles of
natural justice including the audi alteram partem rule comprehended in Article 14, and (3) the
language of certain rules made either under Acts referable to Article 309 or made under the
proviso to that article. We will consider the contentions with respect to each of these bases
separately. - So far as Article 311(2) was concerned, it was said that the language of the second
proviso did not negative every single opportunity which could be afforded to a government
servant under different situations though the nature of such opportunity may be different
depending upon the circumstances of the case. It was further submitted that the object of
Article 311(2) was that no government servant should be condemned unheard and dismissed
or removed or reduced in rank without affording him at least some chance of either showing
his innocence or convincing the disciplinary authority that the proposed penalty was too
drastic and was uncalled for in his case and a lesser penalty should, therefore, be imposed
upon him. These arguments, though attractive at the first blush, do not bear scrutiny. - The very phrase “a reasonable opportunity of showing cause against the action
proposed to be taken in regard to him” in sub-section (3) of Section 240 of the Government of
India Act, 1935, was repeated in clause (2) of Article 311 as originally enacted, that is, in the
said clause prior to its amendment by the Constitution (Fifteenth Amendment) Act, 1963.
To summarise: the reasonable opportunity envisaged 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 the allegations on
which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced
against him and by examining himself or any other witnesses in support of his
defence; and finally
(c) an opportunity to make his representation as to why the proposed punishment
should not be inflicted on him, which he can only do if the competent authority, after
the inquiry is over and after applying his mind to the gravity or otherwise of the
charges proved against the government servant tentatively proposes to inflict one of
the three punishments and communicates the same to the government servant. - The question which then arises is, “Whether the Constitution (Forty-second
Amendment) Act, 1976, which further amended the substituted clause (2) of Article 311 with
effect from January 1, 1977, has made any change in the law?” The amendments made by this
Act are that in clause (2) that portion which required a reasonable opportunity of making
representation on the proposed penalty to be given to a government servant was deleted and
in its place the first proviso was inserted, which expressly provides that it is not necessary to
give to a delinquent government servant any opportunity of making representation on the
proposed penalty. Does this affect the operation of the original proviso which, by the
Constitution (Forty-second Amendment) Act, became the second proviso? Such obviously
was not and could not have been the intention of Parliament. The opening words of the
second proviso remain the same except that the word ‘further’ was inserted after the word
375
‘provided, because the original proviso by reason of the insertion of another proviso before it
became the second proviso. 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 provide, expressly or impliedly, for any opportunity to make a
representation against the proposed penalty. After the Constitution (Fifteenth Amendment)
Act this second opportunity formed a separate part of clause (2), which part was deleted by
the Constitution (Forty-second Amendment) Act. Thus, when the second proviso states in its
opening words that “Provided further that this clause shall not apply”, it means that whatever
safeguards are to be found in clause (2) are wholly taken away in a case where any of the
three clauses of the second proviso is attracted. - The position which emerges from the above discussion is that the keywords of the
second proviso govern each and every clause of that proviso and leave no scope for any kind
of opportunity to be given to a government servant. The phrase “this clause shall not apply” is
mandatory and not directory. It is in the nature of a constitutional prohibitory injunction
restraining the disciplinary authority from holding an inquiry under Article 311(2) or from
giving any kind of opportunity to the concerned government servant. There is thus no scope
for introducing into the second proviso some kind of inquiry or opportunity by a process of
inference or implication. The maxim “expressum facit cessare taciturn” (“when there is
express mention of certain things, then anything not mentioned is excluded”) applies to the
case. This well-known maxim is a principle of logic and common sense and not merely a
technical rule of construction. The second proviso expressly mentions that clause (2) shall not
apply where one of the clauses of that proviso becomes applicable. This express mention
excludes everything that clause (2) contains and there can be no scope for once again
introducing the opportunities provided by clause (2) or any one of them into the second
proviso. Here, however, the attempt is not merely to do something contrary to the intention of
‘Parliament’, that is, in our case, the Constituent Assembly, but to do something contrary to
an express prohibition contained in the Constitution. The conclusion which flows from the
express language of the second proviso is inevitable and there is no escape from it. It may
appear harsh but, as mentioned earlier, the second proviso has been inserted in the
Constitution as a matter of public policy and in public interest and for public good just as the
pleasure doctrine and the safeguards for a government servant provided in clauses (1) and (2)
