Appeals Nos
1644 and 1645 of 1967
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
479 Debabrata Mukherjee D N Mukherjee and section K Nandy for the appellants in both the appeals
M C Chagla and Naunit Lal for the respondents in both the appeals
The Judgment of J M SHELAT and I D DUA JJ was de livered by DUA J V BHARGAVA J gave a dissenting Opinion
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 Nos2  3 is concerned but with respect we are unable to agree with him on point No 1
It is unnecessary to repeat the relevant facts which have been set out by our learned brother in his judgment
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 PWDFC  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 from service
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 above
Accordingly the Governor hereby dismisses the said P K Hore from service with immediate effect
 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
It appears that when the Governor made these two orders his attention was not invited to the amended article 3112 which was in force on that date
The impugned orders were accordingly made in terms of article 3112 as it existed before its amendment by the Fifteenth Amendment Act 1963 which had come into force on October 6 1963
The amended Article 3112 has been reproduced in the judgment of my learned brother it is However desirable to reproduce both the amended and unamended article 480 3112 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 such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him 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 an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause or c where the President or Governor as the case may be is satisfied that in the interest of the security of the State it is not expedient to give that person such an opportunity
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 him any such penalty until he has been given a responsible opportunity of making representation on the penalty proposed but only on the basis of the evidence adduced during such inquiry
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 recorded by that authority in writing it is not reasonably practicable to hold such inquiry  or c where the President or Governor as the case may be is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry
The unamended sub article except the proviso was a reproduction of section 2403 of the Government of India Act 1935
The proviso to section 2403 had only two clauses corresponding to clsa  b of the unamended article 3112
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 State for India vs I M Lall1 and to the decision of the Privy Council on appeal in High Commissioner for India vs I M Lall2 explained the Privy Council decision and clarified the meaning scope and ambit of the unamended article 3112 in these words In our judgment neither of the two views can be accepted as a completely correct exposition of the intendment of the provisions of section 2403 of the Government of India Act 1935 now embodied in article 3112 of the Constitution
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
We think that the learned Solicitor General is entirely right in not pressing for such a limited construction of the provisions under consideration
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
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
He must not only be given an opportunity but such opportunity must be a reasonable one
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 particular punishment proposed to be given is much more drastic and severe than he deserves
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
 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
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 LR 1948 75 IA 225482 inquiry contemplated by the amended sub article
The question therefore arises if in the present case the Governor when expressing his satisfaction under sub clause c of the proviso to cl2 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 action proposed to be taken in regard to him as stated above intended to convey his satisfaction that in the interest of the security of the State it was not expedient to give an opportunity to P K Hore to show cause only against the penalty proposed to be imposed and that the Governor s satisfaction did not extend to the inexpediency of giving P K Hore an opportunity of showing cause against his unfitness to be retained in service as well
In our opinion the impugned order cannot reasonably be construed to be restricted to the narrow meaning suggested on behalf of the appellant
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
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
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
It may be recalled that the amended article 3112 does not speak of any show cause notice
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 reasonable opportunity of making representation on the penalty proposed
The second stage does not speak of notice to show cause against the action proposed to be taken
The amendment in 1963 was made principally to put in clearer language the result of the judicial decision construing section 2403 of the Government of India Act 1935 and unamended article 3112 of the Constitution
As already noticed under section 2403 of the Act of 1935 and the unamended article 3112 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
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
But in answer to this show cause notice the government servant was held entitled also to show cause against his guilt on the merits
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
The Privy Council in I M Lall s case1 saw no difficulty in the statutory opportunity being reasonably afforded at more than one stage
The Privy Council however dealt with section 2403 of the Act of 1935 and the earlier statutory rule on the subject
This Court in Khem Chand s case2 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 2403 and is so in article 3112 itself
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
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
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 cl2 of article 311 and intended that this clause shall not apply to their cases
