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It however certified that the case involved substantial questions of law as to the interpretation of the Constitution and was a fit one for appeal to this Court. Ratio |
Mr. Thomas who argued the appeal on behalf of the appellant raised a number of points against the validity of the order removing the appellant from service and contended that the enquiry conducted into the charges made against him was wholly illegal and void. ARG |
In our judgment, none of the points urged by the learned counsel was of a substantial character and all of them concerned matters of mere form and no valid reasons have been shown for disturbing the decision of the High Court. Ratio |
The question of the validity of an order of removal of a person employed in a civil capacity under the Union or a State falls to be determined on the provisions of Article 311 of the Constitution of India. Ratio |
This Article is in these terms: " (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be, dismissed or removed by an authority subordinate to that by which he was appointed. STA |
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause 1019 against the action proposed to be taken in regard to him. . . . . . . . . STA |
It is not said that the petitioner was removed by an authority subordinate to that by which he was appointed. Ratio |
There was no occasion to raise this issue because the order of removal had been made by the Rajpramukh and was expressed according to the provisions of Article 166 of the Constitution. Ratio |
The requirement therefore of sub clause (1) of Article 311 was fully satisfied. Ratio |
As regards the question whether the petitioner was given reasonable opportunity of showing cause against the action proposed to be taken in regard to him, the legal position in that respect and the nature of opportunity to be granted was stated by the Privy Council in the case of High Commissioner for India vs I. M. La... |
It was also held that there was no anomaly in the view that the statute contemplates a reasonable opportunity at more than one stage. PRE |
In our opinion, in the present case the petitioner had reasonable opportunity at both stages to enter upon his defence. Ratio |
He fully availed himself of the first opportunity and though a reasonable opportunity was also given to him at the second stage, he failed to avail himself of it and it is not open to him now to say that the requirements of clause (2) of Article 311 have not been satisfied. Ratio |
It was not denied that the petitioner was given by the Enquiry Commissioner all facilities for entering on his defence. Ratio |
Before filing his written statement before the Enquiry Commissioner the petitioner and his counsel were afforded facility to inspect the (1) 131 1020 various files concerning the charges which he had to meet. Ratio |
After inspecting those files he filed a full written statement explaining those charges. Ratio |
He was defended in the enquiry by a leading lawyer and was afforded fullest opportunity to examine and cross examine the witnesses examined by the Commissioner. Ratio |
He was able to satisfy the Enquiry Comniissioner that out of the charges levelled against him a number of them were not established; but he failed to satisfy the Commissioner as regards the rest and the Enquiry Commissioner held them proved. Ratio |
After the enquiry was concluded the petitioner was furnished with a copy of the report of the Commissioner and was asked to show cause against the action proposed to be taken against him. Ratio |
He applied for two months ' time to show cause. Ratio |
This was granted. Ratio |
He made a further application for further time. Ratio |
This was also partially granted. Ratio |
He again asked for further time which was refused. Ratio |
It is difficult to say that the time allowed to him was not reasonable in view of the fact that be bad taken part in the enquiry before the Commis sioner and all the evidence had been taken in his presence and he had full opportunity to defend himself. Ratio |
All the material on which the Commissioner had reported against him on the charges found proved, was given in the report of the Commissioner and that was supplied to him with a show cause notice. Ratio |
The time allowed, in our opinion, was more than sufficient for him to enter on his defence and having failed to do so, he cannot be heard to say that he was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Ratio |
Mr. Thomas argued that the show cause notice was not in accordance with the provisions of Article 166 of the Constitution inasmuch as it was not expressed to have been made in the name of the Rajpramukh. ARG |
As above mentioned, this notice was issued on behalf of the Government and was signed by the Chief Secretary of the united State of Travan core Cochin who had under the rules of business framed by the Rajpramukh the charge of the portfolio of "service and appointments" at the Secretariat level 1021 in this State. Ratio |
This was in our opinion substantial compliance with the directory provisions of Article 166 of the Constitution. Ratio |
It was held by this court in Dattatreya Moreshwar Pangarkar vs The State of Bombay(1) that clauses (1) and (2) of Article 166 are directory only and non compliance with them does not result in the order being invalid, and that in order to determine whether there is compliance with these provisions all that is necessary... |
