Appeal No 155 of 1961
Appeal by the special leave from the judgment and order dated January 5 1959 of the Punjab High Court in Civil Writ Application No 460 of 1957
I M Lal and M L Aggarwal for the appellant
section M Sikri Advocate General for the State of Punjab N section Bindra and P D Menon for the respondents
March 7
The Judgment of the Court was delivered by MUDHOLKAR J
This is an appeal by special leave against the judgment of the Punjab High Court dismissing the appellants petition under article 226 of the Constitution
715 The appellant was appointed a qanungo in the former State of PEPSU in the year 1950
On December 1 1953 he was appointed Assistant Consolidation Officer
Certain complaints having been received regarding tampering with official records he was suspended and an enquiry was held against him by the Revenue Secretary of PEPSU Government
As a result of that enquiry the Revenue Secretary dismissed him by order dated August 30 1956 on the ground that the appellant was not above board and was not fit to be retained in service his order was duly communicated to the appellant
Thereupon the appellant preferred an appeal before the State Government
It would appear that he had submitted an advance copy of his appeal to the Revenue Minister of PEPSU who called for the records of the case immediately
After perusing them he wrote on the file that the charges against the appellant were serious and that they were proved
He also observed that it was necessary to stop the evil with a strong band
He however  expressed the opinion that as the appellant was a refugee and bad a family to support his dismissal would be too hard and that instead of dismissing him outright he should be reverted to his original post of qanungo and warned that if be does not behave properly in future he will be dealt with severely
On the next day the State of PEPSU merged in the State of Punjab
According to the appellant the aforesaid remarks amount to an order of the State Government and that they were orally communicated to him by the Revenue Minister
This is denied on behalf of the State
It is however common ground that the aforesaid remarks or order whatever they be were never communicated officially to the appellant
After the merger of PEPSU with the State of 716 Punjab the file was put up before the Revenue Minister of Punjab Mr
Darbara Singh
On December 14 1956 Mr Darbara Singh remarked on the file Serious charges have been proved by the Revenue Secretary and Shri Bachhittar Singh was dismissed
I would like the Secretary ic to discuss the case personally on 5th December 1956
 Then on April 28 1957 the Minister noted on the file CM may kindly advise With this remark the file went up before the Chief Minister Punjab who on April 1618 1957 passed an order the concluding portion of which reads thus  Having regard to the gravity of the charges proved against this official I am definitely of the opinion that his dismissal from service is a correct punishment and no leniency should be shown to him merely on the ground of his being a displaced person or having a  large family to support
In the circumstances the order of dismissal should stand
 This order was communicated to the appellant on May 1 1957
Thereafter he preferred petition under article 226 of the Constitution which as already stated was dismissed by the Punjab High Court
The validity of the order of the Revenue Secretary dismissing the appellant was not challenged before us
The point urged before us is that the order of the Revenue Minister of the PEPSU having reduced the punishment from dismissal to reversion the Chief Minister of Punjab could not sit in review over that order and set it aside
Two grounds are urged in support of this point
The first is that the order of the Revenue Minister of PEPSU was the order of the State Government and was not open to review
The second ground is that in any case it was not within the competence of the Chief Minister of Punjab to deal with the matter 717 inasmuch as it pertained to the portfolio of the Revenue Minister
Before we  deal with the grounds we may state that the High Court was of the opinion that proceedings taken against the appellant were made up of two parts  a the enquiry which involved a decision of the question whether the allegations made against the appellant were true or not and b taking action ie in case the allegations were found to be true whether the appellant should be punished or not and if so in what manner According to the High Court the first point involved a decision on the evidence and may in its nature be described as judicial while the latter was purely an administrative decision and that in so far as this was concerned there was no reason why the State Government was incompetent to change its decision if it thought administratively advisable to do so
We cannot accept the view taken by the High Court regarding the nature of what it calls the second part of the proceedings
Departmental proceedings taken against a Government servant are not divisible in the sense in which the High Court understands them to be
There is just one continuous proceeding though there are two stages in it
The first is coming to a conclusion on the evidence as to whether the charges alleged against the Government servant are established or not and the second is reached only if it is found that they are so established
That stage deals with the action to be taken against the Government servant concerned
The High Court accepts that the first stage is a judicial proceeding and indeed it must be so because charges have to be framed notice has to be given and the person concerned has to be given an opportunity of being heard
Even so far as the second stage is concerned article 3112 of the Constitution requires a notice to be given to the person concerned  as also an opportunity of being heard
718 Therefore this stage of the proceeding is no less judicial than the earlier one
Consequently any action decided to be taken against a Government servant found guilty of misconduct is a judicial order and as such it cannot be varied at the will of the authority who is empowered to impose the punishment
