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This statement in the affidavit gains importance when reference is made to a subsequent paragraph in it in which the Chief Secretary puts forward his submissions. Ratio |
It is in the submissions that the Chief Secretary says that the Governor was satisfied that it was not expedient to hold the inquiry. Ratio |
If, in fact, the Governor was so satisfied, there is no reason why the Chief Secretary should not have stated it on oath in the earlier paragraph, instead of merely making a submission of his in a subsequent paragraph. Ratio |
The second reason is that in the order, when recording his satisfaction, the Governor has stated that it is not expedient to give P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above. Ratio |
The last three words "as stated above" have great significance. Ratio |
As has been mentioned earlier, the only action proposed to be taken, which was stated earlier in that order, was the action of dismissal from service. Ratio |
Obviously, therefore, the language used can bear no other interpretation except that the Governor, in recording the satisfaction, confined it to the inexpediency of giving an opportunity to P. K. Hore to show cause against dismissal from service which would be an opportunity to show cause against the penalty proposed o... |
No satisfaction was recorded with regard to the inexpediency of holding an inquiry. Ratio |
It was argued that this interpretation, which is being placed on the order of the Governor, is too strict and technical, and it should be held that, in fact, the Governor intended to record his satisfaction on the question of inexpediency of holding the inquiry as required by the amended article 311(2). Ratio |
It has to be 491 remembered that the satisfaction of the Governor under sub clause (c) of the proviso has the effect of depriving a government servant of a very valuable right of ;having an opportunity to prove his innocence as well as opportunity to make a representation against the penalty proposed to be inflicted on... |
The effect of such satisfaction is that the government servant is dismissed without even being told of the charges against him. Ratio |
When such serious consequences follow, it is necessary that the precondition laid down by sub clause (c) of the proviso to article 311 (2) is strictly satisfied so as to justify deprivation of the valuable right of the government servant mentioned above. Ratio |
I do not think, therefore, that it would be enough merely to infer the intention of the Governor and, thereupon, take away the right. Ratio |
There having been no proper compliance with the requirements of subclause (c) of the proviso to article 311(2), the order of dismissal passed against P. K. Hore is void and must be struck down. Ratio |
It may be mentioned that the same High Court in a later case of Zatia vs The State of Assam and Others(1) has arrived at the same decision, though on a different reasoning which does not appear to be sound. Ratio |
This decision applies equally to the case of B. C. Das, as, in his case also, the order passed by the Governor for his dismissal is exactly similar and was made in exactly similar circumstances as in the case of P. K. Hore. Ratio |
In view of the decision on the first point raised in these appeals, it is not necessary to deal with the other two points. Ratio |
However, since they were argued in detail by both parties, I may indicate that, in my opinion, there is no force in either of them. Ratio |
So far as non compliance with rule 10 of the Rules and regulation 6 of the Regulations is concerned, I am unable to accept the submission put forward by counsel for the appellants that the rule or the regulation lays down any requirement that the Public Service Commission must be consulted before a government servant i... |
Rule 10 is as follows : "Special procedure in certain cases.Notwith standing anything contained in Rule 9 (i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or (ii) were the Disciplinary Authority is satisfied for reasons to be recorded ... |
" The main part of this rule only enumerates cases where orders can be passed without consulting the Public Service Commission. Ratio |
It is only the proviso that mentions consultation; but it does not make it compulsory for the Commission to be consulted. Ratio |
All it says is that the Commission shall be consulted in any case in which such consultation is necessary. Ratio |
This clearly envisages that the necessity for consultation must be found in some other provision. Ratio |
This rule itself does not lay down that in all cases, other than those mentioned in the principal clause or in rule 9, consultation with the Public Service Commission is made mandatory. Ratio |
Similarly, regulation 6 only enumerates cases where it is not necessary to consult the Commission. Ratio |
It is true that consultation with the Commission, in cases where the Governor himself passes an original order imposing the penalty of dismissal on a, government servant, is not dispensed with. Ratio |
This regulation has obviously been made by the Governor in exercise of his power under the proviso to article 320(3) of the Constitution. Ratio |
It is the principal clause of article 320(3) which lays down when the Public Service Commission shall be consulted. Ratio |
Sub clause (c) of clause (3) of article 320 is the relevant provision under which consultation with the Public Service Commission is required on all disciplinary matters affecting a person serving under the Government of a State. Ratio |