In the present case there can be no manner of doubt that the notice signed by the Chief Secretary of the State and expressed to be on behalf of the Government and giving opportunity to the petitioner to show cause against the action proposed to be taken against him was in substantial compliance with the provisions of t... |
The petitioner accepted this notice and in pursuance of it applied for further time to put in his defence. Ratio |
He was twice granted this time. Ratio |
In these circumstances, the contention of Mr. Thomas that as the notice was not expressed as required under Article 166 it was invalid and therefore the requirements of Article 311 were not satisfied in this case must be held to be devoid of force. ARG |
We are satisfied that all the requirements of Article 311 have been fully complied with in this case. Ratio |
It may also be mentioned that the High Court held that H. H. the Rajpramukh had intimation of the decision of the Council of Ministers and the action proposed to be taken against the petitioner and that in fact His Highness approved of the proposed action. Ratio |
Mr. Thomas further contended that the enquiry at the first stage also was invalid and irregular. ARG |
He argued that the order appointing the Enquiry Commissioner was not expressed in proper form and that the Commissioner did not conduct the enquiry in accordance with the provisions of the Act. 'The notification ordering an enquiry set out above was issued after the Council of Ministers had passed a resolution to that ... |
It must be presumed that in (1) ; 1022 the normal course. ARG |
of business that resolution was communicated to the Rajpramukh. ARG |
The order thus substantially complies with the requirements of law and in any case the effect of its not being expressed as directed by Article 166 does not vitiate the notification. Ratio |
The appellant, as already stated, took part in the enquiry, defended himself and fought every inch of the ground. Ratio |
That being so, it is not possible to hold that he was not given reasonable opportunity at the first stage to defend himself. Ratio |
It was contended that under the Travancore Public Servants (Inquiries) Act, 1122) it was only the Maharaja who could make an order under the provisions of that Act, and that the Ministers could not take any action. ARG |
Emphasis was lai on the expression "Our Government" in the different provisions of the Act. Ratio |
We are unable to see any force in this contention. Ratio |
The expression "Our Government" means the Maharaja 's Government, in other words, the Government of the State of Travancore. Ratio |
After the integration of the two States of Travancore and Cochin and the formation of the United State of Travancore Cochin the expression "Our Government" has to be construed according to the new set up of Government and when the Council of Ministers had come into being, it is obvious that the expression "our Govern m... |
It is an elementary principle of democratic Government prevailing in England and adopted in our Constitution that the Rajpramukh or the Governor as head of the State is in such matters merely a constitutional head and he is bound to accept the advice of his Ministers. Ratio |
In this situation it cannot be held that the order of the Government appointing the Enquiry Commissioner *as ultra vires and without jurisdiction. RPC |
Another point taken by Mr. Thomas was that without the sanction of the Rajpramukh the proceedings could not be started against the petitioner and reliance for this contention was placed on Article 20 of the Covenant of the united State of Travancore and Cochin. ARG |
This article is in these terms: "Except with the previous sanction of the Raj 1023 pramukh, no proceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of either Covenanting State before the appointed day". STA |
The High Court negatived this contention with the following observations: "Article 20 refers to the institution of civil and criminal proceedings, two well known expressions which are terms of art and clearly relate to civil and criminal proceedings before civil and criminal courts. Ratio |
The said two kinds of proceedings do not exhaust the totality of matters which can be called proceedings. Ratio |
is only in respect of civil and criminal proceeding that the sanction of the Rajpramukh is required under Article 20 of the Covenant. Ratio |
It is not contended on behalf of the petitioner that the proceedings before the Commissioner are criminal proceedings. Ratio |
The only contention is that they partake of the nature of criminal proceedings. Ratio |
In our judgment, Article 20 of the Covenant does not apply to proceedings which are not criminal but merely partake of that character". Ratio |
In these observations we fully concur. PRE |
In our view departmental proceedings do not come within the ambit of the Article. PRE |
Lastly it was urged that there was non compliance with the provisions of Article 320, clause 3(c) of the Constitution which provides that on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to su... |
or the State Public Service Commission, as the case may be, shall be consulted. Ratio |
