Supreme Court of India

Union Of India And Another vs Tulsiram Patel And Others on 11 July, 1985

Equivalent citations: 1985 AIR 1416, 1985 SCR SUPL. (2) 131, AIR 1985 SUPREME COURT 1416, 1985 LAB. I. C. 1393, (1985) 3 COMLJ 45, 1985 SCC (L&S) 672, (1985) 2 CURLR 117, (1985) 2 LABLJ 206, (1985) 2 LAB LN 488, 1985 (3) SCC 398, 1985 BOM LR 87 563

Author:
D.P. Madon

Bench:
D.P. Madon
,
Y.V. Chandrachud
,
V.D. Tulzapurkar
,
R.S. Pathak
,
M.P. Thakkar

PETITIONER:
UNION OF INDIA AND ANOTHER

Vs.

RESPONDENT:
TULSIRAM PATEL AND OTHERS

DATE OF JUDGMENT11/07/1985

BENCH:
MADON, D.P.
BENCH:
MADON, D.P.
CHANDRACHUD, Y.V. ((CJ)
TULZAPURKAR, V.D.
PATHAK, R.S.
THAKKAR, M.P. (J)

CITATION:
1985 AIR 1416 1985 SCR Supl. (2) 131
1985 SCC (3) 398 1985 SCALE (2)133
CITATOR INFO :
RF 1986 SC 335 (1,2,3,4,6)
RF 1986 SC 555 (4,5,6,7,8,9,15,16)
R 1986 SC 617 (3,7)
R 1986 SC1173 (13,13A,14,21,22,24)
RF 1986 SC1272 (79)
R 1986 SC1571 (99,105)
E&D 1987 SC 593 (25)
R 1987 SC1137 (3,5)
F 1987 SC1919 (9)
F 1987 SC2106 (8)
R 1988 SC 285 (1)
R 1988 SC2245 (11)
F 1989 SC 662 (8,9,10)
R 1989 SC1185 (29)
R 1990 SC 987 (10)
R 1990 SC1480 (110)
R 1991 SC 101 (14,19,31,32,35,40,41,62,67,68
RF 1991 SC 385 (4)
RF 1992 SC 1 (133)

ACT:
Constitution of India Articles 14,21,309,310,311.
Central Civil Services (Classification Control &
Appeal) Rules 1965 Rules 19, 22,23, 25, 27(2),29, 29A.
Central Industrial Security Force Rules 1969 Rules
37,42, 42A, 47(2) and 49.
Railway Servants (Discipline & Appeal) Rules 1968,
Rules 14, 17, 20, 22(2), 25, 25A.
Doctrine of Pleasure-Scope of in
Art.311 -
Whether an
exception to
Art.310(1).

Laws made under
Art.309
whether to be subject to

Art.310(1)
and
and Part III.

Art. 311(2)
second proviso - Principle of natural
justice whether excluded Mala fide action of disciplinary
authority - Whether can be assailed - Conduct of government
servant must justify dismissal or removal or reduction in
rank - Condition precedent to applicability of the provision
- Approach of the disciplinary authority - The situations
when it is not reasonably practicable to hold inquiry - What
are - Reasons to be recorded in writing for not holding the
inquiry - Communication of reasons to the aggrieved
government servant - Necessity of - Remedies available to
the aggrieved government servant.
'Security of State'- What is - How affected - When not
expedient to hold inquiry in interest of 'security of
state'-subjective satisfaction of President or Governor -
What is.
Though pre-decisional hearing excluded post decisional
departmental hearing available - Judicial review open on
grounds of mala fides or non-application of mind.
Government Servant convicted for causing grevious head
injury - Punishment of compulsory retirement- Whether proper
and justified.
Railway employees - Participating in all-India strike -
En masse dismissal of participants - Whether proper and
justified.
Members of CISF - Creating riotous situation - Break
down of discipline in the force - Members becoming security
risk - Dismissal - Whether proper and justified.
Member of State Police Force - Creating violent public
disorder - Inciting others members to do so - Dismissal
whether proper and justified.
Natural Justice - Principles of Natural Justice - What
are - Origin of principle - 'audi alteram partem' - When can
be excluded - Post decisional hearing whether sufficient
compliance of the rule.
Statutory Interpretation - Provision of Constitution
whether mandatory or directory - 'expressum facit cessare
tacitum' - maxim - external aids to interpretation - use of
- mandatory constitutional prohibition strict construction
of -whether necessary.
WORDS AND PHRASES - MEANING OF
'Acts of the appropriate legislature' -
Art. 309.

'Except as expressly provided by this Constitution' -
Art.
310(1).

'Not expedient' - 'Security of State' - 'Reasonably
practicable' - 'This clause shall not apply' -
Art. 311(2).

ADMINISTRATIVE LAW
Subordinate legislation - Executive instructions
whether have force of statutory rule.

HEADNOTE:

Article 311
of the Constitution confers certain
safeguards upon persons employed in civil capacities under
the Union of India or a State. The first safeguard (which is
given by clause (1) of
Article 311
) is that such person
cannot be dismissed or removed by an authority subordinate
to that by which he was appointed. The second safeguard
(which is given by clause (2) of
Article 311
is that he cannot be dismissed 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.
The second safeguard is, however, not available when a
person is dismissed, removed or reduced in rank in any of
the three cases set out in clauses (a) to (c) mentioned in
the second proviso to
Article 311(2).
Under clause (a), such
person can be dismissed, removed or reduced in rank without
any inquiry on the ground of conduct which has led to his
conviction on a criminal charge. Under clause (b), any of
the three penalties can be imposed where the authority
empowered to impose any of the penalties is satisfied that
for some reason, to be recorded by that authority in
writing, it is not reasonably practicable to hold such
inquiry. Under clause (c), any of the aforesaid penalties
can be imposed where the President, or the Governor of a
State, 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.
All the Government servants in the above Appeals and
Writ Petitions had been either dismissed or removed from
service without holding any inquiry. They had not been
informed of the charges against them nor given any
opportunity of being heard in respect of those charges. The
penalty of dismissal or removal, as the case may be, had
been imposed upon them under one or the other of the three
clauses of the second proviso to
Article 311(2)
or under
similar provisions in rules made under the proviso to

Article 309
or in rules made under an Act referable to

Article 309
, for instance, Rule 19 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965.
Rule 14 of the Railway Servants (Discipline and Appeal)
Rules 1968, and Rule 37 of the Central Industrial Security
Force Rules, 1969, or under such a rule read with one of the
clauses of the second proviso to
Article 311(2).

The affected government servants assailed the aforesaid
order in writ petitions under
Article 226
in different High
Courts, and some of these writ petitions were allowed on the
basis of this Court's decision in Divisional Personal
Officer, Southern Railway & Anr. v. T.R. Challappan [1976] 1
S.C.R. 783, and a few were dismissed.
Appeals by Special Leave against those judgments were
filed, and in three such appeals it was noticed by a three
Judge Bench of this Court that there was a conflict between
Challappan's Case and another three Judge Bench in M. Gopala
Krishna Naidu v. State of Madhya Pradesh [1968] 1 S.C.R. 355
and directed that the papers in the three appeals be placed
before the Hon'ble Chief Justice for reference to a larger
Bench. These appeals were thus referred to the Constitution
Bench and all other similar Appeals and Writ Petitions were
also placed before the Constitution Bench for disposal.
The arguments advanced on behalf of the government
servants on the pleasure doctrine and the second proviso to

Article 311 (2)
were :
1. The pleasure doctrine in England is a part of the
special prerogative of the Crown and had been inherited by
India from England and should, therefore, be construed
strictly against the Government and liberally in favour of
government servants.
2. The second proviso which withdraws from government
servants the safeguards provided by clause (2) of
Article
must be also similarly construed, otherwise great
hardship would result to government servants as they could
be arbitrarily thrown out of employment, and they and their
dependents would be left without any means of subsistence.
3. There are several stages before a government servant
can be dismissed or removed or reduced in rank namely,
serving upon him of a show-cause notice or a charge-sheet,
giving him inspection of documents, examination of
witnesses, arguments and imposition of penalty. An inquiry
starts only after a show cause notice is issued and served.
A show cause notice is thus preparatory to the holding of an
inquiry and even if the entire inquiry is dispensed with,
the giving of a show cause notice and taking of the
explanation of the government servant with respect thereto
are not excluded.
4. It is not obligatory upon the disciplinary authority
to dispense with the whole of the inquiry. Depending upon
the circumstances of the case, the disciplinary authority
can dispense with only a part of the inquiry.
5. Imposition of penalty is not a part of the inquiry
and once an inquiry is dispensed with, whether in whole or
in part, it is obligatory upon the disciplinary authority to
give an opportunity to the government servant to make a
representation with respect to the penalty proposed to be
imposed upon him.
6.
Article 311
is subject to
Article 14.
Principles of
natural justice and the audi alteram partem rule are part of

Article 14
, and therefore, a show cause notice asking for
the explanation of the government servant with respect to
the charges against him as also a notice to show cause with
respect to the proposed penalty are required to be given by

Article 14
and not giving such notices or either of them
renders the order of dismissal, removal or reduction in rank
invalid.
On behalf of the Union of India it was submitted that:
1. The second proviso is unambiguous and must be
construed according to its terms.
2. Where the second proviso of clause (2) of
Article
is made inapplicable, there is no scope for holding any
partial inquiry.
3. The very contents of the three clauses of the second
proviso show that it is not necessary or not practicable or
not expedient that any partial inquiry could be or should be
held, depending upon which clause applies.
4.
Article 14
does not govern or control
Article 311.

The Constitution must be read as a whole.
Article 311(2)

embodies the principle of natural justice including the audi
alteram partem rule. Once the application of clause (2) is
expressly excluded by the Constitution itself, there can be
no question of making applicable what has been so excluded
by seeking recourse to
Article 14.

5. Considerations of sympathy for the government
servants who may be dismissed or removed or reduced in rank
are irrelevant to the construction of the second proviso.
The doctrine of tenure at pleasure in
Article 310
and the
safeguards given to a government servant under clauses (1)
and (2) of
Article 311
as also the withdrawal of the
safeguard under clause (2) by the second proviso are all
enacted in public interest and where public interest
conflicts with private interest, the latter must yield to
the former.
Allowing the Appeals of the Union of India and
dismissing the Writ Petitions and Transferred Cases of the
employees.
^
HELD: (Per Chandrachud, CJ. V.D. Tulzapurkar, R.S.
Pathak & D.P. Madon JJ. - M.P. Thakkar,J. dissenting)
I. The Pleasure Doctrine in the United Kingdom
1. The pleasure doctrine relates to the tenure of a
government servant, that is, his right to continue to hold
office. All public officers and servants of the Crown in the
United Kingdom hold their appointments at the pleasure of
the Crown and their services can be terminated at will
without assigning any cause. [166 F]
2. The pleasure doctrine is not based upon any special
prerogative of the Crown but is based on public policy and
is in public interest and for public good. The basis of the
pleasure doctrine is that the public is vitally interested
in the efficiency and integrity of civil services and,
therefore, public policy requires, public interest needs and
public good demands that civil servants who are inefficient,
dishonest or corrupt or have become a security risk should
not continue in service. [166 G]
3. In the United Kingdom, Parliament is sovereign and
can make any law whatever and the courts have no power to
declare it void. The pleasure doctrine is therefore subject
to what may be expressly provided otherwise by legislation.
[167 A-168 B]
Halsbury's Laws of England. Fourth Edn. Volume 8 para
1106;1162.
Sbenton v. Saith, L.R. [1895] A.C. 229 J.C., Dunn v.
the Queen, L.R. [1896] Q.B.D. 116; s.c. (1895-96) 73 L.T.R.
695 and sub nomine Dunn v. Regen in [1895-99] All E.R. Rep.
907., Gould v. Stuart, L.R. [1896] A.C. 575,578-9 J.C.,
Challiah Kodeeswaran v. Attorney-General of Ceylon [1970]
A.C. 1111,1118 (P.C.) referred to.
II. The Pleasure Doctrine in India
1. In India the pleasure doctrine has received
Constitutional sanction by being enacted in
Article 310(1)

of the Constitution of India. Under
Article 310(1)
except as
expressly provided in the Constitution, every person who is
a member of a defence service or of a civil service of the
Union of India or of any all-India service or holds any post
connected with defence or any civil post under the Union of
India holds office during the pleasure of the President, and
every person who is a member of a civil service of a State
or holds any civil post under a state holds office during
the pleasure of the Governor of the State. [186 H, 187 E]
2. In India, unlike in the United Kingdom, the pleasure
doctrine is not subject to any law made by Parliament or a
State Legislature but is subject to only what is expressly
provided in the Constitution. In India, therefore, the
exceptions to the pleasure doctrine can only be those which
are expressly provided in the Constitution. [187 E]
3. Several exceptions to the pleasure doctrine are
expressly provided in the Constitution.
4.
Article 311
, being an express provision of the
Constitution, is an exception to the pleasure doctrine
contained in
Article 310(1)
of the Constitution. Clauses (1)
and (2) of
Article 311
restrict the operation of the
pleasure doctrine so far as civil servants are concerned by
conferring upon civil servants the safeguards provided in
those clauses. [179 D]
5. Under clause (1) of
Article 311
no civil servant can
be dismissed or removed from service by an authority
subordinate to that by which he was appointed. [179 E]
6. Under clause (2) of
Article 311
no civil servant can
be dismissed or removed from service or reduced in rank
except after an inquiry in which he has been informed of the
charges against him and given a resonable opportunity of
being heard in respect of such charges. As a result of the
amendment made by the
Constitution (Forty-second Amendment)
Act, 1976
, in clause (2) of
Article 311
it is now not
necessary to give to a civil servant an opportunity of
making a representation with respect to the penalty proposed
to be imposed upon him. [179 F,181 E]
7. An order of compulsory retirement from service
imposed upon a civil servant by way of penalty amounts to
"removal" from service and attracts the provisions of

Article 311.
[180 E, 197 B]
8. Restrictions on the operation of the pleasure
doctrine contained in legislation made by Parliament in the
United Kingdom and in clauses (1) and (2) of
Article 311
in
India are based on public policy and are in public interest
and for public good in as much as they give to civil
servants a feeling of security of tenure. [182 E-F]
9. The safeguard provided to civil servants by clause
(2) of
Article 311
is taken away when any of the three
clauses of the second proviso (originally the only proviso
to
Article 311(2)
) becomes applicable. [182 D]
10. It is incorrect to say that the pleasure doctrine
is a prerogative of the British crown which has been
inherited by India and transposed into its Constitution,
adapted to suit the Constitutional set up of the Republic of
India. Authoritative judicial dicta both in England and in
India, have laid down that the pleasure doctrine and the
protection afforded to civil servants by legislation in the
United Kingdom and by clauses (1) and (2) of
Article 311
in
India are based on public good. Similarly, the withdrawal of
the safeguard contained in clause (2) of
Article 311
by the
second proviso to that clause is also based on public policy
and is in public interest and for public good. [191 C-E]
11. Neither
Article 309
nor
Article 310
nor
Article 311

sets out the grounds for dismissal, removal or reduction in
rank or for imposition of any other penalty upon a civil
servant. These Articles also do not specify what the other
penalties are These matters are left to be dealt with by
rules made under the proviso to
Article 309
or by Acts
referable to that Article or rules made under such Acts.
[191 G]
12. The pleasure of the President or the Governor is
not to be exercised by him personally. It is to be exercised
by the appropriate authority specified in rules made under
the proviso to
Article 309
or by Acts referable to that
Article or rules made under such Acts. Where, however, the
President or the Governor, as the case may be, exercise his
pleasure under
Article 310(1)
, it is not required that such
act of exercise of the pleasure under
Article 310(1)
must be
an act of the President or the Governor himself but it must
be an act of the President or the Governor in the
Constitutional sense, that is, with the aid and on the
advice of the Council of Ministers. [193 E]
North-West Frontier Province v. Suraj Narian Anand,
L.R. [1947-48] 75 I.A., 343,352-3., State of Madhya Pradesh
and Others v. Shardul Singh, [1970] 3 S.C.R. 302, 305-6.,
Sardari Lal v. Union of India ans others, [1971] 3 S.C.R.
461, 465., Kameshwar Prasad and Others v. The State of Bihar
and another[1962] Supp. 3 S.C.R. 369., G.K. Ghose and
another v. E.X. Joseph, [1963] Supp. 1 S.C.R. 789 referred
to.
III. The Inquiry under
Article 311(2)
1.
Clause (2) of
Article 311
gives a Constitutional
mandate to the principles of natural justice and the audi
alteram partem
rule by providing that a civil servant shall not be
dismissed or removed from service or reduced in rank until
after an inquiry in which he has been given a reasonable
opportunity of being heard in respect of those charges. [234
E]
2. The nature of this inquiry has been elaborately set
out by this Court in Khem Chand v. The Union of India and
Others [1958] S.C.R. 1980, 1095-97 and even after the

Constitution (Forty-second Amendment) Act, 1976
, the inquiry
required by clause (2) of
Article 311
would be the same
except that it would not be necessary to give to a civil
servant an opportunity to make a representation with respect
to the penalty proposed to be imposed upon him. [235 B]
3. Apart from
Article 311
prior to its amendment by the

Constitution (Forty-second Amendment) Act, 1976
, it is not
necessary either under the ordinary law of the land or under
industrial law to give a second opportunity to show cause
against the penalty proposed to be imposed upon an employee.
[243 H]
4. If an inquiry held against a civil servant under

Article 311(2)
is unfair or biased or had been conducted in
such a manner as not to give him a fair or reasonable
opportunity to defend himself, the principles of natural
justice would be violated; but in such a case the order of
dismissal, removal or reduction in rank would be bad as
contravening the express provision of
Article 311(2)
and
there is no scope for having recourse to
Article 14
for the
purpose of invalidating it. [235 C]
IV. The Second Proviso to
Article 311(2)
1.
The language of the second proviso to
Article 311(2)

is plain and unambiguous. The key-words in the second
proviso are "this clause shall not apply". There is no
ambiguity in these words. Where a situation envisaged in any
of the three clauses of the second proviso arises, the
safeguard provided to a civil servant by clause (2) of

Article 311
is taken away. [204 C]
2. The second proviso to
Article 311(2)
becomes
applicable an the three cases mentioned in clauses (a) to
(c) of that proviso, namely, (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
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; and (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. [203 A-C]
3. The governing words of the second proviso to clause
(2) of
Article 311
, namely, "this clause shall not apply",
are mandatory and not directory and are in the nature of a
Constitutional prohibitory injunction restraining the
disciplinary authority from holding an inquiry under
Article
311(2)
or from giving any kind of opportunity to the
concerned civil servant in a case where one of the three
clauses of the second proviso becomes applicable. There is
thus no scope for introducing into the second proviso some
kind of inquiry or opportunity to show cause by a process of
inference or implication. The maxim "expressum facit cessare
tacitum' ("when there is express mention of certain things,
then anything not mentioned is excluded") applies to the
case. This well known maxim is a principle of logic and
commonsense and not merely a technical rule of construction.
[213 H-214 A]
4. The second proviso to
Article 311(2)
has been in the
Constitution of India since the time the Constitution was
originally enacted. It was not blindly or slavishly copied
from
section 240(3)
of the Government of India Act, 1935.
There was a considerable debate on this proviso in the
Constituent Assembly. The majority of the members of the
Constituent Assembly had fought for freedom and had suffered
imprisonment in the cause of liberty and were therefore, not
likely to introduce into our Constitution any provision from
the earlier Government of India Acts which had been enacted
purely for the benefit of a foreign imperialistic power.
They retained the second proviso as a matter of public
policy and as being in the public interest and for public
good. They further inserted clause (c) in the second proviso
dispensing with the inquiry under
Article 311 (2)
in a case
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 as also added a new
clause, namely, clause (3), in
Article 311
giving finality
to the decision of the disciplinary authority that it is not
reasonably practicable to hold the inquiry under
Article
311(2).

Section 240
of the Government of India Act, 1935,
did not contain any provision similar to clause (c) of the
second proviso to
Article 311(2)
or clause (3) of
Article
311.
[215 F-H]
Hira Lal Rattan Lal etc. v. State of U.P. and Another
[1973] 2 S.C.R. 502, Commissioner of Income Tax, Madras v.
Madurai Mills Co. Ltd. [1973] 3 S.C.R. 662, Khem Chand v.
The Union of India and others [1958] S.C.R. 1080, Suresh
Koshy George v. The University of Kerala and Others [1969] 1
S.C.R. 317,326, Associated Cement Companies Ltd. v. T.C.
Shrivastava and other [1984] 3 S.C.R. 361,369 and B.Shankara
Rao Badami and Others v. State of Mysore and another [1969]
3 S.C.R. 1,12, referred to.
V.
Article 14
and the Second Proviso
1. The principles of natural justice are not the
creation of
Article 14
of the Constitution.
Article 14
is
not the begetter of the principles of natural justice but is
their Constitution guardian.[230 D]
2. The principles of natural justice consist primarily
of two main rules, namely, "nemo judex in cause sua" ("no
man shall be a judge in his own cause") and "audi alteram
partem" ("hear the other side"). The corollary deduced from
the above two rules and particularly the audi alteram partem
rule was "qui aliquid statuerit parte inaudita altera,
adguum licet dixerit, haud aequum fecerit" ("he who shall
decide anything without the other side having been heard,
although he may have said what is right will not have done
what is right" or as is now expressed "justice should not
only be done but should manifestly be seen to be done").
These two rules and their corollary are neither new nor were
they the discovery of English judges but were recognised in
many civilizations and over many centuries. [235 D, 237 G]
Dr. Bonham's case [1610] 8 Co. Rep. 113b, 118, British
Railway Board v. Pickin L.R. [1974] A.C. 765, Drew v. Drew
and Lebrun [1855] 2 Macq. 1,8, James Dunbar Saith v. Her
Majesty the Queen [1977-78] 2 App. Case 614,623 J.C., Arthur
John Spackman v. The Plumstead District Board of Works L.R.
[1884-85] 10 App. Case 229,240, Vionet and another v.
Barrett and another [1885] 55 L.J. Q.B. 39,41, Hookins and
another v. Smethwick Local Board of Health L.R. [1890] 24
Q.B.D. 712,716, Ridge v. Baldwin and others L.R. [1963] 1
Q.B. 539,578, Maneka Gandhi v. Union of India [1978] 2
S.C.R. 621,676, re H.K. (An Infant) L.R. [1967] 2 Q.B.
617,630, Fair-amount Investments Ltd. v. Secretary of State
for the Environment [1976] 1 W.L.R. 1255, 1265-66, Regina v.
Secretary of State for Home Affairs Ex parte Hosenball
[1977] 1 W.L.R. 766, 784, Lewis v. Heffar and others [1978]
1 W.L.R. 1061, 1076, Maclean v. The workers Union L.R.
[1929] 1 Ch. 602,624, William
Green v. Isidore J. Blake and others [1948] I.R. 242,
Hounslow London Borough Council v. Twickenham Garden
Developments Ltd. L.R. [1971] Ch. 233, Errington and others.
v. Minister of Health L.R. [1935] 1 K. B. 249,280, Ridge v.
Baldwin and others L.R. [1964] A.C. 40, on appeal from L.R.
[1963] 1 Q. B. 539 and Boswell's case [1606] 6 Co. Rep. 48b,
52a, referred to.
3.
Article 14
applies not only to discriminatory class
legislation but also to arbitrary or discriminatory State
action. Violation of a rule of natural justice results in
arbitrariness which is the same as discrimination, and where
discrimination is the result of a State action, it is a
violation of
Article 14.
Therefore, a violation of a
principle of natural justice by a State action is a
violation of
Article 14.
[229 F-G]
4. The principles of natural justice apply both to
quasi judicial as well as administrative inquiries entailing
civil consequences. [233 H-234 A]
5. It is well established both in England and in India
that the principles of natural justice yield to and change
with the exigencies of different situations which are not
alike. They are neither cast in a rigid mould nor can they
be put in a legal strait-jacket. They are not immutable but
flexible and can be adapted, modified or excluded by statute
and statutory rules as also by the Constitution of the
tribunal which has to decide a particular matter and the
rules by which such tribunal is governed. [235 D-F]
6. If legislation and the necessities of a situation
can exclude the principles of natural justice including the
audi alteram partem rule, a fortiorari so can a provision of
the Constitution such as the second proviso to
Article
311(2).
[238 B]
7. The audi alteram partem rule having been excluded by
a Constitutional provision, namely, the second proviso to

Article 311(2)
, there is no scope for reintroducing it by a
side-door to provide once again the same inquiry which the
Constitutional provision has expressly prohibited. [238 D]
8. A right of making a representation after an action
is taken against a person has been held by this Court to be
a sufficient compliance with the requirements of natural
justice. In the case of a civil servant to whom the
provisions of the second proviso to
Article 311(2)
have been
applied, he has the
right of a departmental appeal in which he can show that the
charges made against him are not true, and an appeal is a
wider and more effective remedy than a right of making a
representation. [234 C]
9. The majority view in A. K. Gopalan v. The State of
Madras, [1950] S. C. R. 88 namely, that particular Articles
governing certain Fundamental Rights operate exclusively
without having any inter-relation with any other Article in
the Chapter on Fundamental Rights was disapproved and held
to be not correct in Rustom Cawasji Cooper v. Union of India
[1970] 3 S.C.R. 530, its burial service was read in Sambhu
Nath Sarkar v. The State of West Bengal and Others [1974] 2
S.C.R. 1, Haradhan Saha and another v. The State of West
Bengal and Others [1975] 1 S.C.R. 832 and its funeral
oration was delivered in Maneka Gandhi's case, [1978] 2
S.C.R. 64 and it is to be hoped that the ghost of that
majority view does not at some future time rise from its
grave and stand, clanking its chains, seeking to block the
onward march of our country to progress, prosperity and the
establishment of a Welfare State. [240 H-241 A]
10. R.C. Cooper's case and the other cases which
followed it do not, however apply where a Fundamental Right,
including the audi alteram partem rule comprehended within
the guarantee of
Article 14
, is excluded by the
Constitution. Express exclusionary provisions contained in
the Constitution are
Article 31A (1)
,
Article 31B
,
Article
31C
,
Article 22 (5)
and the second proviso to
Article 311(2)

as regards the audi alteram partem rule, namely, affording
an opportunity of a hearing to a civil servant before
imposing the penalty of dismissal, removal or reduction in
rank upon him. [241 B]
11. The principles of natural justice must be confined
within their proper limits and not allowed to run wild. The
concept of natural justice is a magnificant thorough bred on
which this nation gallops forwards towards its proclaimed
and destined goal of "JUSTICE, social, economic and
political". This thoroughbred must not be allowed to turn
into a wild and unruly house, carrering off were it lists,
unsaddling its rider, and bursting into fields where the
sign "no passaran" is put up. [242 D]
In re The Special Courts Bill, 1978 [1979] 2 S.C.R.
476, State of Andhra Pradesh and Another v. Nalla Raja Reddy
and Others [1967] 3 S.C.R. 28, E. P. Royappa v. State of
Tamil Nadu and another [1974] 2 S.C.R. 348, Ajay Hasia etc.
v. Khalid Mujib
Sehravardi and others etc. [1981] 2 S.C.R. 79, Norwest Holst
Ltd. v. Secretary of State for Trade and Others L.R. [1978]
1 Ch. 201, A. K. Kraipak and others etc. v. Union of India
and others [1970] 1 S.C.R. 457, Union of India v. Col. J. N.
Sinha and another [1971] 1 S.C.R. 791, Swadeshi Cotton Mills
v. Union of India [1981] 2 S.C.R. 533, J. Mohapatra & Co.
and another v. State of Orissa and another [1985] 1 S.C.R.
322, 334-5, Liberty Oil Mills and others v. Union of India
and Others [1984] 3 S.C.C. 465, Rustom Cavasji Cooper v.
Union of India [1970] 3 S.C.R. 530, A. K. Gopalan v. The
State of Madras [1950] S.C.R. 88, Sambhu Nath Sarkar v. The
State of West Bengal and others [1974] 1 S.C.R.1, Hardhan
Saha and Anr. v. The State of West Bengal & Ors. [1975] 1
S.C.R. 832 and Khudiram Das v. The State of West Bengal &
Ors. [1975] 2 S.C.R. 832.
VI. Service Rules and Acts
1.
Article 309
is expressly made subject to the
provisions of the Constitution. Rules made under the proviso
to
Article 309
, Acts referable to that Article, and rules
made under such Acts are, therefore, subject both to
Article
310(1)
as also to
Article 311.
If any such rule or Act
impinges upon or restricts the operation of the pleasure
doctrine embodies in
Article 310(1)
except as expressly
provided in the Constitution or restricts or takes away the
safeguards provided to civil servants by clauses (1) and (2)
of
Article 311
, It would be void and unconstitutional as
contravening the provisions of
Article 310(1)
or clause (1)
or clause (2) of
Article 311
, as the case may be. Any such
Act or rule which provides for dismissal, removal or
reduction in rank of a civil servant without holding an
inquiry as contemplated by clause (2) of
Article 311
except
in the three cases specified in the second proviso to that
clause would therefore, be unconstitutional and void as
contravening
Article 311(2).
[243 A-C]
2. In the same way, for an Act or a rule to provide
that in a case where the second proviso to
Article 311(2)

applies, any of the safeguards excluded by that proviso will
be available to a civil servant would be void and
unconstitutional as impinging upon the pleasure of the
President or the Governor, as the case may be. [243 E]
3. A well-settled rule of construction of statutes is
that where two interpretations are possible, one of which
would preserve and save the constitutionality of the
particular statutory provision while the other would render
it unconstitutional
and void, the one which saves and preserves its
constitutionality should be adopted and the other rejected.
[243 F]
4. Where an Act or a rule provides that in a case in
which the second proviso to
Article 311(2)
applies any of
the safeguards excluded by that proviso will be available to
a civil servant, the constitutionality of such provision
would be preserved by interpreting it as being directory and
not mandatory. The breach of such directory provision would
not, however, furnish any cause of action or ground of
challenge to a civil servant because at the threshold such
cause of action or ground of challenge would be barred by
the second proviso to
Article 311(2).
[243 G]
5. Service rules may reproduce the provisions of the
second proviso to
Article 311(2)
and authorise the
disciplinary authority to dispense with the inquiry as
contemplated by clause (2) of
Article 311
in the three cases
mentioned in the second proviso to that clause or any one or
more of them. Such a provision, however, is not valid and
constitutional without reference to the second proviso to

Article 311(2)
and cannot be read apart from it. Thus, while
the source of authority of a particular officer to act as a
disciplinary authority and dispense with the inquiry is
derived from the service rules, the source of his power to
dispense with the inquiry is derived from the second proviso
to
Article 311(2)
and not from any service rule. [243 F-G]
6. The omission to mention in an order of dismissal,
removal or reduction in rank the relevant clause of the
second proviso or the relevant service rule will not have
the effect of invalidating the order imposing such penalty,
and the order must be read as having been made under the
applicable clause of the second proviso to
Article 311(2)

read with the relevant service rule. [266 H-267 A]
7. Rule 37 of the Central Industrial Security Force
Rules, 1969, is clumsily worded and makes little sense. To
provide that a member of the Central Industrial Security
Force who has been convicted to rigorous imprisonment on a
criminal charge "shall be dismissed from service" and at the
same time to provide that" only a notice shall be given to
the party charged proposing the penalty of dismissal for his
having been convicted to rigorous imprisonment and asking
him to explain as to why the proposed penalty of dismissal
should not be imposed" is a contradiction in terms. To read
these provisions as mandatory would be to render
them unconstitutional and void. These provisions must,
therefore, be read as directory in order to preserve their
constitutionality. [263 C-G]
8. Rule 19 of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965, is
identical with Rule 14 of the Railway Servants (Discipline
and Appeal) Rules, 1968, and the interpretation of the said
Rule 19 would be the same as that of the said Rule 14. [256
F-H]
VII. Challappan's Case
1. The three-Judge Bench of this Court in Divisional
Personnel Officer, Southern Railways and another v. T.R.
Challappan was in error in interpreting Rule 14 of the
Railway Servants (Discipline and Appeal) Rules, 1968, by
itself and not in conjunction with the second proviso to

Article 311(2).
[256 D]
2. The Court in Challappan's case also erred in holding
that the addition of the words "the disciplinary authority
may consider the circumstances of the case and make such
order thereon as it deems fit" in the said Rule 14 warranted
an interpretation of the said Rule different from that to be
placed upon the second proviso to
Article 311(2).
[254 G]
3. The Court in Challappan's case also erred in holding
that the addition of the words "the disciplinary authority
may consider the circumstances of the case and make such
order thereon as it deems fit" in the said Rule 14 warranted
an interpretation of the said Rule different from that to be
placed upon the second proviso to
Article 311(2).
It also
erred in the interpretation placed by it upon the word
"consider" occurring in the above phrase in the said Rule 14
and in taking the view that a consideration of the
circumstances of the case cannot be unilateral but must be
after hearing the delinquent civil servant would render this
part of the said Rule 14 unconstitutional as restricting the
full exclusionary operation of the second proviso to
Article
311(2).
[255 A-C]
4. The word "consider" in its ordinary and natural
sense is not capable of the meaning assigned to it in
Challappan's case. [255 G]
5. The consideration of the circumstances under the
said Rule 14 must, therefore, be ex parte and without
affording to the concerned civil servant an opportunity of
being heard. [255 H]
6. The decision in Challappan's case never held the
field for the judgment in that case was delivered on
September 15, 1975 and hardly was that case reported when in
the next group of appeals in which the same question was
raised the matter was referred to a larger Bench by an order
made on November 18, 1976. The reference was in view of the
earlier decision of another three-Judge Bench in M. Gopala
Krishna Naidu v. State of Madhya Pradesh. The correctness of
Challappan Case was, therefore, doubted from the very
beginning. [256 E]
VIII. Executive Instructions
Executive Instructions stand on a lower footing than a
statutory rule. Executive instructions which provide that in
a case where the second proviso to
Article 311(2)
applies,
any safeguard excluded by that proviso would be available to
a civil servant would only be directory and not mandatory.
[265 H]
IX. The Scope of the Second Proviso
1. The three clauses of the second proviso to
Article
are not intended to be applied in normal and ordinary
situations. The second proviso is an exception to the normal
rule and before any of the three clauses of that proviso is
applied to the case of a civil servant, the conditions laid
down in that clause must be satisfied. [204 F-205 C]
2. Where a situation envisaged in one of the clauses of
the second proviso to
Article 311(2)
exists, it is not
mandatory that the punishment of dismissal, removal of
reduction in rank should be imposed upon a civil servant.
The disciplinary authority will first have to decided what
punishment is warranted by the facts and circumstances of
the case. Such consideration would, however, be ex parte and
without hearing the concerned civil servant. If the
disciplinary authority comes to the conclusion that the
punishment which is called for is that of dismissal, removal
or reduction in rank, it must dispense with the inquiry and
then decide for itself which of the aforesaid three
penalties should be imposed. [205 A-B]
X. Clause (a) of the Second Proviso
1. In a case where clause (a) of the second proviso to