Merely because the form of the order was expressed in the language used in the unamended article 3112 it does not in our view detract from its effectiveness as operating to exclude the applicability of the amended cl2 of article 311 as a whole
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
No doubt article 3112 is intended to afford a sense of security to government servants covered by sub article1 and the safeguards provided by sub article2 are mandatory
But clc 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 LR 1948 75 IA 225
2  484 considered less important  when construing sub article
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
It is nobody s case before us that inquiry into the charges against the two appellants as contemplated by the amended article 3112 had already been held and the question of imposition of penalty alone remained to be finally settled when the impugned order was made
No inquiry of any kind as contemplated by article 3112 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
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
The fact that clc 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
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
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 decisions interpreting the unamended article the reason for the form and the language used in the impugned orders becomes clear and there can be no difficulty in understanding their true meaning
Reading the impugned orders in the light of what has just been stated they quite clearly exclude the applicability of sub article2 of article 311 in both cases
These appeals accordingly fail and are dismissed but in the circumstances without costs
Bhargava J
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
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
In Civil Appeal No 1645 of 1967 the appellant is P K Hore who joined service in the Secretariat of the
Assam 485 Government on 1st November 1946 in the post of a Lower Division Assistant
On 9th December 1950 he was confirmed in that post
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
In the year 1964 65 he was elected as Vice President of the Assam Secretariat Services  Association
This was at a time when in the year 1964 the report of the Pay Committee appointed by the Government was published
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
As a result the Association took a decision for a pen down strike
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
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
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
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
The other appellant B C Das was suspended a few days later
In fact including the latter 32 other employees were placed under suspension
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
P K Hore was asked to submit his explanation within five days from the date of receipt of the communication
On 26th March 1965 he applied for extension of time which request was accepted and time was extended up to 2nd April 1965
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 301 of the Defence of India Rules
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 PWDFC  1Wing 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
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
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
Accordingly the Governor hereby dismisses the said P K Hore from service with immediate effect
 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 been passed in violation of article 3112 of the Constitution as the order of the Governor did not satisfy the requirements of sub clause c of the proviso to clause 2 of article 31 1 2 The order has been passed without consultation with the State Public Service Commission which was compulsory under rule 10 of the Assam Services Discipline and Appeal Rules 1964 hereinafter referred to as the Rules and regulation 6 of the Assam Public Service Commission Limitation of Functions Regulations 1951 hereinafter referred to as the Regulations 3 The order of dismissal has been passed mala fide
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
Clause 2 of article 311 of the Constitution as it stands after amendment by the Constitution Fifteenth Amendment Act 1963 reads as follows  3112 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 him any such penalty until he has been given a reasonable opportunity of making representation on the penalty proposed but only on the basis of the evidence adduced during such inquiry  Provided that this clause shall not apply a where a person is dismissed or removed or reduced in rank on the ground of conduct 487 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 recorded by that authority in writing it is not reasonably practicable to hold such inquiry or c 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 such inquiry
 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
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 impose on him any penalty of dismissal removal or reduction in rank he has to be given a reasonable opportunity of making a representation on the penalty proposed but only on the basis of the evidence adduced during such inquiry
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
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
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 representation against the penalty proposed the Governor must be satisfied that in the interest of the security of the State the holding of such an inquiry is not expedient
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
 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
It is specially to be noted that in the first paragraph of the order the 488 Governor s satisfaction is recorded on two points
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
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
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
The action proposed as stated above in the order clearly is the order imposing the penalty of dismissal from service
In the order itself preceding the recording of this satisfaction there is no other action proposed except the action of dismissal from service