of Article 311 have been. It is in public interest and for public good that a 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
376
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 concerned government servant. It
was argued that in a case falling under clause (b) or (c), a government servant ought to be
placed under suspension until the situation improves or the danger to the security of the State
has passed, as the case may be, and it becomes possible to hold an inquiry. This argument
overlooks the fact that suspension involves the payment at least of subsistence allowance and
such allowance is paid at public expense, and that neither public interest would be benefited
nor public good served by placing such government servant under suspension because it may
take a considerable time for the situation to improve or the danger to be over. Much as this
may seem harsh and oppressive to a government servant, this Court must not forget that the
object underlying the second proviso is public policy, public interest and public good and the
Court must, therefore, repel the temptation to be carried away by feelings of commiseration
and sympathy for those government servants who have been dismissed, removed or reduced
in rank by applying the second proviso. Sympathy and commiseration cannot be allowed to
outweigh considerations of public policy, concern for public interest, regard for public good
and the peremptory dictate of a constitutional prohibition. The Court must bear in mind that
the second proviso has been in the Constitution since it was originally enacted. It was not
blindly or slavishly copied from Section 240(3) of the Government of India Act, 1935. Article
311 was Article 282-B of the draft Constitution of India and the draft Article 282-B was
discussed and a considerable debate took place on it in the Constituent Assembly The greater
part of this debate centred upon the proviso to clause (2) of the draft Article 282-B, which is
now the second proviso to Article 311. Further, the Court should also bear in mind that clause
(c) of the second proviso and clause (3) of Article 311 did not feature in Section 240 of the
Government of India Act, 1935, but were new provisions consciously introduced by the
Constituent Assembly in Article 311. Those who formed the Constituent Assembly were not
the advocates of a despotic or dictatorial form of government.
The 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 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. - 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 referable
to that article generally provide for a right of appeal except in those cases where the order of
dismissal, removal or reduction in rank is passed by the President or the Governor of a State
because they being the highest constitutional functionaries, there can be no higher authority to
which an appeal can lie from an order passed by one of them. Thus, where the second proviso
applies, though there is no prior opportunity to a government servant to defend himself
against the charges made against him, he has the opportunity to show in an appeal filed by
him that the charges made against him are not true. This would be a sufficient compliance
with the requirements of natural justice.
The Second Proviso – Clause (a)
377 - Not much remains to be said about clause (a) of the second proviso to Article
311(2). To recapitulate briefly, where a disciplinary authority comes to know that a
government servant has been convicted on a criminal charge, it must consider whether his
conduct which has led to his conviction was such as warrants the imposition of a penalty and,
if so, what that penalty should be. For that purpose it will have to peruse the judgment of the
criminal court and consider all the facts and circumstances of the case and the various factors
set out in Challappan case. This, however, has to be done by it ex parte and 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 the departmental remedies and
still wants to pursue the matter, he can invoke the court’s power of judicial review subject to
the court permitting it. If the court finds that he was not in fact the person convicted, it will
strike down the impugned order and order him to be reinstated in service. Where the court
finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out
of all proportion to the offence committed or not warranted by the facts and circumstances of
the case or the requirements of that particular government service the court will also strike
down the impugned order. Thus, in Shankar Dass v. Union of India, this Court set aside the
impugned order of penalty on the ground that the penalty of dismissal from service imposed
upon the appellant was whimsical and ordered his reinstatement in service with full back
wages. It is, however, not necessary that the court should always order reinstatement. The
court can instead substitute a penalty which in its opinion would be just and proper in the
circumstances of the case.
The Second Proviso – Clause (b) - The main thrust of the arguments as regards clause (b) of the second proviso to
Article 311 (2) was that whatever the situation may be a minimal inquiry or at least an
opportunity to show cause against the proposed penalty is always feasible and is required by
law. The arguments with respect to a minimal inquiry were founded on the basis of the
applicability of Article 14 and the principles of natural justice and the arguments with respect
to an opportunity to show cause against the proposed penalty were in addition founded upon
the decision in Challappan case. These contentions have already been dealt with and
negatived by us and we have further held that Challappan case insofar as it held that a
government servant should be heard before imposing a penalty upon him was wrongly
decided.