The regulations, as indicated above, do not dispense with this requirement of article 320(3)(c) in cases where the Governor is himself the original dismissing authority. Ratio |
The argument of learned counsel that regulation 6 itself lays down by implication that there must be consultation with the Public Service Commission in such cases cannot, therefore, be accepted. Ratio |
Regulation 6 not having exempted consultation with the Public Service Commission in such cases, all that can be held is that the consultation required by article 320(3)(c) continues to be in force and applicable. Ratio |
Counsel also drew attention to illustration (4) in regulation 6 which is as follows : "It is proposed to dismiss a State Service Officer or to reduce his pension. ARG |
The Commission must be consulted before an order is passed by the Governor. ARG |
" 493 This illustration again merely indicates the correct legal position that the Commission must be consulted as required by article 320(3)(c). Ratio |
The illustration by itself cannot be read as a statutory rule laying down that there must be consultation with the Commission. Ratio |
The illustration is to the main provisions of regulation 6 which only lay down cases in which consultation with the Commission is dispensed with and this illustration has been put down as one of the examples where the consultation has not been dispensed with. Ratio |
The consultation, therefore, with the Commission is not prescribed either by the Rules or by the Regulations. Ratio |
The consultation is only under article 320(3)(c) of the Constitution. Ratio |
So far as that consultation is concerned, this Court has already held that it is not mandatory and that this Article does not confer any rights on a public servant, so that the absence of consultation or any irregularity in consultation does not afford him a cause of action in a court of law, vide State of U. P. vs Man... |
The third ground of mala fides has, on the face of it, no force at all, because it is based on allegations that the Chief Secretary and the Finance Minister were annoyed with the appellants. Ratio |
But there was no charge that the Governor bad any extraneous reasons for passing the orders of dismissal. Ratio |
There is nothing on the record also to show that either the Chief Secretary or the Finance Minister took any part in the proceedings which led to the orders of dismissal, or that they advised the Governor. Ratio |
The orders are, no doubt, authenticated by the Chief Secretary in the name of the Governor; but that does not mean that the Governor was in any way influenced by any advice tendered to him by the Chief Secretary. Ratio |
In the circumstances, the plea of mala fide must also be rejected. Ratio |
As a result, the appeals are allowed with cost and the orders of dismissal in both the cases are quashed as having been passed in violation of article 311(2) of the Constitution. Ratio |
ORDER In accordance with the majority judgment, the appeals fail and are dismissed but in the circumstances of the case without costs. RPC |
G.C. (1) ; (2) Civil Appeal No. 289 of 1958 decided on 6th May, 1960. RPC |
No. 217 of 1968. FAC |
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights. FAC |
Bishan Narain, B. B. Sinha, section N. Misra, section section Jauhar and K. K. Sinha, for the petitioner. FAC |
B. P. Jha, for the respondents. FAC |
The Judgment of the Court was delivered by Vaidialingam, J. FAC |
In this writ petition under article 32 of the Constitution, the petitioner prays for the issue of a writ to the respondents in the nature of Certiorari or any other appropriate writ, direction or order quashing four orders dated September 2, 1953, March 5, 1960, August 5, 1966 and June 12, 1968. FAC |
He further prays for issue of a writ in the nature of a Writ of Mandamus directing the respondents to treat him as having retired at the age of 58 and to pay him the pension that he is entitled to. FAC |
Though four orders are cought to be quashed, as we will show in due course, the grievance of the petitioner regarding the orders dated September 2, 1953 and March. FAC |
5, 1960 can no longer be considered by this Court in this writ petition. FAC |
In consequence only the last two orders, mentioned above, survive for consideration. FAC |
We will refer briefly to the circumstances leading up to the passing of the orders, referred to above, in order to appreciate the circumstances under which the last two orders in particular came to be made as well as the ground of attack levelled against these orders. Ratio |
The petitioner joined service as an Assistant Teacher on September 1, 1928 in the Patna Practising School and was promoted as Sub Inspector of Schools, Lower Division, in the Subordinate Educational Service from May 31, 1934. FAC |
The petitioner later on was promoted as Deputy Inspector of Schools in Upper Division of the Subordinate Educational Service and was posted at Seraikella in the Singhbhum District in the Chhotanagpur Division, Bihar from November 1, 1949. FAC |
The State of Seriakella having merged in the erstwhile province of Bihar, the provincial 637 Government took over and assumed control directly of the education in the locality through its employees of the Education Department unlike other parts of, the province where the education was under the control and management o... |
The service rendered by the petitioner as Deputy Inspector of Schools, Seraikella was found satisfactory by the superior officers including the Director of Public Instruction and hence he was recommended to be appointed to a superior post of Education Officer in the Community Project. FAC |
By about the end of 1951, he was transferred to Purulia in the district of Manbhum as Additional Deputy Inspector of Schools. FAC |