In this case the Public Service Commission was in fact consulted in the matter of the action proposed against the petitioner by removing him. Ratio |
The Public Service Commission agreed to the proposed action. Ratio |
This consultation and the agreement was before the petitioner was asked to show cause why he should not be removed from service. Ratio |
The complaint of the petitioner is that the 1024 consultation with the Public Service Commission sould have been after he was asked to show cause but the petitioner did not show cause and that being so, no question arose of consulting the Public Service Commission over again. Ratio |
It was contended that the Public Service Commission should have been consulted on the review petition. ARG |
To accede to this argument will mean that the State will have to consult the Public Service Commission as many times as he may choose to file review petitions. Ratio |
In our opinion the consultation envisaged by Article 320 does not extend so, far. Ratio |
In this case the report of the Commissioner was placed before the Public Service Commission and the latter approved of the action proposed to be taken. Ratio |
The appellant was given another opportunity to show cause but he did not avail himself of that opportunity or submit any explanation or show any cause on which the Public Service Commission could be consulted. Ratio |
The order of dismissal having been made there was in the circumstances no further necessity to consult the Public Service Commission. Ratio |
in our opinion therefore there is no force in this contention as well. Ratio |
After having examined all the arguments of Mr. Thomas, we are of the opinion that all the rules of natural justice were fully observed during the enquiry in this case, and the petitioner had the fullest opportunity to put in his defence both before the Enquiry Commissioner and against the action proposed to be taken ag... |
It was by reason of his own default that he failed to avail himself of the second opportunity. Ratio |
He put in a belated review but such a review is not provided for under the rules and in our opinion, it was not necessary to consult the Public Service Commission at that stage. Ratio |
Such petitions are not within the contemplation of the Constitution. Ratio |
For the reasons given above this appeal fails and is dismissed. RPC |
In the circumstances of the case we make no order as to costs. RPC |
Appeal dismissed. RPC |
Appeals Nos. FAC |
1644 and 1645 of 1967. FAC |
Appeals from the judgment and order dated July 26, 1967 of the Assam and Nagaland High Court in Civil Rule Nos. 192 and 208 of 1966. FAC |
479 Debabrata Mukherjee, D. N. Mukherjee and section K. Nandy, for the appellants (in both the appeals). FAC |
M. C. Chagla and Naunit Lal, for the respondents (in both the appeals. FAC |
The Judgment of J. M. SHELAT and I. D. DUA, J.J. was de livered by DUA, J. V. BHARGAVA, J., gave a dissenting Opinion. FAC |
Dua, J. We have read the judgment prepared by our learned brother Bhargava, We are in complete agreement with him so far as decision on points Nos.(2) & (3) is concerned, but with respect we are unable to agree with him on point No. (1). Ratio |
It is unnecessary to repeat the relevant facts which have been set out by our learned brother in his judgment. Ratio |
The impugned order dated April 1, 1965, in the case of appellant P. K. Hore may however, be again reproduced : "The Governor is satisfied that Shri P. K. Hore, Superintendent, P.W.D.F.C. & I Wing against whom more charges have been received is unfit to be retained in the public service and that he ought to be dismissed... |
The Governor is further satisfied under sub clause (c) of the proviso to clause (2) of Article 311 of the Constitution that in the interest of the security of the State, it is not expedient to give the said Shri P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated a... |
Accordingly, the Governor hereby dismisses the said P. K. Hore, from service with immediate effect. FAC |
" On the same day an identical order was made with respect to the dismissal of the appellant B. C. Das except that in the order against him there is no mention of more charges having been received against him. FAC |
It appears that when the Governor made these two orders his attention was not invited to the amended article 311(2) which was in force on that date. Ratio |
The impugned orders were accordingly made in terms of article 311(2) as it existed before its amendment by the Fifteenth Amendment Act, 1963, which had come into force on October 6, 1963. STA |
The amended Article 311(2) has been reproduced in the judgment of my learned brother, it is, However, desirable to reproduce both the amended and unamended article 480 311(2) so as to understand if any substantial or material change in the legal position was intended by the amendment: Unamended Prior to 6 10 63 (2) No ... |
Amended After 6 10 63 (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... |
Provided that this clause shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be reco... |
The unamended sub article except the proviso was a reproduction of section 240(3) of the Government of India Act, 1935. Ratio |
The proviso to section 240(3) had only two clauses corresponding to cls(a) & (b) of the unamended article 311(2). Ratio |
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