378 - The next contention was that even if it is not reasonably practicable to hold an
inquiry, a government servant can be placed under suspension until the situation improves
and it becomes possible to hold the inquiry. This contention also cannot be accepted. Very
often a situation which makes it not reasonably practicable to hold an inquiry is of the
creation of the concerned government servant himself or of himself acting in concert with
others or of his associates. It can even be that he himself is not a party to bringing about 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 uncontrollable. Not taking prompt action may also be construed by the
trouble-makers and agitators as a 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
action is taken in order to prevent this happening, there is an element of deterrence in it but
that is an unavoidable and necessary concomitance of such an action resulting from a
situation which is not of the creation of the authorities. After all, clause (b) is not meant to be
applied in ordinary, normal situations but in such situations where it is not reasonably
practicable to hold an inquiry. - The condition precedent for the application of clause (b) is the satisfaction of the
disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated
by clause (2) of Article 311. What is pertinent to note is that the words used are “not
reasonably practicable” and not ‘impracticable’. According to the Oxford English Dictionary
‘practicable’ means “Capable of being put into practice, carried out in action, effected,
accomplished, or done; feasible”. Webster’s Third New International Dictionary defines the
word ‘practicable’ inter alia as meaning “possible to practice or perform: capable of being
put into practice, done or accomplished: feasible”. Further, the words used are not “not
practicable” but “not reasonably practicable”. Webster’s Third New International Dictionary
defines the word ‘reasonably’ as “in a reasonable manner: to a fairly sufficient extent”. Thus,
whether it was practicable to hold the inquiry or not must be judged in the context of whether
it was reasonably practicable to do so. It is not a total or absolute impracticability which is
required by clause (b). What is requisite is that the holding of the inquiry isnot practicable in
the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not
possible to enumerate the cases in which it would not be reasonably practicable to hold the
inquiry, but some instances by way of illustration may, however, be given. It would not be
reasonably practicable to hold an inquiry where the government servant, particularly through
or together with his associates, so terrorizes, threatens or intimidates witnesses who are going
to give evidence against him with fear of reprisal as to prevent them from doing so or where
the government servant by himself or together with or through others threatens, intimidates
and terrorizes the officer who is the disciplinary authority or members of his family so that he
379
is afraid to hold the inquiry or direct it to be 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 Departments 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 the court will strike down the order dispensing
with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of
India is an instance in point. In that case, the appellant was working as a senior clerk in the
office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior
Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation
with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief
Commercial Superintendent. The appellant submitted his explanation and on the very next
day the Deputy Chief Commercial Superintendent served a second notice on the appellant
saying that his explanation was not convincing and that another chance was being given to
him to offer his explanation with respect to those charges. The appellant submitted his further
explanation but on the very next day the Deputy Chief Commercial Superintendent passed an
order dismissing him on the ground that he was not fit to be retained in service. This Court
struck down the order holding that seven out of twelve charges related to the conduct of the
appellant with the Deputy Chief Commercial Superintendent who was the disciplinary
authority and that if an inquiry were to be held, the principal witness for the Department
would have been the Deputy Chief Commercial Superintendent himself, resulting in the same
person being the main accuser, the chief witness and also the judge of the matter. - It was submitted that where a delinquent government servant so terrorizes the
disciplinary authority that neither that officer nor any other officer stationed at that place is
willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry.
