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A bench of five Judges of this Court in Khem Chand vs The Union of India and Others (1) ; 481 speaking through Das, C. J., after referring to the divergent views expressed by Spans, C. J. of the Federal Court for himself and Zafarulla Khan, J., on the one hand, and by Varadachariar, J., on the other in Secretary of Sta... |
Indeed the learned Solicitor General does not contend that this provision is confined to guaranteeing to the government servant an opportunity to be given to him only at the later stage of showing cause against the punishment proposed to be imposed on him. Ratio |
We think that the learned Solicitor General is entirely right in not pressing for such a limited construction of the provisions under consideration. Ratio |
It is true that the provision does not, in terms, refer to different stages at which opportunity is to be given to the officer concerned. Ratio |
All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Ratio |
He must not only be given an opportunity but such opportunity must be a reasonable one. Ratio |
In order that the opportunity to show cause against the proposed action may be regarded as a resonable one, it is quite obviously necessary that the government servant should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the... |
Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment. Ratio |
" According to this decision the expression "reasonable opportunity of showing cause against the action proposed to be taken" included an opportunity to show cause against the guilt of the government servant concerned. Ratio |
This opportunity to show cause against the guilt seems to correspond to the reasonable opportunity of being heard in respect of the charges in the course of the (1) (2) L.R. [1948 75 I.A. 225.482 inquiry contemplated by the amended sub article. Ratio |
The question, therefore, arises if in the present case the Governor when expressing his satisfaction under sub clause (c) of the proviso to cl.(2) of article 311 of the Constitution in the impugned order, by using the words "it is not expedient to give the said Shri P. K. Hore an opportunity to show cause against the a... |
In our opinion the impugned order cannot reasonably be construed to be restricted to the narrow meaning suggested on behalf of the appellant. Ratio |
The words "as stated above" on which great reliance was placed by the learned counsel do not have the effect of restricting the ambit of the show cause notice to the question of penalty which may be imposed after the inquiry into P. K. Hore 's unfitness to be retained in the public service. Ratio |
The show cause notice about the inexpediency of which the Governor was satisfied seems to us to extend also to the question of such unfitness of P. K. Hore. Ratio |
To accept the suggestion made by the appellant 's learned counsel would impute to the Governor an intention to make what seems to be a meaningless order. Ratio |
It may be recalled that the amended article 311(2) does not speak of any show cause notice. Ratio |
The language of this sub article refers to an inquiry in which the delinquent government servant is to be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where after such inquiry it is proposed to impose on him a penalty he is again to be given a rea... |
The second stage does not speak of notice to show cause against the action proposed to be taken. Ratio |
The amendment in 1963 was made principally to put in clearer language the result of the judicial decision construing section 240(3) of the Government of India Act, 1935, and unamended article 311(2) of the Constitution. Ratio |
As already noticed, under section 240(3) of the Act of 1935 and the unamended article 311(2) provision was made of giving a reasonable opportunity to the government servant concerned of showing cause against the action proposed to be taken in regard to him. Ratio |
This expression was construed in terms to refer to the stage when, after such inquiry as may be necessary, and after the punishing authority, being satisfied of the guilt of the delinquent government servant, provisionally proposed the action to be taken against him. Ratio |
But in answer to this show cause notice the government servant was held entitled also to show cause against his guilt on the merits. Ratio |
Even 483 though in the earlier inquiry, if any, the government servant had been given an opportunity of showing cause against his guilt, the second opportunity provided by the statute was held to be mandatory. Ratio |
The Privy Council in I. M. Lall 's case(1) saw "no difficulty in the statutory opportunity being reasonably afforded at more than one stage". Ratio |
The Privy Council, however, dealt with section 240(3) of the Act of 1935 and the earlier statutory rule on the subject. Ratio |