The petitioner was later on transferred to Bettiah in or about May, 1953. FAC |
At Bettiah the petitioner received a copy of the order dated September 2, 1953 from the Director of Public Instruction directing a censure to be recorded in the character roll of the petitioner based on the report of one Shri Kanhaya Lal, District Inspector of Schools, who, according to the petitioner, was inimically d... |
The attempt of the petitioner to have the order dated September 2, 1953 cancelled proved unsuccessful. FAC |
This is the first order that is sought to be quashed by the petitioner. FAC |
The petitioner on the basis of certain allegations was placed under suspension on February 6, 1954 and relieved from his duty as Deputy Inspector of Schools, Bettiah. FAC |
There was a charge sheet issued to the petitioner on March 16, 1954 and he was found guilty. FAC |
But these inquiry proceedings were later on set aside and a fresh inquiry was ordered. FAC |
In consequence the order of suspension was cancelled, but immediately thereafter a fresh inquiry was conducted in which he was again found guilty as per the report of the Inquiry Officer dated September 22, 1959. FAC |
The Disciplinary Authority, who was the Director of Public Instruction passed an order on March 5, 1960 accepting the finding of the Inquiry Officer recorded against the petitioner and held that the charges had been proved against him. FAC |
Accordingly, by this order the petitioner was reverted, as punishment, to Lower Division of Subordinate Educational Service and also directing a censure entry to be recorded in Us personal character roll. FAC |
This is the second order that is challenged in this writ petition. FAC |
It is not necessary for us to deal in any detail about the first and the second order as both those orders are now concluded against the petitioner by the decision of the High Court. FAC |
The petitioner filed title suit No. 86 of 1961 in the Court of the Munsif, III, Patna, for a declaration challenging the order dated March 5, 1960 as well as the inquiry proceedings on the basis of which the said order was passed. FAC |
He also challenged the order of censure passed on September 2, 1953 and further incorporated in the order of March 5, 1960. FAC |
Though the suit was 638 contested by the respondents, it was ultimately decreed on April 11, 1963. FAC |
The respondents filed title appeal No. 132/24 of 1963 64 before the Subordinate Judge, 11 Court, Patna, challenging the decree of the Munsif. FAC |
On June 24, 1964 the appeal was allowed, with the result that the petitioner 's title suit No. 86 of 1961 stood dismissed. FAC |
The petitioner 's Second Appeal No. 640 of 1964 was dismissed by the High Court on May 4, 1967. RLC |
From these proceedings it is clear that the order of censure dated September 2, 1953 as well as of reversion dated March 5, 1960 have both been found to be correct by the High Court and it is no longer open to the petitioner to canvass those orders again. Ratio |
But it may be necessary for us to refer to certain proceedings connected with the title suit when we deal with the attack of the petitioner against the legality of the orders dated August 5, 1966 and June 12, 1968. FAC |
When the order of reversion dated March 5, 1960 was passed, the petitioner was working as Deputy Inspector of Schools, Deoghar. FAC |
The office of the Deputy Inspector of Schools was closed for Holi holidays from March 11, 1960 and the petitioner claims that he left the headquarters to go to Patna with the permission of the authorities. FAC |
The order dated March 5, 1960 was received by him at Patna on March 23, 1960 when he was ill. FAC |
He applied for leave. FAC |
According to the petitioner, he obtained an order of temporary injunction on October 5, 1961 in his title suit No. 86 of 1961 restraining the respondents from giving effect to the order dated March 5, 1960 reverting him to the Lower Division in the Subordinate Educational service. FAC |
Though he offered to join the post to which he was entitled originally, he was not allowed by the respondents to join the Upper Division of the Subordinate Educational Service. FAC |
The action of the respondent in refusing to permit him to join duty was in flagrant violation of the order of temporary injunction granted by the Munsif, Patna. FAC |
On August 5, 1966 the Director of Public Instruction passed an order that the petitioner "having not been on his duties for more than five years since March 1, 1960, has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code". FAC |
The petitioner made representations for cancellation of this order but without any success. FAC |
This is the third order that is being challenged. FAC |
The petitioner having completed 58 years of age, addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of the petitioner 's pension. FAC |
No reply was received by the petitioner for a long time inspite of repeated reminders. FAC |
Ultimately on June 12, 1968 the Director of Public instruction passed orders on the petitioner 's ,application dated July 18, 1967 regarding payment of pension. FAC |
639 In this order it is stated that under r. 46 of the Bihar Pension Rules (hereinafter to be referred as the Pension Rules), the Department is unable to grant any pension to the petitioner. FAC |
We will refer to this rule at the appropriate stage but it is enough to take note of the fact that under the said rule, no pension may be granted to a government servant dismissed or removed for misconduct, insolvency or inefficiency. Ratio |
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