The satisfaction recorded by the Governor therefore related to the third step to be taken under clause 2 of article 311 as enumerated above
The Governor confined his satisfaction to the inexpediency of giving an opportunity to P K Hore to show cause against the penalty proposed
No satisfaction is recorded that it is inexpedient to hold the inquiry required by clause 2 of article 31 1
Under sub clause c of the proviso what was needed was a satisfaction that it was inexpedient to hold the inquiry
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
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 3112 stood prior to its amendment by the Constitution Fifteenth Amendment Act 1963 and which was as follows 3112 No such person as aforesaid shall be dismissed of removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him 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 b where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause or 489 c 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 give to that person such an opportunity
 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 the security of the State it was not expedient to give that person such an opportunity
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
This is the language used in the order impugned
The words used in the Article before the amendment were interpreted by this Court in Khem Chand vs The Union of India and Others3 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 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 enquiry 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
 This interpretation was reiterated by the Court in Hukum Chand Malhotra vs Union of India1
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 892490 to give P K Hore an opportunity to show cause against the action proposed to be taken in regard to him he must have used these words in the sense in which they were used in the Constitution prior to its amendment and in the light of the interpretation placed on those words by this Court in the two decisions cited above
For two reasons this submission made by Mr Chagla appears to be unacceptable
The first reason is that it is too much to hold that the Governor while passing an order under the amended article 3112 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
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 dismissal
 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
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
It is in the submissions that the Chief Secretary says that the Governor was satisfied that it was not expedient to hold the inquiry
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
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
The last three words as stated above have great significance
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
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 only
No satisfaction was recorded with regard to the inexpediency of holding an inquiry
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 3112
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 him
The effect of such satisfaction is that the government servant is dismissed without even being told of the charges against him
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
I do not think therefore that it would be enough merely to infer the intention of the Governor and thereupon take away the right
There having been no proper compliance with the requirements of subclause c of the proviso to article 3112 the order of dismissal passed against P K Hore is void and must be struck down
It may be mentioned that the same High Court in a later case of Zatia vs The State of Assam and Others1 has arrived at the same decision though on a different reasoning which does not appear to be sound
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
In view of the decision on the first point raised in these appeals it is not necessary to deal with the other two points
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
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 is dismissed
Rule 10 is as follows  Special procedure in certain casesNotwith 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 in writing that it is not reasonably practicable to follow the procedure prescribed in the said rule or 1 1969 VolVI Assam Law Reports 192492 iii where the Governor is satisfied that in the interest of the security of the State it is not expedient to follow such procedure the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit  Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary
 The main part of this rule only enumerates cases where orders can be passed without consulting the Public Service Commission
It is only the proviso that mentions consultation but it does not make it compulsory for the Commission to be consulted
All it says is that the Commission shall be consulted in any case in which such consultation is necessary
This clearly envisages that the necessity for consultation must be found in some other provision
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
Similarly regulation 6 only enumerates cases where it is not necessary to consult the Commission
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
This regulation has obviously been made by the Governor in exercise of his power under the proviso to article 3203 of the Constitution
It is the principal clause of article 3203 which lays down when the Public Service Commission shall be consulted
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
The regulations as indicated above do not dispense with this requirement of article 3203c in cases where the Governor is himself the original dismissing authority
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
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 3203c continues to be in force and applicable
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
The Commission must be consulted before an order is passed by the Governor
 493 This illustration again merely indicates the correct legal position that the Commission must be consulted as required by article 3203c