Article 311(2)
applies the disciplinary authority is to take
the conviction of the concerned civil servant as sufficient
proof of
misconduct on his part. It has thereafter to decide whether
the conduct which had led to the civil servant's conviction
on a criminal charge was such as to warrant the imposition
of a penalty and, if so, what that penalty should be. For
this purpose it must peruse the judgment of the criminal
court and take into consideration all the facts and
circumstances of the case and the various factors set out in
Chalappan's Case such as, the entire conduct of the civil
servant of the gravity of the offence committed by him, the
impact which his misconduct is likely to have on the
administration, whether the offence for which he was
convicted was of a technical or trivial nature, and the
extenuating circumstances, if any, present in the case.
This, however, has to be done by the disciplinary authority
ex parte and without hearing the concerned civil servant.
[267 C-E]
2. The penalty imposed upon the civil servant should
not be arbitrary or grossly excessive or out of all
proportion to the offence committed or one not warranted by
the facts and circumstances of the case. [267 H]
3. Where a civil servant goes to the office of his
superior officer whom he believes to be responsible for
stopping his increment and hits him on the head with an iron
rod, so that the superior officer falls down with a bleeding
head, and the delinquent civil servant is tried and
convicted under
section 332
of the Indian Penal Code but the
Magistrate, instead of sentencing him to imprisonment,
applies to him the provisions of
section 4
of the Probation
of Offenders Act, 1958, and after such conviction the
disciplinary authority, taking the above facts into
consideration, by way of punishment compulsorily retires the
delinquent civil servant under clause (i) of
section 19
of
the Central Civil Services (Classification, Control and
Appeal) Rules, 1965, it cannot be said that the punishment
inflicted upon the civil servant was excessive or
arbitrary. [267 F-G]
XI. Clause (b) of the Second Proviso.
1. There are two conditions precedent which must be
satisfied before clause (b) of the second proviso to
Article
311(2)
can be applied. These conditions are (i) there must
exist a situation which makes the holding of an inquiry
contemplated by
Article 311(2)
not reasonably practicable,
and (ii) the disciplinary authority should record in writing
its reason for its satisfaction that it is not reasonably
practicable to hold such inquiry.[269 D-E]
2. Whether it was practicable to hold the inquiry or
not must be judged in the context of whether it was
reasonably practicable to do so. [269 F]
3. It is not a total or absolute impracticability which
is required by clause (b) of the second proviso. What is
requisite is that the holding of the inquiry is not
practicable in the opinion of a reasonable man taking a
reasonable view of the prevailing situation. [270 B]
4. The reasonable practicability of holding an inquiry
is a matter of assessment to be made by the disciplinary
authority and must be judged in the light of the
circumstances then prevailing. The disciplinary authority is
generally on the spot and knows what is happening. It is
because the disciplinary authority is the best judge of the
prevailing situation that clause (3) of
Article 311
makes
the decision of the disciplinary authority on this question
final. [270 C]
5. It is not possible to enumerate the cases in which
it would not be reasonably practicable to hold the inquiry.
Illustrative cases would be
(a) Where a civil servant, particularly through or
together with his associates, so terrorizes, threatens or
intimidates witnesses who are going to give evidence against
him with fear of reprisal as to prevent them from doing so,
or [270 A]
(b) Where the civil servant by himself or together with
or through others threatens, intimidates and terrorizes the
officer who is the disciplinary authority or members of his
family so that he is afraid to hold the inquiry or direct it
to be held, or [270 B]
(c) Where an atmosphere of violence or of general
indiscipline and insubordination prevails, it being
immaterial whether the concerned civil servant is or is not
a party to bringing about such a situation. In all these
cases, it must be remembered that numbers coerce and terrify
while an individual may not. [270 C]
6. The disciplinary authority is not expected to
dispense with a disciplinary inquiry lightly or arbitrarily
or out of
ulterior motives or merely in order to avoid the holding of
an inquiry or because the Department's case against the
civil servant is weak and must fail. [270 C]
7. The word "inquiry" in clause (b) of the second
proviso includes a part of an inquiry. It is, therefore, not
necessary that the situation which makes the holding of an
inquiry not reasonably practicable should exist before the
inquiry is instituted against the civil servant. Such a
situation can also come into existence subsequently during
the course of the inquiry, for instance, after the service
of a charge-sheet upon the civil servant or after he has
filed his written statement thereto or even after evidence
has been led in part. [271 D-E]
8. When at the commencement of the inquiry or pending
it, the civil servant abscards and cannot be served or will
not participate in the inquiry it will not be reasonably
practicable to afford to the civil servant and opportunity
of a hearing or further hearing. In such cases, the matter
must proceed ex parte and on the materials before the
disciplinary authority. [271 E]
9. The recording of the reason for dispensing with the
inquiry is a condition precedent to the application of
clause (b) of the second proviso. This is a Constitutional
obligation and if such reason is not recorded in writing,
the order dispensing with the inquiry and the other of
penalty following thereupon would both be void and
unconstitutional. It is, however, not necessary that the
reason should find a place in the final order but it would
be advisable to record it in the final order in order to
avoid an allegation that the reason was not recorded in
writing before passing the final order but was subsequently
fabricated. [271 G]
10. The reason for dispensing with the inquiry need not
contain details particulars but it cannot be vague or just a
repetition of the language of clause (b) of the second
proviso. [272 C]
11. It is also not necessary to communicate the reason
for dispensing with the inquiry to the concerned civil
servant but it would be better to do so in order to
eliminate the possibility of an allegation being made that
the reason was subsequently fabricated. [272 B]
12. The obligation to record the reason in writing is
provided in clause (b) of the second proviso so that the
superiors of the disciplinary authority may be able to judge
whether such authority had exercised its power under clause
(b) properly or not.[272 F]
13. It is, however, better for the disciplinary
authority to communicate to the concerned civil servant its
reason for dispensing with the inquiry because such
communication would eliminate the possibility of an
allegation being made that the reason had been subsequently
fabricated. It would also enable the civil servant to
approach the High Court under
Article 226
or, in a fit case,
the Supreme Court under
Article 32.
[272 H]
14. It would be illogical to hold that administrative
work carried out by senior officers should be paralysed by
sending them to other stations to hold the inquiry just
because a delinquent civil servant either by himself or
along with or through others makes the holding of an inquiry
by the designated disciplinary authority or inquiry officer
not reasonably practicable. [273 C]
15. In a case falling under clause (b) of the second
proviso it is not necessary that the civil servant should be
placed under suspension until such time as the situation
improves and it becomes possible to hold the inquiry because
in such cases neither public interest nor public good
requires that salary or subsistence allowance should be
continued to be paid out of the public exchequer to the
concerned civil servant. In certain cases, the exigencies of
a situation would require that prompt action should be taken
and suspending a civil servant would not serve the purpose,
and sometimes not taking prompt action might result in the
trouble spreading and the situation worsening and at times
becoming uncontrolable. Not taking prompt action may also be
construed by the trouble-makers as a sign of weakness on the
part of the authorities and thus encourage them to step up
their activities or agitation. Where such prompt action is
taken there is an element of deterrence in it but this is
unavoidable and a necessary concomitance of such an action.
[273 D]
16. If an inquiry into the charges against a civil
servant is not reasonably practicable, it stands to reason
that an inquiry into the question whether the disciplinary
inquiry should be dispensed with or not is equally not
reasonably practicable. [273 D]
17. In situations where a large group of members of the
Central Industrial Security collectively indulge in several
of acts of insubordination indiscipline and intimidation
with the
common object of coercing those in charge of the
administration of the Force and the Government to compel
them to grant recognition to their Association and to
concede their demands, it is not possible to particularise
in the orders of dismissal the acts of each individual
member who participated in the commission of these acts. The
participation of each individual might be of a greater or
lesser degree but the acts of each individual contributed to
the creation of a situation in which the security force
itself had become a security risk. [291 C-E]
18. The quantum and extent of the penalty to be imposed
in each case would depend upon the gravity of the situation
and the extent to which the acts said to be committed by the
praticular civil servants, even though not serious in
themselves, in conjunction with acts committed by others,
contributed to bringing about the situation. The fact, that
at a particular centre certain civil servants were dismissed
from service while at some other centres they were only
removed from service does not mean that the penalties were
arbitrarily imposed. [292 A-B]
XII. Clause (c) of the Second Proviso.
The expression "security of the State" in clause (c) of
the second proviso to
Article 311(2)
does not mean security
of the entire country or a whole State but includes security
of a part of a State. [275 E]
2. Security of the State cannot be confined to an armed
rebellion or revolt for there are various ways in which the
security of the State can be affected such as by State
secrets or information relating to defence production or
similar matters being passed on to other countries, whether
inimical or not to India, or by secret links with
terrorists. [275 E]
3. The way in which the security of the State is
affected may be either open or clandestine. [275 F]
4. Disaffection in the armed forces or paramilitary
forces or the police force would affect the security of the
State. The importance of the proper discharge of the duties
by members of these Forces and the maintenance of discipline
among them is emphasised in
Article 33
of the Constitution.
[275 G]
5. Disaffection in any armed force or para-military
force or police force is likely to spread because
dissatisfaction and
disaffected members of such a Force spread dissatisfaction
and disaffection among other members of the Force and thus
induce them not to discharge their duties properly and to
commit acts of indiscipline, insubordination or disobedience
to the orders of their superiors. Such a situation cannot be
a matter affecting only law and order or public order but is
a matter vitally affecting the security of the State. [276
A-B]
6. The interest of the security of the State can be
affected by actual acts or even by the likelihood of such
acts taking place. [277 D]
7. In an inquiry into acts affecting the interest of
the security of the State, several matters not fit or proper
to be made public, including the source of information
involving a civil servant in such acts, would be disclosed
and thus in such cases an inquiry into acts prejudicial to
the interest of the security of the State would as much
prejudice the interest of the security of the State as those
acts themselves would. [279 D]
8. The condition for the application of clause (c) of
the second proviso to
Article 311(2)
is the satisfaction of
the President or the Governor, as the case may be, that it
is not expedient in the interest of the security of the
State to hold a disciplinary inquiry. [277 D]
9. Such satisfaction is not required to be that of the
President or the Governor personally but of the President or
the Governor, as the case may be, acting in the
Constitutional sense. [278 A]
State of Rajasthan and Others etc. etc. v. Union of
India etc. etc. [1978] 1 S.C.R. 1, 82., referred to.
10. "Expedient" means "Advantageous, fit, proper
suitable. Where, therefore, the President of the Governor,
as the case may be, is satisfied that it will not be
advantageous or fit or proper or suitable or politic in the
interest of the security of the State to hold an inquiry, he
would be entitled to dispense with it under clause (c) of
the second proviso. [277 F]
11. Under clause (c) of the second proviso the
satisfaction reached by the President or the Governor, as
the case may be, must necessarily be a subjective
satisfaction because expediency involves matters of policy.
[278 G]
12. Satisfaction of the President or the Governor under
clause (c) of the second proviso may be arrived at as a
result of secret information received by the Governor about
the brewing danger to the security of the State and like
matters. There are other factors which are also required to
be considered, weighed and balanced in order to reach the
requisite satisfaction whether holding an inquiry would be
expedient or not. If the requisite satisfaction has been
reached as a result of secret information received by the
Government, making known such information may very often
result in disclosure of the source of such information and
once known, the particular source would no more be available
to the Government. The reason for the satisfaction reached
by the President or the Governor under clause (c) of the
second proviso cannot, therefore, be required to be recorded
in the order of dismissal, removal or reduction in rank nor
can it be made public. [279 E, 280 B]
13. When a number of members of the Madhya Pradesh
District Police Force and the Madhya Pradesh Special Armed
Force, in order to obtain the release on bail of two of
their colleagues who had been refused bail and remained into
judicial custody because of an incident which took place at
the annual Mela attacked the police station at the Mela
ground, ransacked it and forced the wireless operator to
close down the wireless set and the situation became so
dangerous that senior district and police officers had to
approach the judicial Magistrate at night to get the two
arrested constables released on bail and, after discussion
at a Cabinet meeting, a decision was taken and the advice of
the Council of Ministers was tendered to the Governor of
Madhya Pradesh who accepted it and issued orders of
dismissal of these persons by applying clause (c) of the
second proviso to them it cannot be said that the provisions
of the said clause (c) were not properly applied. [295 E-296
C]
14. Similarly, when after these members of the Madhya
Pradesh District Police Force and the Madhya Pradesh Special
Armed force were dismissed, some other members of these
Forces began carrying on an active propaganda against the
Government, visiting various places in the State of Madhya
Pradesh, holding secret meetings, distributing leaflets and
inciting the constabulary in these places to rise against
the administration as a body in protest against the action
taken by the Government and, on such information being
received, there were also dismissed by applying clause (c)
of the second proviso to them, it cannot be said that the
said clause (c) was not properly applied. [296 F-297 B]
A civil servant who has been dismissed, removed or
reduced in rank by applying to his case one of the clauses
of the second proviso to
Article 311(2)
or an analogour
service rule has two remedies available to him. These
remedies are;
(i) The appropriate departmental remedy provided for
in the relevant service rules, and
(ii) if still dissatisfied, invoking the court's power
of judicial review. [216 A-B]
XIV. Departmental Remedies.
Service rules generally provide for departmental
remedies by way of an appeal, revision and review in the
case of disciplinary action taken against a civil servant.
2. Sub-clause (ii) of clause (c) of the first proviso
to Rule 25(1) of the Railway Servants (Discipline and
Appeal) Rules, 1968, provides that where an inquiry has not
been held, the revising authority shall itself hold such
inquiry or indirect such inquiry to be held. A railway
servant has therefore a right to demand in revision an
inquiry into the charges against him subject to a situation
envisaged in Rule 14 of the said Rules not prevailing at
that time. [248 G-H]
3. Although a provision similar to sub-clause (ii) of
clause (c) of the first proviso of the first proviso to Rule
25(1) of the Railways Servants (Discipline and Appeal)
Rules, 1968, does not exist in the rules relating to
appeals, having regard to the factors set out in Rule 22 (2)
which are to be considered by the appellate authority in
deciding an appeal, a provision similar to the said sub-
clause (ii) of clause (c) of the first proviso to Rules
25(1) should be read and imported into the provisions
relating to appeals in the said Rules. [249 D-F]
4. Even in a case where at the time of the hearing of
the appeal or revision, as the case may be, a situation
envisaged by the second proviso to
Article 311(2)
exists, as
the civil servants, if dismissed or removed, is not
continuing in service and, if reduced in rank, is continuing
in service with the reduced rank, the hearing of the appeal
or revision, as the case may be, should be postponed for a
reasonable length of time to enable the situation to return
to normal. [273 G]
5. An order imposing penalty passed by the President or
the Governor, as the case may be, cannot be challenged in a
departmental appeal or revision. [265 D]
6. A civil servant who has been dismissed or removed
from service or reduced in rank by applying to his case one
of the clauses of the second proviso of
Article 311(2)
or of
an analogous service rule has, therefore, the right in a
departmental appeal or revision to a full and complete
inquiry into the allegations made against him subject to a
situation envisaged in the second proviso to
Article 311(2)

not existing at the time of the hearing of the appeal or
revision application. Even in a case where such a situation
exists, he has the right to have the hearing of the appeal
or revision application postponed for a reasonable length of
time for the situation to become normal. [273 F]
7. In an appeal, revision or review by a civil servant
who has been dismissed or removed from service or reduced in
rank by applying to his case clause (a) of the second
proviso or an analogous service rule, it is not open to the
civil servant to contend that he was wrongly convicted by
the criminal court. He can, however, contend that the
penalty imposed upon him is to severe or excessive or was
one not warranted by the facts and circumstances of the
case. If he is in fact not the civil servant who was
actually convicted on a criminal charge, he can contend in
appeal, revision or review against such order of penalty
that it was a case of mistaken identity. [264 E]
8. A civil servant who has been dismissed or removed
from service or reduced in rank by applying to his case
clause (b) of the second proviso to
Article 311(2)
or an
analogous service rule can claim in appeal or revision that
in inquiry should be held with respect to the charges on
which such penalty has been imposed upon him unless a
situation envisaged by the second proviso is prevailing at
the hearing of the appeal or revision application. Even in
such a case the hearing of the appeal or revision
application should be postponed for a reasonable length of
time for the situation to return to normal. [264 B]
9. In a case where a civil servant has been dismissed
or removed from service or reduced in rank by applying
clause (b) of the second proviso or an analogous service
rule to him, by reason of clause (3) of
Article 311
, it is
not open to him contend in appeal, revision or review that
the inquiry was wrongly dispensed with. [264 G]
10. In a case where a civil servant has been dismissed
or removed from service or reduced in rank by applying
clause (c) of the second proviso or an analogous service
rule to him, no appeal or revision will lie if the order of
penalty was passed by the President or the Governor. If
however, the inquiry has been dispensed with by the
President or the Governor and the order of penalty has been
passed by the disciplinary authority (a position envisaged
by clause (iii) of Rule 14 of the Railway Servants
(Discipline and Appeal) Rules, 1968, and clause (iii) of
Rule 19 of the Central Civil Services (Classification,
Control and Appeal) Rules, 1965) a departmental appeal or
revision will lie. In such an appeal or revision, the civil
servant can ask for an inquiry to be held into his alleged
conduct unless at the time of the hearing of the appeal or
revision a situation to envisaged by the second proviso to

Article 311(2)
is prevailing. Even in such a situation the
hearing of the appeal or revision application should be
postponed for a reasonable length of time for the situation
to become normal. The civil servant, however, cannot contend
in such appeal or revision that the inquiry was wrongly
dispensed with by the President or the Governor. [265 B-E]
XV. Judicial Review.
1. Where a clause of the second proviso to
Article
311(2)
or an analogous service rule is applied on an
extraneous ground or a ground having no relation to the
situation envisaged in such clause or rule, the action of
the disciplinary authority in applying that clause or rule
would be mala fide and, therefore, bad in law and the court
in exercise of its power of judicial review would strike
down both the order dispensing with the inquiry and the
order of penalty following thereupon. [273 C-D]
2. Where a civil servant has been dismissed or removed
from service or reduced in rank by applying clause (a) of
the second proviso to
Article 311(2)
or an analogous service
rule and he invokes the court's power of judicial review, if
the court finds that the penalty imposed by the impugned
order is arbitrary or grossly excessive or out of all
proportion to the offence committed or was not warranted by
the facts and circumstances of the case or the requirements
of the particular government service to which the concerned
civil servant belonged, the court will strike down the
impugned order. In such a case, it is, however, not
necessary that the court should always order reinstatement.
The court can instead substitute a penalty which in its
opinion would be just and proper in the circumstances of the
case. If
however, the court finds that he was not in fact the civil
servant who was convicted, it will strike down the impugned
order of penalty and order his reinstatement. [267 G-268 A,
273 F]
3. In the case of a civil servant who has been
dismissed or removed from service or reduced in rank by
applying clause (b) of the second proviso to
Article 311(2)

or an analogous service rule, the High Court under
Article
of this Court under
Article 32
will interfere on grounds
well-established in law for the exercise of its power of
judicial review in matters where administrative discretion
is exercised. [274 A]
4. The finality given by clause (3) of
Article 311
to
the disciplinary authority's decision that it was not
reasonably practicable to hold the inquiry is not binding
upon the court and the court would consider whether clause
(b) of the second proviso or an analogous service rule had
been properly applied or not. [274 B]
5. In examining the relevancy of the reasons given for
dispensing with the inquiry, the court will consider the
circumstances which, according to the disciplinary
authority, made it come to the conclusion that it was not
reasonably practicable to hold the inquiry. If the court
finds that the reason are irrelevant, the order dispensing
with the inquiry and the order of penalty following upon it
would be void and the court will strike them down. In
considering the relevancy of the reasons given by the
disciplinary authority, the court will not, however, sit in
judgment over the reasons like a court of first appeal in
order to decide whether or not the reasons are germane to
clause (b) of the second proviso or an analogous service
rule. The court must put itself in the place of the
disciplinary authority and consider what in the then
prevailing situation a reasonable man acting in a reasonable
manner would have done. It will judge the matter in the
light of the then prevailing situation. Where two view are
possible, the court will decline to interfere. [274 C-D]
6. Where it is alleged that clause (b) of the second
proviso or an analogous service rule was applied mala fide,
the court will examine the charge of mala fides. A mere bare
allegations of mala fides without any particulars of mala
fides will not, however, amount to a plea of mala fides and
requires to be ignored. [280 H]
7. If the reasons for dispensing with the inquiry are
not
communicated to the concerned civil servant and the matter
comes to court, the court can direct the reasons to be
produced and furnished to the civil servant and if still no
produced, a presumption should be drawn the reasons were not
recorded in writing and the impugned order would then stand
invalidated. Such presumption can, however, be rebutted by a
satisfactory explanation for the non-production of the
written reasons. [272 H-273 A]
8. Where a civil servant is dismissed or removed from
service or reduced in rank by applying clause (c) of the
second proviso or an analogous service rule to his case, the
satisfaction of the President or the Governor that it is not
expedient in the interest of the security of the State to
hold an inquiry being a subjective satisfaction would not be
a fit matter for judicial review. [278 F]
9. It is not necessary for the court to decide the
question whether the satisfaction of the President or the
Governor can be challenged on the ground that it has been
reached mala fide or is based on wholly extraneous or
irrelevant grounds in a case where all the materials
including the advice of the Council of Ministers have been
produced and such materials show that the satisfaction of
the President or the Governor was neither reached mala fide
nor was it based on any extraneous or irrelevant ground.
[279 E]
10. By reason of the express provision of
Article 74(2)

and
Article 163(3)
of the Constitution the question whether
any, any if so what, advice was tendered by the Ministers to
the President or the Governor, as the case may be, cannot be
inquired into by any court. [279 F]
11. Whether the court should order production of the
materials upon which the advice of the Council of Ministers
to the President or the Governor, as the case may be, was
based in order to determine whether the satisfaction of the
President or the Governor was arrived at mala fide or was
based on wholly extraneous or irrelevant grounds would
depend upon whether the documents fall within the class of
privileged documents and whether in respect of them
privilege has been properly claimed or not. [277 G-278 B]
In re Tulsiram Patel
The Respondent-Tulsiram Patel was a permanent auditor
in the Regional Audit Office. Orders were issued for
stopping his increment for one year, where-upon he went to
the Regional Audit Officer demanded an explanation from him
as to why he had stopped his increment, and not satisfied
with the reply of the auditor officer struck him with an
iron rod, whereupon the officer fell down, his head
bleeding. The Respondent was tried and convicted under
Sec.
of the Indian Penal Code but the Magistrate instead of
sentencing the respondent to imprisonment, invoked the
provisions
Sec. 4
of the Probation of Offenders Act, 1958
and released him for a period of one year on executing a
bond of good behaviour. The Respondent's appeal against his
conviction was dismissed. [281 F-H]
The Controller General of Defence Accounts, the
disciplinary authority, imposed upon the Respondent the
penalty of compulsory retirement under clause (1) of Rule 19
of the Civil Service Rules. The respondent's departmental
appeal was dismissed. [282 A, D]
The Respondent thereafter filed a Writ Petition, and
the High Court relying upon Challappan's Case held that no
opportunity had been afforded to the Respondent before
imposing the penalty of compulsory retirement on him and
that the impugned order was defective inasmuch as it did not
indicate the circumstances which were considered by the
disciplinary authority except the fact of conviction of the
Respondent. [282 E-F]
The appeal of the Union of India was allowed, the
judgment and order appealed against were reversed and set
aside and the writ petition filed by the Respondent in the
High Court is dismissed. [284 A]
CISF MATTERS
The respondents who were members of the CIS Force Unit
at Bokaro Steel Plant and were dismissed from service. The
members of this CIS'F Unit at Bokaro had formed an All-India
association and one of the dismissed person was elected it
General Secretary. Thereafter a country-wide agitation was
carried on for recognition of the association. In June 1979
some of the members went to Delhi to meet the Home Minister.
A demonstration was staged and some of the demonstrators
were arrested. At Bokaro Steel Plant the agitation which was
going became aggravated and out of 1900 persons belonging to
CISF Unit Bokaro, about 1000
persons participated in processions and violent
demonstrations. They indulged in several acts of violence
and created serious in-discipline. The agitation and the
violent activity reached serious proportion in the last week
of June 1979 with the result that the Army that to be called
by the State Authorities on 23.6.1979, took up positions
round the CISF Lines and called upon the agitators to give
up charge of the Aroury. The agitators refused and started
firing at the Army, who returned the fire, and the exchange
of fire resulted in the instant death of one Army Major. The
offending CISF members were over powered, and arrested. [284
F-285 D]
The authorities were of the opinion, that having regard
to the violent and disturbed situation which prevailed in
the Bokaro Steel Plant, the collective action of violence,
mass terror and intimidation and threats to the supervisory
and loyal staff, any inquiry in accordance with Rules 34, 35
and 36 of CISF Rules 1969 or in accordance with the
requirements of
Article 311(2)
would be dangerous counter-
productive and would aggravate the existing dangerous
situation, the delinquent personnel were dismissed in
exercise of the powers conferred by sub-rule (b) of rule 37
of the CISF Rules 1969 read with clause (b) of the second
proviso of clause (2) of
Article 311
of the Constitution.
[288 C-289 A]
The CIS Force has been constituted under the
CISF Act

for the better protection and security of industrial
undertakings owned by the government. The CIS Force is an
armed Force and the security duties to be performed by the
CIS Force are of vital importance to the industrial
production of the country. [289 B, G]
All the acts indulged in by the members of the Force
virtually amounted to a mutiny and how grave the situation
was can be judged from the fact that the army had to be
called out and a pitched battle took place between the army
and the members of the Force. [291 A]
No person with any reason or sense of responsibility
can say that in such a situation the holding of an inquiry
was reasonable and practicable. [291 B]
The appellate authority under the Central Industrial
Security Force Rules 1969 was directed to dispose of an
expeditiously as possible such appeals of the members of the
Force as might still be pending. Such of those members who
had
not filled any appeal, in view of their reliance on
Challappan's case, time was granted to them to file a
departmental appeal, and the concerned authority was
directed to condone the delay in the filing of the appeal
and to dispose it of on merits.[291 H-292 C]
RAILWAY SERVICE MATTERS
Railway Servants were either dismissed or removed from
service by applying to their cases either clause (ii) of
Rule 14 of the Railways Servants Rules or clause (ii) of
Rule 14 read with clause (b) of the second proviso to

Article 311(2)
, as they were alleged to have been concerned
in incidents which took place in the all-India strikes of
railway employees. Many of these employees belonged to the
all-India loco-running staff. The railway servants went on
these strikes with the object of forcing the Government to
meet their demands. [292 E-F]
Railway service is a public utility service within the
meaning of clause (a) of
section 2
of the Industrial
Disputes Act, 1947 and the proper running of the railway
service is a vital to the country. Where, therefore, the
railway employees went on an illegal strike without
complying with the provisions of
section 22
of the
Industrial Disputes Act 1947, and thereby committed an
offence punishable with imprisonment and fine under
section
26(1)
of the said Act, and the railway services were
paralysed, loyal workers and superior officers assaulted and
intimidated, the country held to ransom, the economy of the
country and public interest and public good prejudicially
affected, prompt and immediate action was called for in
order to bring the situation to normal. In these
circumstances, it cannot be said that an inquiry was
reasonably practicable or that clause (b) of the second
proviso to
Article 311
was not properly applied. [294 C-F,
295 C]
MADHYA PRADESH POLICE FORCES MATTERS
Members of the M.P. District Police Force or M.P.
Special Armed Force were dismissed by orders of the Governor
of Madhya Pradesh by applying clause (c) of the second
proviso to
Article 311(2).
[295 E]
An incident took place on January 18, 1981 at the
annual Mela held at Gwalior in which one man was burnt
alive. Some persons including a constable from each of these
two forces, were arrested and remanded to judicial custody.
On January 20, 1981
several members of these two Forces indulged in violent
demonstration and rioted at the Mela ground demanding the
release of their colleagues. They attacked the police
station at the Mela Grounds, ransacked it and forced the
operator to close down the wireless set. [296 D]
The police are the guardians of Law and order, and if
these guards turn law-breakers and create violent public
disorder and incite others to do the same, prompt and urgent
action becomes necessary and the holding of an inquiry into
the conduct of each individual member of the police force
would not be expedient in the interest of the security of
the State.[297 A-B]
(Per M.P. Thakkar J-dissenting)
'Challappan's has been rightly decided. And there is no
compulsion to overrule it - Even if the other point of view
were to appear to be more 'attractive' it is neither a good
nor a sufficient ground to overrule 'Challappan'. The
decision, does no more than enjoin in the context of Rule
14(1) (a) and therefore, as a logical corollary, also in the
context of Rule 14 (a) (b) of the Railways servants
(Discipline and Appeal) Rules, 1968, that an employee must
atleast be heard on one question of quantum of punishment
before he is dismissed or removed from service without
holding any inquiry. The ratio of the decision is so
innocuous that there is hardly any need to overturn it. [299
F-G]
Concurrence with the consequential orders being passed
in these cases and association with the exposition of law in
regard to the true meaning and content of the 'pleasure
doctrine' and its implications and impact is not possible.
[300 B]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6814
of 1981 etc.
From the Judgment and Order dated 23.6.1982 of the
Madhya Pradesh High Court in M. P. No. 1028 of 1981.

L. N. Sinha, M. K. Rammamurthy, K. K. Vinugopal, V. M.
Tarkunde, P. R. Mirdul, P. P. Singh, R. N. Poddar, Umesh
Mishra, M. A. Krishnamoorthy, Indira Sawhney, Kittu
Bansilal, Chandan Malhotra, J. Rammurthy, R. Vaigai, H. K.
Puri, V. K. Bhal, K. V. Sreekumar, R. Sathish, S. S.
Khanduja, Yashpal Dhingra, P. H. Parekh, P. K. Manohar, C.
L. Sahu, A. K. Jha, T. G. N. Nayar, A. K. Panda, S. K.
Gambhir, S. Gambhir, Ashok Mahajan, Sunita Kriplani, C. V.
Subba Rao, G. D. Gupta, Hemant Sharma, Indu Malhotra and
Jayshre for the appearing parties.

R. K. Garg, S. N. Singh and K. M. K. Nair for the
intervener.

The following Judgments were delivered :
MADON, J. The above Appeals by Special Leave granted by
this Court and the above Writ Petitions filed either in this
Court under
article 32
of the Constitution of India or in
different High Courts under
Article 226
and transferred to
this Court raise a substantial question of law as to the
interpretation of
Articles 309
, 310
and
of the
Constitution and in particular of what is now, after the
amendment of clause (2) of
Article 311
by the
Constitution
(Forty-second Amendment) Act, 1976
, the second proviso to
that clause.

The Genesis of the Appeals and Writ Petitions
To understand what questions fall for determination by
this Court in these Appeals and Writ Petitions, it is first
necessary to sketch briefly how they have come to be heard
by this Constitution Bench.

Article 311
of the Constitution confers certain
safeguards upon persons employed in civil capacities under
the Union of India or a State. The first safeguard (which is
given by clause (1) of
Article 311
) is that such person
cannot be dismissed or removed by an authority subordinate
to that by which he was appointed. The second safeguard
(which is given by clause (2) of
Article 311
) is that he
cannot be dismissed, 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. The second safeguard is,
however, not available to him when he is dismissed, removed
or reduced in rank in any of the three cases mentioned in
the second proviso to
Article 311(2).
These three cases are
set out in clauses (a) to (c) of the second proviso. Under
clause (a), such person can be dismissed, removed or reduced
in rank without any inquiry on the ground of conduct which
has led to his conviction on a criminal charge. Under Clause

(b), any of these three penalties can be imposed upon him
where the authority empowered to impose any of these
penalties is satisfied that for some reason, to be recorded
by that authority in writing, it is not reasonably
practicable to hold such inquiry. Under clause (c), any of
the above penalties can be imposed upon him where the
President or the Governor of a state, 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.

All the government servants in the above Appeal and
Writ Petitions have been either dismissed or removed from
service without holding any inquiry. They have not been
informed of the charges against them nor been given any
opportunity of being
heard in respect of those charges. The penalty of dismissal
or removal, as the case may be, has been imposed upon them
under one or the other of the three clauses of the second
proviso to
Article 311(2)
or under similar provision in
rules made under the proviso to
Article 309
or in rules made
under an Act referable to
Article 309
, for instance, Rule 19
of the Central Civil Services Classification, Control and
Appeal) Rules, 1965, Rule 14 of the Railway Servants
(Discipline and Appeal) Rule 1968, and Rule 37 of the
Central Industrial Security Force Rules, 1969, or under such
a rule read with one of the clauses of the second proviso to

Article 311(2).

Aggrieved by these orders of dismissal and removal,
several government servants filed writ petitions under

Article 226
of the Constitution in different High Courts.
Some of these writ petitions were allowed, mainly on the
basis of a decision of a three-Judge Bench of this Court in
Divisional Personnel Officer, Southern Railway & Anr. v.
T.R. Challappan, [1976] 1 S.C.R. 783, given on September 15,
1975, while a few were dismissed. Appeals by Special Leave
against those judgments were filed in this Court. In three
other similar appeals, namely, Civil Appeals Nos.
1088, 1089
and 1120 of 1975, another three-Judge Bench of this Court
felt that there was a conflict between Challappan's case and
an earlier decision of another three-Judge Bench of this
Court, namely,
M. Gopala Krishan Naidu v. State of Madhya
Pradesh
, [1968] 1 S.C.R. 355, and directed on November 18,
1976, that the papers in those three appeals be placed
before the learned Chief Justice to enable him to refer
those appeals to a larger Bench. The said appeals were thus
referred to the Constitution Bench. Because of the said
order all the above Appeals and Writ Petitions were also
placed before this Constitution Bench. During the course of
the hearing of all these matters by this Constitution Bench,
the said Civil Appeals Nos. 1088, 1089 and 1120 of 1975
were, however, got dismissed on March 29, 1984, but the
above Appeals and Writ Petitions were fully heard and are
being disposed of by this Judgment.

Civil Servants
Justice Oliver Wendell Holmes in his book "The Common
Law", consisting of lectures delivered by him while teaching
law at Harvard and published just one year before he was
appointed in 1882 an Associate Justice of the Massachusetts
Supreme Judicial Court, said :
"The Law embodies the story of a nation's development
through many centuries, and it cannot be dealt with as
if it contained only the axioms and corollaries of a
book of a mathematics. In order to know what it is we
must know what it has been and what it tends to
become."

It will not, therefore, be out of place to begin this
Judgment with a brief historical sketch of the civil service
in India as also of the law applicable to civil servants and
the changes which have taken place in it from time to time.

Civil servants, that is, persons who are members of a
civil service of the Union of India or an all-India service
or a civil service of a State or who hold a civil post under
the Union or a State, occupy in law a special position. The
ordinary law of master and servant does not apply to them.
Under that law, whether the contract of service is for a
fixed period or not. If it contains a provision for its
termination by notice, it can be so terminated. If there is
no provision for giving a notice and the contract is not for
a fixed period, the law implies an obligation to give a
reasonable notice. Where no notice in the first case or no
reasonable notice in the second case is given, the contract
is wrongfully terminated and such wrongful termination will
given rise to a claim for damages. This is subject to what
may otherwise be provided in industrial and labour laws
where such laws are applicable. The position of civil
servants both in England and in India is, however, vastly
different.

The Civil Service in England
Our civil services are modelled upon the British
pattern though in some respects there are important
differences between the two. In England, except where
otherwise provided by statute, all public officers and
servants of the Crown hold their appointments at the
pleasure of the Crown or durante bene placito ("during good
pleasure" or "during the pleasure of the appoint or") as
opposed to an office held dum bene se gesserit ("during good
conduct"), also called quadiu se bene gesserit ("as long as
he shall behave himself well"). When a person holds office
during the pleasure of the Crown, his appointment can be
terminated at any time without assigning cause. The exercise
of pleasure by the Crown can, however, be restricted by
legislation enacted by Parliament because in the United
Kingdom Parliament is sovereign and has the right to make or
unmake any law whatever
and all that a court of law can do with an Act passed by
Parliament is to interpret its meaning but not to set it
aside or declare it void Blackstone in his Commentaries has
thus described the unlimited legislative authority of
Parliament(1 Bl., Comm. pp. 160,161):

"It hath sovereign and uncontrollable authority in
the making confirming, enlarging, restraining
abrogating, repealing, reviving, and expounding
laws, concerning matters of all possible
denominations, ecclesiastical or temporal, civil,
military, maritime, or criminal" this being the
place where that absolute despotic power, which
must in all governments reside somewhere, is
entrusted by the constitution of these kingdoms.
All mischiefs and grievances, operations and the
laws, are within the reach of this extraordinary
tribunal. It can regulate or new-model the
succession to the Crown; as was done in the reign
of Henry VIII, and William III. It can alter the
established religion of the land; as was done in a
variety of instances, in the reigns of king Henry
VIII and his three children. It can change and
create afresh even the constitution of the kingdom
and of parliaments themselves; as was done by the
act of union, and the several statutes for
triennial and septennial elections. It can, in
short, do everything that is not naturally
impossible; and therefore some have no scrupled to
call its power, by a figure rather too bold, the
omnipotence of Parliament. True it is, that what
the Parliament doth, no authority upon earth can
undo."

Jean Louis De Lolme, the eighteenth-century Swiss
constitutionalist in his "Constitution de 1 'Angleterre"

("Constitution of England"), which gave many on the
continent their ideas of one British Constitution, summed up
the position of Parliament in the English constitutional law
in the following apophthegm quoted in Dicey's Introduction
to the Study of the Law of the Constitution (see 10th
Edition, p.43):

"It is a fundamental principle with English
lawyers, that Parliament can do everything but
make a woman a man, and a man a woman."
So far as the pleasure doctrine in England is
concerned, Lord Diplock in Chelliah Kodeeswaran v. Attorney-
General of Ceylon, L.R. [1970] A.C. 1111, 1118, P.C., has
succinctly stated its position in English law as follows:

"It is now well established in British
Constitutional theory, at any rate as it has
developed since the eighteenth century, that any
appointment as a Crown servant, however
subordinate, is terminable at will unless it is
expressly otherwise provided by legislation."

In practice, however, a dismissal would take place only as
the result of well-established disciplinary processes.

In recent years, though the Crown still retains the
right to dismiss at pleasure, the legal position of civil
servants has radically changed as a result of legislation,
and legally binding collective agreements can be entered
into between the Crown and representative of its staff and
those representatives can sue for breach of any conditions
of service covered by these agreement. Further, a civil
servant can bring an action for unfair dismissal or sue on
his conditions of service. But just as an ordinary employee
cannot insist on continuing in employment, so also a civil
servant cannot insist on continuing in employment. The
remedy in both cases is to recover damages for wrongful
dismissal. (See Halsbury's Laws of England, Fourth Edition,
Volume 8, Paras 1106 and 1303).

The Pre-Constitution Civil Services in India
It is unnecessary to go back more than two centuries to
trace the origin and development of the Civil Service in
India. The East India Company sent out to India its own
servants and so did the Crown, and from the earliest times,
under the various Charters given to the East India Company,
the Crown could at its pleasure remove any person holding
office, whether civil or military, under the East India
Company. The Court of Directors of the East India Company
had also the power to remove or dismiss any of its officers
or servants not appointed by the Crown.
Section 35
of the
Act of 1793 (33 Geo. III. c.52) made it lawful to and for a
King's Majesty, his heirs and successors, by any writing or
instrument under his or their sign manual, countersigned by
the President of the Board of Commissioners for the affairs
of
India, to remove or recall any person holding any office,
employment or commission, civil or military, under the East
India Company; while
section 36
of that Act provided that
nothing contained in that Act should extend, or be construed
to extend, to preclude or take away the power of the Court
of Directors of the East India Company from removing or
recalling any of its officers or servants and that the Court
of Directors shall and may at all times have full liberty to
remove, recall or dismiss any of such officers or servants
at their will and pleasure in the like manner as if that Act
had not been passed. Similar provisions were made in the Act
of 1833 (3 & 4 will IV, c.85) by sections 74 and 75 of that
Act. Section 74 made it lawful "for His Majesty by any
Writing under His Sign Manual, countersigned by the
President of the said Board of Commissioners, to remove or
dismiss any person holding any office, employment or
commission, civil or military, under the said Company in
India, and to vacate any Appointment or Commission of any
person to any such office or employment." Section 75
provided that nothing contained in that Act would take away
the power of the Court of Directors to remove or dismiss any
of the officers or servants of the Company "but that the
said Court shall and may at all Times have full Liberty to
remove or dismiss any of such officers or servants at their
will and pleasure."