This submission itself shows that in such a case the holding of an inquiry is not reasonably
practicable. It would be illogical to hold that the administrative work carried out by senior
officers should be paralysed because a delinquent government servant either by himself or
along with or through others makes the holding of an inquiry not reasonably practicable. - It is not necessary that a situation which makes the holding of an inquiry not
reasonably practicable should exist before the disciplinary inquiry is initiated against a
government servant. Such a situation can also come into existence subsequently during the
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
380
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 condition necessary for the valid application of clause (b) of the second
proviso is that the disciplinary authority should record in writing its reason for its satisfaction
that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This
is a constitutional obligation and if such reason is not recorded in writing, the order
dispensing with the inquiry and the order of penalty following thereupon would both be void
and unconstitutional. - It is obvious that the recording in writing of the reason for dispensing with the
inquiry must precede the order imposing the penalty. The reason for dispensing with the
inquiry need not, therefore, find a place in the final order. It would be usual to record the
reason separately and then consider the question of the penalty to be imposed and pass the
order imposing the penalty. It would, however, be better to record the reason in the final order
in order to avoid the allegation that the reason was not recorded in writing before passing the
final order but was subsequently fabricated. The reason for dispensing with the inquiry need
not contain detailed particulars, but the reason must not be vague or just a repetition of the
language of clause (b) of the second proviso. For instance, it would be no compliance with the
requirement of clause (i) for the disciplinary authority simply to state that he was satisfied
that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such
that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry.
This would not, however, per se invalidate the order. Each case must be judged on its own
merits and in the light of its own facts and circumstances. - It was vehemently contended that if reasons are not recorded in the final order, they
must be communicated to the concerned government servant to enable him to challenge the
validity of the reasons in a departmental appeal or before a court of law and that failure to
communicate the reasons would invalidate the order. This contention too cannot be accepted.
The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry
should be recorded in writing. There is no obligation to communicate the reason to the
government servant. As clause (3) of Article 311 makes the decision of the disciplinary
authority on this point final, 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
381
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, be rebutted by a satisfactory explanation for the nonproduction of the written reasons. - It was next submitted that though clause (b) of the second proviso excludes an
inquiry into the charges made against a government servant, it does not exclude an inquiry
preceding it, namely, an inquiry into whether the disciplinary inquiry should be dispensed
with or not, and that in such a preliminary inquiry the government servant should be given an
opportunity of a hearing by issuing to him a notice to show cause why the inquiry should not
be dispensed with so as to enable him to satisfy the disciplinary authority that it would be
reasonably practicable to hold the inquiry. This argument is illogical and is a contradiction in
terms If an inquiry into the charges against a government servant is not reasonably
practicable, it stands to reason that an inquiry into the question whether the disciplinary
inquiry should be dispensed with or not is equally not reasonably practicable. - A government servant who has been dismissed, removed or reduced in rank by
applying to his case clause (b) or an analogous provision of a service rule is not wholly
without a remedy. As pointed out earlier while dealing with the various service rules, he can
claim in a departmental appeal or revision that an inquiry be held with respect to the charges
on which the penalty of dismissal, removal or reduction in rank has been imposed upon him
unless the same or a similar situation prevails at the time of hearing of the appeal or revision
application. If the same situation is continuing or a similar situation arises, it would not then
be reasonably practicable to hold an inquiry at the time of the hearing of the appeal or
revision. Though in such a case as the government servant if dismissed or removed from
service, is not continuing in service and if reduced in rank, is continuing in service with such
reduced rank, no prejudice could be caused to the Government or the Department if the
hearing of an appeal or revision application, as the case may be, is postponed for a reasonable
time. - Where a government servant is dismissed, removed or reduced in rank by applying
clause (b) or an analogous provision of the service rules and he approaches either the High
Court under Article 226 or this Court under Article 32, the court will interfere on grounds
well established in law for the exercise of power 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 (b) the court should put itself in the place of the disciplinary
382
authority and consider what in the then prevailing situation a reasonable man acting in a
reasonable way would have done. The matter will have to be judged in the light of the then
prevailing situation and not as if the disciplinary authority was deciding the question whether
the inquiry should be dispensed with or not in the cool and detached atmosphere of a courtroom, removed in time from the situation in question. Where two views are possible, the court
will decline to interfere. - During the course of the argument a reference was made to certain High Court
decisions and their citations were given. We have carefully gone through those decisions. It
is, however, unnecessary to refer to them. Insofar as what was held in those decisions or nay
of them is contrary to or inconsistent with what has been held by us, those decisions are not
correct and are to that extent hereby overruled.