This Court in Khem Chand 's case(2) after quoting a passage from the judgment of the Privy Council said: "Therefore, in a case where there is no rule like 55 the necessity of an enquiry was implicit in section 240(3) and is so in article 311(2) itself. PRE |
Further their Lordships say that an enquiry under r. 55 "would not exhaust his statutory right and he would still be entitled to make a representation against the punishment proposed as the result of the findings of the enquiry". PRE |
This clearly proceeds on the basis that the right to defend himself in the ,enquiry and the right to make representation against the proposed punishment are all parts of his "statutory right" and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant." PRE |
It cannot be doubted that the Governor in the present case was fully alive to the interest of the security of the State when he expressed his satisfaction about the inexpediency of giving an opportunity to P. K. Hore in the one case, and to B. C. Das in the other, to show cause against their guilt as contemplated by cl... |
Merely because the form of the order was ,expressed in the language used in the unamended article 311(2), it does not in our view detract from its effectiveness as operating to exclude the applicability of the amended cl.(2) of article 311 as a whole. Ratio |
The use of the words in conformity with the unamended article serves to convey the same intention as is contemplated by the amended article and the difference in the language which seems to be inconsequential does not have the effect of nullifying the impugned order. Ratio |
No doubt article 311(2) is intended to afford a sense of security to government servants covered by sub article(1) and the safeguards provided by sub article(2) are mandatory. Ratio |
But cl.(c) of the proviso to this sub article which is designed to safeguard the larger interest of the security of the State cannot be ignored or (1) L.R. [1948] 75 I.A. 225. PRE |
(2) ; 484 considered less important, ' when construing sub article Ratio |
The interest of the security of the State should not be allowed to suffer by invalidating the Governor 's order on unsubstantial or hyper technical grounds which do not have the effect of defeating the essential purpose of the constitutional safeguard of individual government servant. Ratio |
It is nobody 's case before us that inquiry into the charges against the two appellants as contemplated by the amended article 311(2) had already been held and the question of imposition of penalty alone remained to be finally settled when the impugned order was made. Ratio |
No inquiry of any kind as contemplated by article 311(2) was, according to the common case of the parties, held against the appellants when the Governor made the impugned orders under proviso (c) to this sub article. Ratio |
In these circumstances the impugned orders when they speak of the "action proposed to be taken" must be construed as intended to refer to the action including inquiry into the truth of the charges against them and the proposed penalty to be imposed after such inquiry. FAC |
The fact that cl.(c) of the proviso to the amended sub article only speaks of the inquiry and not of imposition of penalty is understandable because in the absence of inquiry the question of penalty cannot arise. Ratio |
It also serves to indicate that the Governor could not have intended by the impugned order to exclude only representation against imposition of penalty, leaving untouched the inquiry land the right of the government servant to the opportunity of hearing with respect to the charges. Ratio |
Once it is borne in mind that the Governor 's attention was, for some reason or the other, drawn only to the unamended article 311 and not to the amended article, and it is further kept in view that the amendment of article 311 in 1963, as already explained, was only designed to clarify and give effect to the judicial ... |
Reading the impugned orders in the light of what has just been stated, they quite clearly exclude the applicability of sub article(2) of article 311 in both cases. Ratio |
These appeals accordingly fail and are dismissed, but in the circumstances without costs. RPC |
Bhargava, J. RPC |
These two appeals by certificate are directed against a common judgment of the High Court of Assam and Nagaland dismissing two writ petitions filed by the two appellants. FAC |
For purposes of dealing with the case, it is enough to give facts in respect of one of the appellants, as the facts in the case of the other appellant are very similar, and the points arising are common. FAC |
In Civil Appeal No. 1645 of 1967, the appellant is P. K. Hore who joined service in the Secretariat of the. FAC |
Assam 485 Government on 1st November, 1946 in the post of a Lower Division Assistant. FAC |
On 9th December, 1950, he was confirmed in that post. FAC |