The illustration by itself cannot be read as a statutory rule laying down that there must be consultation with the Commission
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
The consultation therefore with the Commission is not prescribed either by the Rules or by the Regulations
The consultation is only under article 3203c of the Constitution
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 Manbodhan Lal Srivastava1 That decision was further affirmed in the State of Bombay vs D A Korgaonkar2 Non consultation with the Public Service Commission cannot therefore be held to vitiate the orders impugned
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
But there was no charge that the Governor bad any extraneous reasons for passing the orders of dismissal
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
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
In the circumstances the plea of mala fide must also be rejected
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 3112 of the Constitution
ORDER In accordance with the majority judgment the appeals fail and are dismissed but in the circumstances of the case without costs
GC 1  2 Civil Appeal No 289 of 1958 decided on 6th May 1960


Summary:
The appellants were dismissed from the service of the Government of Assam by two separate orders passed by the Governor on April 1 1965
The orders recited that the appellants were unfit to be retained in the public service that they ought to be dismissed from service and that the Governor was satisfied in terms of article 3112 c of the Constitution that it was not expedient to give them opportunity to show cause against the action proposed to be taken in regard to them as stated above
The appellants challenged the orders of dismissal in writ petitions under article 226 of the Constitution which were dismissed by the High Court
In appeals by certificate the contentions of the appellants were i that the impugned orders were not in compliance with the terms of article 3112 as amended by the Constitution Fifteenth Amendment Act which had come into force on October 6 1963 ii that the orders were bad because they were passed without consulting the Public Service Commission  iii that the orders were passed mala fide at the instance of the Chief Secretary and the Finance Minister who were annoyed with the appellants
HELD i Per Shelat and Dua JJ
According to the decisions of this Court the expression reasonable opportunity of showing cause against the action proposed to be taken in the unamended article 3112 included an opportunity to show cause against the guilt of the government servant concerned
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 inquiry contemplated by the amended sub article
The amendment in 1963 was made principally to put in clearer language the result of the judicial decisions construing section 2403 of the Government of India Act 1935 and unamended article 3112 of the Con stitution
It could not 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 the appellants to show cause against their guilt as contemplated by cl
2 of article 311 and intended that this clause shall not apply to their cases
Merely because the form of the order was expressed in the language used in the unamended article 3112 it did not detract from its effectiveness as operating to exclude the applicability of the amended cl
2 of article 311 as a whole
The use of the words in conformity with the unamended article served to convey the same intention as was contemplated by the 478 amended article and the difference in the language which seemed to be inconsequential did not have the effect of nullifying the impugned orders
The words as stated above  in the orders did 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 the unfitness of the appellants to be retained in the public service
482C H 483E G Khem Chand vs Union of India  Ors
1958 SCR I Secretary of State for India vs IM Lal and High Commissioner for India vs IM Lall LR 1948 75 IA 225 referred to
Per Bhargava J dissenting The action proposed as stated above in the impugned orders clearly was the order imposing the penalty of dismissal from service
In the order itself preceding the recording of the satisfaction there was no other action proposed except the action of dismissal from service
The satisfaction recorded by the Governor therefore related to the third step to be taken under cl
2 of article 311 of the Constitution
The Governor confirmed his satisfaction to the inexpediency of giving opportunity to the appellants to show cause against the penalty proposed
No satisfaction was recorded that it was inexpedient to hold the inquiry required by cl
2 of article 311 as amended
Under sub cl
c of the proviso what was needed was a satisfaction that it was inexpedient to hold the inquiry
No such satisfaction having been recorded it was necessary that the provisions of the principal cl
2 of article 311 should have been complied with before passing an order of dismissal
The order of dismissal was therefore void and liable to be struck down
489C E Case law referred to
ii Consultation with the Public Service Commission is not compulsory under r 10 of the Assam Services Discipline and Appeal Rules 1964 and regulation 6 of the Assam Public Service Commission Limitation of Functions Regulations 1951
The consultation with the Commission is not prescribed either by the Rules or by the Regulations
The consultation is only under article 320 3 c of the Constitution
So far as that consultation is concerned this Court has held that it is not mandatory
Nonconsultation with the Public Service Commission could not therefore be held to vitiate the orders impugned
492C 493D State of UP vs Manbodhan Lal Srivastava  and State of Bombay vs D A Korgaonkar CA No 2891968 dt
6 5 1960 relied on
iii There was no charge that the Governor had any extraneous reasons for Passing the orders of dismissal
There was nothing on record 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
The orders were no doubt authenticated by the Chief Secretary in the name of the Governor but that did not mean that the Governor was in any way influenced by any advice tendered to him by the Chief Secretary
In the circumstances the plea of mala fide must be rejected
493E F The appeals
had accordingly to be dismissed