By the end of the nineteenth century a well-organized
civil service had developed in India, the control over it
being vested in the executive, and the members of the "civil
service of the Crown in India" were governed in the matter
of their appointments as also the regular of the conditions
of their service, such as, classification methods of
recruitment, pay and allowances, and discipline and conduct,
by rules made by the executive.

The Government of India Act, 1858 (21 & 22 Vict.,
c.106), which vested in the British Crown the territories
under the government of East India" Company, repeated
certain sections of the Government of India Act, 1853 (16 &
17 Vict., c.95), in so far as they applied to or provided
for the admission or appointment of persons to the Civil
Service of the East India Company and conferred upon the
Secretary of State in Council the power to make regulations
for the admission of candidates to the Civil Service of
India as also with respect to other matters connected
therewith. Three years later the Indian Civil Service so
envisaged received statutory recognition by the enactment of
the Indian Civil Service Act, 1861 (24 & 25 Vict., c.54).
The above Acts were repealed by the
Government of India
Act
of 1915 (5 & 6 Geo. V, c.61). Part VIII of the 1915 Act
conferred upon the Secretary of State in Council, with the
aid and advice of the Civil Service Commissioners, the power
to make rules for the Indian Civil Service examination.

None of the above nor the Government of India
(Amendment) Act, 1916 (6 & 7 Geo. V. c.37) made any
reference to the tenure of members of the civil service in
India. This was for the first time done by the Government of
India Act, 1919 (9 & 10 Geo. v, c.101), which introduced
several amendments in the 1915 Act including the insertion
of Part VIIA consisting of section 96 B to 96 E.
Section 96 B provided as follows:-

96 B. The civil services in India.-

(1) Subject to the provisions of this Act and of
rules made thereunder, every person in the civil
service of the Crown in India holds office during
His Majesty's pleasure, and may be employed in any
manner required by a proper authority within the
scope of his duty but no person in that service
may be dismissed by any authority subordinate to
that by which he was appointed, and the Secretary
of State in Council may (except so far as he may
provide by rules to the contrary) reinstate any
person in that service who has been dismissed.

If any such person appointed by the Secretary of
State in Council thinks himself wronged by an
order of an official superior in a governor's
province, and on due application made to that
superior does not receive the redress to which he
may consider himself entitled, he may, without
prejudice to any other right of redress, complain
to the governor of the province in order to obtain
justice, and the governor is hereby directed to
examine such complaint and require such action to
be taken thereon as may appear to him to be just
and equitable.

(2) The Secretary of State, in Council may make
rules for regulating the classification of the
civil services in India, the methods of their
recruitment,
their conditions of services, pay and allowances,
and discipline and conduct. Such rules may, to
such extent and in respect of such matters as may
be prescribed, delegate the power of making rules
to the Governor-General in Council or to local
governments, or authorise the Indian legislature
or local legislatures to make laws regulating the
public services:

Provided that every person appointed before the
commencement of the Government of India act, 1919,
by the Secretary of State in Council to the civil
service of the Crown in India shall retain all his
existing or accruing rights, or shall receive such
compensation, for the loss of any of them as the
Secretary of State in Council may consider just
and equitable.

(3) The right to pensions and the scale and
conditions of pensions of all persons in the civil
service of the Crown in India appointed by the
Secretary of State in Council shall be regulated
in accordance with the rules in force at the time
of the passing of the Government of India Act,
1919. Any such rules may be varied or added to by
the Secretary of State in Council and shall have
effect as so varied or added to, but any such
variation or addition shall not adversely affect
the pension of any member of the service appointed
before the date thereof.

Nothing in this section or in any rule thereunder
shall prejudice the rights to which any person
may, or may have, become entitled under the
provisions in relation to pensions contained in
the East India Annuity Funds Act, 1874.

(4) For the removal of doubts it is hereby
declared that all rules or other provisions in
operation at the time of the passing of the
Government of India Act, 1919, whether made by the
Secretary of State in Council or by any other
authority, relating to the civil service of the
Crown in India, were duly made in accordance with
the powers in that behalf, and are confirmed, but
any such rules or provisions may be revoked,
varied or added to by rules or laws made under
this section."
The Fundamental Rules, the Civil Service (Classification,
Control and Appeal) Rules of 1930 and the Civil Service
(Governors Provinces Classification) Rules are instances of
rules made under authority conferred by section 96B. Section
96C provided for the establishment of a Public Service
Commission. Sub-section (1) of section 96D provided for an
Auditor-General to be appointed by the Secretary of State in
Council who was to hold office during "His Majesty's
pleasure", and conferred upon the Secretary of State in
Council the power to make rules providing for the Auditor-
General's pay, powers, duties and conditions of employment.
Sub-section (2) of section 96D provided that, subject to any
rules made by the Secretary of State in Council, no officer
could be added to or withdrawn from the public service and
the emoluments of no post could be varied except after
consultation with such finance authority as might be
designated in the rules being an authority of the Province
or of the Government of India, according as the post was or
was not under the control of a local Government. Under
section 96E rules under Part VIIA could not be made except
with the concurrence of the majority of votes at a meeting
of the Council of India.

Thus, after the 1919 Act, the civil services of India
continued to be under the control of the Secretary of State
in Council who was to regulate by rules the classification
of the civil services, the methods of recruitment, the
conditions of services, pay and allowances, and discipline
and conduct. Such rules could also provide for delegation of
the rule-making power to the Governor-General in Council or
the local Governments or authorize the Indian Legislature or
Local Legislatures to make laws regulating the public
services but only to the extent and in respect of matters as
were prescribed by the rules. Thus, even the power of making
rules as also the authority to the Indian Legislature and
the Local Legislatures to enact Acts regulating the public
services was derived by delegation of power made by the
Secretary of State in Council.

What is really material for the purposes of the present
Appeals and Writ Petitions is that section 96B of the
Government of India Act, 1919, for the first time expressly
stated that every person in the civil service of the Crown
in India held office "during His Majesty's pleasure." This
was, however, made subject to three safeguards, namely-
(1) a civil servant could not be dismissed by any
authority subordinate to that by which he was
appointed;
(2) the Secretary of State in Council had the
power, unless he provided to the contrary in the
rules, to reinstate any person in service who had
been dismissed; and
(3) if a civil servant appointed by the Secretary
of State in Council thought himself wronged by an
order of an official superior in a Governor's
Province and on due application made to that
superior did not receive the redress to which he
considered himself entitled, he could, without
prejudice to any other right of redress, complain
to the Governor of the Province in order to obtain
justice and the Governor had to examine such
complaint and require such action to be taken
thereon as might appear to him to be just and
equitable.

The position which prevailed with respect to the civil
services in India during the intervening period between the
Government of India Act, 1919, and the
Government of India
Act, 1935
(25 & 26 Geo. V, c.42) was that the top echelons
of the important services, especially those working under
the provincial Governments, consisted of what were known as
the "all India services," which governed a wide variety of
departments. There were, in the first place, the Indian
Civil Service and the Indian Police Service, which provided
the framework of the administrative machinery. In addition,
there were the Indian Forest Service, the Indian Educational
Service, the Indian Agricultural Service, the Indian Service
of Engineers (consisting of an Irrigation Branch and a Roads
and Buildings Branch), the Indian Veterinary Service, the
Indian Forest Engineering Service and the Indian Medical
Service (Civil). The initial appointments and conditions of
service for all these services were made by the Secretary of
State and each officer executed a covenant with the
Secretary of State containing the terms under which he was
to serve. In addition to the all-India services there were
the central services under the Government of India and the
Provincial services in the Provinces; and lastly the
subordinate services. (See Indian Statutory (Simon)
Commission Report(1930), Vol.I, para 290 ff.). During the
years following the 1919 Act it was decided that, as a
consequence of the decision to effect progressive transfer
of power to Governments in India, the number of all-India
services under the direct control of the Secretary of State
should be progressively reduced especially in those fields
of administration that were transferred to ministerial
control. It was now to
be left to the Provincial Governments to reorganize in
gradual stages the higher cadres of their services in the
transferred subjects, and recruitment and control of the
Secretary of State in Council were accordingly discontinued.
This policy resulted by the early thirties in the Indian
Civil Service, the Indian Police Service, the Ecclesiastical
Service and the civil branch of the Indian Medical Service
being retained by the Secretary of State and the rest being
converted into Provincial services, safeguards being
provided to secure the rights and privileges guaranteed to
officers recruited earlier to the all-India services. (See
Report of the Joint Select Committee on Indian
Constitutional Reform, (1934), para 277.)
The above position received legislative recognition and
sanction under the
Government of India Act, 1935
(25 & 26
Geo. v, c.42), often cited with the year and chapter of the
Act in pursuance of which it was reprinted, namely, the
Government of India (Reprinting) Act, 1935 (26 Geo. V & 1
Edw, VIII, c.1). Part X of the 1935 Act dealt with the
services of the Crown in India. Chapter II of Part X made
provisions with respect of the civil services.
Section 240

provided for the tenure of office of persons employed in
civil capacities in India and conferred upon them certain
statutory safeguards as regards dismissal or reduction in
rank.
Section 241
dealt with their recruitment and
conditions of service. Under that section power to make
appointments was vested in respect of central services in
the Governor-General and in respect of the Provincial
services in the respective Governors. In the same manner the
power to regulate conditions of service of the members of
these services was conferred upon the Governor- General or
the Governor, as the case may be. The Governor-General as
also the Governor could authorize such person as he might
direct to make appointments and rules with respect to the
conditions of service. Provision was also made for enactment
of Acts by appropriate Legislatures to regulate the
conditions of service of persons in the civil services. It
is unnecessary to look into the details of these provisions
as the federal structure envisaged by the 1935 Act never
came into existence as it was optional for the Indian States
to join the proposed Federation and they did not give their
consent thereto. Chapter III of Part X provided for the
setting up of a Federal Public Service Commission and a
Public Service Commission for each province. A provision was
also made for two or more Provinces to agree to have a joint
Public Service Commission or for the Public Service
Commission of one of these Provinces to serve the needs of
the other provinces.
In the context of the present Appeals and Writ
Petitions, it is
section 240
of the 1935 Act which is
relevant.
Section 240
provided as follows:

"240. Tenure of office of persons employed in
civil capacities in India.-

(1) Except as expressly provided by this Act,
every persons who is a member of a civil service
of the Crown in India, or holds any civil post
under the Crown in India holds office during His
Majesty's pleasure.

(2) No such person as aforesaid shall be dismissed
from the service of His Majesty by any authority
subordinate to that by which he was appointed.
(3) No such person as aforesaid shall be dismissed
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 sub-section shall not be apply-

(a) where a person is dismissed 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 a
person or 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.
(4) Notwithstanding that a person holding a civil
post under the Crown in India holds office during
His Majesty's pleasure, any contract under which a
person, not being a member of a civil service of
the Crown in India is appointed under this Act to
hold such a post may, if the Governor-General, or,
as the case may be, the Governor, deems it
necessary in order to secure the service of a
person having special qualifications, provide for
the payment to him of compensation, if before the
expiration of an agreed
period that post is abolished or he is, for
reasons not connected with any misconduct on his
part, required to vacate that post."

While under the 1935 Act, as under the 1919 Act, every
person who was a member of the civil service of the Crown in
India or held any civil post under the Crown in India held
office "during His Majesty's pleasure", greater safeguards
were provided for him under the 1935 Act than under the 1919
Act. Those safeguards were:

(1) under sub-section (2) of
section 240
, such a
person could not be dismissed from service by any
authority subordinate to that by which he was
appointed, and
(2) under sub-section (3) of
section 240
, such a
person could not be dismissed or reduced in rank
until he had been given a reasonable opportunity
of showing cause against the action proposed to be
taken in regard to him.

The safeguard as regards a reasonable opportunity of showing
cause provided for in
section 240(3)
did not exist in the
1919 Act. The proviso to sub-section (3) of
section 240
,
however, took away this safeguard in the two cases set out
in clauses (a) and (b) of the said proviso. These two cases
were:

(a) where a civil servant was dismissed or reduced
in rank on ground of conduct which had led to his
conviction on a criminal charge, and

(b) where an authority empowered to dismiss him or
reduce him in rank was satisfied that for some
reason, to be recorded by that authority in
writing, it was not reasonably practicable to give
to that person an opportunity of showing cause.

The Civil Services under the Constitution
Provisions with respect to services under the Union and
the states are made in Part XIV of the Constitution of
India. This Part consists of two Chapters, Chapter I delaing
with services and Chapter II dealing with Public Service
Commission for the Union and the State.
Article 308
, as
originally enacted, defined
the expression "State" occurring in Part XIV as meaning,
unless the context otherwise required, "a State specified in
Part A or B of the First Schedule." This Article was amended
by the
Constitution (Seventh Amendment) Act, 1956
, which was
passed in order to implement the scheme for reorganization
of States. The amended
Article 308
provides, "In this Part,
unless the context otherwise requires, the expression
'State' does not include the State of Jammu and Kashmir."

Article 309
provides for recruitment and conditions of
service of persons serving the Union or a State,
Article 310

for the tenure of office of such persons, and
Article 311

for the mode of dismissal removal or reduction in rank of
persons employed in civil capacities under the Union or a
State.
Article 312
deals with all-India services and inter
alia provides that where the Council of State has declared
by resolution supported by not less than two-thirds of the
members present and voting that it is necessary or expedient
in the national interest so to do, Parliament might by law
provide for the creation of one or more all-India services
common to the Union and the States and subject to the other
provisions of Chapter I regulate the recruitment and
conditions of service of persons appointed to any such
service; and it further provides that the Indian
Administrative Service and the Indian Police Service shall
be deemed to be services created by Parliament under Article

312.
Article 313
provides for the continuance in force, so
far as consistent with the provisions of the Constitution,
of all the laws in force immediately before the commencement
of the Constitution and applicable to any public service or
any post which continued to exist after the commencement of
the Constitution as an all-India service or as service or
post under the Union or a State until other provision was
made in this behalf under the Constitution. Under clause
(10) of
Article 366
the expression "existing law" means "any
law, Ordinance, order, bye-law, rule or regulation passed or
made before the commencement of this Constitution by any
Legislature, authority or person having power to make such a
law, Ordinance, order, bye-law, rule or regulation. Thus,
all Acts, rules and regulations applicable to different
services immediately before the commencement of the
Constitution continue to apply to such services in so far as
they were consistent with the provisions of the Constitution
until amended, varied, revoked or replaced by Acts, rules or
regulations made in accordance with the provisions of the
Constitution.

From what has been stated above it will be seen that
the provisions with respect to civil services in the

Government of India Act, 1935
, were taken as the basis for
Chapter I of Part XIV of the Constitution.
Articles 309,310 and 311
It is necessary for the purpose of these Appeals and
Writ Petitions to set out in extenso the provisions of

Articles 309
, 310
and
311.

Articles 309
and
were amended by the
Constitution
(Seventh Amendment) Act, 1956
, to omit from these Articles
the reference to the Rajpramukh.
Articles 309
and
, as so
amended, read as follows:

"309. Recruitment and conditions of service of
persons serving the Union or a State.-
Subject to the provisions of this Constitution,
Acts of the appropriate Legislature may regulate
the recruitment, and conditions of service of
persons appointed, to public services and posts in
connection with the affairs of the Union or of any
State:

Provided that it shall be competent for the
President or such person as he may direct in the
case of services and posts in connection with the
affairs of the Union, and for the Governor of a
State or such person as he may direct in the case
of services and posts in connection with the
affairs of the State to make rules regulating the
recruitment, and the conditions of service of
persons appointed, to such services and posts
until provision in that behalf is made by or under
an Act of the appropriate Legislature under this
article, and any rules so made shall have effect
subject to the provisions of any such Act.
"310. Tenure of office of persons serving the
Union or a State.-

(1) Except as expressly provided by this
Constitution, every person who is a member of a
defence service or of a civil service of the Union
or of an all-India service or holds any post
connected with defence or any civil post under the
Union holds office during the pleasure of the
President, and every person who is a member of a
civil service of a State or holds any civil post
under a state holds office during the pleasure of
the Governor of the State.
(2) Notwithstanding that a person holding a civil
post under the Union or a State holds office
during the pleasure of the President or, as the
case may be, of the Governor of the State any
contract under which a person, not being a member
of a defence service or of an all-India service or
of a civil service of the Union or a State, is
appointed under this Constitution to hold such a
post may, if the President or the Governor, as the
case may be, deems it necessary in order to secure
the services of a person having special
qualifications, provide for the payment to him of
compensation, if before the expiration of an
agreed period that post is abolished or he is, for
reasons not connected with any misconduct on his
part, required to vacate that post."

Article 311
as originally enacted was in the
following terms:

"311. Dismissal, removal or reduction in rank of
persons employed in civil capacities under the
Union or a State.-

(1) No person who is a member of a civil service
of the Union or an all-India service or a civil
service of a State or holds a civil post under the
Union or a State shall be dismissed or removed by
an authority subordinate to that by which he was
appointed.

(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;

(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 or Rajpramukh,
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.

(3) If any question arises whether it is
reasonably practicable to give to any person an
opportunity of showing cause under clause (2), the
decision thereon of the authority empowered to
dismiss or remove such person or to reduce him in
rank, as the case may be, shall be final."

The words "or Rajpramukh" in clause (c) of the proviso to

Article 311(2)
were omitted by the
Constitution (Seventh
Amendment) Act, 1956
.

By the Constitution (Fifteenth Amendment) Act, 1963
.
Clauses (2) and (3) of
Article 311
were substituted by the
following clauses:

"(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 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 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.

(3) If, in respect of any such person as
aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry as is
referred to in clause (2), the decision thereon of
the authority empowered to dismiss or remove such
person or to reduce him in rank shall be final."

The Constitution (Forty-second Amendment) Act, 1976
,
made certain amendments in the substituted clause (2) of

Article 311
with effect from January 3, 1977.
Article 311
as
so amended reads as follows :

"311. Dismissal, removal or reduction in rank of
persons employed in civil capacities under the
Union or a state. -

(1) No persons who is a member of a civil service
of the Union or an all-India service or a civil
service of a State or holds a civil post under the
Union or a State shall be dismissed or removed by
an authority subordinate to that by which he was
appointed.

(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 :

Provided that where it is proposed after such
inquiry, to impose upon him any such penalty, such
penalty may be imposed on the basis of the
evidence adduced during such inquiry and it shall
not be necessary to give such person any
opportunity of making representation on the
penalty proposed :

Provided further 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 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.

(3) If, in respect of any such person as
aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry as is
referred to in clause (2), the decision thereon of
the authority empowered to dismiss or remove such
person or to reduce him in rank shall be final."

From the original and amended
Article 311
set out above it
will be noticed that of the original
Article 311
only clause
(1) remains unaltered, while both the other clauses have
become the subject of Constitutional amendments. No
submission was founded by either party on the substitution
of the present clause (3) for the original by the

Constitution (Fifteenth Amendment) Act, 1963
, for the
obvious reason that such substitution was made only in order
to bring clause (3) in conformity with clause (2) as
substituted by the said Amendment Act.

A comparison of
Article 311
of the Constitution with

section 240
of the Government of India Act, 1935, shows that
the safeguards provided to civil servants by
Article 311
are
very much the same as those under
section 240
with this
difference that while
Article 311
also affords safeguards
against removal from service
section 240
did not. Further,
though the proviso to
section 240(3)
is reproduced in what
originally was the only proviso and is now the second
proviso to
Article 311 (2)
, an additional clause, namely,
clause (c) has been added thereto. A provision similar to
clause (3) of
Article 311
was also absent from the

Government of India Act, 1935
. Thus, while on the one hand

Article 311
enlarges the protection afforded to civil
servants, on the other hand it increases by one the number
of cases in which that protection can be withdrawn.

With the above historical background and bearing in
mind the relevant provisions of the Constitution, it will be
now convenient to turn to the submissions made at the Bar
with respect to
the pleasure doctrine and the second proviso to
Article
311(2)
and test the correctness of these submissions.

The Second Proviso - Rival Submissions
The arguments advanced on behalf of the government
servants on the pleasure doctrine and the second proviso to

Article 311 (2)
may be sketched in broad outlined as under :

(1) The pleasure doctrine in England is a part of
the special prerogative of the Crown and has been
inherited by India from England and should,
therefore, be construed strictly, that is,
strictly against the Government and liberally in
favour of government servants.

(2) The second proviso which withdraws from
government servants the safeguards provided by
clause (2) of
Article 311
must be also similarly
construed for, unless a liberal construction were
placed upon it, great hardship would result to
government servants as they could be arbitrarily
thrown out of employment and they and their
dependents would be left without any means of
subsistence.

(3) There are several stages before a government
servant can be dismissed or removed or reduced in
rank, namely, serving upon him of a show cause
notice or a charge-sheet, giving him inspection of
documents, examination of witnesses, arguments and
imposition of penalty. An inquiry starts only
after a show cause notice is issued and served
upon a government servant. A show cause notice is
thus preparatory to the holding of an inquiry and
even if the entire inquiry is dispensed with, the
giving of a show cause notice and asking for the
explanation of the government servant with respect
there to are not excluded.

(4) It is not obligatory upon the disciplinary
authority to dispense with the whole of the
inquiry. Depending upon the circumstances of the
case, the disciplinary authority can dispense with
only a part of the inquiry.
(5) Imposition of penalty is not a part of the
inquiry and once an inquiry is dispensed with,
whether in whole or in part, it is obligatory upon
the disciplinary authority to give an opportunity
to the government servant to make a representation
with respect to the penalty proposed to be imposed
upon him.

(6)
Article 311
is subject to
Article 14.

Principles of natural justice and the audi alteram
partem rule are part of
Article 14
and, therefore,
a show cause notice asking for the explanation of
the government servant with respect to the charges
against him as also a notice to show cause with
respect to the proposed penalty are required to be
given by
Article 14
and the not giving of such
notices or either of them renders the order of
dismissal, removal or reduction in rank invalid.
The submissions on behalf of the Union of India can be
thus summarized :

(1) The second proviso must be construed according
to its terms. It is unambiguous and does not admit
of any such interpretation as canvassed for on
behalf of the government servants.

(2) Where under the second proviso, clause (2) of

Article 311
is made inapplicable, there is no
scope for holding any partial inquiry.
(3) In any event, the very contents of the three
clauses of the second proviso show that it is not
necessary or not practicable or not expedient that
any partial inquiry could be or should be held,
depending upon which clause applies.
(4)
Article 14
does not govern or control Article

311. The Constitution must be read as a whole.

Article 311(2)
embodies the principles of natural
justice including the audi alteram partem rule. It
thus expressly states what is required under

Article 14
as a result of the interpretation
placed upon it by recent decisions of this Court.
Once the application of clause(2) is expressly
excluded by the Constitution
itself, there can be no question of making
applicable what has been so excluded by seeking
recourse to
Article 14.

(5) Consideration of sympathy for the government
servants who may be dismissed or removed or
reduced in rank are irrelevant to the construction
of the second proviso. The doctrine of tenure at
pleasure in
Article 310
and the safeguards given
to a government servant under clauses (1) and (2)
of
Article 311
as also the withdrawal of the
safeguard under clause (2) by the second proviso
are all enacted in public interest and where
public interest conflicts with private interest,
the latter must yield to the former.

The Pleasure Doctrine
The concept of civil service is not now or of recent
origin. Governments - whether monarchial, dictatorial or
republican - have to function; and for carrying on the
administration and the varied functions of the government a
large number of persons are required and have always been
required, whether they are constituted in the form of a
civil service or not. Every kingdom and country of the world
throughout history had a group of persons who helped the
ruler to administer the land, whether according to modern
notions we may call that group a civil service or not,
because it is not possible for one man by himself to rule
and govern the land and look after and supervise all the
details of administration. As it was throughout history, so
it has been in England and in India.

In England, all public officers and servants of the
Crown hold their appointments at the pleasure of the Crown
and their services can be terminated at will without
assigning any cause. By the expression "the pleasure
doctrine" is conveyed this right of the Crown. This right
is, however, subject to what may be provided otherwise by
legislation passed by Parliament because in the United
Kingdom, Parliament has legislative sovereignty.

The Foundations of modern European civil services were
laid in Prussia in the late seventeenth and eighteenth
centuries and by Napoleon's development of highly organized
hierarchy (a model copied by many countries in the
nineteenth century); and they are the basis of modern
European civil services. In England civil servants were
originally the monarch's personal servants and
members of the King's household. Clive's creation from 1765
of a civil service to govern such parts of India as were
under the dominion of the East India Company and Macaulay's
report on recruitment to the Indian Civil Service provided
the inspiration for the report of 1854 on the organization
of the permanent civil service in Britain which recommended
recruitment by open competitive examination, the selection
of higher civil servants on the basis of general
intellectual attainment, and the establishment of a Civil
Service Commission to ensure proper recruitment.

In the United Kingdom, until about the middle of
November 1981, the Civil Service Department, which was set
up in 1968 with the Prime Minister, as Minister for the
Civil Service, as its Head, looked after the management and
personnel functions in connection with the Civil Service
which were until then being looked after by the Treasury.
These functions included the organization and conduct of the
Civil Service and the remuneration, conditions of service,
expenses and allowances of persons serving in it; mode of
recruitment of persons to the Civil Service; the pay and
allowances of, and the charges payable by, members of the
armed forces; with certain exceptions, superannuation and
injury payments, compensation for loss of employment or loss
or diminution of emoluments or pension rights applicable to
civil servants and others in the public sector and to
members of the armed forces; the exercise by other persons
and bodies of powers to determine, subject to the minister's
sanction, the pay or conditions of service of members of
public bodies (excluding judicial bodies), or the numbers,
pay or conditions of service of staff employed by such
bodies or by the holders of certain non-judicial offices;
and the appointment or employment and the remuneration,
conditions of service, personal expenses or allowances of
judges and judicial staff (See Halsbury's Laws of England,
Fourth Edition, Volume 8, para 1162).

The Permanent Secretary to the Civil Service Department
was the Head of the Home Civil Service and gave advice to
the Prime Minister as to civil service appointments,
decorations, etc. The Civil Service Departments was
abolished on November 12, 1981, and its functions, instead
of reverting to the Treasury, were divided between the
Treasury and the newly created Management and Personnel
Office.

In India, the pleasure doctrine has received
constitutional sanction by being enacted in
Article 310(1).

Unlike in the United Kingdom in India it is not subject to
any law made by Parliament
but is subject only to what is expressly provided by the
Constitution.

The pleasure doctrine relates to the tenure of a
government servant. "Tenure" means "manner, conditions or
term of holding something" according to Webster's Third New
International Dictionary, and "terms of holding; title;
authority" according to the Oxford English Dictionary. It,
therefore, means the period for which an incumbent of office
holds it. It is for this reason that the statement of law
relating to the pleasure doctrine in England is given in
Halsbury's Laws of England, Fourth Edition, Volume 8, Para
1106, under the heading "Tenure of office".

The first time that a statute relating to the
government of India provided that civil servants hold office
during His Majesty's pleasure was the
Government of India
Act
of 1919 in section 96B of that Act. The marginal note to
section 96B did not, however, refer to the tenure of civil
servants but stated "The Civil Services of India". This was
because section 96B in addition to dealing with the tenure
of civil servants also dealt with matters relating to their
recruitment, conditions of service, pay, allowances,
pensions, etc. The marginal note to
section 240
of the
Government of India Act, 1935, however, was "Tenure of
office of persons employed in civil capacities in India".
The marginal note to
Article 310
of the Constitution also
refers to "tenure" and states "Tenure of office or persons
serving the Union or a State". Thus, it is the tenure of
government servants which
Article 310(1)
makes subject to
the pleasure of the President or the Governor of a State,
except as expressly provided by the Constitution.

While it was vehemently contended on behalf of the
government servants that the pleasure doctrine is a relic of
the feudal age - a part of the special prerogative of the
Crown - which was imposed upon India by an Imperial power
and thus is an anachronism in this democratic, socialist age
and must, therefore, be confined within the narrowest
limits, it was submitted on behalf of the Union of India
that this doctrine was a matter of public policy, and it was
in public interest and for public good that the right to
dismiss at pleasure a government servant who has made
himself unfit to continue in office, albeit subject to
certain safeguards, should exist and be exercisable in the
Constitutional sense by the Crown in England and by the
President or the Governor of a State in India. It is not
possible to accept the arguments advanced on behalf of the
government servants for
all the authoritative judicial dicta are to the contrary. As
pointed out by Lord Hobhouse in Shenton v. Smith, L.R.[1895]
A.C. 229 J.C., the pleasure doctrine is founded upon the
principle that the difficulty which would otherwise be
experienced in dismissing those whose continuance in office
is detrimental to the State would be such as seriously to
impede the working of the public service. In Dunn v. The
Queen, L.R. [1896] Q.B.D. 116; s.c. [1895-96] 73 L.T.R. 695
and sub nomine Dunn v. Regem in [1895-99] All E.R. Rep. 907,
the Court of Appeal in England held that it was an implied
term of every contract of service that servants of the
Crown, civil as well as military, except in special case
where it is otherwise provided by law, hold their offices
only during the pleasure of the Crown. In that case Lord
Herschell observed (pages 119-120) :

It seems to me that it is the public interest
which has led to the term which I have mentioned
being imported into contracts for employment in
the service of the Crown. The cases cited shew
that, such employment being for the good of the
public, it is essential for the public good that
it should be capable of being determined at the
pleasure of the Crown, except in certain
exceptional cases where it has been deemed to be
more for the public good that some restrictions
should be imposed on the power of the Crown to
dismiss its servants."

(Emphasis supplied)
In the same case Kay, L.J., said (page 120)
"It seems to me that the continued employment of a
civil servant might in many cases be `as
detrimental to the interests of the State as the
continued employment of a military officer."
In this case as reported in the Law Times Reports
series the judgments of the three learned judges who decided
the case (Lord Esher, M.R., being the third judge), though
in substance the same, are given in very different language
and the passages extracted above do not appear in that
report. The report of the case in the All England Law
Reports Reprint series is with very minor variations the
same as the report in the Times Law Reports series but
somewhat abridged. This is because the All England Law
Reports Reprint series is a revised and annotated reprint of
a selection from the Law Times Reports for the years 1843 to
1935. The report from which the above extracts are given is
the one in the Law Reports series published by the
Incorporated Council of Law Reporting which was established
in 1865 and which report is, therefore, more authoritative.
In Gould v. Stuart, L.R. [1896] A.C. 575,578-9 J.C., the
Judicial Committee of the Privy Council further held that
where by regulations a civil service is established
prescribing qualifications for its members and imposing some
restriction on the power to dismiss them, such regulations
should be deemed to be made for the public good.
The
position that the pleasure doctrine is not based upon any
special prerogative of the Crown but upon public policy has
been accepted by this Court in
The States of Uttar Pradesh &
Ors. v. Babu Ram Upadhya
, [1961] 2 S.C.R. 679, 696 and Moti
Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaon,
Pandu etc., [1964] 5 S.C.R. 683, 734-5. This Court has also
accepted the principle that society has an interest in the
due discharge of their duties by government servants.

In

Roshan Lal Tandon v. Union of India
, [1968] 1 S.C.R. 185,
Ramaswami, J., speaking for the Court said (at page 195) :

"It is true that the origin of Government service
is contractual. There is an offer and acceptance
in every case. But once appointed to his post or
office the Government servant acquires a status
and his rights and obligations are no longer
determined by consent of both parties, but by
statute or statutory rules which may be framed and
altered unilaterally by the Government. In other
words, the legal position of a Government servant
is more one of status that of contract. The Hall-
mark of status is the attachment to a legal
relationship of rights and duties imposed by the
public law and not by mere agreement of the
parties. The emolument of the Government servant
and his terms of service are governed by statute
or statutory rules which may be unilaterally
altered by the Government without the consent of
the employee. It is true that
Article 311
imposes
constitutional restrictions upon the power of
removal granted to the President and the Governor
under
Article 310.
But it is obvious that the
relationship between the Government and its
servant is not like an ordinary contract of
service between a master and servant. The legal
relationship is something entirely different,
something in the nature of status. It is much more
than a
purely contractual relationship voluntarily
entered into between the parties. The duties of
status are fixed by the law and in the enforcement
of these duties society has an interest. In the
language of jurisprudence status is a condition of
membership of a group of which powers and duties
are exclusively determined by law and not by
agreement between the parties concerned."

(Emphasis supplied)
Ministers frame policies and legislatures enact laws
and lay down the mode in which such policies are to be
carried out and the object of the legislation achieved. In
many cases, in a Welfare State such as ours, such policies
and statutes are intended to bring about socioeconomic
reforms and the uplift of the poor and disadvantaged
classes. From the nature of things the task of efficiently
and effectively implementing these policies and enactments,
however, rests with the civil services. The public is,
therefore ; vitally interested in the efficiency and
integrity of such services. Government servants are after
all paid from the public exchequer to which everyone
contributes either by way of direct or indirect taxes. Those
who are paid by the public and are charged with public and
administration for public good must, therefore, in their
turn bring to the discharge of their duties a sense of
responsibility. The efficiency of public administration does
not depend only upon the top echelons of these services. It
depends as much upon all the other members of such services,
even on those in the most subordinate posts. For instance,
railways do not run because of the members of the Railway
Board or the General Managers of different railways or the
heads of different departments of the railway
administration. They run also because of engine-drivers,
fireman, signalmen, booking clerks and those holding hundred
other similar posts. Similarly, it is not the administrative
heads who alone can set to the proper functioning of the
post and telegraphs service. For a service to run
efficiently there must, therefore, be a collective sense of
responsibility. But for a government servant to discharge
his duties faithfully and conscientiously, he must have a
feeling of security of tenure. Under our Constitution this
is provided for by the Acts and rules made under
Article 309

as also by the safeguards in respect of the punishments of
dismissal, removal or reduction in rank provided in clauses
(1) and (2) of
Article 311.
It is, however, as much in
public interest and for public good that government servants
who are inefficient, dishonest or corrupt or have become a
security risk
should not continue in service and that the protection
afforded to them by the Acts and rules made under
Article
and by
Article 311
be not abused by them to the
detriment of public interest and public good. When a
situation as envisaged in one of the three clauses of the
second proviso to clause (2) of
Article 311
arises and the
relevant clause is properly applied and the disciplinary
inquiry dispensed with, the concerned government servant
cannot be heard to complain that he is deprived of his
livelihood. The livelihood of an individual is a matter of
great concern to him and his family but his livelihood is a
matter of his private interest and where such livelihood is
provided by the public exchequer and the taking away of such
livelihood is in the public interest and for public good,
the former must yield to the latter. These consequences
follow not because the pleasure doctrine is a special
prerogative of the British Crown which has been inherited by
India and transposed into our Constitution adapted to suit
the Constitutional set up of our Republic but because public
policy requires, public interest needs and public good
demands that there should be such a doctrine.

It is thus clear that the pleasure doctrine embodied in

Article 310 (1)
, the protection afforded to civil servants
by clauses (1) and (2) of
Article 311
and the withdrawal of
the protection under clause (2) of
Article 311
by the second
proviso thereto are all provided in the Constitution on the
ground of public policy and in the public interest and are
for public good.

The Scope of the Pleasure Doctrine.

While under
section 96B(1)
of the Government of India
Act of 1919 the holding of office in the civil service of
the Crown in India during His Majesty's pleasure was
"Subject to the provisions of this Act and the rules made
thereunder", under
section 240(1)
of the Government of India
Act, 1935, the holding of such office during His Majesty's
pleasure was "Except as expressly provided by this Act".
Similarly, the pleasure doctrine as enacted in
Article
310(1)
is not an absolute one and is not untrammeled or free
of all fetters, but operates "Except as expressly provided
by this Constitution." The constitutional restrictions on
the exercise of pleasure under
Article 310(1)
other than
those contained in
Article 311
will be considered later but
what is immediately relevant is the group of Articles
consisting of
Articles 309
, 310
and
311.
These three
Articles are interlinked and form an integrated whole. There
is an organic and thematic
unity running through them and it is now necessary to see
the interplay of these three Articles.

These Articles occur in Chapter I of Part XIV of the
Constitution. Part XIV is entitled "Services under the Union
and the States" and Chapter I thereof is entitled
"Services". While
Article 309
deals with the recruitment and
conditions of service of persons appointed to the public
services and posts in connection with the affairs of the
Union or a State,
Article 310
deals with the tenure of
office or members of the defence services and of civil
services of the Union and the States and
Article 311

provides certain safeguards to persons employed in civil
capacities under the Union or a State but not to members of
the defence services. The first thing which is required to
be noticed about
Article 309
is that it itself makes no
provision for recruitment or conditions of service of
government servants but confers power upon the appropriate
Legislature to make laws and upon the President and the
Governor of a State to make rules in respect of these
matters. The passing of these Acts and the framing of these
rules are, however, made "Subject to the provisions of this
Constitution." This phrase which preceeds and qualifies the
power conferred by
Article 309
is significantly different
from the qualifying phrase in
Article 310(1)
which is
"Except as expressly provided by this Constitution".