On 1st July, 1957, he was confirmed as an Upper Division Assistant, and on further promotion, on 9th December, 1963, he was confirmed as a Superintendent in the Secretariat with the approval of the State public Service Commission. FAC |
In the year 1964 65, he was elected as Vice President of the Assam Secretariat Services ' Association. FAC |
This was at a time when, in the year 1964, the report of the Pay Committee appointed by the Government was published. FAC |
The employees of the Secretariat were dissatisfied with the recommendations of the Pay Committee and there was an agitation against it in respect of the service conditions. FAC |
As a result, the Association took a decision for a pen down strike. FAC |
There was also some agitation alleging that the Pay Committee had shown undue favour to the brother of the Finance Minister of the State Government, viz., Fakhruddin Ali Ahmed. FAC |
Consequently, between 16th and 19th November, 1964, there was a debate in the Legislative Assembly regarding the report where the Finance Minister had to give an explanation on this charge. FAC |
There was the further allegation that the appellant P. K. Hore had taken special interest in ensuring that undesirable persons did not enter Assam from Pakistan which was resented by the then Chief Secretary of the Government. ARG |
As a result of the agitation by the Association, of which P. K. Hore was the Vice President, he was suspended on 12th March, 1965. FAC |
The other appellant, B. C. Das, was suspended a few days later. FAC |
In fact, including the latter, 32 other employees were placed under suspension. FAC |
On 18th March, 1965, inquiry proceedings were drawn up against P. K. Hore and some others to show cause why disciplinary action should not be taken against them for insubordination. FAC |
P. K. Hore was asked to submit his explanation within five days from the date of receipt of the communication. ARG |
On 26th March, 1965, he applied for extension of time which request was accepted and time was extended up to 2nd April, 1965. FAC |
Before he could submit his explanation, however, on 31st March, 1965, P. K. Hore, B. C. Das and three others were placed under detention by the District Magistrate under Rule 30(1) of the Defence of India Rules. FAC |
Thereafter, in the case of P. K. Hore, the following order was passed on 1st April, 1965 : "The Governor is satisfied that Shri P. K. Hore, Superintendent, P.W.D.F.C. & 1.Wing against whom more charges have been received is unfit to be retained in the public service and that he ought to be dismissed from service. FAC |
The Governor is further satisfied under sub clause (C) of the proviso to clause (2) of Article 311 of the 486 Constitution that in the interest of the security of the State. FAC |
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 above. FAC |
Accordingly the Governor hereby dismisses the said P. K. Hore from service with immediate effect. FAC |
" On these facts, this order, as well as the similar order passed in the case of B. C. Das, were challenged in the High Court of, Assam and Nagaland in petitions under article 226 of the Constitution on the following three grounds which have also been urged in these appeals (1) The order of dismissal from service has b... |
The High Court rejected all these grounds and dismissed both the writ petitions and, consequently, the appellants have come up to this Court in these appeals. RLC |
Clause (2) of article 311 of the Constitution, as it stands after amendment by the Constitution (Fifteenth Amendment) Act, 1963 reads as follows : "311.(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 gi... |
" Under this provision, if an order of dismissal or removal or reduction in rank is to be passed in respect of any Government servant, three steps have to be taken. Ratio |
The first step is to direct that an inquiry be held against him; the second is that, in that inquiry he has to be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges; and, finally, after such inquiry, the third step to be taken is that, if it is proposed to ... |
Under the three sub clauses of the proviso, this principal clause ceases to apply altogether in case the conditions laid down in those sub clauses are satisfied. Ratio |
Sub clause (c), which is relevant in this case, lays down that, 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 the inquiry under the principal clause, that clause shall not apply. Ratio |
In order, therefore, to enable the Governor to pass an order of dismissal without holding an inquiry, without informing the government servant of the charges against him and without giving him an opportunity of being heard in respect of those charges, and without giving him a reasonable opportunity of making a represen... |