Indeed the very object with which notice is required to be given on the question of punishment is to ensure that it will be such as would be justified upon the charges established and upon the other attendant circumstances of the case
It is thus wholly erroneous to characterise the taking of action against a person found guilty of any chargo at a departmental enquiry as an administrative order
What we have now to consider is the effect of the note recorded by the Revenue Minister of PEPSU upon the file
We will assume for the purpose of this case that it is an order
Even so the question is whether it can be regarded as the order of the State Government which alone as admitted by the appellant was competent to hear and decide an appeal from the order of the Revenue Secretary
article 1661 of the Constitution requires that all executive action of the Government of a State shall be expressed in the name of the Governor
Clause 2 of article 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor
Clause 3 of that Article enables the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business
What the appellant calls an order of the State Government is admittedly not expressed to be in the name of the Governor
But with that point we shall deal later
What we must first ascertain is whether the order of the Revenue Minister is an order of the State Government ie of the Governor
In this 719 connection we may refer to r 25 of the Rules of Business of the Government of PEPSU which reads thus  Except as otherwise provided by any other Rule cases shall ordinarily be disposed of by or under the authority of the Minister incharge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department
Copies of such standing orders shall be sent to the Rajpramukh and the Chief Minister
 According to learned counsel for the appellant his appeal pertains to the department which was in charge of the Revenue Minister and therefore he could deal with it
His decision and order would according to him be the decision and order of the State Government
On behalf of the State reliance was however placed on r 34 which required cer tain classes of cases to be submitted to the Rajpramukh and the Chief Minister before the issue of orders
But it was conceded during the course of the argument that a case of the kind before us does not fall within that rule
No other provision bearing on the point having been brought to our notice we would therefore hold that the Revenue Minister could make an order on behalf  of the State Government
The question therefore is whether he did in fact make such an order
Merely writing something on the file does not amount to an order
Before something amounts to an order of the State Government two things are necessary
The order has to be expressed in the name of the Governor as required by cl
1 of article 166 and then it has to be communicated
As already indicated no formal order modifying the decision of the Revenue Secretary was ever made
Until such an order is drawn up the State Government cannot in our opinion be 720 regarded as bound by what was stated in the file
As along as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones
The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities
The constitution therefore requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide that the action must be taken by the authority concerned in the name of the Raj pramukh
It is not till this formality is observed that the action can be regarded as that of the State or here by the Rajpramukh
We may further observe that constitutionally speaking the Minister is no more than an adviser and that the head of the State the Governor or Rajpramukh is to act with the aid and advice of his Council of Ministers
Therefore until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State
Indeed it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion one which may be completely opposed to the earlier opinion
Which of them can be regarded as the order  of the State Government Therefore to make the opinion amount to a decision of the Government it must be communicated to the person concerned
In this connection we may quote the following from the judgment of this Court in the State of Punjab vs Sodhi Sukhdev Singh 1 Mr Gopal Singh attempted to argue that before the final order was passed the Council Till the abolition of that office by the Amendment of the Constitution in 1956
1  409
721 of Ministers had decided to accept the respon dent s representation and to reinstate him and that according to him the respondent seeks to prove by calling the two original orders
We are unable to understand this argument
Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on until a final decision is reached by them and is communica ted to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent
 Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order
For until the order is communicated to the person affected by it it would be open to the Council of Ministers to consider the matter over and over again and therefore till its communication the order cannot be regarded as anything more than provisional in character
We are therefore of the opinion that the remarks or the order of the Revenue Minister PEPSU are of no avail to the appellant
Now as regards the next contention Learned counsel for the appellant contends that since his appeal was not decided by the Revenue Minister of Punjab Mr Darbara Singh but by the Chief Minister Mr Pratap Singh Kairon who bad no jurisdiction to deal with it the appeal must be deemed to be still pending
In this connection he relied upon r 18 of the Rules of Business framed by the Governor of Punjab which corresponds to r 25 of the PEPSU rules which reads thus  Except as otherwise provided by any other Rule cases shall ordinarily be disposed 722 of by or under the authority of the Minister in charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department
Copies of such standing orders shall be sent to the Chief Minister and the Governor
 Now unquestionably the matter here did pertain to the portfolio of the Revenue Minister