With reference to the words "conditions of service"

occurring in
section 243
of the Government of India Act,
1935, under which the conditions of service of the
subordinate ranks of the various police forces in India were
to be determined by or under Acts relating to those forces,
the Judicial Committee of the Privy Council held in
North-
West Frontier Province v. Suraj Narain Anand, L.R.
[1947-48]
75 I.A., 342, 352-3, that this expression included
provisions which prescribed the circumstances under which
the employer would be entitled to terminate the service of
an employee, whether such provisions were constitutional or
statutory.

In
State of Madhya Pradesh & Ors. v. Shardul Singh
,
[1970] 3 S.C.R. 302, 305-6, this Court held that the
expression "conditions of service" means all those
conditions which regulate the holding of a post by a person
right from the time of his appointment until his retirement
and even beyond it in matters like pension etc. and would
include the right to dismiss such persons from service.

Thus, as pointed out in
Sardari Lal v. Union of India &
Ors.
, [1971] 3 S.C.R. 461, 465, a law can be
made by the appropriate Legislature or a rule by the
appropriate executive under
Article 309
prescribing the
procedure and the authority by whom disciplinary action can
be taken against a government servant. Thus the functions
with respect to the civil service which in England until
1968 were being performed by the Treasury and thereafter by
the Civil Service Department and from mid-November 1981 are
being performed partly by the Treasury and partly by the
Management & personnel Office are in India under
Article 309

of the Constitution to be performed with respect to not only
persons employed in civil capacities but with respect to all
persons appointed to public services and posts in connection
with the affairs of the Union or any State by authorities
appointed under or specified in Acts made under
Article 309

or rules made under such Acts or made under the proviso to
that Article.

As the making of such laws and the framing of such
rules are subject to the provisions of the Constitution, if
any such Act or rule, violates any of the provisions of the
Constitution, it would be void. Thus, as held in
Moti Ram
Deka
's case (supra), if any such Act or rule trespasses upon
the rights guaranteed to government servants by
Article 311
,
it would be void. Similarly, such Acts and rules cannot
abridge or restrict the pleasure of the President or the
Governor of a State exercisable under
Article 310(1)
further
than what the Constitution has expressly done. In the same
way, such Act or rule would be void if it violates any
Fundamental Right guaranteed by Part III of the
Constitution. Two instances of this may be given by way of
illustration.

In
Kameshwar Prasad & Ors. v. The State of
Bihar & Anr.
, [1962] Supp. 3 S.C.R. 369, Rule 4A of the
Bihar Government Servants' Conduct Rules, 1956, insofar as
it prohibited any form of demonstration was struck down by
this Court as being violative of sub-clauses (a) and (b) of
clause (1) of
Article 19.

In
G.K.Ghose and another v.
E.X.Joseph
, [1963] Supp. 1 S.C.R. 789, this court struck
down Rule 4A of the Central Civil Services (Conduct) Rules,
1955, on the ground that it violated sub-clause (c) of
clause (1) of
Article 19
of the Constitution and that
portion of Rule 4A which prohibited participation in any
demonstration as being violative of Sub-Clauses (a) and (b)
of clause (1) of
Article 19.
Further, the application of

article 309
is excluded by certain provisions of the
Constitution itself which empower authorities other than
those specified in
Article 309
to make appointments or to
make rules relating to the conditions of service of certain
classes of public service, such as,
Article 146(1)
with
respect to the officers and servants of the Supreme
Court,
Article 148(5)
with respect to persons serving in the
Indian Audit and Accounts Department,
Article 229
with
respect to the officers and servants of the High Court, and

Article 324(5)
with respect of Election Commissioners and
Regional Commissioners.

Which would be the appropriate Legislature to enact
laws or the appropriate authority to frame rules would
depend upon the provisions of the Constitution with respect
to legislative competence and the division of legislative
powers. Thus, for instance, under Entry 70 in List I of the
Seventh Schedule to the Constitution, Union Public Services,
all-India Services and Union Public Service Commission are
subjects which fall within the exclusive legislative field
of Parliament, while under Entry 41 in List II of the
Seventh Schedule to the Constitution, State Public Services
and State Public Service Commission fall within the
exclusive legislative field of the State Legislatures. The
rules framed by the President or the Governor of a State
must also, therefore, conform to these legislative powers.
It is, however, not necessary that the Act of an appropriate
Legislature should specifically deal with a particular
service. It is sufficient if it is an Act as contemplated by

Article 309
by which provision is made regulating the
recruitment and conditions in a service (see
Ram Pal
Chaturvedi v. State of Rajasthan and others
.), [1970] 2
S.C.R. 559,564.

It was at one time thought that the right of a
government servant to recover arrears of salary fell within
the ambit of the pleasure doctrine and a servant of the
Crown, therefore, cannot sue for his salary, it being a
bounty of the Crown and not a contractual debt. This was so
stated in the judgment of Lord Blackburn in the Court of
Session (the supreme civil court of Scotland) in the case of
Mulvenna v. The Admiralty., [1926] S.C. (i.e. Sessions
Cases) 842.
Relying heavily upon this decision, the Judicial
Committee of the Privy Council in High Commissioner for
India and High Commissioner for
Pakistan v. I.M. Lall,, L.R.

[1947-48] 75 I.A. 225, 243-4, though it held that Lall's
dismissal was contrary to
section 240(3)
of the Government
of India Act, 1935, negatived his claim for arrears of pay.

In
The State of Bihar v. Abdul Majid
, [1954] S.C.R. 786, a
Constitution Bench of this Court pointed out that the
attention of the Judicial Committee was not drawn to
section
and the other relevant provisions
of the Code of Civil
Procedure
, 1908, and that the rule of English law that a
Crown servant cannot maintain a suit against the Crown for
recovery of arrears of salary did not
prevail in India as it had been negatived by the provisions
of statutory law in India.
It may be mentioned that in its
subsequent decision in Chellaih Kodeeswaran v. Attorney-
General of Ceylon in appeal from the Supreme Court for
Ceylon, the Judicial Committee held that Lord Blackburn's
reasoning in Mulvenna's case had not been concurred in by
the other two members of the Scottish Court of Session,
namely, Lord Sands and Lord Ashmore, and had not been
subsequently treated in Scotland as correctly laying down
the law and that it was defective and the conclusion reached
by Lord Blackburn was contrary to authority and was wrong.
It further pointed out that there was a current of authority
for a hundred years before 1926 (that being the year in
which Mulvenna's case was decided) to the effect that the
arrears of salary of a civil servant of the Crown, as
distinguished from a member of the armed services,
constituted a debt recoverable by a petition of right.
According to the Privy Council, as the relevant and
prestigious authorities to the contrary, did not appear to
have been cited before the Judicial Committee in Lall's
case, this part of the judgment is that case must be
regarded as given per incuriam.

As seen earlier, in India for the first time a fetter
was imposed upon the pleasure of the Crown to terminate the
service of any of its servant by section 96B of the
Government of India Act, 1919, but that was only with
respect to the authority which could dismiss him. In that
section the holding of office "during His Majesty's
pleasure" was made subject to both the provisions of that
Act and the rules made thereunder.
Under the Government of
India Act
1935, the reference to the rules to be made under
the Act was omitted and the tenure of office of a civil
servant was to be "during His Majesty's pleasure except as
expressly provided" by that Act.
Article 310(1)
adopts the
same phraseology as in
section 240
of the 1935 Act. Under it
also the holding of an office is during the pleasure of the
President or the Governor "Except as expressly provided by
this Constitution". Therefore the only fetter which is
placed on the exercise of such pleasure is when it is
expressly so provided in the Constitution itself, that is,
when there is an express proviso in that behalf in the
Constitution. Express provisions in that behalf are to be
found in the case of certain Constitutional functionaries in
respect of whose tenure special provision is made in the
Constitution as, for instance, in clauses (4) and (5) of

Article 124
with respect to Judges of the Supreme Court,

Article 218
with respect to Judges of the High Court,

Article 148(1)
with respect to the Comptroller and Auditor-
General of India,
Article 324(1)
with respect to the Chief Election Commissioner, and
Article
324(5)
with respect to the Election Commissioners and
Regional Commissioners.

Clauses (1) and (2) of
Article 311
impose restrictions
upon the exercise by the President or the Governor of a
State of his pleasure under
Article 310(1).
These are
express provisions with respect to termination of service by
dismissal or removal as also with respect to reduction in
rank of a civil servant and thus come within the ambit of
the expression "Except as expressly provided by this
Constitution" qualifying
Article 310(1).

Article 311
is thus
an exception to
Article 310
and was described in
Parshottam
Lal Dhingra v. Union of India
, [1958] S.C.R. 820,829, as
operating as a proviso to
Article 310(1)
though set out in a
separate Article.
Article 309
is, however, not such an
exception. It does not lay down any express provision which
would derogate from the amplitude of the exercise of
pleasure under
Article 310(1).
It merely confers upon the
appropriate Legislature or executive the power to make laws
and frame rules but this power is made subject to the
provisions of the Constitution. Thus,
Article 309
is subject
to
Article 310(1)
and any provision restricting the exercise
of the pleasure of the President or Governor in an Act or
rule made or frame under
Article 309
not being an express
provision of the Constitution, cannot fall within the
expression "Except as expressly provided by this
Constitution" occurring in
Article 310(1)
and would be in
conflict with
Article 310(1)
and must be held to be
unconstitutional. Clauses (1) and (2) of
Article 311

expressly restrict the manner in which a Government servant
can be dismissed, removed or reduced in rank and unless an
Act made or rule framed under
Article 309
also conforms to
these restrictions, it would be void. The restriction placed
by clauses (1) and (2) of
Article 311
are two : (1) with
respect to the authority empowered to dismiss or remove a
government servant provided for in clause (1) of
Article
311;
and
(2)
with respect to the procedure dismissal,
removal or reduction in rank of a government servant
provided for in clause(2). The second priviso to
Article
311(2)
, which is the central point of controversy in these
Appeals and Writ Petitions, lifts the restriction imposed by

Article 311(2)
in the cases specified in the three clauses
of that proviso.

None of these three Articles (namely, Articles 309,310
and
311)
sets out the grounds for dismissal, removal or
reduction in rank of a government servant or for imposition
of any other penalty upon him or states what those other
penalties are.
These are matters which are left to be dealt with by Acts
and rules made under
Article 309.
There are two classes of
penalties in service jurisprudence, namely, minor penalties
and major penalties. Amongst minor penalties are censure,
with holding of promotion and with holding of increments of
pay. Amongst major penalties are dismissal or removal from
service, compulsory retirement and reduction in rank. Minor
penalties do not affect the tenure of a government servant
but the penalty of dismissal or removal does because these
two penalties bring to an end the service of a government
servant. It is also now well established that compulsory
retirement by way of penalty amounts to removal from
service. So this penalty also affects the tenure of a
government servant. Reduction in rank does not terminate the
employment of a government servant, and it would, therefore,
be difficult to say that it affects the tenure of a
government servant. It may however, be argued that it does
bring to an end the holding of office in a particular rank
and from that point of view it affects the government
servant's tenure in the rank from which he is reduced. It is
unnecessary to decide this point because
Article 311(2)

expressly gives protection as against the penalty of
reduction in rank also.

Exercise of Pleasure
A question which arises in this connection is whether
the pleasure of the President or the Governor under
Article
310(1)
is to be exercised by the President or the Governor
personally or it can be exercised by a delegate or some
other authority empowered under the Constitution or by an
Act or Rules made under
Article 309.
This question came up
for consideration before a Constitution Bench of this Court
in Babu Ram Upadhya's case. The majority of the Court
(speaking through Subba Rao, J., as he then was) stated (at
page 701) the conclusions it had reached in the form of
seven propositions. These propositions are :

(1) In India every person who is a member of a
public service described in
Article 310
of the
Constitution holds office during the pleasure of
the President or the Governor, as the case may be,
subject to the express provisions therein.
(2) The power to dismiss a public servant at
pleasure is outside the scope of
Article 154
and,
therefore, cannot be delegated by the Governor to
a subordinate officer, and can be exercised by him
only in the manner prescribed by the Constitution.
(3) This tenure is subject to the limitations or
qualifications mentioned in
Article 311
of the
Constitution.

(4) The Parliament or the Legislatures of States
cannot make a law abrogating or modifying this
tenure so as to impinge upon the overriding power
conferred upon the President or the Governor under

Article 310
, as qualified by
Article 311.

(5) The Parliament or the Legislatures of States
can make a law regulating the conditions of
service of such a member which includes
proceedings by way of disciplinary action, without
affecting the powers of the President or the
Governor under
Article 310
of the Constitution
read with
Article 310
of the Constitution read
with
Article 311
thereof.

(6) The Parliament and the Legislatures also can
make a law laying down and regulating the scope
and content of the doctrine of `reasonable
opportunity' embodies in
Article 311
of the
Constitution; but the said law would be subject to
judicial review.

(7) If a statute could be made by Legislatures
within the foregoing permissible limits the rules
made by an authority in exercise of the power
conferred there-under would likewise be
efficacious within the said limits.

The question came to be reconsidered by a larger Bench of
Seven Judges in
Moti Ram Deka
's case.

While referring to the
judgment of the majority in
Babu Ram Upadhya
's case the
Court observed as follows (at pp.731-2) :

What the said Judgment has held is that while

Article 310
provides for a tenure at pleasure of
the President or the Governor,
Article 309
enables
the legislature or the executive, as the case may
be, to make any law or rule in regard inter alia,
to conditions of service without impinging upon
the overriding power recognised under
Article 310.

In other words, in exercising the power conferred
by
Article 309
, the extent of the pleasure
recognised by
Article 310
cannot be affected, or
impaired.
In fact, while stating the conclusions
in the form of propositions
,
the said judgment
has
observed that the Parliament or the Legislature
can make a law regulating the conditions of
service without affecting the powers of the
President or the Governor under
Article 310
read
with
Article 311.
It has also been stated at the
same place that the power to dismiss a public
servant at pleasure is outside the scope of

Article 154
and, therefore, cannot be delegated by
the Governor to a subordinate officer and can be
exercised by him only in the manner prescribed by
the Constitution. In the context, it would be
clear that this latter observation is not intended
to lay down that a law cannot be made under

Article 309
or a Rule cannot be framed under the
proviso to the said Article prescribing the
procedure by which, and the authority by whom, the
said pleasure can be exercised. This observation
which is mentioned as proposition number(2) must
be read along with the subsequent propositions
specified as (3),(4),(5) & (6). The only point
made is that whatever is done under
Article 309

must be subject to the pleasure prescribed by

Article 310."

While we are on this point we may as well advert to the
decision of this Court in
Sardari Lal v. Union of India &
Ors. In
that case it was held that where the President or
the Governor, as the case may be, if satisfied, makes an
order under clause (c) of what is now the second proviso to

Article 311(2)
that in the interest of the security of the
State it is not expedient to hold an inquiry for dismissal
or removal or reduction in rank of an officer the
satisfaction of the President or the Governor must be his
personal satisfaction.

The correctness of this view was
considered by a seven Judge Bench of this Court in
Shamsher
Singh & Anr. v. State of Punjab
, [1975] 1 S.C.R. 814, It was
categorically stated
in that case
(at page 835) that the
majority view in
Babu Ram Upadhya
's case was no longer goods
law after the decision in
Moti Ram Doka
's case. Referring to
these two cases the Court observed (at pages 834-5)) :

This Court in
State of Uttar Pradesh & Ors. v.
Babu Ram Upadhya
[1961] 2 S.C.R. 679 held that the
power of the Governor to dismiss at pleasure,
subject to the provision of
Article 311
, is not an
executive power under
Article 154
but a
Constitutional power and is not capable of being
delegated to officers subordinate
to him.

The effect of the judgment in
Babu Ram
Upadhya
's case(supra) was that the Governor could
not delegate his pleasure to any officer nor could
any law provide for the exercise of that pleasure
by an office with the result that pleasure by any
officer with the result that statutory rules
governing dismissal are binding on every officer
though they were subject to the overriding
pleasure of the Governor. This would mean that the
officer was bound by the Rules but the Governor
was not.

In
Babu Ram Upadhya
's case(supra) the majority
view stated seven propositions at page 701 of the
report. Proposition No. 2 is that the power to
dismiss a public servant at pleasure is outside
the scope of
Article 154
and therefore cannot be
delegated by the Governor to a subordinate officer
and can be exercised by him only in the manner
prescribed by the Constitution. Propositions No. 3
and 4 are these. The tenure of a public servant is
subject to the limitations or qualifications
mentioned in
Article 311
of the Constitution. The
Parliament or the Legislatures of States cannot
make a law abrogating or modifying this tenure so
as to impinge upon the overriding power conferred
upon the President or the Governor under
Article
as qualified by
Article 311.
Proposition No. 5
is that the Parliament or the Legislatures of
States can make a law regulating the conditions of
service of such a member which includes
proceedings by way of disciplinary action, without
affecting the powers of the President or the
Governor under
Article 310
of the Constitution
read with
Article 311.
Proposition No. 6 is that
the Parliament and the Legislatures also can make
a law laying down and regulating the scope and
content of the doctrine of `reasonable
opportunity' embodied in
Article 311
, but the said
law would be subject to judicial review.

All these propositions were reviewed by the
majority opinion of this Court in Moti Ram Deka's
case (supra) and this Court restated that
proposition No. 2 must be read along with the
subsequent propositions specified as propositions
No. 3,4,5 and 6. The ruling in Moti Ram Deka's
case (supra) is that a law can be framed
prescribing the procedure by which and the
authority by' whom the said pleasure can be
exercised. The pleasure of the President or the
Governor to dismiss can therefore not only be
delegated but is also subject to
Article 311.
The
true position as
laid down in

Moti Ram Deka
's case
(supra) is that
Articles 310
and
must no doubt
be read together but once the true scope and
effect of
Article 311
is determined the scope of

Article 310(1)
must be limited in the sense that
in regard to cases falling under
Article 311(2)

the pleasure mentioned in
Article 310(2)
must be
exercised in accordance with the requirements of

Article 311.

The majority view in Babu Ram Upadhya's case
(supra) is no longer good law after the decision
in
Moti Ram Deka
's case (supra). The theory that
only the President or the Governor is personally
to exercise pleasure of dismissing or removing a
public servant is repelled by express words on

Article 311
that no person who is a member of the
civil service or holds a civil post under the
Union or a State shall be dismissed or removed by
authority subordinate to that by which he was
appointed. The words 'dismissed or removed by an
authority subordinate to that by which he was
appointed' indicate that the pleasure of the
President or the Governor is exercised by such
officers on whom the President or the Governor
confers or delegates power."

(Emphasis supplied)
The Court then stated its conclusion as follows
(at page 836) :

"For the foregoing reasons we hold that the
President or the Governor acts on the aid and
advice of the Council of Ministers with the Prime
Minister as the head in the case of the Union and
the Chief Minister at the head in the case of
State in all matters which vest. in the executive
whether those functions are executive or
legislative in character. Neither the President
nor the Governor is to exercise the executive
functions personally."

The position, therefore, is that the pleasure of the
President or the Governor is not required to be exercised by
either of
them personally, and that is indeed obvious from the
language of
Article 311.
Under clause (1) of that Article a
government servant cannot be dismissed or removed by an
authority subordinate to that by which he was appointed. The
question of an authority equal or superior in rank to the
appointing authority cannot arise if the power to dismiss or
remove is to be exercised by the President or the Governor
personally. Clause (b) of the second proviso to
Article 311

equally makes this clear when the power to dispense with an
inquiry is conferred by it upon the authority empowered to
dismiss, remove or reduce in rank a government servant in a
case where such authority is satisfied that for some reason,
to be recorded by that authority in writing, it is not
reasonably practicable to hold such inquiry, because if it
was the personal satisfaction of the President or the
Governor, the question of the satisfaction of any authority
empowered to dismiss or remove or reduce in rank a
government servant would not arise. Thus, though under

Article 310(1)
the tenure of a government servant is at the
pleasure of the President or the Governor, the exercise of
such pleasure can be either by the President or the Governor
acting with the aid and on the advice of the Council of
Ministers or by the authority specified in Acts made under

Article 309
or in rules made under such Acts or made under
the proviso to
Article 309;
and in the case of clause (c) of
the second proviso to
Article 311(2)
, the inquiry to be
dispensed with not on the personal satisfaction of the
President or the Governor but on his satisfaction arrived at
with the aid and on the advice of the Council of Ministers.

The Second Proviso to
Article 311(2)

Clause (2) of
Article 311
gives a constitutional
mandate to the principles of natural justice and audi
alteram partem rule by providing that a person employed in a
civil capacity under the Union or a State shall not be
dismissed or removed from service or reduced in rank until
after an inquiry in which he has been informed of the
charges against him and has been given a reasonable
opportunity of being heard in respect of those charges. To
this extent, the pleasure doctrine enacted in
Article 310(1)

is abridged because
Article 311(2)
is a express provision of
the Constitution. This safeguard provided for a government
servant by clause (2) of
Article 311
is, however, taken away
when the second proviso to that clause becomes applicable.
The safeguard provided by clause(1) of
Article 311
, however,
remains intact and continues to be available to the
government servant. The second
proviso to
Article 311(2)
becomes applicable in the three
cases mentioned in clauses (a) to (c) of that proviso. These
cases are

(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; and

(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.

The Construction to be placed upon the second proviso
and the scope and effect of that proviso were much debated
at the Bar. In Hira Lal Rattan Lal etc. v. State of U.P. &
Anr., [1973] 2 S.C.R. 502 this Court observed (at page 512)
;

"In construing a statutory provision, the first
and the foremost rule of construction is the
literary construction. All that we have to see at
the very outset is what does that provision say?
If the provision is unambiguous and if from that
provision, the legislative intent is clear, we
need not call into aid the other rules of
construction of statutes. The other rules of
construction of statutes are called into aid only
when the legislature intention is not clear.
Ordinarily a proviso to a section is intended to
take out a part of the main section for special
treatment. It is not expected to enlarge the scope
of the main section. But cases have arisen in
which this Court has held that despite the fact
that a provision is called proviso, it is really a
separate provision and the so called proviso has
substantially altered the main section."

In
Commissioner of Income Tax, Madras v. Madurai Mills
Co. Ltd.
, [1973] 3 S.C.R. 662, this Court said (at page 669)
:
"A proviso cannot be construed as enlarging the
scope of an enactment when it can be fairly and
properly construed without attributing to it that
effect. Further, if the language of the enacting
part of the statute is plain and unambiguous and
does not contain the provisions which are said to
occur in it, one cannot derive those provisions by
implication from a proviso."

The language of the second proviso is plan and
unambiguous. The key-words in the second proviso are "this
clause shall not apply". By "this clause" is meant
clause(2). As clause(2) requires an inquiry to be held
against a government servant, the only meaning attributable
to these words is that this inquiry shall not be held. There
is no scope for any ambiguity in these words and there is no
reason to given them any meaning different from the plain
and ordinary meaning which they bear. The resultant effect
of these words is that when a situation envisaged in any of
the three clauses of the proviso arises and that clause
becomes applicable, the safeguard provided to a government
servant by clause (2) is taken away. As pointed out earlier,
this provision is as much in public interest and for public
good and a matter of public policy as the pleasure doctrine
and the safeguards with respect to security of tenure
contained in clauses (1) and (2) of
Article 311.

Before, however, any clause of the second proviso can
come into play the condition
laid down in
it must be
satisfied. The condition for the application of each of
these clauses is different. In the case of clause (a) a
government servant must be guilty of conduct deserving the
penalty of dismissal, removal or reduction in rank which
conduct has led to him being convicted on a criminal charge.
In the case of clause (b) the disciplinary authority must be
satisfied that it is not reasonably practicable to hold an
inquiry. In the case of clause (c) the President or the
Governor of a State, as the case may be, must be satisfied
that in the interest of the security of the State, it is not
expedient to hold an inquiry. When these conditions can be
said to be fulfilled will be discussed later while dealing
separately with each of the three clauses. The paramount
thing, however, to bear in mind is that the second proviso
will apply only where the conduct of a government servant is
such as he deserves the punishment of dismissal, removal or
reduction in rank. If the conduct is such as to deserve a
punishment different from those mentioned above, the second
proviso cannot come into play at all,
because
Article 311 (2)
is itself confined only to these
three penalties. Therefore, before denying a government
servant his constitutional right to an inquiry, the first
consideration would be whether the conduct of the concerned
government servant is such as justifies the penalty of
dismissal, removal or reduction in rank. Once that
conclusion is reached and the condition specified in the
relevant clause of the second proviso is satisfied, that
proviso becomes applicable and the government servant is not
entitled to an inquiry. The extent to which a government
servant can be denied his right to an inquiry formed the
subject-matter of considerable debate at the Bar and we,
therefore, now turn to the question whether under the second
proviso to
Article 311(2)
even though the inquiry is
dispensed with, some opportunity at least should not be
afforded to the government servant to that he is not left
wholly without protection. As most of the arguments on this
Part of the case were common to all the three clauses of the
second proviso, it will be convenient at this stage to deal
at one place with all the arguments on this part of the
case, leaving aside to be separately dealt with the other
arguments pertaining only to a particular clause of the
second proviso.

The Extent of Denial of Opportunity under the Second
Proviso
It was submitted on behalf of the government servants
that an inquiry consists of several stages and, therefore,
even where by the application of the second proviso the full
inquiry is dispensed with, there is nothing to prevent the
disciplinary authority from holding at least a minimal
inquiry because no prejudice can because by doing so. It was
further submitted that even though the three clauses of the
second proviso are different in their content, it was
feasible in the case of each of the three clauses to give to
the government servant an opportunity of showing cause
against the penalty proposed to be imposed so as to enable
him to convince the disciplinary authority that the nature
of the misconduct attributed to him did not call for his
dismissal, removal or reduction in rank. For instance, in a
case falling under clause (a) the government servant can
point out that the offence of which he was convicted was a
trivial or a technical one in respect of which the criminal
court had taken a lenient view and had sentenced him to pay
a nominal fine or had given him the benefit of probation.
Support for this submission was derived from Challappan's
case. It was further submitted that apart from the
opportunity to show cause against the proposed penalty it
was also feasible to give a further opportunity in the case
of each of the three clauses though such opportunity in each
case may not be identical. Thus, it was argued that the
charge-sheet or at least a notice informing the government
servant of the charges against him and calling for his
explanation thereto was always feasible. It was further
argued that though under clause (a) of the second proviso an
inquiry into the conduct which led to the conviction of the
government servant on a criminal charge would not be
necessary, such a notice would enable him to point out that
it was a case of mistaken identity and he was not the person
who had been convicted but was an altogether different
individual. It was urged that there could be no practical
difficulty in serving such charge-sheet to the concerned
government servant because even if he were sentenced to
imprisonment, the charge-sheet or notice with respect to the
proposed penalty can always be sent to the jail in which he
is serving his sentence. So far as clause (b) is concerned,
it was argued that even though it may not be reasonably
practicable to hold an inquiry, the explanation of the
government servant can at least be asked for with respect to
the charges made against him so that he would have an
opportunity of showing in his written reply that he was not
guilty of any of those charges. It was also argued that
assuming such government servant was absconding, the notice
could be sent by registered post to his last known address
or pasted there. Similar arguments as in case of clause (b)
were advanced with respect to clause (c). It was submitted
that the disciplinary authority could never make up its mind
whether to dismiss or remove or reduce in rank a government
servant unless such minimal opportunity at least was
afforded to the government servant. Support for these
contentions was sought to be derived from (1) the language
of
Article 311(2)
and the implications flowing therefrom,
(2) the principle of natural justice including the audi
alteram partem rule comprehended in
Article 14
, and
(3)
the
language certain rules made either under Acts referable to
the
Article 309
or made under the proviso to that Article.
We will consider the contentions with respect to each of
these basis separately.

So far as
Article 311(2)
was concerned, it was said
that the language of the second proviso did not negative
every single opportunity which could be afforded to a
government servant under different situations though the
nature of such opportunity may be different depending upon
the circumstances of the case. It was further submitted that
the object of the
Article 311(2)
was that no government
servant should be condemned unheard and dismissed or removed
or reduced in rank without affording him at least some
chance of either showing his innocence or convincing
the disciplinary authority that the proposed penalty was too
drastic and was uncalled for in his case and a lesser
penalty should, therefore, be imposed upon him. These
arguments, though attractive at the first blush, do not bear
scrutiny.

The language of the second proviso to
Article 311(2)

read in the light of the interpretation placed upon clause
(2) of
Article 311
as originally enacted and the legislative
history of that clause wholly rule out the giving of any
opportunity. While construing Rule 55 of the Civil Services
(Classification, Control and Appeal) Rules and the phrase "a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to him" occurring in sub-
section (3) of
section 240
of the Government of India Act,
1935, the Judicial Committee of the Privy Council in Lall's
case stated as follows (at page 242-3) :

"... sub-s. 3 of s. 240 was not intended to be,
and was not, a reproduction of rule 55, which was
left unaffected as an administrative rule. Rule 55
is concerned that the civil servant shall be
informed 'of the grounds on which it is proposed
to take action,' and to afford him an adequate
opportunity of defending himself against charges
which have to be reduced to writing; this is in
marked contrast to the statutory provision of 'a
reasonable opportunity of showing cause against
the action proposed to be taken in regard to him.'
In the opinion of their Lordships, no action is
proposed within the meaning of the sub-section
until a definite conclusion has been come to on
the charges, and the actual punishment to follow
is provisionally determined on. Before that stage,
the charges are unproved and the suggested
punishments are merely hypothetical. It is on that
stage being reached that the statute gives the
civil servants the opportunity for which sub-s.3
makes provision. Their Lord ships would only add
that they see no difficulty in the statutory
opportunity being reasonably afforded at more that
one stage. If the civil servant has been through
an inquiry under rule 55, it would not be
reasonable that he should ask for a repetition of
that stage, if duly carried out, but that would
not exhaust his statutory right, and he would
still be entitled to represent against the
punishment proposed as the result of the findings
of the inquiry. On this view of the proper
construction of sub-s.3 of
s.240
, it is
not disputed that the respondent has not been
given the opportunity to which he is entitled
thereunder, and the purported removal of the
respondent on August 10,1940, did not conform to
the mandatory requirements of sub-s.3 of s.240,
and was void and inoperative."

The very phrase "a reasonable opportunity of showing
cause against the action proposed to be taken in regard to
him" in sub-section(3) of
section 240
of the Government of
India Act, 1935, was repeated in clause (2) of
Article 311

as originally enacted, that is in the said clauses prior too
its amendment by the
Constitution (Fifteenth Amendment) Act,
. Approving the construction placed by the Judicial
Committee upon this phrase, this Court in
Khem Chand v. The
Union of India & Ors.
[1958] S.C.R. 1080, held as follows
(at page 1095-97) :

"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 reasonable
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
server 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. If this is the correct
meaning of the clause, as we think it is, what
consequences follow? If it is open to the
government servant under this provision to
contend, if that be the fact, that he is not
guilty of any misconduct then how can he take that
plea unless he is told what misconduct is alleged
against him? If the opportunity to show cause is
to be a reasonable one it is clear that he should
be informed about the charge or charges levelled
against him and the evidence by which it is sought
to be established, for it is only then that he
will be able
to put forward his defence. If the purpose of this
provision is to give the government servant an
opportunity to exonerate himself from the charge
and if this opportunity is to be a reasonable one
he should be allowed to show that the evidence
against him is not worthy of credence or
consideration and that he can only do if he is
given a chance to cross-examine the witnesses
called against him and to examine himself or any
other witness in support of his defence. All this
appears to us to be implicit in the language used
in the clause, but this does not exhaust his
rights. In addition to showing that he has not
been guilty of any misconduct so as to merit any
punishment, it is reasonable that he should also
have an opportunity to contend that the charges
proved against him do not necessarily require the
particular punishment proposed to be meted out to
him. He may say for instance, that although he has
been guilty of some misconduct it is not of such a
character as to merit the extreme punishments of
dismissal or even of removal or reduction in rank
and that any of the lesser punishments ought to be
sufficient in his case.

To summarise : the reasonable opportunity
envisages 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. In short the
substance of the protection provided by rules,
like
rule 55
referred to above
, was bodily lifted out
of the rules and together with an additional
opportunity embodied in
s.240(3)
of the Government
of India Act, 1935 so as to give a statutory
protection to the government servants and has now
been incorporated in
Article 311(2)
so as to
convert the protection into a constitutional
safeguard."

While the Judicial Committee in
Lall
's case held that
two opportunities were required - one under rule 55 of the
Civil Services (Classification, Control and Appeal) Rules to
show cause against the charges of misconduct made against a
government servant, and the other under sub-section (3) of

section 240
of the Government of India Act, 1935, to show
cause against the proposed penalty, this Court in
Khem
Chand
's case held that
Article 311(2)
bodily lifted the said
rule 55 and the additional opportunity provided for in

section 240(3)
of the 1935 Act and incorporated these
provisions in
Article 311(2)
so as to convert the protection
afforded to government servants into a constitutional
safeguard. This conclusion was reached by this Court even
though
Article 311(2)
used the same language as
section
240(3)
.
The Constitution (Fifteenth Amendment) Act, 1963
,
substituted the whole of clause (2). The substituted clause
specifically provided for two opportunities to be given to a
government servant :(1) to be informed of the charges
against him and to be given a reasonable opportunity of
defending himself against those charges, and (2) a
reasonable opportunity of making representation on the
penalty proposed where after such inquiry it was proposed to
impose on him the penalty of dismissal, removal or reduction
in rank. No additional rights were, however, conferred upon
government servants by the above amendment because it merely
declared the rights which a government servant already
possessed under the original clause (2) of
Article 311
as
interpreted by this Court in Khem Chand's case. This
amendment, therefore, was merely declaratory, but in a way
it was also clarificatory because it restricted the right of
representation on the proposed penalty to a representation
only on the basis of the evidence adduced during the
inquiry.

This clarification perhaps became necessary
because, as pointed out by this Court in
Suresh Koshy George
v. The University of Kerala & Ors.
[1969] 1 S.C.R. 317,

326., there prevailed an erroneous impression in certain
quarters, evidently influenced by the provisions of the
unamended
Article 311(2)
that every disciplinary proceeding
must consist of two inquiries, one before issuing a show
cause notice to be followed by another inquiry thereafter.
This amendment, therefore, made it expressly clear that the
inquiry to be held against
a government servant was to be one in which a charge-sheet
or a show-cause notice was to be issued to him informing him
of the charges against him and giving him a reasonable
opportunity of being heard in respect of those charges and a
further opportunity of making representation on the penalty
proposed to be imposed on him but only on the basis of the
evidence adduced during such inquiry. The substituted
clause, therefore, showed that the issue of a charge-sheet
or a show-cause notice in respect of the charges framed
against a government servant and a notice to show cause
against the proposed penalty were part of the inquiry
contemplated by
Article 311 (2).
Even assuming for the sake
of argument that because
Article 311(2)
, as substituted by
the
Constitution (Fifteenth Amendment) Act
, spoke of "a
reasonable opportunity of making representation on the
penalty proposed" in a case "where it is proposed, after
such inquiry, to impose on him any such penalty", the show
cause notice with respect to penalty was not a part of the
inquiry, the opening words of the proviso to clause (2) (now
the second proviso to that clause) namely, "Provided further
that this clause shall not apply", would, where any of the
three clauses of the said proviso applies, take away both
the right to have an inquiry held in which the government
servant would be entitled to a charge-sheet as also the
right to make a representation on the proposed penalty. As
mentioned above, the words "this clause shall not apply" are
the key-words in the second proviso and govern each and
every clause thereof and by reason of these words not only
the holding of an inquiry but all the provisions of clause
(2) have been dispensed with.

The question which then arises is, "
Whether the
Constitution (Forty-second Amendment) Act, 1976
, which
further amended the substituted clause (2) of
Article 311

with effect from 1st January 1977, has made any change in
the law?" The amendments made by this Act are that in clause
(2) that portion which required a reasonable opportunity of
making representation on the proposed penalty to be given to
a government servant was deleted and in its place the first
proviso was inserted, which expressly provides that it is
not necessary to give to a delinquent government servant any
opportunity of making representation on the proposed
penalty. Does this affect the operation of the original
proviso which, by the
Constitution (Forty-second Amendment)
Act
, became the second proviso? Such obviously was not and
could not have been the intention of Parliament. The opening
words of the second proviso remain the same except that the
word 'further' was inserted after the word 'Provided',
because the original proviso by reason of the insertion of
another proviso before it became
the second proviso. It should be borne in mind that the show
cause notice at the punishment stage was originally there as
a result of the interpretation placed by the Judicial
Committee in
Lal
's case and by this Court in Khem Chand's
case upon the phrase "a reasonable opportunity of showing
cause against the action proposed to be taken in regard to
him".

Clause (2) as substituted by the
Constitution
(Fifteenth Amendment) Act
merely reproduced the substance of
what was held in
Khem Chand
's case. The words which
originally found a place in clause (2), "a reasonable
opportunity of showing cause against the action proposed to
be taken in regard to him", do not any more feature in
clause (2). All that clause (2) now provides is an inquiry
in which the government servant is informed of the charges
against him and given a reasonable opportunity of being
heard in respect of those charges. Clause (2) taken by
itself even without the first proviso does not provide,
expressly impliedly, for any opportunity to make a
representation against the proposed penalty.
After the
Constitution (Fifteenth Amendment) Act
this second
opportunity formed a separate part of clause (2), which part
was deleted by the
Constitution (Forty-second Amendment)
Act
. Thus, when the second proviso states in its opening
words that "Provided further that this clause shall not
apply" it means that whatever safe-guards are to be found in
clause (2) are wholly taken away in a case where any of the
three clauses of the second proviso is attracted.