The Second Proviso – Clause (c) - We now turn to the last clause of the second proviso to Article 311(2), namely,
clause (c) Though its exclusionary operation on the safeguards provided in Article 311(2) is
the same as those of the other two clauses, it is very different in content from them. While
under clause (b) the satisfaction is to be of disciplinary authority, under clause (c) it is to be of
the President or the Governor of a State, as the case may be. Further, while under clause (b)
the satisfaction has to be with respect to whether it is not reasonably practicable to hold the
inquiry, under clause (c) it is to be with respect to whether it will not be expedient in the
interest of the security of the State to hold the inquiry. Thus, in one case the test is of
reasonable practicability of holding the inquiry, in the other case it is of the expediency of
holding the inquiry- While clause (a) expressly requires that the reason for dispensing with
the inquiry should be recorded in writing, clause (c) does not so require it, either expressly or
impliedly. - The expressions “law and order”, “public order” and “security of the Stale” have
been used in different Acts. Situations which affect “public order” are graver than those
which affect “law and order” and situations which affect “security of the State” are graver
than those which affect “public order”. Thus, of these situations those which affect “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. In 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 indiscipline, insubordination and
disobedience to the orders of their superiors. Such a situation cannot be a matter affecting
only law and order or public order but is a matter affecting vitally the security of the State. In
this respect, the Police Force stands very much on the same footing as a military or a para-
383
military Force for it is charged with the duty of ensuring and maintaining law and order and
public order, and breaches of discipline and acts of disobedience and insubordination on the
part of the members of the Police Force cannot be viewed with less gravity than similar acts
on the part of the members of the military or para-military Forces. How important the proper
discharge of their duties by members of these Forces and the maintenance of discipline
among them is considered can be seen from Article 33 of the Constitution. 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 power upon Parliament to restrict or abrogate any of the
fundamental rights in their application 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 Shorter
Oxford English Dictionary, Third Edition, defines the word ‘inexpedient’ as meaning “not
expedient; disadvantageous in the circumstances, unadvisable, impolitic”. The same
dictionary defines expedient’ as meaning inter alia “advantageous; fit, proper, or suitable to
the circumstances of the case”. Webster’s Third New International Dictionary also defines
the term ‘expedient’ as meaning inter alia “characterized by suitability, practicality, and
efficiency in achieving a particular end: fit, proper, or advantageous under the
circumstances”. It must be borne in mind that the satisfaction required by clause (c) is of the
Constitutional Head of the whole country or of the State. Under Article 74(1) of the
Constitution, the satisfaction of the President would be arrived at with the aid and advice of
his Council of Ministers with the Prime Minister as the Head and in the case of a State by
reason of the provisions of Article 163(1) by the Governor acting with the aid and advice of
his Council of Ministers with the Chief Minister as the Head. Whenever, therefore, the
President or the Governor in the constitutional sense is satisfied that it will not be
advantageous or fit or proper or suitable or politic in the interest of the security of the State to
hold an inquiry, he would be entitled to dispense with it under clause (c). The satisfaction so
reached by the President or the Governor must necessarily be a subjective satisfaction.
Expediency involves matters of policy. Satisfaction may be arrived at as a result of secret
information received by the Government about the brewing of danger to the security of the
State and like matters. There may be other factors which may be required to be considered,
weighed and balanced in order to reach the requisite satisfaction whether holding an inquiry
would be expedient or not. If the requisite satisfaction has been reached as a result of secret
information received by the Government, making known such information may very often
result in disclosure of the source of such information. Once known, the particular source from
which the information was received would no more be available to the Government. The
reasons for the satisfaction reached by the President or Governor under clause (c) cannot,
384
therefore, be required to be recorded in the order of dismissal, removal or reduction in rank
nor can they be made public. - In 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 v. Union of India, it was submitted that the power of
judicial review is not excluded where the satisfaction of the President or the Governor has
been reached mala fide or is based on wholly extraneous or irrelevant grounds because in
such a case, in law there would be no satisfaction of the President or the Governor at all. It is
unnecessary to decide this question because in the matters under clause (c) before us, all the
materials, including the advice tendered by the Council of Ministers, have been produced and
they clearly show that in those cases the satisfaction of the Governor was neither reached
mala fide nor was it based on any extraneous or irrelevant ground. - This appeal, therefore, requires to be allowed and the writ petition filed by the
respondent deserves to be dismissed.