But it was he himself who after seeing the file submitted it to the Chief Minister for advice
Learned counsel however contends that the Chief Minister could therefore only give him advice and not asurp the jurisdiction of the Revenue Minister and decide the case himself
But this argument ignores r28 1 of the Punjab Rules of Business the relevant portions of which run thus 28 1 The following classes of cases shall be submitted to the Chief Minister before the issue of orders  x x x ii Cases raising questions of policy and Cases of administrative importance not already covered by the Schedule
x x x vii Proposals for the prosecutions dis missal removal or compulsory retirement of any gazetted officer
x x x xix Such other cases or classes of cases as the chief Minister may consider necessary
The learned Advocate General contends that the case would be covered by every one of these clauses
In our opinion clvii cannot assist him because it is not the contention of the State that the appellant is a gazetted officer
We however think that 723 cl
ii would certainly entitle the Chief Minister to paw an order of the kind which he has made here
The question to be considered was whether though grave charges had been proved against an official he should be removed from service forthwith or merely reduced in rank
That unquestionably raises a question of policy which would affect many cases all and the departments of the State The Chief Minister would therefore have been within his rights to call up the file of his own accord and pass orders thereon
Of course the rule does not say that the Chief Minister would be entitled to pass orders but when it says that he is entitled to call for the file before the issue of orders it clearly implies that he has a right to interfere and make such order as he thinks appropriate
Finally there is cl
xix which confers a wide discretion upon the Chief Minister to call for any file and deal with it himself
Apart from that we may refer to r 4 of the Rules of Business of the Punjab Government which reads thus  The Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these Rules whether such orders are authorised by an individual Minister on a matter pertaining to his portfolio or as the result of discussion it a meeting of the Council or howsoever otherwise Thus the order passed by the Chief Minister even though it is on a matter pertaining to the portfolio of the Revenue Minister will be deemed to be an order of the Council of Ministers
So deemed its contents would be the Chief Minister s advice to the Governor for which the Council of Ministers would be collectively responsible
The action taken thereon in pursuance of r 8 of the Rules of Business made by the Governor under article 1663 of the Constitution 724 would then be the action of the Government
Here one if the Under Secretaries to the Government of Punjab informed the appellant by his letter dated May 1 1957 that his representation had been considered and rejected evidently by the State Government
This would show that appropriate action had been taken under the relevant rule
The appeal is thus without substance and is dismissed
In view of the fact that the appellant is a displaced person with heavy responsibilities and with limited or possibly hardly any means we direct that the costs shall be borne by the parties concerned
Appeal dismissed


Summary:
The appellant was appointed a qanungo in Pepsu and latter as Assistant Consolidation Officer
Complaints having been received against him an enquiry was held as a result of which he was dismissed by the Revenue Secretary
Against this order he preferred an appeal to the State Government
The Revenue Minister Pepsu wrote on the file chat dismissal would be too hard and instead he should be reverted as qanungo but no written order to that effect was served upon the appellant
After merger of Pepsu with Punjab the Revenue Minister Punjab sent up the file to the Chief Minister with the remarks CM may kindly advise
The Chief Minister passed the order confirming the dismissal
and the order was duly communicated to the appellant
The appellant challenged the order of the Chief Minister Punjab on the ground that the Chief Minister Punjab could not sit in review on the order of the Revenue Minister Pepsu and that the Chief Minister was not competent to deal with the matter as it pertained to the portfolio of the Revenue Minister
Held that the order of the Revenue Minister Pepsu could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by article 1661 of the Constitution and was then communicated to the appellant
Until the order was so communicated it was only of a provisional character and could be reconsidered over and ever again
Before communication the order was binding neither on the appellant nor on the State Government
State of Punjab vs Sodhi Sukdev Singh AIR 1961 2 SCR 3 71 referred to
714 Held further that the Chief Minister Punjab was competent to deal with the appeal and to pass the order which he did
Under r 25 of the Rules of Business of the Punjab Government the matter undoubtedly related to the portfolio of the Revenue Minister
But since tinder r 281ii and xix which provide that cases involving questions of policy and cases of administrative importance and such other cases or classes of cases as the Chief Minister may consider necessary shall be referred to the Chief Minister the case was properly referred to the Chief Minister
Under r 4 the order passed by the Chief Minister even though it pertained to the portfolio of the Revenue Minister would be deemed to be an order of the Council of Ministers
It would be the Chief Ministers advice to the Governor for which the Council of Ministers Would be collectively responsible and action taken thereon would be the action of the Government
Departmental proceedings cannot be divided into two parts  i enquiry and ii taking of action  there is one conti nuous proceeding though there are two stages
Any action decided to be taken against a public servant found guilty misconduct is a judicial order and as such it cannot be varied at the will of the authority