In this
connection, the following observations of this Court in the

Case of Suresh Koshy George v. The University of Kerala &
Ors.
(at page 326-7) are pertinent :

"There seems to be an erroneous impression in
certain quarters evidently influenced by the
provisions in
Article 311
of the Constitution
particularly as they stood before the amendment of
that article that every disciplinary proceeding
must consist of two inquiries, one before issuing
the show cause notice to be followed by another
inquiry thereafter. Such is not the requirement of
the principles of natural justice. Law may or may
not prescribe such a course."

In
Associated Cement Companies Ltd. v. T.C.Shrivastava &
Ors.
, [1984] 3 S.C.R. 361,369, this Court held that "neither
under the ordinary law of the land nor under industrial law
a second opportunity to show cause against the proposed
punishment is necessary". Since a right to such opportunity
does not exist in law, it follows that the only right which
the government servant had to make a representation on the
proposed penalty was to be found
in clause (2) of
Article 311
prior to its amendment by the

Constitution (Forty-second Amendment) Act
. This right having
been taken away by the
Constitution (Forty-second Amendment)
Act
, there is no provision of law under which a government
servant can claim this right.

As for the argument that in a case under clause (a) of
the second proviso a government servant could be wrongly
dismissed, removed or reduced in rank mistaking him for
another with the same name unless he is given an opportunity
of bringing to the notice of the disciplinary authority that
he is not the individual who has been convicted, it can only
be described as being too fanciful and far-fetched for
though such a case of mistaken identity may be
hypothetically possible, it is highly improbable. As in all
other organization, there is in government service an
extremely active grapevine, both departmental and inter-
departmental, which is constantly active, humming and
buzzing with service news and office gossip, and it would
indeed be strange if the news that a member of a department
was facing prosecution or had been convicted were to remain
a secret for long. Assuming such a case occurs, the
government servant is not without any remedy. He can prove
in a departmental appeal which service rules provide for,
save in exceptional cases, that he has been wrongly mistaken
for another. Similarly, it is not possible to accept the
argument that unless a written explanation with respect to
the charges is asked for from a government servant and his
side of the case known, the penalty which would be imposed
upon him, could be grossly out of proportion to his actual
misconduct. The disciplinary authorities are expected to act
justly and fairly after taking into account all the facts
and circumstances of the case and if they act arbitrarily
and impose a penalty which is unduly excessive, capricious
or vindictive, it can be set aside in a departmental appeal.
In any event, the remedy by way of judicial review is always
open to a government servant.

The position which emerges from the above discussion is
that the key-words of the second proviso govern each and
every clause of that proviso and leave no scope for any kind
of opportunity to be given to a government servant. The
phrase "this clause shall not apply" is mandatory and not
directory. It is in the nature of a Constitutional
prohibitory injunction restraining the disciplinary
authority from holding an inquiry under
Article 311(2)
or
from giving any kind of opportunity to the concerned
government servant. There is thus no scope for introducing
into
the second proviso some kind of inquiry or opportunity by a
process of inference or implication. The maxim "expressum
facit cessare tacitum" ("when there is express mention of
certain things, then anything not mentioned is excluded")
applies to the case. As pointed out by this Court in
B.
Shankara Rao Badam & Ors. v. State of Mysore & Anr.
, [1969]
3 S.C.R. 1, 12, this well-known maxim is a principle of
logic and common sense and not merely a technical rule of
construction. The second proviso expressly mentions that
clause (2) shall not apply where one of the clauses of that
proviso becomes applicable. This express mention excludes
everything that clause (2) contains and there can be no
scope for once again introducing the opportunities provided
by clause (2) or any one of them into the second proviso.
In
Atkinson v. United States of America Government, L.R. [1971]
A.C. 197, Lord Reid said (at page 232) :

"It is now well recognised that the court has
power to expand procedure laid down by statute if
that is necessary to prevent infringement of
natural justice and is not plainly contrary to the
intention of Parliament."

Here, however, the attempt is not merely to do something
contrary to the intention of "Parliament", that is, in our
case, the Constituent Assembly, but to do something contrary
to an express prohibition contained in the Constitution. The
conclusion which flows from the express language of the
second proviso is inevitable and there is no escape from it.
It may appear harsh but, as mentioned earlier, the second
proviso has been inserted in the Constitution as a matter of
public policy and in public interest and for public good
just as the pleasure doctrine and the safeguards for a
government servant provided in clause (1) and (2) of
Article
have been. It is in public interest and for public good
that government servant who has been convicted of a grave
and serious offence or one rendering him unfit to continue
in office should be summarily dismissed or removed from
service instead of being allowed to continue in it at public
expense and to public detriment. It is equally in public
interest and for public good that where his offence is such
that he should not be permitted to continue to hold the same
rank, that he should be reduced in rank. Equally, where a
public servant by himself or in concert with others has
brought about a situation in which it is not reasonably
practicable to hold an inquiry and his conduct is such as to
justify his dismissal, removal or reduction in rank, both
public interest and public good demand that such
penalty should forthwith and summarily be imposed upon him;
and similarly, where in the interest of the security of the
State it is not expedient to hold an inquiry, it is in the
public interest and for public good that where one of the
three punishments of dismissal, removal or reduction in rank
is called for, it should be summarily imposed upon the
concerned government servant. It was argued that in a case
falling under clause (b) or (c), a government servant ought
to be place under suspension until the situation improves or
the danger to the security of the State has passed, as the
case may be, and it becomes possible to hold an inquiry.
This argument overlooks the fact that suspension involves
the payment at least of subsistence allowance and such
allowance is paid at public expense, and that neither public
interest would be benefited nor public good served by
placing such government servant under suspension because it
may take a considerable time for the situation to improve or
the danger to be over. Much as this may seem harsh and
oppressive to a government servant, this Court must not
forget that the object underlying the second proviso is
public policy, public interest and public good and the Court
must, therefore, repel the temptation to be carried away by
feelings of commiseration and sympathy for those government
servants who have been dismissed, removed or reduced in rank
by applying the second proviso. Sympathy and commiseration
cannot be allowed to out weigh considerations of public
policy, concern for public interest, regard for public good
and the peremptory dictate of a Constitutional prohibition.
The Court must bear in mind that the second proviso has been
in the Constitution since it was originally enacted. It was
not blindly or slavishly copied from
section 240(3)
of the
Government of India Act, 1935.
Article 311
was article 282-B
of the draft Constitution of India and the draft Article
282-B was discussed and a considerable debate took place on
it in the Constituent Assembly (see the Official Report of
the Constituent Assembly Debates, vol.IX, page 1099 to
1116). The greater part of this debate centred upon the
proviso to clause (2) of the draft article 282-B, which is
now the second proviso to
Article 311.
Further, the Court
should also bear in mind that clause (c) of the second
proviso and clause (3) of
Article 311
did not feature in

section 240
of the Government of India Act, 1935, but were
new provisions consciously introduced by the Constituent
Assembly in
Article 311.
Those who formed the Constituent
Assembly were not the advocates of a despotic or dictatorial
form of government. They were the persons who enacted into
our Constitution the Chapter on Fundamental Rights. The
majority of them had fought for freedom and had suffered
imprisonment in the cause of liberty
and they, therefore, were not likely to introduce into our
Constitution any provision from the earlier Government of
India Acts which had been intended purely for the benefit of
a foreign imperialistic power. After all, it is not as if a
government applied to him. There are two remedies open to
him, servant is without any remedy when the second proviso
has been applied to him. There are two remedies open to him,
namely, departmental appeal and judicial review. The scope
and extent of these remedies will be considered later in the
course of this judgment.

Article 14
and the Second Proviso
The next question which false to be considered is,
"Does
Article 14
make any difference to the consequences
which flow from the second proviso to
Article 311(2)?"
It
was submitted on behalf of the government servants that

Article 14
in which the principle of natural justice are
comprehended permeates the entire Constitution and,
therefore,
Article 14
must be read into the second proviso
to
Article 311(2)
and according if not under that proviso
read by itself, under it read with
Article 14
a government
servant is entitled to an opportunity both of showing cause
against the charges made against him as also against the
penalty proposed to be imposed upon him, though such
opportunity may not extend to the holding of a complete and
elaborate inquiry as would be the case where clause (2) of

Article 311
applies. According to learned Counsel this is
what is required by the audi alteram partem rule which is
one of the two main principles of natural Justice. In the
alternative it was submitted that though an order may be
valid and supportable under the second proviso to
Article
311(2)
, it could none the less be void under
Article 14
on
the ground that the principles of natural justice have been
wholly disregarded. These arguments are based upon an
imperfect understanding of the principles of natural justice
in their application in courts of law to the adjudication of
causes before them and the function of
Article 14
vis-a-vis
the other provisions of the Constitution and particularly
the second proviso to
Article 311(2).

The principles of natural justice are not the creation
of
Article 14.

Article 14
is not their begetter but their
Constitutional guardian. Principles of natural justice trace
their ancestry to ancient civilizations and centuries long
past. Until about two centuries ago the term "natural
justice" was often used interchangeably with "natural law"

and at times it is still so used. The expression "natural
law" has been variously defined.
In Jowitt's Dictionary of English Law (Second Edition, page
1221) it is defined as "rules derived from God, reason or
nature, as distinct from man-made law." Black's Law
Dictionary (Fifth Edition, page 925) states :

"This expression, 'natural law', or jus natural,
was largely used in the philosophical speculations
of the Roman jurists of the Antonine age, and was
intended to denote a system of rules and
principles for the guidance of human conduct
which, independently of enacted law or of the
systems peculiar to any one people, might be
discovered by the rational intelligence of man,
and would be found to grow out of an conform to
his nature, meaning by that word his whole mental,
moral, and physical constitution. The point of
departure for this conception was the stoic
doctrine of a life ordered 'according to nature',
which in its turn rested upon the purely
supposititious existence, in primitive times, of a
'state of nature;' that is, a condition of society
in which men universally were governed solely by a
rational and consistent obedience to the needs,
impulses, and promptings of their true nature,
such nature being as yet underacted by dishonesty,
falsehood, or indulgence of the baser passions. In
ethics it consists in practical universal
judgments which man himself elicits. These express
necessary and obligatory rules of human conduct
which have been established by the author or human
nature as essential to the divine purposes in the
universe and have been promulgated by God solely
through human reason".

There are certain basic values which man has cherished
throughout the ages. But man looked about him and found the
ways of men to be cruel and unjust and so also their laws
and customs. He saw men flogged, tortured, mutilated, made
slaves, and sentenced to row the galleys or toil in the
darkness of the mines or to fight in an arena with wild an
hungry beasts of the Jungle or to die in other ways a cruel,
horrible and lingering death. He found judges to be venal
and servile to those in power and the laws they administered
to be capricious, changing with the whims of the ruler to
suit his purpose. When, therefore, he found a system of law
which did not so change, he praised it. Thus, the old
Testament in the Book of Esther (I,19) speaks
admiringly of legal system of the Achaemenid dynasty (the
First Persian Empire) in which "a royal commandment" was
"written among the laws of the Persians and the Medes, that
it be not altered." Man saw cities and towns sacked and
pillaged, their populace dragged into captivity and
condemned to slavery - the men to labour, the women and the
girls to concubinage, and the young boys to be castrated
into eunuches - their only crime being that their ruler had
the misfortune to be defeated in battle and to lose one of
his cities or towns to the enemy. Thus, there was neither
hope nor help in man-made laws or man-established customs
for they were one-sided and oppressive, intended to benefit
armed might and monied power and to subjugate the down-
trodden poor and the helpless needy. If there was any help
to be found or any hope to be discovered, it was only in a
law based on justice and reason which transcended the laws
and customs of men, a law made by some one greater and
mightier than those men who made these laws and established
these customs. Such a person could only be a divine being
and such a law could only be "natural law" or "the law of
nature" meaning thereby "certain rules of conduct supposed
to be so just that they are binding upon all mankind." It
was not "the law of nature "in the sense of "the law of the
jungle" where the lion devours the lamb and the tiger feeds
upon the antelope because the lion is hungry and the tiger
famished but a higher law of nature or "the natural law"

where the lion and the lamb lie down together and the tiger
frisks with the antelope.

Most, if not all, jurists are agreed that "reason" and
"the nature of man" constitute the fountain-head of natural
law but there is a considerable divergence of opinion
amongst them as also amongst philosophers about the nature
and meaning of that law and its relation to positive law.
Among the ancients Greeks the Sophists, Artistotle in his
treatises on "Logic" and Ethics", and the Stoics developed
different theories. The theory propounded by Aristotle in
his "Logic" adhered substantially to the point of view of
the Sophists, namely, that man is a natural creature but is
also endowed with reason. Later, in his "Ethics", Aristotle
came to distinguish between natural and legal or
conventional justice and postulated that natural law had
authority everywhere and was discoverable by the use of
reason. The ancient Romans were not given to philosophical
speculations or creative orignality in Art. They preferred
to borrow these from the Greeks. The Romans were a hard-
headed, practical race of conquerors, administrators and
legislators. Roman jurists, therefore, used the concept of
natural law, that is jus naturale (or ius naturale as the
Romans wrote it because Roman alphabet had no
letter "J" or "J" in it) to introduce into the body of law
those parts of laws and customs of foreigners, that is, non-
Roman people with whom they came in commercial contract or
whom they subjugated. The Rules which the Romans borrowed
from these laws and customs were those which were capable of
general application and they developed then into general
legal principles, which came to form jus gentium or the law
of nations. In doing so they acted upon the principle that
any rule of law which was common to the nations (gentes)
they knew of must be basically in consonance with reason
and, therefore, fundamentally just. They applied jus gentium
to those to whom ius civile (civil law) did not apply, that
is, in cases between foreigners or between a Roman citizen
and a foreigner. On this basic formulation that what was
common to all known nations must be in consonance with
reason and justice, the Roman jurists and magistrates
proceeded to the theory that any rule which instinctively
commanded itself to the sense of justice and reason would be
part of the jus gentium. The jus gentium of the Romans was
different from what we call international law and should not
be confused with it, for the scope of the jus gentium was
much wider than our international law. Because of the theory
of its identity with justice and reason, the term "jus
gentium" came at times to be used for aequitas, that is,
equity as understood by the Romans, which was the basis of
praetorian law or the power of the praetors to grant
remedies where non existed under the jus civile. In the Dark
Ages the expression "natural law" acquired a theological
base and the Fathers of the Church, particularly St.
Ambrose, St. Augustine and St. Gregory, held the belief that
it was the function of the Church to bring about the best
possible approximation of human laws to Christian
principles. As Europe emerged from the Dark Ages in about
the ninth century, Christianity became substituted for
reason as the supreme force in the universe, and this led to
the development of a theory of law in which Christianity had
the supreme spiritual and legal force and was superior to
all other laws, with the Church as the authentic expositor
of the law of nature. Gratian (Francisco Graziano) in the
twelfth century in his "Decretum" or "Concordies
discordantium canonum" consider the law of nature as part of
the law of God. According to St. Thomas Aquinas (1226-74),
natural law was derived from the law of God which was
supreme and such of it as was intelligible to men was
revealed through Church law as the incorporation of divine
wisdom. Thus, according to this Theory, natural law was that
part of divine law which revealed itself in natural reason,
and man as a reasonable being applied this part of divine
law to human affairs. This theory, though it upheld
the supreme authority of the Church, made some concession to
the authority of the Emperor, that is, the Holy Roman
Emperor. Dante in his "De Monarchia" championed the
supremacy of the Holy Roman Empire as against the Church on
the ground that the Emperor was the legitimate successor of
the Roman people and was chosen by God to rule the world.
The authority of the law of nature or natural law was
repeatedly sought support from during the centuries which
saw the struggle for supremacy between the Popes and the
General Councils of the Church and between the Popes and the
Emperors and later in the struggle between the Catholics and
the Protestants. Both sides in these conflicts found in
natural law the interpretation of scriptural texts which
supported their respective views and were, therefore,
according to them, the true interpretation. Braction, in the
thirteenth century, however, considered natural law as that
which nature, that is, God, teaches to all animals, and
though he tried to reconcile natural law with human law, he
acknowledged the difficulty of doing so because he found
rules of positive law which could hardly be so reconciled.

Natural law was also seized upon as furnishing
arguments in the struggle between the judges and Parliament
for supremacy which took place in the seventeenth century.
Coke in Dr, Bonham's case [1610] 8 Co. Rep. 113b, 118, said
by way of obiter, "when an Act of Parliament is against
common right or reason, or repugnant, or impossible to be
performed, the common law will control it, and adjudge such
Act to be void." There were later assertions to the same
effect until the supremacy of Parliament and the legislation
enacted by it became firmly established in 1688. However, in
British Railways Board v. Pickin sub nomine Pickin v.
British Railways Board, L.R. [1974] A.C. 765, the argument
was once again advanced before the House of Lords that a
court was entitled to disregard a provision in an Act of
Parliament and a distinction was sought be drawn for this
purpose between a public Act and a private Act. Referring to
the arguments to this point, Lord Reid observed (at page

782) :

"In earlier times many learned lawyers seem to
have believed that an Act of Parliament could be
disregarded in so far as it was contrary to the
law of God or the law of nature of natural
justice, but since the supremacy of Parliament was
finally demonstrated by the Revolution of 1688 any
such idea has become obsolete."
Rejecting the above argument, the House of Lords unanimously
held that the function of the court was to consider and
apply the enactments of Parliament, and accordingly, in the
course of litigation, it was not lawful to impugn the
validity of a statute by seeking to establish that
Parliament, in passing it, was misled by fraud or otherwise,
nor might a litigant seek to establish a claim in equity by
showing that the other party, by fraudulently misleading
Parliament, had inflicted damage on him; for any
investigation into the manner in which Parliament had
exercised its function would or might result in an
adjudication by the courts, bringing about a conflict with
Parliament.

As a result of the infusion of new ideas during the
Renaissance and the Reformation, the intellectual authority
of reason again came to be substituted for the spiritual
authority of divine law as the basis of natural law. This
new or rather resuscitated basis of natural law was laid by
Grotius (Huigh de Groot) in his "De jure belli ac Pacis" -
the precursor or of modern public international law.

Reason as the theoretical basis for natural law,
however, once again suffered a reversal at the hand of David
Hume. According to Hume, only knowledge obtained by
mathematical reasoning was certain; knowledge obtained from
other sciences being only probable. His theory of justice
was that it served both an ethical and a sociological
function. He contended that public utility was the sole
origin of legal justice and the sole foundation of its
merit, and that for a legal system to be useful, it must
adhere to its rules even though it may cause injustice in
particular cases. He did not make a formal analysis of law
but distinguished equity or the general system of morality,
the legal order, and law, as a body of precepts. According
to him, the authority of civil law modified the rules of
natural justice according to the particular convenience of
each community.

Blackstone, however, in his "Commentaries on the Laws
of England" had this to say about natural law :

"This law of nature, being coeval with mankind,
and dictated by God himself, is of course superior
in obligation to any other. It is binding over all
the glove in all countries, and at all times; no
human laws are of any validity, if contrary to
this; and such of them as are valid derive all
their force and all their authority, mediately or
immediately, from this original."
In the nineteenth and twentieth centuries there was a
reaction against natural law as the basis of law. The French
Revolution had enthroned reason as a goddess. The excesses
of the French Revolution, however, led to a reaction against
the theory that reason was the basis of law. The utilitarian
view was that the basis for law was the practical inquiry as
to what would most conduce to the general benefit. The
spirit of scientific inquiry which pre-dominated the
nineteenth and twentieth centuries could not favour
hypotheses which were vague and unprovable. In the twentieth
century, disillusionment with the theory that good could
come out of the power of the State and positive law has,
however, once again brought about a revival of interest in
natural law.

Apart from providing the subject-matter for
philosophical dissertations and speculative theories on the
origin and attributes of natural law, the concept of natural
law has made invaluable contribution to the development of
positive law. It helped to transform the rigidity of the jus
civile of the Romans into a more equitable system based on
the theory of the jus gentium. It provided arguments to both
sides in the struggle during the Middle Ages between the
Popes and the Emperors. It inspired in the eighteenth
century the movement for codification of law in order to
formulate ideas derives from the concept of natural law into
detailed rules. England, the idea of natural law and natural
justices has influenced its law in several respects. The
origin and development of equity in England owed much to
natural law. It also served as the basis for the recognition
or rejection of a custom. It was looked to for support in
the struggle for supremacy which took place between the
judges and Parliament in the seventeenth century. The
concept of natural law and natural rights influenced the
drafting of the Constitution of the United States of America
and many of the amendments made thereto as also the
Constitutions of its various States. It has provide a basis
for much of modern international law and International
Conventions, Covenants and Declarations. Above all, it has
enriched positive law by introducing into it the principles
of natural justice, divested of all their philosophical,
metaphysical and theological trappings and disassociated
from their identification with, or supposed derivation from,
natural law.

Natural justice has been variously defined by different
judges. A few instances will suffice. In Drew v. Drew and
Leburn [1855] 2 Macq. 1,8, Lord Craworth defined it as
"universal justice". In James Dunbar Smith v. Her Majesty
The Queen
[1877-78] 3 App. Cas. 614,623 J.C., Sir Robert P.Collier,
speaking for the Judicial Committee of the Privy Council,
used the phrase "the requirements of substantial Justice",
while in Arthur John Spacmkman v. The Plumstead District
Board of Works L.R. [1884-85] 10 App. Case. 229,240, Earl of
Selborne, L.C., preferred the phrase "the substantial
requirements of justice". In Vionet and another v. Barrett
and another [1885] 55 L.J. Q.B. 39,41, Lord Esher, M.R.,
defined natural justice as "the natural sense of what is
right and wrong". While, however, deciding Hopkins and
another v. Smethwick Local Board of Health L.R.[1890] 24
Q.B.D. 712,716, Lord Esher, M.R., instead of using the
definition given earlier by him in Vionet and another v.
Barret and another chose to define natural justice as
"fundamental justice". In Ridge v. Baldwin and others L.R.
[1963] 1.
Q.B. 539,578, Harman, L.J., in the Court of Appeal
equated natural justice with "fair play of action", a phrase
favoured by Bhagwati, J., in
Maneka Gandhi v. Union of India

[1978] 2 S.C.R. 621,676. In re.H.K. (An Infant) L.R. [1967]
2 Q.B. 617,630, lord Parker, C.J., preferred to describe
natural justice as a duty to act fairly".
In Fair-mount
Investment Ltd. v. Secretary of State for the Environment
[1976] 1 W.L.R. 1255,1265-66, Lord Russell of Killowen
somewhat picturesquely described natural justice as "a fair
crack of the whip". While Geoffrey Lane L.J., in Regina v.
Secretary of State for Home Affairs, Ex parte Hosenball
[1977] 1 W.L.R. 766,784, preferred the homely phrase "common
fairness".

As some judges, for instance, Ormond, L.J., in
Lewis v.
Heffer and others
[1978] 1 W.L.R. 1061,1076, have found the
phrase "natural justice" to be a highly attractive and
potent phrase".
it may not be out of place, in order to set
the balance right, to reproduce a passage, full of robust
common sense and biting Irony, from the judgment of Maugham,
J.., in Maclean v. The Workers Union L.R. [1929] 1 Ch.
602,624. That passage is as follows :

"Eminent judges have at times used the phrase 'the
principles of natural justice'. The phrase is, of
course, used only in a popular sense and must not
be taken to mean that there is any justice natural
among men. Among most savages there is no such
thing as justice in the modern sense. In ancient
days, a person wronged executed his own justice.
Amongst our own ancestors, down to the thirteenth
century, manifest felony, such as that of a
manslayer taken with his weapon, or a thief with
the stolen goods, might be
punished by summary execution without any form of
trial. Again every student has heard or
computation and of or deal; and it is hardly
necessary to observe that (for example) a system
of or deal by water in which sinking was the sign
of innocence and floating the sign of guilt, a
system which lasted in this country for hundreds
of years, has little to do with modern ideas of
justice. It is unnecessary to give further
illustrations. The truth is that justice is a very
elaborate conception, the growth of many centuries
of civilization; and even now the conception
differs widely in countries usually described as
civilized."

In the Supreme Court of Ireland, Black. J., in William
Green v. Isidore J. Blake and others [1948] I.R. 242, after
referring to the above passage from the judgment of Maugham,
J., proceeded to state (at page 268) :

"I agree, but what then does it mean? We may, if
we choose, describe as 'natural' every
evolutionary advance in our conception of justice.
But for me, natural justice means no more that
justice without any epithet. I take the essentials
of justice to mean those desiderata which, in the
existing stage of our mental and moral
development, we regard as essential, in contra-
distinction from the many extra precautions,
helpful to justice, but not indispensable to it,
which, by their rules of evidence and procedure,
our Courts have made obligatory in actual trials
before themselves. Many advanced peoples have
legal systems which do not insist on all these
extra precaution, yet we would hardly say that
they disregard the essentials of justice."

Megarry, J., also found it necessary to sound a note of
warning in Hounslow London Borough Council v. Twickenham
garden Developments Ltd. L.R. [1971] Ch. 233, wherein he
said (at page 259) :

"The principles of natural justice are of wide
application and great importance, but they must be
confined within proper limits and not allowed to
run wild."

(Emphasis supplied)
Some judges have been faced with the contention as
Maugham, L.J., was in Errington and others v. Minister of
Health L.R. [1935] 1 K.B. 249,280, that "the principles of
natural justice are vague and difficult to ascertain".
Referred to such contentions Lord Reid said in Ridge v.
Baldwin and others L.R. [1964] A.C. 40, on appeal from L.R.
[1963] 1 Q.B. 539, (at page 64-65):

"In modern times opinions have sometimes been
expressed to the effect that natural justice is so
vague as to be practically meaningless. But I
would regard these as tainted by the perennial
fallacy that because something cannot be cut and
dried or nicely weighed or measured therefore it
does not exist. The idea of negligence is equally
insusceptible of exact definition, but what a
reasonable man would regard as fair procedure in
particular circumstances and what he would regard
as negligence in particular circumstances are
equally capable of serving as tests in law, and
natural justice as it has been interpreted in the
courts in much more definite than that. It appears
to me that one reason why the authorities on
natural justice have been found difficult to
reconcile is that insufficient attention has been
paid to the great difference between various kinds
of cases in which it has been sought to apply the
principle."

(Emphasis supplied)
How then have the principles of natural justice been
interpreted in the courts and within what limits are they to
be confined? Over the years by a process of judicial
interpretation two rules have been evolved as representing
the principles of natural justice in judicial process,
including therein quasi-judicial and administrative
processes. They constitute the basic elements of a fair
hearing, having their roots in the innate sense of man for
fair play and justice which is not the preserve of any
particular race or country but is shared in common by all
men. The first rule is "nemo judex in causa sua" or "nemo
debet esse judex in propria causa" as stated in 12 Co. Rep.
114, that is, no man shall be a judge in his own cause".
Coke used the form "aliouis non debt esse judex in propria
causa quia non potest esse judex et pars" (Co. Litt. 141a),
that is, "no man ought to be a judge in his own cause,
because he cannot act as a judge and at the same time be a
party". The form "nemo potest esse simul actor et judex",
that is, "no one can be at once suitor and judge" is also at
times used. The second rule - and
that is the rule with which are concerned in these Appeals
and Writ Petitions - is "audi alteram partem". that is,
"hear the other side". At times and particularly in
continental countries the form "audietur et altera pars" is
used, meaning very much the same thing. A corollary has been
deduced from the above two rules and particularly the audi
alteram partem rule, namely, "qui alliquid statuerit parte
inaudita altera, aequum licet dixerit, haud aequum fecerit".
that is, "he who shall decide anything without the other
side having been heard, although he may have said what is
right, will not have done what is right" (see Boswell's
case) [1606] 6 Co. Rep. 48b,52a, or, in other words, as it
is now expressed, "justice should not only be done but
should manifestly be seen to be done."

The above two rules and their corollary are neither new
nor were they the discovery of English judges. They were
recognized in may civilizations and over many centuries.
Roman law recognized the need for a judge to be impartial
and not to have a personal interest in the case before him
(Digest V.1.17) and Tacitus in his "Dialogus" referred to
this principle. Under Roman law a judge who heard a cause in
which he had an interest was liable as on a quasi-delict to
the party prejudiced thereby (Justinian's Institutes IV, 5
pr.;as also Justinian's Codex III, 5, 1). Even the Kiganda
tribesmen of Buganda have an old proverb which literally
translated means "a monkey does not decide an affair of the
forest (see "law and Justice in Buganda" by E.S. Haydo,
p.333). The requirement of hearing both sides before
arriving at a decision was part of the judicial oath in
Athens. It also formed the subject-matter of a proverb which
was often referred to or quoted by Greek playwrights, as for
instance, by Aritophanes in his comedy "The Wasps" and
Euripides in his tragedies "Heracleidae" and "Andromache",
and by Greek orators, for instance, Demosthenes in his
speech "De Corona". Among the Romans, Seneca in his tragedy
"Medea" referred to the injustice of coming to a decision
without a full hearing. In fact, the corollary drawn in
Boswell's case is taken from a line in Seneca's "Medea". In
the Gospel according to St. John(vii,51), Nicodemus asked
the chief priests and the Pharisees, "Doth our law judge any
man, before it hear him, and know what he doeth?" Even the
proverb and songs of African tribesmen, for instance, of the
Lozi tribe in Barotseland refer to this rule (see "The
Judicia Process Among the Barotse Northern Rhodesia" by Max
Gluckman, p.102.)
The two rules "nemo judex in causa sua" and "audi
alteram
partem" and their corollary that justice should not only be
done but should manifestly be seen to be done have been
recognized from early days in English courts. References to
them are to be found in the Year Books - a title preferred
to the alternative one of "Books of Years and Terms"- which
were a regular series, with a few gaps, of law reports in
Anglo-norman or Norman-French or a mixture of English,
Norman-French and French, which had then become the court
language, from the 1270s to 1535 or, as printed after the
invention of the printing press, from 1290 to 1535, that is,
from the time of Edward II to Henry VIII. The above
principles of natural justice came to be firmly established
over the course of centuries and have become a part of the
law of the land. Both in England and in India they apply to
civil as well as to criminal cases and to the exercise of
judicial, quasi-judicial and administrative powers. The
expression "natural justice" is now so well understood in
England that it has been used without any definition in
statutes of Parliament, for example, in section 3(10) of the
Foreign Compensation Act, 1969, and section 6(13) of the
Trade Union and Labour Reforms Act, 1974, which was later
repealed by the Trade Union and Labour Relations (Amendment)
Act, 1976. These rules of natural justice have been
recognized and given effect to in many countries and
different systems of law. They have now received
international recognition by being enshrined in
Article 10

of the Universal Declaration of Human Rights adopted and
proclaimed by the General Assembly of the United Nations by
Resolution 217A (III) of December 10,1948.
Article 6
of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms which came into force on September 3,
1953, and
Article 14
of the International Covenant on Civil
and Political Rights adopted by the General Assembly
Resolution 2200A (XXI) of December 16, 1966, which came into
force on March 23, 1976.

Article 14
does not set out in express terms either of
the above two well-established rules of natural justice. The
question which then arises is "Whether the rules of natural
justice form part of
Article 14
and, if so, how?"

Article 14
of the Constitution provides as
follows:

"14. Equality before law. - The State shall not
deny to any person equality before the law or the
equal protection of the laws within the territory
of India."
Article 14
thus contains an express Constitutional
injunction against the State as defined in
Article 12

prohibiting the State from denying to any person(1) equality
before the law, or (2) the equal protection of the laws.
Neither of these two concepts are new. They are based upon
similar provisions in other Constitutions. One instance is

section 40(1)
of the Constitution of Eire of 1937, which
occurs in the Chapter entitled Fundamental Rights in that
Constitution. The Constitution of Eire begins on a strong
religious note. It starts by stating :

"In the name of the Most Holy Trinity, from Whom
is all authority and to Whom, as our final end,
all actions both of men and States must be
referred.

We, the people of Eire,
Humbly acknowledging all our obligations to our
Divine Lord, Jesus Christ, Who sustained our
fathers through centuries of tiral, ...... ".

Section 40(1) of that Constitution provides as follows
:

"All Citizens shall, as human persons, be held
equal before the law.

This shall not be held to mean that the State
shall not in its enactments have due regard to
differences of capacity, physical and moral, and
of social functions."

Another instance is
Article 3(1)
of the Constitution of the
Federal Republic of Germany of 1948 which states:

"All persons shall be equal before the law." Yet
another instance is
section 1
of the Fourteenth Amendment to
the Constitution of the United States of America which
reads:

"All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States,
nor shall any State deprive any person of life,
liberty, or property, without due process of law,
nor deny to any person within its jurisdiction the
equal protection of the laws."
Constitution of some other countries also have similar
provisions but as these Constitutions have suffered
political vicissitudes, it is unnecessary to refer to them.
Provisions similar to
Article 14
are to be found in
International Charters and Conventions. Thus,
Article 7
of
the Universal Declaration Human Rights of 1948, provides as
follows:

"All are equal before the law and are entitled
without any discrimination to equal protection of
the law ....."

Article 14
is divided into two parts. In Re The
Special Courts Bill, 1978 [1979] 2 S.C.R. 476, Chandrachud,
C.J., describe the two parts of
Article 14
as follows (at
page 534):

"The first part of
article 14
, which was adopted
from the Irish Constitution, is a declaration of
equality of the civil rights of all persons within
the territories of India. It enshrines a basic
principle of republicanism. The second part, which
is a corollary of the first and is based on the
last clause of the first section of the Fourteenth
Amendment of the American Constitution enjoins
that equal protection shall be secured to all such
persons in the enjoyment of their rights and
liberties without discrimination of favoritism. It
is a pledge of the protection of equal laws, that
is, laws that operate alike on all persons under
like circumstances."

Article 14
contains a guarantee of equality before the
law to all persons and a protection to them against
discrimination by any law. Sub-clause (a) of clause (3) of

Article 13
defines law as follows:

"'law' includes any Ordinance, order, bye-law,
rule, regulation, notification, custom or usage
having in the territory of India the force of
law".

What
Article 14
forbids is discrimination by law, that is,
treating persons similarly circumstanced differently or
treating those not similarly circumstanced in the same way
or, as has been pithily put, treating equals as unequals and
unequals as equals.
Article 14
prohibits hostile
classification by law and is directed against discriminatory
class legislation. The propositions deducible from decisions
of this court on this point have
been set out in the form of thirteen propositions in the
judgment of Chandrachud, C.J., in In Re The Special Courts
Bill, 1978. The first of these propositions which describes
the nature of the two parts of
Article 14
has been extracted
earlier. We are not concerned in these Appeals and Writ
Petitions with the other propositions set out in that
judgment. In early days, this Court was concerned with
discriminatory and hostile class legislation and it was to
this aspect of
Article 14
that its attention was directed.
As fresh thinking began to take place on the scope an anoint
of
Article 14
, new dimensions to this guarantee of equality
before the law and of the equal protection of the laws
emerged and were recognized by this Court. It was realized
that to treat one person differently from another when there
was no rational basis for doing so would be arbitrary act
thus discriminatory. Arbitrariness can take many forms and
shapes but whatever form or shape it takes, it is none the
less discrimination. It also became apparent that to treat a
persons or a class of persons unfairly would be an arbitrary
act amounting to discrimination forbidden by
Article 14.

Similarly, this Court, recognized that to treat a person in
violation of the principles of natural justice would amount
to arbitrary and discriminatory treatment and would violate
the guarantee given by
Article 14.

In
State of Andhra Pradesh and another v. Nalla Raja
Reddy and others
[1967] 3 S.C.R. 28, Subba Rao, C.J.,
speaking for the Court, said (at page 46):

"Official arbitrariness is more subversive of the
doctrine of equality than statutory
discrimination. In respect of a statutory
discrimination one knows where he stands, but the
wand of official arbitrariness can be waved in all
directions indiscriminately."

While considering
Article 14
and
Article 16
, Bhagwati,
J., in
E.P. Royappa v. State of Tamil Nadu and another

[1974] 2 S.C.R. 348, in a passage which has become a classic
said (at page 386):

"
Article 14
is the genus while
Article 16
is a
species,
Article 16
gives effect to the doctrine
of equality in all matters relating to public
employment. The basic principle which, therefore,
informs both
Articles 14
and
is equality and
inhibition against discrimination. Now, what is
the content and reach of this great equalizing
principle? It is a founding
faith, to use the words of Bose, J., 'a way of
life', and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot
countenance any attempt to truncate its all-
embracing scope and meaning, for to do so would be
to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions
and it cannot be 'cribbed, cabined and confined'
within traditional and doctrinaire limits. From a
positivistic point of view, equality is qutithetic
to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to
the rule of law in a republic while the other, to
the whim and caprice of an absolute monarch. Where
an act is arbitrary it is implicit in it that it
is unequal both according to political logic and
constitutional law and is therefore violative of

Article 14
, and if it effects any matter relating
to public employment, it is also violative of

Article 16.