In the present case, in the impugned order dated 1st April, 1965, the satisfaction of the Governor was recorded in the following words : "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 above. Ratio |
" There was no mention of any inquiry and the Governor did not record any satisfaction that it was not expedient to hold the inquiry envisaged by the principal clause (2) of article 311. Ratio |
It is specially to be noted that, in the first paragraph of the order, the 488 Governor 's satisfaction is recorded on two points. Ratio |
One is that the Governor is satisfied that P. K. Hore, against whom more charges had been received, is unfit to be retained in the public service, and the second is that he ought to be dismissed from service. Ratio |
Obviously, this paragraph envisaged that the Governor had already formed an opinion that the penalty of dismissal from service should be awarded to P. K. Hore. Ratio |
Having arrived at that opinion, it was expressed in so many words in the first paragraph of the order and, then, in the second paragraph, the Governor 's satisfaction is recorded to the effect that it is not expedient to give P. K. Hore an opportunity to show cause against the action proposed as stated above. Ratio |
The "action proposed as stated above" in the order clearly is the order imposing the penalty of dismissal from service. Ratio |
In the order itself preceding the recording of this satisfaction, there is no other action proposed, except the action of dismissal from service. Ratio |
The satisfaction recorded by the Governor, therefore, related to the third step to be taken under clause (2) of article 311 as enumerated above. Ratio |
The Governor confined his satisfaction to the inexpediency of giving an opportunity to P. K. Hore to show cause against the penalty proposed. Ratio |
No satisfaction is recorded that it is inexpedient to hold the inquiry required by clause (2) of article 31 1. Ratio |
Under sub clause (c) of the proviso, what was needed was a satisfaction that it was inexpedient to hold the inquiry. Ratio |
No such satisfaction having been recorded, it was necessary that the provisions of the principal clause (2) of article 311 should have been complied with before passing an order of dismissal. Ratio |
Mr. Chagla appearing on behalf of the respondent, however, relied on the fact that the satisfaction of the Governor was recorded in the language in which the provision in article 311(2) stood prior to its amendment by the Constitution (Fifteenth Amendment) Act, 1963, and which was as follows "311.(2) No such person as ... |
" Under the unamended clause (2) of article 311, what was required to be done was that a reasonable opportunity of showing cause against the action proposed to be taken in regard to him had to be given to the government servant, and, under the proviso, the Governor 's satisfaction required was that in the interest of t... |
The satisfaction under the unamended provision, therefore, that the Governor had to arrive at was that it was not expedient to give the government servant an opportunity of showing cause against the action proposed to be taken in regard to him. Ratio |
This is the language used in the order impugned. Ratio |
The words used in the Article, before the amendment, were interpreted by this Court in Khem Chand vs The Union of India and Others.(3) Summarising the position, the Court held : "The reasonable opportunity envisaged by the provision under consideration includes (a) An opportunity to deny his guilt and establish his inn... |
" This interpretation was reiterated by the Court in Hukum Chand Malhotra vs Union of India.(1) PRE |
It was urged by Mr. Chagla that, in interpreting the order of the Governor dated 1st April, 1965, it should be held that, in stating that it is not expedient ; (2) [1959] Suppl. section C. R. 892.490 to give P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him, he must have u... |
For two reasons, this submission made by Mr. Chagla appears to be unacceptable. Ratio |
The first reason is that it is too much to hold that the Governor, while passing an order under the amended article 311(2), would be consciously thinking of and basing his order on the language which was used earlier in the unamended Article and on the interpretation placed on that unamended article by this Court. Rati... |
In fact, in the counter affidavit filed on behalf of the State, the assertion made by the Chief Secretary again is "that the Governor of Assam was satisfied on the basis of materials before him that in the interest of security of the State, it was not expedient to give the petitioner to show cause against the order of ... |
" He, thus, reiterates that the Governor 's satisfaction was confined to the inexpediency of permitting the petitioner to show cause against the proposed order of dismissal which was the proposed penalty. Ratio |
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