Article 14
and
strike at
arbitrariness in State action and ensure fairness
and equality of treatment. They require that State
action must be based on valent relevant principles
applicable alike to all similarly situate and it
must not be guided by any extraneous or Irrelevant
coordinations because that would be denial of
equality.
Where the operative reason for State
action, as distinguished from motive inducing from
the antechamber of the mind, is not legitimate and
relevant but is extraneous and outside the area of
permissible considerations, it would amount of
mala fide exercise of power and that is hit by

Articles 14
and
16.
Mala fide exercise of power
and arbitrariness are different lethal radiations
emanating from the same vice : in fact the latter
comprehends the former. Both are inhibited by

Articles 14
and
16."
(Emphasis supplied)
Bhagwati, J., reaffirmed in
Maneka Gandhi
's case what
he had said in
Royappa
's case in these words (at page 673-

74):

"Now, the question immediately arises as to what
is the requirement of
Article 14 :
what is the
content and reach of the great equalising
principle enunciated in this article? There can be
no doubt that it is a founding faith of the
Constitution. It is indeed the pillar on which
rests securely the foundation of our
democratic republic. And, therefore, it must not
be subjected to a narrow, pedantic or
lexicographic approach. No attempt should be made
to truncate its all-embracing scope and meaning
for, to do so would be to violate its activist
magnitude. Equality is a dynamic concept with many
aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits. We must
reiterate here what was pointed out by the
majority in
E.P.Royappa v. State of Tamil Nadu &
Another
namely, that 'from a positivistic point of
view, equality is antithetic to arbitrariness. In
fact equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic,
while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according
to political logic and constitutional law and is
there fore violative of Article.'
Article 14

strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The
principle of reasonableness, which legally as well
as philosophically, is a essential element of
equality or non-arbitrariness pervades
Article 14

like a brooding omnipresence.......". (Emphasis
supplied)
In the course of his judgment in the same case Bhagwati, J.,
further said (at pages 676-7):

"Now, if this be the test of applicability of the
doctrine of natural justice, there can be no
distinction between a quasi-judicial function and
an administrative function for this purpose. The
aim of both administrative inquiry as well as
quasi-judicial inquiry is to arrive at a just
decision and if a rule of natural justice is
calculated to secure justice, or to put it
negatively, to prevent miscarriage of justice, it
is difficult to see why it should be applicable to
quasi-judicial inquiry and not to administrative
inquiry. It must logically apply to both. On what
principle can distinction be made between one and
the other? Can it be said that the requirement of
'fair play in action' in any the less in an
administrative inquiry than in a quasi-judicial
one? Sometimes an unjust decision in
administrative inquiry may have far more serious
consequences than
a decision in a quasi-judicial inquiry and hence
the rules of natural justice must apply equally in
an administrative inquiry which entails civil
consequences." (Emphasis supplied)
In Ajay Hasia etc. v. Khalid Mujib Sehravardi and
others etc. [1981] 2 S.C.R. 79, the same learned Judge,
speaking for the Court, said (at pages 100-101):
"The true scope and ambit of
Article 14
has been
the subject matter of numerous decisions and it is
not necessary to make any detailed reference to
them. It is sufficient to state that the content
and reach of
Article 14
must not be confused with
the doctrine of classification. Unfortunately, in
the early stages of the evolution of our
constitutional law,
Article 14
came to be
identified with the doctrine of classification
because the view taken was that Article forbids
discrimination and there would be no
discrimination where the classification making the
differentia fulfils two conditions, namely, (i)
that the classification is founded on an
intelligible differentia which distinguishes
persons or things that are grouped together from
others left out of the group, and (ii) that
differentia has a rational relation to the object
sought to be achieved by the impugned legislative
or executive action."

The principles of natural justice have thus come to be
recognized as being a part of the guarantee contained in

Article 14
because of the new and dynamic interpretation
given by this Court to the concept of equality which is the
subject-matter of that Article. Shortly put, the syllogism
runs thus violation of a rule of natural justice results in
arbitrariness which is the same as discrimination; where
discrimination is the result of state action, it is a
violation of
Article 14:
therefore, a violation of a
principle of natural justice by a State action is a
violation of
Article 14.

Article 14
, however, is not the
sole repository of the principles of natural justice. What
it does is to guarantee that any law or State action
violating them will be struck down. The principles of
natural justice, however, apply not only to legislation and
State action but also where any tribunal, authority or body
men, not coming within the definition
of "State" in
Article 12
, is charged with the duty of
deciding a matter. In such a case, the principles of natural
justice require that it must decide such matter fairly and
impartially.

The rule of natural justice with which we are concerned
in these Appeals and Writ Petitions, namely, the audi
alteram partem rule, in its fullest amplitude means that a
person against whom an order to his prejudice may be passed
should be informed of the allegations and charges against
him, be given an opportunity of submitting his explanation
thereto, have the right to know the evidence, both oral or
documentary, by which the matter is proposed to be decided
against him, and to inspect the documents which are relied
upon for the purpose of being used against him, to have the
witnesses who are to give evidence against him examined in
his presence and have the right to cross-examine them, and
to lead his own evidence, both oral and documentary, in his
defence. The process of a fair hearing need not, however,
conform to the judicial process in a court of law, because
judicial adjudication of causes involves a number of
technical rules of procedure and evidence which are
unnecessary and not required for the purpose of a fair
hearing within the meaning of audi alteram partem rule in a
quasi-judicial or administrative inquiry. If we look at
clause (2) of
Article 311
in the light of what is stated
above, it will be apparent that clause is merely an express
statement of the audi alteram partem rule which is
implicitly made part of the guarantee contained in
Article
as a result of the interpretation placed upon that
Article by recent decisions of this Court. Clauses (2) of

Article 311
requires that before a government servant is
dismissed, removed or reduced in rank, an inquiry must be
held in which he is informed of the charges against him and
given a reasonable opportunity of being heard in respect of
those charges. The nature of the hearing to be given to a
government servant under clauses (2) of
Article 311
has been
elaborately set out by this Court in Khem chand's case in
the passages from the judgment extracted above. Though that
case related to the original clause (2) of
Article 311
, the
same applies to the present clause (2) of
Article 311
except
for the fact that now a government servant has no right to
make any representation against the penalty proposed to be
imposed upon him but, as pointed out earlier, in the case of

Suresh Koshy George v. The University of Kerala and others
,
such an opportunity is not the requirement of the principles
of natural justice and as held in
Associated Cement
Companies Ltd. v. T. C. Shrivastava and others
neither the
ordinary law of the land nor industrial law requires such an
opportunity to be given.

The
Opportunity of showing cause against the proposed penalty
was only the result of the interpretation placed by the
Judicial Committee of the Privy Council in
Lall
's Case upon

section 240(3)
of the Government of India, 1935, which was
accepted by this Court in
Khem Chand
's Case.
If, therefore,
an inquiry held against a government servant under clause
(2) of Article 311 is unfair or biased or has been conducted
in such a manner as not to give him a fair or reasonable
opportunity to defend himself, undoubtedly, the principles
of natural justice would be violated, but in such a case the
order of dismissal, removal or reduction in rank would be
held to be bad as contravening the express provisions of
clause (2) of Article 311 and there will be no scope for
having recourse to Article 14 for the purpose of
invalidating it.

Though the two rules of natural justice, namely,
nemojudex in causa sua em audi alteram part, have now a
definite meaning and connotation in law and their content
and implications are well understood and firmly established
the are none the less not statutory rules. Each of these
rules yields to and changes with the exigencies of different
situations. They do not apply in the same manner to
situations which are not alike. These rules are not case in
a rigid mould nor can they be put in a legal strait-jacket.
They are not immutable but flexible. These rules can be
adapted and modified by statutes and statutory rules and
also by the Constitution of the Tribunal which has to decide
particular matter and rules by which such Tribunal is
governed. There is no difference in this respect between the
law in England and in India. It is unnecessary to refer to
various English decisions which have held so. It will
suffice to reproduce what Ormond, L.J., said in Norwest
Holst Ltd. v. Secretary of State for Trade and others L.R.
[1978]1 Ch.201 (at page 227):

"The House of Lords and this Court have repeatedly
emphasised that the ordinary principles of natural
justice must be kept flexible and must be adapted
to the circumstances prevailing in any particular
case. One of the most important of these
circumstances, as has been said throughout the
argument, is, of course, the provisions of the
statute in question: in this case
sections 164
and
of the Companies Act 1948."

In India, in
Suresh Koshy George v. The University of
Kerala and others
this Court observed (at page 322):
"The question whether the requirements of natural
justice have been met by the procedure adopted in
a given case must depend to a great extent on the
facts and circumstances of the case in point, the
constitution of the Tribunal and the rules under
which it functions."

After referring to this case, in A.K. Kraipak and
others etc. v. Union of India and others [1970] 1 S.C.R.
457, Hegde, J., observed (at page 469):

"What particular rule of natural justice should
apply to a given case must depend to a great
extent on the facts and circumstances of that
case, the framework of the law under which the
inquiry is held and the constitution of the
Tribunal or body of persons appointed for that
purpose. Whenever a complaint is made before a
court that some principle of natural justice had
been contravened the court has to decide whether
the observance of that rule was necessary for a
just decision on the facts of that case."

Again in
Union of India v. Col
. J.N. Sinha and another
[1971] 1 S.C.R. 791, it was said (at page 794-5):

"As observed by this Court in
Kraipak and Ors. v.
Union of India
the aim of rules of natural justice
is to secure justice or to put it negatively to
prevent miscarriage of justice. These rules can
operate only in areas not covered by any law
validly made. In other words they do not supplant
the law but supplement it. It is true that if a
statutory provision can be read consistently with
the principles of natural justice, the courts
should do so because it must be presumed that the
legislatures and the statutory authorities intend
to act in accordance with the principles of
natural justice. But if on the other hand a
statutory provision either specifically or by
necessary implication excluded the application of
any or all the principles of natural justice then
the court cannot ignore the mandate of the
legislature or the statutory authority and read
into the concerned provision the principles of
natural justice. Whether the exercise of a power
conferred should be made in accordance with any of
the principles of natural
justice or not depends upon the express words of
the provision conferring the power, the nature of
the power conferred, the purpose for which it is
conferred and the effect of the exercise of that
power"

In
Swadeshi Cotton Mills v. Union of India
[1981] 2
S.C.R. 533, Chinnappa Reddy, J., in his dissenting judgment
summarized the position in law on this point as follows (at
page 591):

"The principles of natural justice have taken deep
root in the judicial conscience of our people,
nurtured by Binapani, Kraipak, Mohinder Singh
Gill, Maneka Gandhi etc. etc. They are now
considered so fundamental as to be 'implicit in
the concept of ordered liberty' and, therefore,
implicit in every decision making function, call
it judicial, quasi judicial or administrative.
Where authority functions under a statute and the
statute provides for the observance of the
principles of natural justice in a particular
manner, natural justice will have to be observed
in that manner and in no other. No wider right
than that provided by statute can be claimed nor
can the right be narrowed. Where the statute is
silent about the observance of the principles of
natural justice such statutory silence is taken to
imply compliance with the principles of natural
justice. The implication of natural justice being
presumptive it may be excluded by express words of
statute or by necessary intendment. Where the
conflict is between the public interest and the
private interest, the presumption rust necessarily
be weak and may, therefore, be readily displaced."

(Emphasis supplied.)
Not only, therefore, can the principles of natural
justice be modified but in exceptional cases they can even
be excluded. There are well-defined exceptions to the nemo
judex in causa sua rule as also to the audi alteram partem
rule. The nemo judex in causa sua rule is subject to the
doctrine of necessity and yields to it as pointed out by
this Court in
J.Mohapatra & Co. and another v. State of
Orissa and another
[1985] 1 S.C.R. 322,334-5. So far as the
audi alteram partem rule is concerned, both in England and
in India, it is well established that where a right to a
prior notice and an opportunity to be heard before an order
is passed would obstruct the taking of prompt action, such a
right can be excluded.

This right can also be excluded where
the nature of the action to be taken, its object and purpose
and the scheme of the relevant statutory provisions warrant
its exclusion; nor can the audi alteram partem rule be
invoked if importing it would have the effect of paralysing
the administrative process or where the need for promptitude
or the urgency of taking action so demands, as pointed out
in
Maneka Gandhi
's case at page 681. If legislation and the
necessities of a situation can exclude the principles of
natural justice including the audi alteram partem rule, a
fortiorari so can a provision or the Constitution, for a
Constitutional provision has a far greater and all-pervading
sanctity than a statutory provision. In the present case,
clause (2) of
Article 311
is expressly excluded by the
opening words of the second proviso and particularly its
key-words this clause shall not apply. As pointed out above,
clause (2) of
Article 311
embodies in express words the audi
alteram partem rule. This principle of natural justice
having been expressly excluded by a Constitutional
provision, namely, the second proviso to clause (2) of

Article 311
, there is no scope for reintroducing it by a
side-door to provide once again the same inquiry which the
Constitutional provision has expressly prohibited. Where a
clause of the second proviso is applied on an extraneous
ground or a ground having no relation to the situation
envisaged in that clause, the action in so applying it would
be mala fide, and, therefore, void. In such a case the
invalidating factor may be referable to
Article 14.
This is,
however, the only scope which
Article 14
can have in
relation to the second proviso. but to hold that once the
second proviso is properly applied and clause (2) of
Article
excluded,
Article 14
will step in to take the place of
clause (2) would be to nullify the effect of the opening
words of the second proviso and thus frustrate the intention
of the makers of the Constitution. The second proviso is
based on public policy and is in public interest and for
public good and the Constitution - makers who inserted it in

Article 311(2)
were the best persons to decide whether such
an exclusionary provision should be there and the situations
in which this provision should apply.

In this connection, it must be remembered that a
government servant is not wholly without any opportunity.
Rules made under the proviso to
Article 309
or under Acts
referable to that Article generally provide for a right of
appeal except in those cases where the order of dismissal,
removal or reduction in rank is passed by the President or
the Governor of a State because they being the highest
Constitutional functionaries, there can be no
higher authority to which an appeal can lie from an order
passed by one of them. Thus, where the second proviso
applies, though there is no prior opportunity to a
government servant to defend himself against the charges
made against him he has the opportunity to show in an
appeal filed by him that the charges made against him are
not true. This would be a sufficient compliance with the
requirements of natural justice.
In
Maneka Gandhi
's case and
in
Liberty Oil Mills and others v. Union of India and others

[1984] 3 S.C.C. 465 the right to make a representation
after an action was taken was held to be a sufficient
remedy, and an appeal is a much wider and more effective
remedy than a right of making a representation.

In support of the contention that even though the
second proviso to
Article 311(2)
excludes any right of
hearing, such a right is none the less available under

Article 14
, reliance was placed on behalf of the government
servants upon the case of
Rustom Cavasjee Cooper v. Union of
India
[1970] 3 S.C.R. 530. In our opinion, this reliance is
misplaced.

One of the questions which arose
in that case
was
the correctness of the majority view in
A.K.Gopalan v. The
State of Madras
[1950] S.C.R. 88.
In Gopalan's case it was
held by the majority that the law of preventive detention
did not have to satisfy the combined test of Articles 19 and

21. According to the majority view, it was the form of the
State action which would determine which Article in the
Chapter on fundamental Rights would be attracted, and that
in respect of preventive detention
Article 21
protected
substantive rights by requiring a procedure and
Article 22

laid down the minimum rules of procedure which even
Parliament could not abrogate or overlook. Fazal Ali, J., in
his dissenting judgment, however, took the view that
preventive detention was a direct violation of a sub-clause

(d) of clause (1) of
Article 19
, even if a narrow
construction were to be placed upon that sub-clause, and a
law relating to preventive detention was, therefore. subject
to such limited judicial review as was permitted by clause
(5) of
Article 19.

In R.Cooper's case the majority view in

Gopalan
's case was overruled.

In
Sambbu Nath Sarkar v. The
State of West Bengal & Ors.
[1974] 1 S.C.R. 1, after
referring to both these cases, this Court observed (at page

24) :

"In R.C.Cooper v. Union of India the aforesaid
premise of the majority in Gopalan was disapproved
and therefore it no longer holds the field.
Though
Cooper
's case dealt with the inter-relationship of

Article 19
and
Article 31
, the basic approach to
construing the
fundamental rights guaranteed in the different
provisions of the Constitution adopted in this
case held the major premise of the majority in
Gopalan to be incorrect."

In
Hardhan Saha and another v. The State of West Bengal
and others
[1975] 1 S.C.R. 832, this Court held that a law
which provided for preventive detention was to be tested
with regard to its reasonableness with reference to Article

19. This view was reaffirmed in
Khudiram Das v. The State of
West Bengal and Others
[1975] 2 S.C.R. 832.

All these
decisions were again examined in
Maneka Gandhi
's Case. In
that case, an order under clause (c) of sub-section (3) of

section 10
of the Passports Act, 1967, impounding the
petitioner's passport was impugned inter alia on the ground
that it violated the petitioner's Fundamental Right under
sub-clauses (a) and (g) of clause (1) of
Article 19
and

Article 21
and also under
Article 14
because it was made in
violation of the principles of natural justice inasmuch as
the petitioner had not been heard before these impugned
order was passed. After referring to various cases Beg,
C.J., said (at page 648) :

"Articles dealing with different fundamental
rights contained in Part III of the Constitution
do not represent entirely separate streams of
rights which do not mingle at many points. They
are all parts of an integrated scheme in the
Constitution. Their waters must mix to constitute
that grand flow of unimpeded and impartial Justice
(social, economic and political), Freedom (not
only of thought, expression, belief, faith and
worship, but also of association, movement,
vocation or occupation as well as of acquisition
and possession of reasonable property), of
Equality (of status and of opportunity, which
imply absence of unreasonable or unfair
discrimination between individuals, groups and
classes), and of Fraternity(assuring dignity of
the individual and the unity of the nation), which
our Constitution visualises. Isolation of various
aspects of human freedom, for purposes of their
protection, is neither realistic nor beneficial
but would defeat the very objects of such
protection."

The question in
Gopalan
's case and
Cooper
's case was whether
particular Articles guaranting certain Fundamental Rights
operated exclusively without having any inter-relation with
any other Article in the Chapter on Fundamental Rights. This
is not the question before us. Neither
Article 19
or 21
excludes the operation of the other Articles in Part III of
the Constitution.

Where however, an Article in the
Constitution expressly excludes the application of certain
Fundamental Rights, the view taken in
Cooper
's case and the
other cases which followed it, namely, that the Articles in
the Chapter on Fundamental Rights do not operate in
isolation, cannot apply.
Article 13
invalidates any law
which violates any of the Fundamental Rights.
Article 31A(1)

provides that "Notwithstanding anything contained in
article
, no law providing for ..... shall be deemed to be void on
the ground that it is inconsistent with, or takes away or
abridges any of the rights conferred by
article 14
and

article 19".
Under
Article 31B
, none of the Acts and
Regulations specified in the Ninth schedule to the
Constitution nor any of the provisions thereof are to be
deemed to be void on the ground that such Act, Regulation or
provision is inconsistent with or takes away or abridges any
of the rights conferred by any provisions of Part III.

Article 31C
provides that "Notwithstanding anything
contained in
Article 13
, no law giving effect to the policy
of the State towards securing . . . shall be deemed to be
void on the ground that it is inconsistent with, or takes
away or abridges any of the rights conferred by
article 14

or
article 19 .
. . ". Gan it then be contended in face of
these express provisions in the Constitution that none the
less
Article 14
will apply to the provisions of a law
specified in
Article 31A(1)
or 31B or 31C?
Clause(2) of

Article 311
is an express statement of what the right of a
fair hearing guaranteed by
Article 14
would require and by
the opening words of the second proviso to that clause that
right is expressly taken away, and R.C.Cooper's case cannot
be invoked to reintroduce that right on the ground that it
flows by implication from
Article 14.
If the contention of
the petitioner that in all cases there must be a right of
hearing before an order is made to a person's prejudice were
correct, the result would be startling and anomalous. For
instance inspite of
Article 21

& 22
no person can be taken
in preventive detention unless he has been first given an
opportunity of showing cause against the proposed action.
Results such as these would make a mockery of the provisions
of the Constitution.

The majority view in Gopalan's case was buried in
K.C.Cooper's case; its burial service was read in Sambhu
Nath Sarkar v. The State of West Bengal and others, Hardhan
Saha and another v.
The State of West Bengal and others and Khudiram Das v. The
State of West Bengal & Others.
and its funeral oration was
delivered in
Maneka Gandhi
's case. Let us hope and pray that
the ghost of that majority view does not at some future time
rise from its grave and stand, clanking its chains, seeking
to block the onward march of our country to progress,
prosperity and the establishment of a Welfare State. But
none the less what was buried was the theory of
exclusiveness of each Fundamental Right operating separately
and without having any inter-relation with other Fundamental
Rights.
The decisions in R.C.Cooper's case and the other
cases which followed it, however, will not apply where a
Fundamental Rights (including the audi alteram partem rule
comprehended within the guarantee of
Article 14
) is
expressly excluded by the Constitution itself. Here, we must
not forget the warning given by Megarry, J.,in Houslow
London Borough Council v. Tickenhan Garden Developments Ltd.
that the principles of natural justice must be confined
within their proper limits and not allowed to run wild. The
concept of natural justice is a magnificent thoroughbred on
which this nation gallops forwards towards its proclaimed
and let us pray its destines goal of "JUSTICE, social,
economic and political." This thoroughbred must not be
allowed to turn into a wild and unruly horse, careering off
where it lists, unsaddling its rider, and bursting into
fields where the sign "no pasaran" is put up.

Service Rules and the Second Proviso - Challappan's
Case
Rules made under the proviso to
Article 309
or under
Acts referable to that Article very often reproduced in
whole or in part the provisions of the second proviso to

Article 311(2)
either in the same or substantially the same
language or with certain variations. Such variations at
times confer or have been interpreted to confer an
opportunity of hearing to a government servant which is
excluded by the second proviso. Three such rules are
involved in the matters before us, namely, Rule 14 of the
Railway Servants (Discipline and Appeal) Rules, 1968
(hereinafter referred to in short as the "Railway Servants
Rules ), Rule 19 of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965
(hereinafter referred to in short as the "Civil Services
Rules") and Rule 37 of the Central Industrial Security Force
Rules, 1969 (hereinafter referred to in short as "the CISF
Rules"). It was submitted on behalf of the government
servants that though an Act or rule restricting or taking
away any safe guard provided by clauses (1) and (2) of

Article 311
would be void, different considerations would
apply when such an Act or rule liberalizes the exclusionary
effect of the second proviso.
It is not possible to accept this submission. The
opening words of
Article 309
make that Article expressly
"Subject to the provisions of this Constitution". Rules made
under the proviso to
Article 309
or under Acts referable to
that Article must, therefore, be made subject to the
provisions of the Constitution if they are to be valid.

Article 310(1)
which embodies the pleasure doctrine is a
provision contained in the Constitution. Therefore, rules
made under the proviso to
Article 309
or under Acts
referable to that Article are subject to
Article 310(1)
By
the opening words of
Article 310(1)
the pleasure doctrine
contained therein operates "Except as expressly provided by
this Constitution".
Article 311
is an express provision of
the Constitution. Therefore, rules made under the proviso to

Article 309
or under Acts referable to
Article 309
would be
subject both to
Article 310(1)
and
Article 311.
This
position was pointed out by Subba Rao, J., as he then was,
in his separate but concurring judgment in Moti Ram Deka's
case at page 734, namely, that rules under
Article 309
are
subject to the pleasure doctrine and the pleasure doctrine
is itself subject to the two limitations imposed thereon by

Article 311.
Thus, as pointed out in that case, any rule
which contravenes clause (1) or clause (2) of
Article 311

would be invalid. Where, however the second proviso applies,
the only restriction upon the exercise of the pleasure of
the President or the Governor of a State is the one
contained in clause(1) of
Article 311.
For an Act or a rule
to provide that in a case where the second proviso applies
any of the safeguards excluded by that proviso will be
available to a Government servant would amount to such Act
or rule impinging upon the pleasure of the President or
Governor, as the case may be, and would be void as being
unconstitutional. It is, however, a well-settled rule of
construction of statutes that where two interpretations are
possible, one of which would preserve and save the
constitutionality of the particular statutory provision
while the other would render it unconstitutional and void,
the one which saves and preserves its constitutionality
should be adopted and the other rejected. Such
constitutionality can be preserved by interpreting that
statutory provision as directory and not mandatory. It is
equally well-settled that where a statutory provision is
directory, the courts cannot interfere to compel the
performance or punish breach of the duty created by such
provision and disobedience of such provision would not
entail any invalidity - see Craies on Statute Law, Seventh
Edition, at page 229. In such a case breach of such
statutory provisions would not furnish any cause of action
or ground of challenge to a government servant for at the
very threshold, such cause of action or ground of challenge
would be barred by the second proviso to
Article 311(2).
On behalf of the government servants support for the
above contention raised by them was sought to be derived
from Challappan's case. Bearing in mind what has been stated
above, we will, therefore, now examine Challapan's case.
Before, however, we come to that case it would be convenient
to refer to the observations in M. Gopala Krishna Naidu's
case, because it was by reason of the conflict between those
observations and what was held in Challappan's case that
these matters have all some to be decided by this
Constitution Bench.
M.Gopala Krishna Naidu
's case was not
directly a case under the second proviso to
Article 311(2).

In that case the appellant, who was an overseer in the
Public Works Department of the Central Provinces and Berar
Government, was suspended from service in 1947 and
prosecuted under
section 161
of the Indian Penal Code.
Ultimately, on orders from the High Court, the prosecution
was dropped. The appellant was also exonerated in a
departmental inquiry held against him. Thereafter the
Government by an order held that the charges against the
Appellant had not been proved beyond reasonable doubt and
the suspension of the appellant and the departmental inquiry
"were not wholly unjustified". It accordingly directed that
the appellant should be reinstated in service with effect
from the date of the said order and retired from that date,
he having already attained the age of superannuation, and
that the entire period of absence from duty should be
treated as period spent on duty under rule 54(5) of the
Fundamental Rules for purposes of pension only, but that he
should not be allowed any pay beyond what he had actually
received or what was allowed to him by way of subsistence
allowance during the period of suspension. The appellant's
writ petition was dismissed by the High Court. In appeal a
three Judge Bench of this Court allowed the appeal. The
court held that rule 54 of the Fundamental Rules
contemplated a duty to act in accordance with the basic
concept of justice and fair play, and the authority,
therefore had to afford a reasonable opportunity to the
appellant to show cause why clauses (3) and (5) of rule 54
should not be applied and at this not having been done, the
order was invalid. While discussing the scope of rule 54 of
the Fundamental Rules the Court observed as follows (at
page, 358-59) :

"It is true that the order under F.R.54 is in a
sense a consequential order in that it would be
passed after an order of reinstatement is made.
But the fact that it is a consequential order does
not determine the question whether the government
servant has to be
given an opportunity to show cause or not. It is
also true that in a case where reinstatement is
ordered after a departmental inquiry the
government servant would ordinarily have had an
opportunity to show cause. In such a case, the
authority no doubt would have before him the
entire record including the explanation given by
the government servant from which all the facts
and circumstances of the case would be before the
authority and from which he can form the opinion
as to whether he has been fully exonerated or not
and in case of suspension whether such suspension
was wholly unjustified or not. In such a case the
order passed under a rule such as the present
Fundamental Rule might be said to be a
consequential order following a departmental
inquiry. But there are three classes of cases as
laid down by the proviso in Article 311 where a
departmental inquiry would not be held, viz., (a)
where a person is dismissed, removed or reduced in
rank on the ground of conduct which has led to his
conviction on a criminal charge; (b) where the
authority empowered to dismiss or remove a person
or to reduce him in rank is satisfied for reasons
to be recorded in writing that it is not
reasonably practicable to hold such an inquiry and

(c) where the President or the Governor as the
case may be is satisfied that in the interest of
security of the State it is not expedient to hold
such inquiry. Since there would be no inquiry in
these classes of cases the authority would not
have before him any explanation by the government
servant. The authority in such cases would have to
consider and pass the order merely on such facts
which might be placed before him by the department
concerned. The order in such a case would be ex
parte without the authority having the other side
of the picture. In such cases the order that such
authority would pass would not be a consequential
order as where a departmental inquiry has been
held. Therefore, an order passed under Fundamental
Rule 45 is not always a consequential order nor is
such order a continuation of the departmental
proceeding taken against the employee."

Challapan's case decided three appeals against a common
judgment of the High Court of Rajasthan allowing the writ
petitions filed by three railway servants. Challappan, the
respondent
in one of these appeals, was a railway-pointsman. He was
arrested at Olavakkot Railway Station platform for
disorderly, drunken and indecent behaviour and was
prosecuted and convicted under
section 51(a)
of the Kerala
Police Act. Instead of sentencing him, the sub-magistrate,
Palghat, released him on probation under section of the

Probation of Offenders Act, 1958
. Thereafter he was removed
from service by the disciplinary authority of the
Department, without holding any inquiry, on the basis of his
conviction in the said criminal case. The order of removal
from service was made under clause (i) of rule 14 of the
Railway Servants Rules. The Kerala High Court held that as
no penalty was imposed upon him, clause (i) of rule 14 did
not in terms apply, and allowed his writ petition. So far as
the other two railway employees were concerned, one was
convicted under
section 3
of the Railway Property (Unlawful
Possession) Act, 1966, and the other under
section 420
of
the Indian Penal Code. Both of them were released on
probation and were similarly removed from railway service.

The Railway Servants Rules have been made by the
President in exercise of the powers conferred by the proviso
to
Article 309.
Rule 6 specifies the penalties which can be
imposed upon a railway servant. These penalties are divided
into minor penalties and major penalties. Major penalties
include removal from service which is not to be a
disqualification for future employment under the Government
or railway administration and dismissal from service which
is ordinarily to be a disqualification for future employment
under the Government or railway administration. Under sub-
rule (1) of Rule 7, the President may impose any of the
penalties specified in Rule 6 on any railway servant. Sub
rule (2) of Rule 7 states that without prejudice to the
provisions of sub-rule (1), any of the penalties specified
in Rule 6 may be imposed on a railway servant by the
authorities specified in Schedules, I, II and III to the
Railway Servants Rules. Rules 9 and 10 prescribe a detailed
procedure for imposing major penalties while Rule 11
prescribes the procedure for imposing minor penalties.
Originally, sub-rule (5) of Rule 10 required that a notice
be given to a railway servant informing him of the penalty
proposed to be imposed upon him and giving him an
opportunity of making a representation on the proposed
penalty on the basis of the evidence adduced during the
inquiry held under Rule 9. The whole of that sub-rule was
substituted by the Railway Servants (Discipline and Appeal)
(Third Amendment) Rules, 1978, to bring sub-rule (5) in
conformity with clause (2) of
Article 311
as amended by the

Constitution (Forty-second Amendment) Act, 1976
. It may be
mentioned that on the respective dates of the orders
impugned in Challappan's case the original sub-rule (5) of
Rule 10 formed part of the Railway Servants Rules and clause
(2) of
Article 311
in force was that clause as amended by
the
Constitution (Fifteenth Amendment) Act, 1963
. This
However, does not make any difference to the point which
falls to be decided.

Rule 14 of the Railway Servants Rules provides as
follows :

"14. Special procedure in certain cases.
Notwithstanding anything contained in rules 9 to
13 :

(i) where any penalty is imposed on a railway
servant on the ground of conduct which has led to
his conviction on a criminal charge; or

(ii) where the disciplinary authority is
satisfied, for reasons to be recorded by it in
writing, that it is not reasonably practicable to
hold an inquiry in the manner provided in these
rules ; or

(iii) where the President is satisfied that in the
interest of the security of the State, it is not
expedient to hold an inquiry in the manner
provided in these rules ;

the disciplinary authority may consider the circumstances of
the case and make such orders thereon as it deems fit;
Provided that the Commission shall be consulted,
where such consultation is necessary, before any
orders are made in any case under this rule."
Clause (b) of Rule 2 of the Railway Servants Rules defines
the word "Commission" as meaning the "Union Public Service
Commission."

Rule 17 of the Railway Servants Rules sets out the
orders against which no appeal lies. Under that rule, no
appeal inter alia lies against any order made by the
President. Under Rule 18, subject to the provisions of Rule
17, an appeal inter alia lies against an order imposing any
of the penalties specified in Rule 6, whether made by the
disciplinary authority or by any appellate or reviewing
authority. Rule 20 prescribes a period of limitation
for filing an appeal. The appellate authority is, however,
conferred the power to condone the delay in filing the
appeal if it is satisfied that the appellant had sufficient
cause for not preferring the appeal. Rule 22 (2) provides as
follows :

"(2) In the case of an appeal against an order
imposing any of the penalties specified in Rule 6
or enhancing any penalty imposed under the said
rule, the appellate authority shall consider

(a) whether the procedure laid down in these rules
has been complied with, and if not, whether such
non-compliance has resulted in the violation of
any provisions of the Constitution of India or in
the failure of justice;

(b) whether the findings of the disciplinary
authority are warranted by the evidence on the
record; and

(c) whether the penalty or the enhanced penalty
imposed is adequate, inadequate or severe; and
pass orders

(i) confirming, enhancing, reducing or setting
aside the penalty: or

(ii) remitting the case to the authority which
imposed or enhanced the penalty or to any other
authority with such directions as it may deem fit
in the circumstances of the case.

X X X X X X X"

Rule 25 confers power upon (i) the President, (ii) Railway
Board, (iii) the General Manager of a Zonal Railway or an
authority of that status in any other Railway Unit or
Administration in the case of a railway servant serving
under him or its control, (iv) the appellate authority not
below the rank of a Deputy Head of Department or a
Divisional Railway Manager in cases where no appeal has been
preferred, or (v) any other authority not below the rank of
a Deputy Head of Department or a Divisional Railway Manager
in the case of a railway servant serving under its control,
at anytime, either on his or its own motion or otherwise, to
call for records of any inquiry and revise any order made
under the Railway Servants Rules. Clause (c) of the first
proviso to Rule 25(1) inter alia provides as follows :-
"Provided that-

X X X X X X

(c) subject to the provisions of Rule 14, the
revising authority shall-

X X X X X X X

(ii) where an inquiry in the manner laid down in
Rule 9 has not already been held in the case,
itself hold such inquiry or direct that such
inquiry be held in accordance with the provisions
of Rule 9 and there- after on a consideration of
the proceedings of such inquiry, pass such orders
as it may deem fit."

The second proviso to Rule 25(1) provides for a period
of limitation for initiating any revisional proceedings by
an appellate authority other than the President or a
revising authority mentioned in item (v) xxxxx in that list
of authorities set out above. In the case of other
authorities, the power of revision is not subject to any
time-limit. Rule 25-A confers power upon the President at
any time either on his own motion or otherwise to review any
order passed under the Railway Servants Rules when any new
material or evidence which could not be produced or was not
available at the time of passing the order under review and
which has the effect of changing the nature of the case has
come or has been brought to his notice. Rules 25 and 25-A
were substituted by the Railway Servants (Discipline and
Appeal)(First Amendment) Rules, 1983, for the original Rule
25 which provided for a view in somewhat similar terms as
the present Rule 25.

In Challappan's case the Kerala High Court allowed the
writ petitions filed before it solely on the ground that the
orders of the Magistrate releasing the concerned railway
servants on probation did not amount to imposition of
penalty as contemplated by Rule 14 of the Railway Servants
Rules. Reversing that view this Court held that the word
"penalty" in clause (i) of Rule 14 of the Railway Servants
Rules does not refer to a sentence awarded by the Court to
the accused on his conviction but it merely indicates the
nature of the penalty impossible by the disciplinary
authority if the delinquent employee has been found guilty
of conduct which has led to his conviction on a criminal
charge. The Court observed (at pages 789-790) :
"The view of the Kerala High Court, therefore,
that as the Magistrate released the delinquent
employee on probation no penalty was imposed as
contemplated by rule 15 (i) of the Rules of 1968
does not appear to us to be legally correct and
must be overruled. Nevertheless we would uphold
the order of the Kerala High Court, on the ground,
that the last part of rule 14 of the rules of 1968
which requires the consideration of the
circumstances not having been complied with by the
disciplinary authority, the order of removal from
service of the delinquent employee was rightly
quashed."

The Court pointed out that clause (i) of Rule 14 merely
sought to incorporate the principle embodied in clause (a)
of the second proviso. The Court in the course of its
judgment reproduced the provisions of clause (2) of
Article
alongwith clause (a) to the proviso thereto, at that
time clause (2) of
Article 311
in force being that clause as
amended by the
Constitution (Fifteenth Amendment) Act, 1963
,
that is, clause (2) prior to its amendment by the

Constitution (Forty-second Amendment) Act, 1976
, and the
proviso thereto being the same as the second proviso to
clause (2) as amended by the
Constitution (Forty-second
Amendment) Act
. The Court then pointed out that there were
three stages in a departmental inquiry under
Article 311(2)

the third being the stage before actually imposing the
penalty in which final notice to the delinquent employee
should be given to show cause why the penalty proposed
against him be not imposed on him. It then stated that
clause (a) of the proviso (now the second proviso)
Article
311(2)
, however, completely dispensed with all the three
stages of a departmental inquiry when an employee was
convicted on a criminal charge because the employee already
had in the criminal trial a full and complete opportunity to
contest the allegations against him and to make out his
defence. The Court pointed out that clause (a) of the
proviso (now the second proviso) is merely an enabling
provision and does not enjoin or confer a mandatory duty on
the disciplinary authority to pass an order of dismissal,
removal or reduction in rank the moment and employee is
convicted. The Court then considered the extent and ambit of
the last part of Rule 14, namely, the phrase "the
disciplinary authority may consider the circumstances of the
case and make such orders there on as it deems fit" and
stated its conclusions as follows (at pages 795-97) :
"The word `consider' has been used in
contradiction to the word `determine'. The rule-
making authority deliberately used the word
`consider' and not `determine' because the word
`determine' has a much wider scope. The word
`consider' merely connotes that there should be
active application of the mind by the disciplinary
authority after considering the entire
circumstances of the case in order to decide the
nature and extent of the penalty to be imposed on
the delinquent employee on his conviction on a
criminal charge. This matter can be objectively
determined only if the delinquent employee is
heard and is given a chance to satisfy the
authority regarding the final orders that may be
passed by the said authority. In other words, the
term `consider' postulates consideration of all
the aspects, the pros and cons of the matter after
hearing the aggrieved person. Such an inquiry
would be a summary inquiry to be held by the
disciplinary authority after hearing the
delinquent employee. It is not at all necessary
for the disciplinary authority to order a fresh
departmental inquiry which is dispensed with under
rule 14 of the Rules of 1968 which incorporates
the principle contained in
Article 311(2)
proviso

(a). This provision confers power on the
disciplinary authority to decide whether in the
facts and circumstances of a particular case what
penalty, if at all should be imposed on the
delinquent employee. It is obvious that in
considering this matter the disciplinary authority
will have to take into account the entire conduct
of the delinquent employee, the gravity of the
misconduct committed by him, the impact which his
misconduct is to have on the administration and
other extenuating circumstances or redeeming the
features if any present in the case and so on and
so forth. It may be that the conviction of an
accused may be for a trivial offence as in the
case of the respondent T.R. Challappan in Civil
Appeal No. 1664 of 1974 where a stern warning or a
fine would have been sufficient to meet the
exigencies of service. It is possible that the
delinquent employee may be found guilty of some
technical offence, for instance, violation of the
transport rules or the rules under the
Motor
Vehicles Act
and so on, where no major penalty may
be attracted. It is difficult to lay down any hard
and fast rules as to
the factors which the disciplinary authority would
have to consider, but I have mentioned some of
these factors by way of instances which are merely
illustrative and not exhaustive. In other words,
the position is that the conviction of the
delinquent employee would be taken as sufficient
proof of misconduct and then the authority will
have to embark upon a summary inquiry as to the
nature and extent of the penalty to be imposed on
the delinquent employee and in the course of the
inquiry if the authority is of the opinion that
the offence is too trivial or of a technical
nature it may refuse to impose any penalty inspite
of the conviction. This is a very salutary
provision which has been enshrined in these Rules
and one of the purposes for conferring this power
is that in cases where the disciplinary authority
is satisfied that the delinquent employee is a
youthful offender who is not convicted of any
serious offence and shows poignant penitence or
real repentance he may be dealt with as lightly as
possible. This appears to us to be the scope and
ambit of this provision. We must, however, hasten
to add that we should not be understood as laying
down that the last part of rule 14 of the Rules of
1968 contains a licence to employees convicted of
serious offences to insist on reinstatement. The
statutory provision referred to above merely
imports a rule of natural justice in enjoining
that before taking final action in the matter the
delinquent employee should be heard and the
circumstances of the case may be objectively
considered. This is in keeping with the sense of
justice and fair-play. The disciplinary authority
has the undoubted power after hearing the
delinquent employee and considering the
circumstances of the case to inflict any major
penalty on the deinquent employee without any
further departmental inquiry if the authority is
of the opinion that the employee has been guilty
of a serious offence involving moral turpitude
and, therefore, it is not desirable or conducive
in the interests of administration to retain such
a person in service.

Mr. S.N.Prasad appearing for the appellants
submitted that it may not be necessary for the
disciplinary authority to hear the accused and
consider the matter where no provision like rule
14 exists, because in
such cases the Government can, in the exercise of
its executive powers, dismiss, remove or reduce in
rank any employee who has been convicted of a
criminal charge by force of proviso (a) to
Article
311(2)
of the Constitution. In other words, the
argument was that to cases where proviso (a) to

Article 311(2)
applies a departmental inquiry is
completely dispensed with and the disciplinary
authority can on the doctrine of pleasure
terminate the services of the delinquent
employee. We however, refrain from expression any
opinion on this aspect of the matter because the
cases of all the three respondents before us are
cases which clearly fall within rule 14 of the
rules of 1968 where they have been removed from
service without complying with the last part of
rule 14 of the Rules of 1968 as indicated above.
In none of the cases has the disciplinary
authority either considered the circumstances or
heard the delinquent employees on the limited
point as to the nature and extent of the penalty
to be imposed if at all. On the other hand in all
these cases the disciplinary authority has
proceeded to pass the order of removal from
service straightaway on the basis of the
conviction of the delinquent employees by the
criminal courts." (Emphasis supplied)
So far as Challappan's Case is concerned, it is not
possible to find any fault either with the view that neither
clause (a) of the second proviso to
Article 311(2)
nor
clause (i) of Rule 14 of the Railway Servants Rules is
mandatory or with the considerations which have been set out
in the judgment as being the considerations to be taken into
account by the disciplinary authority before imposing a
penalty upon a delinquent government servant. Where a
situation envisaged in one of the three clauses of the
second proviso to
Article 311(2)
or of an analogous service
rule arises, it is not mandatory that the major penalty of
dismissal, removal or reduction in rank should be imposed
upon the concerned government servant. The penalty which can
be imposed may be some other major penalty or even a minor
penalty depending upon the facts and circumstances of the
case. In order to arrive at a decision as to which penalty
should be imposed, the disciplinary authority will have to
take into consideration the various factors set out in
Challappan's case. It is, however, not possible to agree
with approach adopted in Challappan's case in considering
Rule 14 of the Railway Servants Rules in isolation
and apart from the second proviso to
Article 311(2)
, nor
with the interpretation placed by it upon the word
"consider" in the last part of Rule 14. Neither Rule 14 of
the Railways Servants Rules nor a similar rule in other
service rules can be looked at apart from the second proviso
to
Article 311(2).
The authority of a particular officer to
act as a disciplinary authority and to impose an penalty
upon a government servant is derived from rules made under
the proviso to
Article 309
or under an Act referable to that
Article. As pointed out earlier, these rules cannot impinge
upon the pleasure of the President or the Governor of a
State, as the case may be, because they are subject to

Article 310(1).
Equally, they cannot restrict the safeguards
provided by clauses (1) and (2) of
Article 311
as such a
restriction would be in violation of the provisions of those
clauses. In the same way, they cannot restrict the
exclusionary impact of the second proviso to
Article 311 (2)

because that would be to impose a restriction upon the
exercise of pleasure under
Article 310(1)
which has become
free of the restrictions placed upon it by clause (2) of

Article 311
by reason of the operation of the second proviso
to that clause. The only cases in which a government servant
can be dismissed, removed or reduced in rank by way of
punishment without holding an inquiry contemplated by
clause(2) of
Article 311
are the three cases mentioned in
the second proviso to that clause. A rule which provides for
any other case in which any of these three penalties can be
imposed would be unconstitutional. Service rules may
reproduce the provisions of the second proviso authorizing
the disciplinary authority to dispense with the inquiry
contemplated by clause (2) of
Article 311
in the three cases
mentioned in the second proviso to that clause or any one or
more of them. Such a rule, however, cannot be valid and
constitutional without reference to the second proviso to

Article 311(2)
and cannot be read apart from it. Thus, while
the source of authority of a particular officer to act as a
disciplinary authority and to dispense with the inquiry is
derived from the service rules, the source of his power to
dispense with the inquiry is derived from the second proviso
to
Article 311 (2)
and not from any service rules. There is
a well-established distinction between the source of
authority to exercise a power and the source of such power.
The Court in Challappan's case was, therefore, in error in
interpreting Rule 14 of the Railway Servants Rules by itself
and not in conjunction with the second proviso (at that time
the only proviso) to
Article 311(2).
It appears that in
Challappan's case the Court felt that the addition of the
words "the disciplinary authority may consider the
circumstances of the case and make such orders
thereon as it deems fit" warranted an interpretation of Rule
14 different from that to be placed upon the second proviso.
This is also not correct. It is true that the second proviso
does not contain these words but from this it does not
follow that when acting under the second proviso, the
disciplinary authority should not consider the facts and
circumstances of the case or make an order not warranted by
them. It is also not possible to accept the interpretation
placed upon the word "consider" in Challappan's case.
According to the view taken in that case, a consideration of
the circumstances of the case cannot be unilateral but must
be after hearing the delinquent government servant. If such
were the correct meaning of the word "consider", it would
render this part of Rule 14 unconstitutional as restricting
the full exclusionary operation of the second proviso. The
word "consider", however, does not bear the meaning placed
upon it in Challappan's case. The word "consider" is used in
Rule 14 as a transitive verb. The meaning of the word
"consider" as so used is given in the Oxford English
Dictionary as "To contemplate mentally, fix the mind upon;
to think over, meditate or reflect on, bestow attentive
thought upon, given heed to, take note of." The relevant
definition of the word "consider" given in Webster's Third
New International Dictionary is "to reflect on: think about
with a degree of care of caution". Below this definition are
given the synonyms of the word "consider", these synonyms
being "contemplate, study, weigh, revolve, excogitate".
While explaining the exact different shades of meaning in
this group of words, Webster's Dictionary proceeds to state
as under with respect to the word "consider".

"CONSIDER often indicates little more than think
about. It may occasionally suggest somewhat more
conscious direction of thought, somewhat greater
depth and scope, and somewhat greater
purposefulness."

It is thus obvious that the word "consider" in its ordinary
and natural sense is not capable of the meaning assigned to
it in Challappan's case. The consideration under Rule 14 of
what penalty should be imposed upon a delinquent railway
servant must, therefore, be ex parte and where the
disciplinary authority comes to the conclusion that the
penalty which the facts and circumstances of the case
warrant is either of dismissal or removal or reduction in
rank, no opportunity of showing cause against such penalty
proposed to be imposed upon him can be afforded to the
delinquent government servant. Undoubtedly, the disciplinary
authority must have regard to all the facts and
circumstances of the case as set out in Challapan's case. As
pointed out
earlier, considerations of fair play and justice requiring a
hearing to be given to a government servant with respect to
the penalty to be imposed upon him do not enter into the
picture when the second proviso to
Article 311(2)
comes into
play and the same would be the position in the case of a
service rule reproducing the second proviso in whole or in
part and whether the language used is identical with that
used in the second proviso or not. There are a number of
orders which are of necessity passed without hearing the
party who may be affected by them. For instance, courts of
law can and often do pass ex parte ad interim orders on the
application of a plaintiff, petitioner or appellant without
issuing any notice to the other side or hearing him. Can it,
therefore, be contended that the judge or judges, as the
case may be, did not apply his or their mind while passing
such an order?

The Decision in Challappan's case is, therefore not
correct with respect to the interpretation placed by it upon
Rule 14 of the Railway Servants Rules and particularly upon
the word "consider" occurring in the last part of that rule
and interpreting Rule 14 by itself and not in conjunction
with the second proviso to
Article 311(2).
Before parting
with Challappan's case, we may, also point out that case
never held the field. The judgment in that case was
delivered on September 15, 1975, and it was reported in
[1976] 1 S.C.R. at pages 783ff. Hardly was that case
reported then in the next group of appeals in which the same
question was raised, namely, the three Civil Appeals
mentioned earlier, an order of reference to a larger Bench
was made on November 18, 1976. The correctness of
Challappan's case was, therefore, doubted from the very
beginning.

The next service rule which falls for consideration in
these matters is Rule 19 of the Civil Services Rules. The
Civil Services Rules are also made under the proviso to

Article 309.
The scheme of these rules so far as
disciplinary proceedings are concerned is very similar to
that of the Railway Servants Rules. Rule 11 specifies the
penalties which can be imposed on a government servant.
These penalties are divided into minor penalties and major
penalties. Clauses (i) to (iv) of that rule specify what the
minor penalties are while clauses (v) to (viii) specify what
the major penalties are. The major penalties include
compulsory retirement, removal from service which is not to
be a disqualification for future employment under the
Government and dismissal from service which is ordinarily to
be a disqualification for future employment under the
Government. Rules 14 and 15
prescribe the procedure to be followed where a major penalty
is to be imposed while Rule 16 prescribes the procedure for
imposing a minor penalty. Previously, under sub-rule (4) of
Rule 15 the government servant was also to be given a notice
of the penalty proposed to be imposed upon him and an
opportunity of making representation with respect to such
proposed penalty. However, by Government of India, Ministry
of Home Affairs (Deptt. of Personnel & Admn. Reforms)
Notification No. 11012/2/77 - Ests. dated August 18, 1978,
sub-rule (4) was substituted by a new sub-rule to bring it
in conformity with the amendment made in clause (2) of

Article 311
by the
Constitution (Forty-second Amendment)
Act
, and the opportunity to show cause against the proposed
penalty was done away with. Rule 19 Provides as follows
"19. Special procedure in certain cases.

Notwithstanding anything contained in rule 14 to
rule 18-

(i) where any penalty is imposed on Government
servant on the ground of conduct which has led to
his conviction on a criminal charge, or

(ii) where the disciplinary authority is satisfied
for reasons to be recorded by it in writing that
it is not reasonably practicable to hold an
inquiry in the manner provided in these rules, or,

(iii) where the President is satisfied that in the
interest of the security of the State, it is not
expedient to hold any inquiry in the manner
provided in these rules,
the disciplinary authority may consider the
circumstances of the case and make such orders
thereon as it deems fit;

Provided that the Commission shall be consulted,
where such consultation is necessary, before any
orders are made in any case under this rule."
The word "Commission" is defined by clause (d) of Rule 2 as
meaning "The Union Public Service Commission". Under Rule
22, no appeal is lies against any order made by the
President or orders
of certain nature specified in that rule. Subject to the
provisions of Rule 22, Rule 23 provided for a right of
appeal. Rule 25 provides for a period of limitation for
filing an appeal but the appellate authority is conferred
the power to condone the delay in filing the appeal if it is
satisfied that the appellant had sufficient cause for not
preferring the appeal in time. Rule 27(2) provides as
follows:

"(2) In the case of an appeal against an order
imposing any of the penalties specified in rule 11
or enhancing any penalty imposed under the said
rule, the appellate authority shall consider -

(a) whether the procedure laid down in these rules
has been complied with, and if not, whether such
noncompliance has resulted in the violation of any
provisions of the Constitution of India or in the
failure of justice;

(b) whether the findings of the disciplinary
authority are warranted by the evidence on the
record; and

(c) whether the penalty or the enhanced penalty
imposed is adequate, inadequate or severe; and
pass orders -

(i) confirming, enhancing, reducing or setting
aside the penalty; or

(ii) remitting the case to the authority which
imposed or enhanced the penalty or to any other
authority with such direction as it may deem fit
in the circumstances of the case.

X X X X X
Rule 29 provides for a right of revision. Under it an
application for revision is to be dealt with in the same
manner as if it were an appeal under the Civil Services
Rules. Rule 29-A confers upon the President a power of
review similar to Rule 25-A of the Railway Servants Rules.

It will be noticed that the language of Rule 19 of the
Civil Services Rules is identical with that of Rule 14 of
the Railway
Servants Rules and the interpretation of Rule 19 of the
Civil Services Rules would be the same as that placed by us
upon Rule 14 of the Railway Servants Rules.

The rule which now remains to be considered is Rule 37
of the CISF Rules. The CISF Rules have been made by the
Central Government in pursuance of the power conferred by

section 22(1)
of the Central Industrial Security Force Act,
1968 (Act No. 50 of 1968) (hereinafter referred to in short
as "the
CISF Act
").
Section 22(1)
of the CISF Act confers
upon the Central Government the power to make rules for
carrying out the purposes of that Act. Sub-section (2) of

Section 22
inter alia provides as follows:

"(2) In particular, and without prejudice to the
generality of the foregoing powers, such rules may
provide for-

(a) regulating the classes, ranks, grades, pay and
remuneration of supervisory officers and members
of the Force and their conditions of service in
the Force;

X X X X X X

(g) regulating the punishments and prescribing
authorities to whom appeals shall be preferred
from orders of punishment or remission of fines or
other punishments, and the procedure to be
followed for the disposal of such appeals;

X X X X X X
Before we turn to the CISF Rules, it is necessary to
refer to certain other provisions of the
CISF Act
.
Section 3

of the CISF Act provides for the constitution and
maintenance by the Central Government of a Force to be
called the Central Industrial Security Force (hereinafter
referred to in short as "the CIS Force") for the better
protection and security of Industrial undertakings owned by
the Government. Clause(i) of
section 2(1)
of the CISF Act
defined "supervisory officer" as meaning "any of the
officers appointed under
Section 4
and includes any other
officer appointed by the Central Government as a supervisory
officer of the Force".
Section 4
provides for the
appointment of supervisory officers and their powers and is
in the following terms :
"4. Appointment and powers of supervisory
officers.

(1) The Central Government may appoint a person to
be the Inspector-General of the Force and may
appoint other persons to be Deputy Inspectors-

General, Chief Security Officers or Security
Officers of the Force.

(2) The Inspector-General and every other
supervisory officer so appointed shall have, and
may exercise, such powers and authority as is
provided by or under this Act."

Sections 8
and
provided as follows:

"8. Dismissal, removal, etc., of members of the
Force.

Subject to the provisions of
Article 311
of the
Constitution and to such rules as the Central
Government may make under this Act, any
supervisory officer may -

(i) dismiss, suspend or reduce in rank any member
of the Force whom he thinks remiss or negligent in
the discharge of his duty, or unfit for the same;

or
X X X X."

"9. Appeal and revision. -

(1) Any member of the Force aggrieved by an order
made under
Section 8
may, within thirty days from
the date on which the order is communicated to
him, prefer an appeal against the order to such
authority as may be prescribed, and subject to the
provisions of sub-section(3), the decision of the
said authority thereon shall be final :

Provided that the prescribed authority may
entertain the appeal after the expiry of the said
period of thirty days, if it is satisfied that the
appellant was prevented by sufficient cause from
filing the appeal in time.

(2) In disposing of an appeal, the prescribed
authority shall follow such procedure as may be
prescribed.
(3) The Central Government may call for and
examine the record of any proceeding under
Section
or under sub-section(2) of this section and may
make such inquiry or cause such inquiry to be made
and subject to the provisions of this Act, may
pass such order thereon as it thinks fit:

Provided that no order imposing an enhanced
penalty under sub-section(2) or sub-section(3)
shall be made unless a reasonable opportunity of
being heard has been given to the person affected
by such order."

We now turn to the relevant CISF Rules. Rule 29-A
specifies the disciplinary authorities. Rule 31 specifies
the penalties which may be imposed on a member of the CIS
Force. Amongst these penalties are dismissal, removal,
compulsory retirement and reduction to a lower class or
grade or rank or to a lower time-scale or to a lower stage
in the time-scale of pay. CIS Rules do not specify which out
of the penalties specified in Rule 31 are the major
penalties and which are minor penalties but as these terms
are well understood in service jurisdiction the same
classification as in the Civil Services Rules and the
Railway Servants Rules will apply here. Rule 34 prescribes
the detailed procedure for imposing major penalties and Rule
35 prescribes the procedure for imposing minor penalties.

Rule 32 specifies what are described as "petty punishments"

to be awarded ordinarily in Orderly Room for petty breaches
of discipline and trifling cases of misconduct by members of
the CIS Force not above the rank of the Head Security Guard
and Rule 36 prescribes the procedure for imposing these
punishments. Rule 37 of the CIS Rules is as follows :

"37. Special Procedure in certain cases-
Notwithstanding anything contained in rule 34,
rule 35 or rule 36, where a penalty is imposed on
a member of the force-

(a) on the ground of conduct which had led to his
conviction on a criminal charge; or

(b) where 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 rules :
the disciplinary authority may consider the
circumstances of the case and pass such orders
thereon as it deems fit.

A member of the force who has been convicted to
rigorous imprisonment on a criminal charge shall
be dismissed from service. In such cases, no
evidence need be given to proved the charge. Only
a notice shall be given to the party charged
proposing the punishment of dismissal for his
having been convicted to rigorous imprisonment and
asking him to explain as to why the proposed
punishment of dismissal should not be imposed".
Rule 42 provides for a right of appeal in the case of an
order imposing any of the penalties specified in Rule 31.
Rule 42-A prescribes the period of limitation for filing an
appeal. The appellate authority, however, has the power to
condone the delay in filing an appeal if it is satisfied
that the appellant had sufficient cause for not submitting
the appeal in time. Sub- rule(2) of Rule 47 provides as
follows :

"47. Consideration of appeals -

X X X
(2) In the case of an appeal against an order
imposing any of the penalties specified in rule
31, the appellate authority shall consider -

(a) whether the procedure prescribed in these
rules has been complied with, and if not, whether
such non-compliance has resulted in violation of
any provisions of the Constitution or in failure
of justice;

(b) whether the findings are justified; and

(c) whether the penalty imposed is excessive,
adequate or inadequate; and pass orders;

(i) setting aside, reduction, confirming or
enhancing the penalty;

(ii) remitting the case to the authority which
imposed the penalty; or to any other authority
with such
direction as it may deem fit in the circumstances
of the case :

X X X
Rule 49 provides for suo motu revision. It inter alia
enables the revising authority to take further evidence and
provides that the provisions of Rule 47 relating to appeals
shall apply so far as may be to orders in revision.

It will be noticed that Rule 37, except the last
paragraph thereof, is in pari materia with Rule 14 of the
Railway Servants Rules and Rule 19 of the Civil Services
Rules with this difference that a provision akin to clause

(iii) of Rule 14 of the Railway Servants Rules and clause

(iii) of Rule 19 of the Civil Services Rules is not to be
found in Rule 37 of the CISF Rules. The same interpretation
as placed by us on the word "consider" occurring in Rule 14
of the Railway Servants Rules and Rule 19 of the Civil
Services Rules must, therefore, be placed upon the word
"consider" in Rule 37 of the CISF Rules. The last paragraph
of Rule 37 of the CISF Rules is peculiar to itself and does
not find a place either in the said Rule 14 or the said Rule

19. It is clumsily worded and makes little sense. To provide
that a member of the CIS Force who has been convicted to
rigorous imprisonment on a criminal charge "shall be
dismissed from service" and at the same time to provide that
"only a notice shall be given to the party charged proposing
the punishment of dismissal for his having been convicted to
rigorous imprisonment and asking him to explain as to why
the proposed punishment of dismissal should not be imposed",
is a contradiction in terms, If either of these provisions
were taken as mandatory, it would be void as violating the
second proviso to
Article 311(2)
because the penalty
contemplated by the second proviso to
Article 311(2)
is not
the penalty of dismissal only but also of removal or
reduction in rank, and to make it mandatory to issue a
notice to show cause against the proposed penalty of
dismissal would equally violate the second proviso because
it would whittle down the exclusionary effect of the second
proviso. Therefore, both these provisions in the last
paragraph of Rule 37 must be read as directory and not
mandatory, not only to make sense out of them but also to
preserve their constitutionality. So read, a breach of these
provisions would not afford any cause of action to a member
of the CIS Force.
A conspectus of the above service rules and the
CISF
Act
shows that a government servant who has been dismissed,
removed or reduced in rank without holding an inquiry
because his case falls under one of the three clauses of the
second proviso to
Article 311(2)
or a provision of the
service rules analogous thereto is not wholly without a
remedy. He has a remedy by way of an appeal, revision or in
some cases also by way of review. Sub-clause (ii) of clause

(c) of the first proviso of Rule 25(1) of the Railway
Servants Rules expressly provides that in the case of a
major penalty where an inquiry has not been held, the
revising authority shall itself hold such inquiry or direct
such inquiry to be held. This is, however, made subject to
the provisions of Rule 14 of the Railway Servants Rules. The
other service rules referred to above not appear to have a
similar provision nor does the Railway Servants Rules make
the same provision in the case of an appeal. Having regard,
however, to the factors to be taken into consideration by
the appellate authority which are set out in the service
rules referred to above a provision similar to that
contained in sub-clause (ii) of clause(c) of the first
proviso to Rule 25(1) of the Railway Servants Rules should
be read and imported into provisions relating to appeals in
the Railway Servants Rules and in the other service rules
and also in the provisions relating to revision in the other
service rules. This would, of course, be subject to the
second proviso to
Article 311(2)
, Rule 14 of the Railway
Servants Rules Rule 19 of the Civil Services Rules and Rule
37 of the CISF Rules. Thus, such a right to an inquiry
cannot be availed of where clause (a) to the second proviso
of
Article 311(2)
or a similar provision in any service rule
applies in order to enable a government servant to contend
that he was wrongly convicted by the criminal court. He can,
however, contend that in the facts and circumstances of the
case, the penalty imposed upon him is too severe or is
excessive. He can also show that he is not in fact the
government servant who was convicted on a criminal charge
and that it is a case of mistaken identity. Where it is a
case falling under clause(b) of the second proviso or a
provision in the service rules analogous thereto, the
dispensing with the inquiry by the disciplinary authority
was the result of the situation prevailing at that time. If
the situation has changed when the appeal or revision is
heard, the government servant can claim to have an inquiry
held in which he can establish that he is not guilty of the
charges on which he has been dismissed, removed or reduced
in rank. He, however, cannot by reason of the provisions of
clause(3) of
Article 311
contend that the inquiry
was wrongly dispensed with and it was reasonably practicable
to hold an inquiry because by the said clause (3) the
decision on this point of the disciplinary authority has
been made final. So far as clause (c) is concerned,
dispensing with the inquiry depends upon the satisfaction of
the President or the Governor, as the case may be, that in
the interest of the security of the State it is not
expedient to hold an inquiry. In such a case, an order
imposing penalty can, however be passed by a disciplinary
authority because in such a case the President or the
Governor, as the case may be, can direct the disciplinary
authority to consider the facts of the case and impose the
appropriate penalty without holding any inquiry. Clause

(iii) of Rule 14 of the Railway Servants Rules and clause

(iii) of Rule 19 of the Civil Services Rules envisage this
being done. In such a case the satisfaction that the inquiry
should be dispensed with as not being expedient in the
interest of the security of the State would be that of the
President or the Governor, the selection of one of the three
penalties mentioned in
Article 311(2)
as being the proper
penalty to be imposed would be of the disciplinary
authority. The satisfaction of the President or the Governor
cannot be challenged in appeal or revision but the
government servant can in appeal or revision ask for an
inquiry to be held into his alleged conduct unless even at
the time of the appeal or revision, the interest of the
security of the State makes it inexpedient to hold such an
inquiry. Of course, no such right would be available to a
government servant where the order imposing penalty has been
made by the President or the Governor of a State, as the
case may be.

Executive Instructions and the Second Proviso
In the course of the arguments certain executive
instructions issued by the Government of India were referred
to and relied upon on behalf of the government servants. It
is unnecessary to deal with these instructions in detail. At
the highest they contain the opinion of the Government of
India on the scope and effect of the second proviso to

Article 311(2)
and cannot be binding upon the Court with
respect to the interpretation it should place upon that
proviso. To the extent that they may liberalized the
exclusionary effect of the second proviso they can only be
taken as directory. Executive instruction stand on a lower
footing than a statutory rule for they do not have the force
of a statutory rule. If an Act or a rule cannot alter or
liberalized the exclusionary effect of the second proviso,
executive instructions can do so even much less.
Omission to Mention the Relevant Clause of the Second
Proviso or the Relevant Service Rule in the Impugned Orders
Some of the orders impugned before us refer only to one
or the other of the three clauses of the second proviso to

Article 311(2)
for dispensing with an inquiry without
referring to the relevant service rule, some refer both to a
clause of the second proviso and the relevant service rule,
while the others refer only to the relevant service rule
without making any mention of the particular clause of the
second proviso which has been applied. The question is
whether the omission to mention the particular clause of the
second proviso or the relevant service rule makes any
difference.

As pointed out earlier, the source of authority of a
particular officer to act as a disciplinary authority and to
dispense with the inquiry is derived from the service rules
while the source of his power to dispense with the
disciplinary inquiry is derived from the second proviso to

Article 311(2).
There cannot be an exercise of a power
unless such power exists in law. If such power does not
exist in law, the purported exercise of it would be an
exercise of a non-existent power and would be void. The
exercise of a power is, therefore, always referable to the
source of such power and must be considered in conjunction
with it. The Court's attention in Challappan's Case was not
drawn to this settled position in law and hence the error
committed by it in considering Rule 14 of the Railway
Servants Rules by itself and without taking into account the
second proviso to
Article 311(2).
It is also well settled
that where a source of power exists, the exercise of such
power is referable only to that source and not some other
source under which were that power exercised, the exercise
of such power would be invalid and without jurisdiction.
Similarly, if a source of power exists by reading together
two provisions, whether statutory or constitutional, and the
order refers to only one of them, the validity of the order
should be upheld by construing it as an order passed under
both those provisions. Further, even the mention of a wrong
provision or the omission to mention the provision which
contains the source of power will not invalidate an order
where the source of such power exists.
(See
Dr. Ram Manohar
Lohia v. State of Bihar and others
[1966] 1 S.C.R. 709,721
and
The Municipal Corporation of the City of Ahmedabad v.
Ben Hiraben Manilal
[1983] 2 S.C.R. 676,681. The omission to
mention in the impugned orders the relevant clause of the
second proviso or the relevant service rule will not,
therefore, have the effect of invalidating
the orders and the orders must be read as having been made
under the applicable clause of the second proviso to
Article
311(2)
read with the relevant service rule.
It may be
mentioned that in none of the matters before us has it been
contended that the disciplinary authority which passed the
impugned order was not competent to do so.

The Second Proviso - Clause (a)
Not much remains to be said about clause (a) of the
second proviso to
Article 311(2).
To recapitulate briefly,
where a disciplinary authority comes to know that a
government servant has been convicted on a criminal charge,
it must consider whether his conduct which has led to his
conviction was such as warrants the imposition of a penalty
and, if so, what that penalty should be. For that purpose it
will have to peruse the judgment of the criminal court and
consider all the facts and circumstances of the case and the
various factors set out in Challappan's case. This, however,
has to be done by it ex parte and by itself. Once the
disciplinary authority reaches the conclusion that the
government servant's conduct was such as to require his
dismissal or removal from service or reduction in rank he
must decide which of these three penalties should be imposed
on him. This too it has to do by itself and without hearing
the concerned government servant by reason of the
exclusionary effect of the second proviso. The disciplinary
authority must, however, bear in mind that a conviction on a
criminal charge does not automatically entail dismissal,
removal or reduction in rank of the concerned government
servant. Having decided which of these three penalties is
required to be imposed, he has to pass the requisite order.
A government servant who is aggrieved by the penalty imposed
can agitate in appeal, revision or review, as the case may
be, that the penalty was too severe or excessive and not
warranted by the facts and circumstances of the case. If it
is his case that he is not the government servant who has
been in fact convicted, he can also agitate this question in
appeal, revision or review. If he fails in all the
departmental remedies and still wants to pursue the matter,
he can invoke the court's power of judicial review subject
to the court permitting it. If the court finds that he was
not in fact the person convicted, it will strike down the
impugned order and order him to be reinstated in service.
Where the court finds that the penalty imposed by the
impugned order is arbitrary or grossly excessive or out of
all proportion to the offence committed or not warranted by
the facts and circumstances of the case or the requirements
of that
particular government service the court will also strike
down the impugned order.
Thus, in
Shankar Dass v. Union of
India and another
, [1985] 2 S.C.C. 358, this Court set aside
the impugned order of penalty on the ground that the penalty
of dismissal from service imposed upon the appellant was
whimsical and ordered his reinstatement in service with full
back wages. It is, however, not necessary that the Court
should always order reinstatement. The Court can instead
substitute a penalty which in its opinion would be just and
proper in the circumstances of the case.

The Second Proviso - Clause (b)
The main thrust of the arguments as regards clause (b)
of the second proviso to
Article 311(2)
was that whatever
the situation may be minimal inquiry or at least an
opportunity to show cause against the proposed penalty is
always feasible and is required by law. The arguments with
respect to a minimal inquiry were founded on the basis of
the applicability of
Article 14
and the principles of
natural justice and the arguments with respect to an
opportunity to show cause against the proposed penalty were
in addition founded upon the decision in Challappan's case.
These contentions have already been dealt with and negatived
by us and we have further held that Challappan's case in so
far as it held that a government servant should be heard
before imposing a penalty upon him was wrongly decided.

The next contention was that even if it is not
reasonably practicable to hold an inquiry, a government
servant can be placed under suspension until the situation
improves and it becomes possible to hold the inquiry. This
contention also cannot be accepted. Very often a situation
which makes it not reasonably practicable to hold an inquiry
is of the creation of the concerned government servant
himself or of himself acting in concert with others or of
his associates. It can even be that he himself is not a
party to bringing about that situation. In all such cases
neither public interest nor public good requires that salary
or subsistence allowance should be continued to be paid out
of the public exchequer to the concerned government servant.
It should also be borne in mind that in the case of a
serious situation which renders the holding of an inquiry
not reasonably practicable, it would be difficult to foresee
how long the situation will last and when normalcy would
return or be restored. It is impossible to draw the line as
to the period of time for which the suspension should
continue and on the expiry of that period action should be
taken under clause (b) of the second proviso.
Further, the exigencies of a situation may require that
prompt action should be taken and suspending the government
servant cannot serve the purpose. Sometimes not taking
prompt action may result in the trouble spreading and the
situation worsening and at times becoming uncontrolable. Not
taking prompt action may also be construed by the trouble-
makers and agitators as sign of weakness on the part of the
authorities and thus encourage them to step up the tempo of
their activities or agitation. It is true that when prompt
action is taken in order to prevent this happening, there is
an element of deterrence in it but that is an unavoidable
and necessary concomitance of such an action resulting from
a situation which is not of the creation of the authorities.
After all, clause (b) is not meant to be applied in
ordinary, normal situations but in such situations where is
not reasonably practicable to hold an inquiry.

The condition precedent for the application of clause

(b) is the satisfaction of the disciplinary authority that
"it is not reasonably practicable to hold" the inquiry
contemplated by clause (2) of
Article 311.
What is pertinent
to note is that the words used are "not reasonably
practicable" and not "impracticable". According to the
Oxford English Dictionary "practicable" means "Capable of
being put into practice, carried out in action, effected,
accomplished, or done; feasible". Webster's Third New
International Dictionary defines the word "practicable"
inter alia as meaning "possible to practice or perform :

capable of being put into practice, done or accomplished :

feasible". Further, the words used are not "not practicable"
but "not reasonably practicable". Webster's Third New
International Dictionary defines the word "reasonably" as
"in a reasonable manner : to a fairly sufficient extent".
Thus, whether it was practicable to hold the inquiry or not
must be judged in the context of whether it was reasonably
practicable to do so. It is not a total or absolute
impracticability which is required by clause (b). What is
requisite is that the holding of the inquiry is not
practicable in the opinion of a reasonable man taking a
reasonable view of the prevailing situation. It is not
possible to enumerate the cases in which it would not be
reasonably practicable to hold the inquiry, but some
instances by way of illustration may, however, be given. It
would not be reasonably practicable to hold an inquiry where
the government servant, particularly through or together
with his associates, so terrorizes, threatens or intimidate
witnesses who are going to given evidence against him with
fear of reprisal as to prevent them from doing so or where
the government servant by himself or
together with or through other threatens, intimidates and
terrorizes the officer who is the disciplinary authority or
member of his family so that he is afraid to hold the
inquiry or direct it to be held. It would also not be
reasonably practicable to hold the inquiry where an
atmosphere of violence or of general indiscipline and
insubordination prevails, and it is immaterial whether the
concerned government servant is or is not a party to
bringing about such an atmosphere. In this connection, we
must bear in mind that numbers coerce and terrify while an
individual may not. The reasonable practicability of holding
an inquiry is a matter of assessment to be made by the
disciplinary authority. Such authority is generally on the
spot and knows what is happening. It is because the
disciplinary authority is the best judge of this that
clause(3) of
Article 311
makes the decision of the
disciplinary authority on this question final. A
disciplinary authority is not expected to dispense with a
disciplinary inquiry lightly or arbitrarily or out of
ulterior motives or merely in order to avoid the holding of
an inquiry or because the Department's case against the
government servant is weak and must fail. The finality given
to the decision of the disciplinary authority by
Article
311(3)
is not binding upon the court so far as its power of
judicial review is concerned and in such a case the court
will strike down the order dispensing with the inquiry as
also the order imposing penalty.
The case of
Arjun Chaubey
v. Union of India and others
, [1984] 3 S.C.R. 302, is an
instance in point. In that case, the appellant was working
as a senior clerk in the office of the Chief Commercial
Superintendent, Northern Railway, Varanasi. The Senior
Commercial Officer wrote a letter to the appellant calling
upon him to submit his explanation with regard to twelve
charges of gross indiscipline mostly relating to the Deputy
Chief Commercial Superintendent. The appellant submitted his
explanation and on the very next day the Deputy Chief
Commercial Superintendent served a second notice on the
appellant saying that his explanation was not convincing and
that another chance was being given to him to offer his
explanation with respect to those charges. The appellant
submitted his further explanation but on the very next day
the Deputy Chief Commercial Superintendent passed an order
dismissing him on the ground that he was not fit to be
retained in service. This Court struck down the order
holding that seven out of twelve charges related to the
conduct of the appellant with the Deputy Chief Commercial
Superintendent who was the disciplinary authority and that
if an inquiry were to be held, the principal witness for the
Department would have been the Deputy Chief Commercial
Superintendent himself, resulting in the same person being
the main accuser, the chief witness and also the judge of
the matter.
It was submitted that where a delinquent government
servant so terrorizes the disciplinary authority that
neither that officer nor any other officer stationed at that
place is willing to hold the inquiry, some senior officer
can be sent from outside to hold the inquiry. This
submission itself shows that in such a case the holding of
an inquiry is not reasonably practicable. It would be
illogical to hold that the administrative work carried out
by senior officers should be paralysed because a delinquent
government servant either by himself or along with or
through others makes the holding of an inquiry not
reasonably practicable.

It is not necessary that a situation which makes the
holding of an inquiry not reasonably practicable should
exist before the disciplinary inquiry is initiated against a
government servant. Such a situation can also come into
existence subsequently during he course of an inquiry, for
instance, after the service of a charge-sheet upon the
government servant or after he has filed his written
statement thereto or even after evidence has been led in
part. In such a case also the disciplinary authority would
be entitled to apply clause (b) of the second proviso
because the word "inquiry" in that clause includes part of
an inquiry. It would also not be reasonably practicable to
afford to the government servant an opportunity of hearing
or further hearing, as the case may be, when at the
commencement of the inquiry or pending it the government
servant absconds and cannot be served or will not
participate in the inquiry. In such cases, the matter must
proceed ex parte and on the materials before the
disciplinary authority. Therefore, even where a part of an
inquiry has been held and the rest is dispensed with under
clause (b) or a provision in the service rules analogous
thereto, the exclusionary words of the second proviso
operate in their full vigour and the government servant
cannot complain that he has been dismissed, removed or
reduced in rank in violation of the safeguards provided by

Article 311(2).

The second condition necessary for the valid
application of clause (b) of the second proviso is that the
disciplinary authority should record in writing its reason
for its satisfaction that it was not reasonably practicable
to hold the inquiry contemplated by
Article 311(2).
This is
a Constitutional obligation and if such reason is not
recorded in writing, the order dispensing with the inquiry
and the order of penalty following thereupon would both be
void and unconstitutional.
It is obvious that the recording in writing of the
reason for dispensing with the inquiry must proceed the
order imposing the penalty. The reason for dispensing with
the inquiry need not, therefore, find a place in the final
order. It would be usual to record the reason separately and
then consider the question of the penalty to be imposed and
pass the order imposing the penalty. It would, however, be
better to record the reason in the final order in order to
avoid the allegation that the reason was not recorded in
writing before passing the final order but was subsequently
fabricated. The reason for dispensing with the inquiry need
not contain detailed particular, but the reason must not be
vague or just a repetition of the language of clause (b) of
the second proviso. For instance, it would be no compliance
with the requirement of clause (b) for the disciplinary
authority simply to state that he was satisfied that it was
not reasonably practicable to hold any inquiry. Sometimes a
situation may be such that it is not reasonably practicable
to give detailed reasons for dispensing with the inquiry.
This would not, however, per se invalidate the order. Each
case must be judged on its own merits and in the light of
its own facts and circumstances.

It was vehemently contended that if reasons are not
recorded in the final order, they must be communicated to
the concerned government servant to enable him to challenge
the validity of that reasons in a departmental appeal or
before a court of law and the failure to communicate the
reasons would invalidate the order. This contention too
cannot be accepted. The constitutional requirement in clause

(b) is that the reason for dispensing with the inquiry
should be recorded in writing. There is no obligation to
communicate the reason to the government servant. As clause
(3) of
Article 311
makes the decision of the disciplinary
authority on this point final, the question cannot be
agitated in a departmental appeal, revision or review. The
obligation to record the reason in writing is provided in
clause (b) so that the superiors of the disciplinary
authority may be able to judge whether such authority had
exercised its power under clause (b) properly or not with a
view to judge the performance and capacity of that officer
for the purposes of promotion etc. It would, however, be
better for the disciplinary authority to communicate to the
government servant its reason for dispensing with the
inquiry because such communication would eliminate the
possibility of an allegation being made that the reasons
have been subsequently fabricated. It would also enable the
government servant to approach the High Court under
Article
or, in
a fit case, this Court under
Article 32.
If the reasons are
not communicated to the government servant and the matter
comes to the court, the court can direct the reasons to be
produced, and furnished to the government servant and if
still not produced, a presumption should be drawn that the
reasons were not recorded in writing and the impugned order
would then stand invalidated. Such presumption can, however,
be rebutted by a satisfactory explanation for the non-

production of the written reasons.

It was next submitted that though clause (b) of the
second proviso excludes an inquiry into the charges made
against a government servant, it does not exclude an inquiry
preceding it, namely, an inquiry into whether the
disciplinary inquiry should be dispensed with or not, and
that in such a preliminary inquiry the government servant
should be given an opportunity of hearing by issuing to him
a notice to show cause why the inquiry should not be
dispensed with so as to enable him to satisfy the
disciplinary authority that it would be reasonably
practicable to hold the inquiry. This argument is illogical
and is a contradiction in terms. If an inquiry into the
charges against a government servant is not reasonably
practicable, it stands to reason that an inquiry into the
question whether the disciplinary inquiry should be
dispensed with or not is equally not reasonably practicable.

A government servant who has been dismissed, removed or
reduced in rank by applying to his case clause (b) or an
analogous provisions of a service rule is not wholly without
a remedy. As pointed out earlier while dealing with the
various service rules, he can claim in a departmental appeal
or revision that an inquiry be held with respect to the
charges on which the penalty of dismissal, removal or
reduction in rank has been imposed upon him unless the same
or a similar situation prevails at the time of hearing of
the appeal or revision application. If the same situation is
continuing or a similar situation arises, it would not then
be reasonably practicable to hold an inquiry at the time of
the hearing of the appeal or revision. Though in such a case
as the government servant if dismissed or removed from
service, is not continuing in service and if reduced in
rank, is continuing in service with such reduced rank, no
prejudice could be caused to the Government or the
Department if the hearing of an appeal or revision
application, as the case may be, is postponed for a
reasonable time.

Where a government servant is dismissed, removed or
reduced
in rank by applying clause (b) or an analogous provision of
the service rules and the approaches either the High Court
under
Article 226
or this Court under
Article 32
, the court
will interfere on grounds well established in law for the
exercise of power of judicial review in matters where
administrative discretion is exercised. It will consider
whether clause (b) or an analogous provision in the service
rules was properly applied or not. The finality given by
clause (3) of
Article 311
to the disciplinary authority's
decision that it was not reasonably practicable to hold the
inquiry is not binding upon the court. The court will also
examine the charge of mala fides, if any, made in the writ
petition. In examining the relevancy of the reasons, the
court will consider the situation which according to the
disciplinary authority made it come to the conclusion that
it was not reasonably practicable to hold the inquiry. If
the court finds that the reasons are irrelevant, then the
recording of its satisfaction by the disciplinary authority
would be an abuse of power conferred upon it by clause (b)
and would take the case out of the purview of that clause
and the impugned order of penalty would stand invalidated.
In considering the relevancy of the reasons given by the
disciplinary authority the court will not, however, sit in
judgment over them like a court of first appeal. In order to
decide whether the reasons are germane to clause (b), the
court must put itself in the place of the disciplinary
authority and consider what in the then prevailing situation
a reasonable man acting in a reasonable way would have done.
The matter will have to be judged in the light of the then
prevailing situation and not as if the disciplinary
authority was deciding the question whether the inquiry
should be dispensed with or not in the cool and detached
atmosphere of a court room, removed in time from the
situation in question. Where two views are possible, the
court will decline to interfere.

During the course of the argument a reference was made
to certain High Court decisions and their citations were
given. We have carefully gone through those decisions. It
is, however, unnecessary to refer to them. In so far as what
was held in those decisions or any of them is contrary to or
inconsistent with what has been held by us, those decisions
are not correct and are to that extent hereby overruled.

The Second Proviso - Clause (c)
We now turn to the last clause of the second proviso to

Article 311(2)
, namely, clause (c). Though its exclusionary
operation on the safeguards provided in
Article 311(2)
is
the same as those of the other two clauses, it is very
different in content from them. While under clause (b) the
satisfaction is to be of disciplinary authority, under
clause (c) it is to be of the President or the Governor of a
State, as the case may be. Further, while under clause (b)
the satisfaction has to be with respect to whether it is not
reasonably practicable to hold the inquiry, under clause (c)
it is to be with respect to whether it will not be expedient
in the interest of the security of the State to hold the
inquiry. Thus, in one case the test is of reasonable
practicability of holding the inquiry, in the other case it
is of the expediency of holding the inquiry. While clause

(b) expressly requires that the reason for dispensing with
the inquiry should be recorded in writing, clause (c) does
not so require it, either expressly or impliedly.

The expressions "law and order", "public order" and
"security of the State" have been used in different Acts.
Situations which affect "public order" are graver than those
which affect "law and order" and situations which affect
"security of the State" are graver than those which affect
"public order". Thus, of these situations these which affect
"security of the State" are the gravest. Danger to the
security of the State may arise from without or within the
State. The expression "security of the State" does not mean
security of the entire country or a whole State. It includes
security of a part of the State. It also cannot be confined
to an armed rebellion or revolt. There are various ways in
which security of the State can be affected. It can be
affected by State secrets or information relating to defence
production or similar matters being passed on to other
countries, whether inimical or not to our country, or by
secret links with terrorists. It is difficult to enumerate
the various ways in which security of the State can be
affected. The way in which security of the State is affected
may be either open or clandestine. Amongst the more obvious
acts which affect the security of the State would be
disaffection in the Armed Forces or para-military Forces.
Disaffection in any of these Forces is likely to spread, for
disaffected or dissatisfied members of these Forces spread
such dissatisfaction and disaffection among other members of
the Force and thus induce them not to discharge their duties
properly and to commit acts of indiscipline, insubordination
and disobedience to the orders of their superiors. Such a
situation cannot be a matter affecting only law and order or
public order but is a matter affecting vitally the security
of the State. In this respect, the Police Force
stands very much on the same footing as a military or a
paramilitary force for it is charged with the duty of
ensuring and maintaining law and order and public order, and
breaches of discipline and acts of disobedience and
insubordination on the part of the members of the Police
Force cannot be viewed with less gravity than similar acts
on the part of the members of the military or para-military
Forces. How important the proper discharge of their duties
by members of these Forces and the maintenance of discipline
among them is considered can be seen from
Article 33
of the
Constitution.
Prior to the Constitution (Fiftieth Amendment)
Act, 1984
,
Article 33
provided as follows :

"33. Power to Parliament to modify the rights
conferred by this Part in their application to
Forces.

Parliament may by law determine to what extent any
of the rights conferred by this Part shall, in
their application to the member of the Armed
Forces or the Forces charged with the maintenance
of public order, be restricted or abrogated so as
to ensure the proper discharge of their duties and
the maintenance of discipline among them."

By the Constitution (Fiftieth Amendment) Act, 1984
, this
Article was substituted. By the substituted Article the
scope of the Parliament's power to so restrict or abrogate
the application of any of the Fundamental Rights is made
wider. The substituted
Article 33
reads as follows :

"33. Power to Parliament to modify the rights
conferred by this Part in their application to
Forces, etc.
Parliament may, by law, determine to what extent
any of the rights conferred by this Part shall, in
their application to,

(a) the members of the Armed Forces ; or

(b) the members of the Forces charged with the
maintenance of public order; or

(c) persons employed in any bureau or other
organisation established by the State for purposes
of intelligence or counter intelligence; or
(d) persons employed in, or in connection with,
the telecommunication systems set up for the
purposes of any Force, bureau or organisation
referred to in clauses (a) to (c),
be restricted or abrogated so as to ensure the
proper discharge of their duties and the
maintenance of discipline among them."

Thus, the discharge of their duties by the members of these
Forces and the maintenance of discipline amongst them is
considered of such vital importance to the country that in
order to ensure this the Constitution has conferred upon
Parliament to restrict or abrogate to them.

The question under clause (c), however, is not whether
the security of the State has been affected or not, for the
expression used in clause (c) is "in the interest of the
security of the State". The interest of the security of the
State may be affected by actual acts or even the likelihood
of such acts taking place. Further, what is required under
clause (c) is not the satisfaction of the President or the
Governor, as the case may be, that the interest of the
security of the State is or will be affected but his
satisfaction that in the interest of the security of the
State, it is not expedient to hold an inquiry as
contemplated by
Article 311(2).
The satisfaction of the
President or Governor must, therefore be with respect to the
expediency or inexpediency of holding an inquiry in the
interest of the security of the State. The Shorter Oxford
English Dictionary, Third Edition, defines the word
"inexpedient" as meaning "not expedient; disadvantageous in
the circumstances, unadvisable impolitic." The same
dictionary defines "expedient" as meaning inter alia
"advantageous; fit, proper, or suitable to the circumstances
of the case." Webster's Third New International Dictionary
also defines the term "expedient" as meaning inter alia
"characterized by suitability, practicality, and efficiency
in achieving a particular end : fit, proper, or advantageous
under the circumstances." It must be borne in mind that the
satisfaction required by clause (c) is of the Constitutional
Head of the whole country or of the State. Under
Article
74(1)
of the Constitution, the satisfaction of the President
would be arrived at with the aid and advice of his Council
of Ministers with the Prime Minister as the Head and in the
case of a State by reason of the provisions of
Article
163(1)
by the Governor acting with the aid and advice of his
Council of
Ministers with the Chief Minister as the Head. Whenever,
therefore, the President or the Governor in the
Constitutional sense is satisfied that it will not be
advantageous or fit or proper or suitable or politic in the
interest of the security of the State to hold an inquiry, he
would be entitled to dispense with it under clause (c). The
satisfaction so reached by the President or the Governor
must necessarily be a subjective satisfaction. Expediency
involves matters of policy. Satisfaction may be arrived at
as a result of secret information received by the Government
about the brewing danger to the security of the State and
like matters. There may be other factors which may be
required to be considered, weighed and balanced in order to
reach the requisite satisfaction whether holding an inquiry
would be expedient or not. If the requisite satisfaction has
been reached as a result of secret information received by
the Government, making, known such information may very
often result in disclosure of the source of such
information. Once known, the particular source from which
the information was received would no more be available to
the Government. The reasons for the satisfaction reached by
the President or Governor under clause (c) cannot,
therefore, be required to be recorded in the order of
dismissal, removal or reduction in rank nor can they be made
public.

In the case of clause (b) of the second proviso, clause
(3) of
Article 311
makes the decision of the disciplinary
authority that it was not reasonably practicable to hold the
inquiry final. There is no such clause in
Article 311
with
respect to the satisfaction reached by the President or the
Governor under clause (c) of the second proviso. There are
two reasons for this. There can be no departmental appeal or
other departmental remedy against the satisfaction reached
by the President or the Governor; and so far as the Court's
power of judicial review is concerned, the Court cannot sit
in judgment over State policy or the wisdom or otherwise of
such policy. The court equally cannot be the judge of
expediency or inexpediency. Given a known situation, it is
not for the Court to decide whether it was expedient or
inexpedient in the circumstances of the case to dispense
with the inquiry. The satisfaction reached by the President
or Governor under clause (c) is subjective satisfaction and,
therefore, would not be a fit matter for judicial review.
Relying upon the observations of Bhagwati, J., in State of
Rajasthan and others etc. etc. v. Union of India etc.etc.,
[1978] 1 S.C.R. 1, 82, it was submitted that the power of
judicial review is not excluded where the satisfaction of
the President or the Governor
has been reached mala fide or is based on wholly extraneous
or irrelevant grounds because in such a case, in law there
would be no satisfaction of the President or the Governor at
all. It is unnecessary to decide this question because in
the matters under clause (c) before us, all the materials
including the advice tendered by the Council of Ministers,
have been produced and they clearly show that in those cases
the satisfaction of the Governor was neither reached mala
fide nor was it based on any extraneous or irrelevant
ground.

It was further submitted that what is required by
clause (c) is that the holding of the inquiry should not be
expedient in the interest of the security of the State and
not the actual conduct of a government servant which would
be the subject-matter of the inquiry. This submission is
correct so far as it goes but what it overlooks is that in
an inquiry into acts affecting the interest of the security
of the State, several matters not fit or proper to be made
public, including the source of information involving a
government servant in such acts, would be disclosed and thus
in cases such as these an inquiry into acts prejudicial to
the interest of the security of the State would prejudice
the interest of the security of the State as much as those
acts would.

It was also submitted that the Government must produce
before the court all materials upon which the satisfaction
of the President or the Governor, as the case may be, was
reached. So far as the advice given by the Council of
Ministers to the President or the Governor is concerned,
this submission is negatived by the express provisions of
the Constitution. Article 74(2) of the Constitution provides
:

"(2) The question whether any, and if so what,
advice was tendered by Ministers to the President
shall not be inquired into in any Court."

Similarly,
Article 163(3)
provides :

"(3) The question whether any, and if so what,
advice was tendered by Ministers to the Governor
shall not be inquired into in any Court."

It was then submitted that leaving aside the advice
given by the Ministers to the President or the Governor, the
Government is bound to disclose at least the materials upon
which the advice of
the Council of Ministers was based so that the Court can
examine whether the satisfaction of the President or the
Governor, as the case may be, was arrived at mala fide or
based on wholly extraneous and irrelevant grounds so that
such satisfaction would in law amount to no satisfaction at
all. It was further submitted that if the Government does
not voluntarily disclose such materials it can be compelled
by the Court to do so. Whether this should be done or not
would depend upon whether the documents in question fall
within the class of privileged documents and whether in
respect of them privilege has been properly claimed or not.
It is unnecessary to examine this question any further
because in the cases under clause (c) before us though at
first privilege was claimed, at the hearing privilege was
waived and the materials as also the advice given by the
Ministers to the Governor of Madhya Pradesh who had passed
the impugned orders in those cases were disclosed.

The Nature of the Challenge to the Impugned orders
In all matters before us the challenge to the validity
of the impugned orders was confined only to legal grounds,
the main ground being based upon what was held in
Challappan's case and the application of principles of
natural justice. The contentions with respect to these
grounds have been considered by us in the preceding part of
this Judgment and have been negatived. In most of the
matters the Writ Petitions contain no detailed facts.
Several of the Petitioners have gone in departmental appeal
but that fact is not mentioned in the Writ Petitions nor the
order of the appellate authority challenged where the
appeals have been dismissed. Many government servants have
combine together to file one Writ Petition and in the case
of such of them whose departmental appeals have been allowed
and they reinstated in service, the Petitions have not been
amended so as to delete their names and they have continued
to remain on the record as Petitioners. Several Petitions
are in identical terms, if not, almost exact copies of other
Petitions. No attempt has been made in such matters to
distinguish the case of one Petitioner from the other. Apart
from contesting the legal validity of the impugned orders,
hardly any one has even stated in his Petition that he was
not involved in the situation which has led to clause (b) or
clause (c) of the second proviso to
Article 311
being
applied in his case. There is no allegation of mala fide
against the authority passing the impugned orders except at
times a more bare allegation that the order was passed mala
fide. No particulars whatever of such alleged mala fides
have been given.
Such a bare averment cannot amount to a plea of mala fides
and requires to be ignored. In this unsatisfactory state of
affairs go far as facts are concerned, the only course which
this Court can adopt is to consider whether the relevant
clause of the second proviso to
Article 311(2)
or of an
analogous service rule has been properly applied or not. If
this Court finds that such provision has not been properly
applied, the Appellant or the Petitioner, as the case may
be, is entitled to succeed. If, however, we find that it has
been properly applied, the Appeal or Petition would be
liable to be dismissed, because there are no proper
materials before the Court to investigate and ascertain
whether any particular government servant was, in fact,
guilty of the charges made against him or not. It is also
not the function of this Court to do so because it would
involve an inquiry into disputed questions of facts and this
Court will not, except in a rare case, embark upon such an
inquiry. For these reasons and in view of the directions we
propose to give while disposing of these matters, we will
while dealing with facts refrain from touching any aspect
except whether the particular clause of the second proviso
to
Article 311(2)
or an analogous service rule was properly
applied or not.

C.A. No. 6814 of 1983

Civil Appeal No. 6814 of 1983 is the only matter before
us under clause (a) of the second proviso to
Article 311(2).

The respondent, Tulsiram Patel, was a permanent auditor
in the Regional Audit Officer, M.E.S., Jabalpur. It appears
that orders were issued by Headquarters, C.D.A. C.C.,
Meerut, stopping the increment of the Respondent for one
year. One Raj Kumar Jairath was at the relevant time the
Regional Audit Officer, M.E.S., Jabalpur. On July 27,1976,
the Respondent went to Raj Kumar's office and demanded an
explanation from him as to why he had stopped his increment
whereupon Raj Kumar replied that he was nobody to stop his
increment. The Respondent then struck Raj Kumar on the head
with an iron rod. Raj Kumar fell down, his head bleeding.
The Respondent was tried and convicted under
section 332
of
the Indian Penal Code by the First Class Judicial
Magistrate, Jabalpur. The Magistrate instead of sentencing
the Respondent to imprisonment applied to him the provisions
of
section 4
of the Probation of Offenders Act, 1958, and
released him on his executing a bond of good behaviour for a
period of one year. The Respondents appeal against his
conviction was dismissed by the Sessions Judge, Jabalpur.
The Controller General of
Defence Accounts, who was the disciplinary authority in the
case, imposed upon the Respondent the penalty of compulsory
retirement under clause (i) of Rule 19 of the Civil Services
Rules. The said order was in the following terms :

"WHEREAS Shri T.R. Patel, Pt. Auditor (Account
No.8295888) has been convicted on a criminal
charge, to wit, under
Section 332
of I.P.C.,
WHEREAS it is considered that the conduct of the
said Shri T.R.Patel, Pt.Auditor,(Account No.
8295888) which has led to his conviction, is such
as to render his further retention in the public
service undesirable,
Now, therefore, in exercise of the powers
conferred by Rule 19(i) of the Central Civil
Services (Classification, Control and Appeal)
Rules, 1965, the undersigned hereby direct that
the said Shri T.R. Patel, Pt. Auditor, (Account
No.8295888) shall be compulsorily retired from
service with effect from 25.11.1980."

The Respondent thereupon filed a departmental appeal which
was dismissed.

Thereafter the Respondent filed in the Madhya Pradesh
High Court a writ petition under
Articles 226
and
of the
Constitution. Relying upon Challappan's Case the High Court
held that no opportunity had been afforded to the Respondent
before imposing the penalty of compulsory retirement on him.
It further held that the impugned order was defective
inasmuch as it did not indicate the circumstances which were
considered by the disciplinary authority except the fact of
conviction of the Respondent.

We are unable to agree with either of the two reasons
given by the High Court for setting aside the order of
compulsory retirement. So far as the first ground upon which
the High Court proceeded is concerned, as already pointed
out that part of the judgment in Challapan's case is not
correct and it was, therefore, not necessary to give to the
Respondent any opportunity of hearing before imposing the
penalty of compulsory retirement on him.

It was, however, argued that the penalty imposed upon
the Respondent was not of dismissal or removal from service
but of
compulsory retirement and, therefore, clause (a) of
Article
311(2)
did not apply. The argument cannot be accepted. The
compulsory retirement of the Respondent was not by reason of
his reaching the age of superannuation or under other rules
which provide for compulsorily retiring a government servant
on his completing the qualifying period of service. The
order of compulsory retirement in this case was under clause

(i) of Rule 19 of the Civil Services Rules and was by way of
imposing upon him one of the major penalties provided for in
Rule 11. It is now well settled by decisions of this Court
that where an order of compulsory retirement is imposed by
way of penalty, it amounts to removal from service and the
provisions of
Article 311
are attracted. (See
State of U.P.
v. Shyam Lal Sharma
, [1972] 1 S.C.R. 184,189 and the cases
referred to therein).

The second ground upon which the High Court rested its
decision is equally unsustainable. The circumstances which
were taken into consideration by the disciplinary authority
have been sufficiently set out in the order of compulsory
retirement, they being that the Respondent's conviction
under
section 332
of the Indian Penal Code and the nature of
the offence committed which led the disciplinary authority
to the conclusion that the further retention of the
Respondent in the public service was undesirable. The
mention of
section 332
of the Indian Penal Code in the said
order itself shows that Respondent was himself a public
servant and had voluntarily caused hurt to another public
servant in the discharge of his duty as such public servant
or in consequence of an act done by that person in the
lawful discharge of his duty. The facts here are eloquent
and speak for themselves. The Respondent had gone to the
office of his superior officer and had hit him on the head
with an iron rod. It was fortunate that the skull of Raj
Kumar was not fractured otherwise the offence committed
would have been the more serious one under section 333. The
Respondent was lucky in being dealt with leniently by the
Magistrate but these facts clearly show that his retention
in public service was undesirable. In fact, the conduct of
the Respondent was such that he merited the penalty of
dismissal from government service and it is clear that by
imposing upon him only the penalty of compulsory retirement,
the disciplinary authority had in his mind the fact that the
Magistrate had released him on probation. We accordingly
hold that clause (i) of Rule 19 of the Civil Services Rules
was rightly applied to the case of the Respondent.
This Appeal, therefore, requires to be allowed and the
writ petition filed by the Respondent in the Madhya Pradesh
High Court deserves to be dismissed.

CISF Matters
Civil Appeal No. 3484 of 1982 - Union of India and
others v. Sada Nand Jha and others and Civil Appeal No. 3512
of 1982 - Union of India and others v. G.P.Koushal- relate
to the members of the CIS Force who were dismissed from the
Force after dispensing with the disciplinary inquiry by
applying clause (b) of Rule 37 of the CISF Rules read with
clause (b) of the second proviso of
Article 311(2).
All
except one of them filed a writ petition in the Patna High
Court while the remaining one filed a writ petition in the
Madhya Pradesh High Court. Both the High Courts allowed the
writ petitions relying upon the decisions in Challappan's
case. Civil Appeal No. 3484 of 1982 is directed against the
judgment of the Patna High Court while Civil Appeal No. 3512
of 1982 is directed against the judgment of the Madhaya
Pradesh High Court.

Before dealing with the relevant facts, we may mention
that the counter affidavit filed to the writ petition in
both the said High Courts were unsatisfactory. At the
hearing of these Appeals an application was made on behalf
of the Appellants for leave to file a supplementary return.
This application was granted by us in the interest of
justice and the supplementary Return annexed to the said
application was taken on the record. We will now briefly set
out the facts which led to the passing of the impugned
orders. The Respondents in Civil Appeal No. 3484 of 1982 are
dismissed members of the CISF Unit at Bokaro Steel Plant of
the Bokaro Steel Limited situate at Bokaro in the State of
Bihar temporary security guard in the CISF Unit posted at
Security Paper Mill at Hoshangabad in the State of Madhya
Pradesh. We will first deal with the facts of Civil Appeal
No. 3484 of 1982. The members of the CISF Unit at Bokaro had
formed an all-India association in March 1979 and one
Sadanand Jha, Respondent No. 1, was elected as its General
Secretary. Thereafter, a country wide agitation was carried
on for recognition of the said association. In June 1979
some of the members of the said association were called upon
to meet the Home Minister at Delhi. A delegation of the said
association went to Delhi. While there they staged a
demonstration. Some of the demonstrators, including Sadanand
Jha, were arrested. What happened thereafter can best be
related by extracting paragraphs 3 to 9 of the supplementary
Return filed by Shri Madan Gopal, the Deputy Inspector-
General, CISF Unit of Bokaro Steel Plant, Bokaro, pursuant
to the leave granted by this Court. These paragraphs read as
follows :
"3. The said persons were arrested at Delhi, but
subsequently released on bail. At Bokaro Steel
Plant, the agitation which was going on assumed
aggravated from on and from 27th May, 1979. Out of
1900 persons belonging to CISF Unit, Bokaro Steel
Plant, Bokaro about 1000 persons participated in
the processions and violent demonstrations. The
said employees indulged in agitational acts and
violent indiscipline. The said personnel unleashed
a reign of terror in the unit lines and openly
incited others to disobey the lawful orders. The
said persons indulged in several acts of violence
and created a very serious law & order problem and
an atmosphere of collective violence and
intimidation. The said agitation and the violent
activity reached a very serious proportion in the
last week of June, 1979 with the result that Army
had to be called by the State Authorities on
23.6.1979. Annexed hereto and marked Annexure AFD-
I is the request from the Home Commissioner,
Bihar Government to the Ministry of Defence,
Government of India dated 23.6.1979 requesting for
the deployment of the Army so as to restore
normalcy in the area. The State Government had
also deployed 9 Magistrates to assist the Army
authorities as also the CRPF for restoring the
normal conditions at the Bokaro Steel Plant. A
copy of the order is enclosed herewith and market
as Annexure AFD-II

4. On 24.6.1979, on seeing the arrival of the
Army, the agitators started making preparations
for armed resistance by putting up sand bags,
flood lights and barricades in the CISF Lines.
They had gained the control of CISF Lines and the
Officers were not allowed to have any access to
the Lines or to other ranks of CISF.

5. On 25.6.1979, the Army along with 9 Magistrates
took up positions round the CISF Lines in the
early hours and called upon the agitators to give
up charge of the Armoury. Inspite of giving
repeated warnings by the authorities to give up
charge of the Armoury, the agitators did not give
up arms, but, instead, resorted to violence. The
agitators started firing at 0320 hours at the
Army. The Army returned the fire. The said
exchange of fire continued for 3 hours before the
Army could spell out the violent retaliation of
the agitators. The said violent exchange of fire
resulted in the instant death of one Army Major
and 2 more Army personnel were also killed as a
result of firing by the CISF personnel.

6. It may also be stated that there were 22 death
in the course of the said pitched battle, which
went on for three hours between the violent armed
agitators and the Army.

7. In regard to the aforesaid violent activities
and the commission of offences, about 800
personnel were rounded up by the Army and later on
arrested by the local police. It is pertinent to
mention here that at the relevant time, about 1900
personnel were deployed in CISF Unit, Bokaro Steel
Plant, Bokaro. More than 1000 personnel
participated in the aforesaid agitational
activities. Besides the persons arrested by the
authorities concerned, a substantial number of
agitators were at large. Most of them either fled
away or went underground and large number of arms
and ammunitions were also with them. The search
and seizure of arms and ammunition were going on
and as a result thereof up till 1.7.1979, 65
rifles along with large quantity of ammunitions,
11 Molotov cooktails, 20 kgs. of sulphur, 20 kgs
of glass chips and other explosives and 1048
empties of .303 ammunition were recovered from the
area after the Army action. A copy of the FIR
lodged in connection with aforesaid commission of
offences is annexed herewith and marked as
Annexure (AFD-III).

8. Notwithstanding the arrest of the said about
800 employees, as aforesaid, atmosphere at the
Bokaro Steel Plant continued to be vitiated due to
terror and collective fear and the functioning of
the CISF Unit and its administration at Bokaro had
completely broken down. It was only Army which
could control the situation by its continued
presence. The Army was withdrawn from the Bokaro
Steel Plant only on or about 2.7.1979, however it
may not be out of place to mention here that
although the Army was withdrawn in the early July,
1979 but atmosphere of terror and tension
continued for a couple of months. The CRPF
continued performing security duties till Nov. 79.
Besides this
Bihar Military Police took charge of armoury from
army and continued to perform some of armed duties
of CISF as CISF Unit was not in a position to
function normally for a considerable time. Even
the State authority apprehended a dangerous
situation after the Army action including threat
to lives of senior officers of CISF.

9. In the meanwhile, having regard to the violent
and disturbed situation which prevailed in the
Bokaro Steel Plant as also the collective actions
of violence, mass terror and intimidation and
threats to supervisory and loyal staff, it was
reasonably believed that any inquiry in accordance
with the provisions of the Rules 34, 35 and 36 of
CISF Rules, 1969 or in accordance with the
requirements of
Article 311(2)
would be dangerous,
counter productive and would aggravate the already
existing dangerous situation. It was also
reasonably believed that the circumstances were
such as would make the holding of any inquiry
self-defeating, subversive or would result in
consequent detriment to public interest. It was in
these circumstances that the concerned authorities
formed reasonable nexus that any inquiry in
accordance with the rules was reasonably
impracticable and impugned orders were passed in
view thereof."

We see no reason to doubt the above statements made by
Shri Madan Gopal in the Supplementary Return for these
statements are supported by documents which have been
annexed to the Supplementary Return. The facts set out in
the above paragraphs of the Supplementary Return are
eloquent and speak for themselves. They are also reflected
in the impugned order. All the impugned orders are in the
same terms apart from the mention of the name and service
number of the particular member of the said CISF Unit
against whom the order is made. By way of a specimen we set
out below the impugned order dated June 29, 1979, made in
the case of Sadanand Jha. The said order is as follows :

"Whereas a large group of members of Central
Industrial Security Force (hereinafter referred to
as the Force) of CISF Unit, Bokaro Steel Ltd.,
Bokaro have indulged and still continue to indulge
in acts of insubordination and indiscipline,
dereliction of duty, absenting from PT and parade,
taking out processions
and raising slogans such as 'INQULAB ZINDABAD'.
'VARDI VARDI VARDI BHAI BHAI LARKE LENGE PAI PAI'
'JO HAMSE TAKRAYEGE CHOOR CHOOR HO JAYEGA'and
'PUNJAB KI JEET HAMARI HAI AAB CISF KI BARI HAI',
participating in the gherao of Supervisory
Officers, participating hunger strike and 'dharna'
near the Quarter Guard and Administrative Building
of CISF Unit, Bokaro Steel Ltd., since 27th May
1979 in violation of the provisions of
CISF Act,
and instructions of the Superior Officers and
in complete disregard of their duties as members
of the Force;

And whereas the aforesaid group also indulged in
threats of violence, bodily harm and other acts of
intimation to Supervisory Officers and loyal members of the
Force;

And whereas by the aforesaid collective action, the
members of the Force have created a situation whereby the
normal functioning of the Force at the aforesaid CISF Unit
has been rendered difficult and impossible;

And whereas 7205199 Security Guard Sada Nand Jha as an
active participant of the aforesaid group has been extremely
remiss and negligent in the discharge of his duty and has
proved totally unfit for the same by absenting himself from
parade unauthorisedly and indulging in various acts of
extreme indiscipline and mis-conduct, as aforesaid;

And whereas I am satisfied that in the facts and
circumstances, any attempt to hold departmental inquiry by
serving a written charge-sheet and following other
procedures in the manner provided in rules 35 and 36 of the
CISF Rules, 1969 will be frustrated by the collective action
on the part of the aforesaid group and hence it is not
reasonably practicable to hold such inquiry;

And whereas on a consideration of the facts and
circumstances of the case I am satisfied that the penalty of
dismissal from service should be imposed on 7205199 Security
Guard Sada Nand Jha;

Now, therefore, in exercise of the powers conferred by
sub-rule (b) of the rule 37 of the CISF Rules, 1969 read
with clause (b) of the second proviso to clause (2) of

Article 311
of the
Constitution, I hereby order that 7205199 Security Guard
Sada Nand Jha be dismissed from service with immediate
effect."

The CIS Force has been constituted under the
CISF Act

for the better protection and security of industrial
undertakings owned by the Government. Under
section 14
of
the Act, the Inspector-General of the CIS Force may on a
request in that behalf from the Managing Director of an
Industrial undertaking in public sector, showing the
necessity thereof, depute such number of supervisory
officers and members of the CIS Force as the Inspector-
General may consider necessary for the protection and
security of that industrial undertaking and any installation
attached thereto. The purpose of constituting the CIS Force
is set out in the Statement of Objects and Reasons to the
Bill which when enacted became the
CISF Act
. The said
Statement of Objects and Reasons is published in the Gazette
of India Extraordinary dated August 2, 1966, Part II,

Section 2
, at page 435, and is as follows :

"At present security arrangements at important
industrial undertakings in the public sector are
handled by the Watch and Ward staff of the
Organization concerned. The Watch and Ward staff
is generally engaged in guarding the entrances or
the perimeter of the industrial undertaking and in
preventing entries of unauthorized persons.
Unplanned recruitment, inadequate supervision,
training and discipline have made the existing
watch and ward staff ill equipped to discharge its
responsibilities. It is considered necessary to
strengthen the security arrangements in vital
industrial undertakings. For that purpose it is
proposed to constitute a centrally recruited,
organised and trained Industrial Security Force.
The Force will primarily be responsible for the
watch and ward of industrial undertakings owned by
the Central Government and may be deployed at the
request and cost of managements, for security
duties of industrial undertakings in public
sector."

The CIS Force is an Armed Force and the security duties
to be performed by the CIS Force are of vital importance to
the industrial production of the country. The CIS Force has
been conferred very wide powers. Under
Section 11
of the
CISF Act, any supervisory officer or member of the Force
may, without any order
from a Magistrate and without a warrant, arrest any person
who has been concerned in or against whom a reasonable
suspicion exists of his having been concerned in or who is
found taking precautions to conceal his presence under
circumstances which afford reason to believe that he is
taking such precautions with a view to committing a
cognizable offence relating to the property belonging to any
industrial undertaking or other installations. Similarly,
under
section 12
for the same purpose a supervisory officer
or member of the CIS Force, not below the prescribed rank,
has the power to search the person and belongings of any
person whom he has reason to believe to have committed any
such offence as is referred to in
section 11
. From what is
stated above, it is obvious that in a Force entrusted with
such large responsibility, maintenance of discipline is most
essential and this is made clear by
section 18(1)
of the
CISF Act which provides as follows :

"18. Penalties for neglect of duty, etc.-

(1) Without prejudice to the provisions contained
in
Section 8
, every member of the Force who shall
be guilty of any violation of duty or wilful
breach or neglect of any rule or regulation or
lawful order made by a supervisory officer, or who
shall withdraw from the duties of his office
without permission, or who, being absent on leave,
fails, without reasonable cause, to report himself
for duty on the expiration of the leave or who
engages himself without authority in any
employment other than his duty as a member of the
Force, or who shall be guilty of cowardice, shall,
on conviction, be punished with imprisonment for a
term which may extend to six months."

Under
section 19
of the CISF Act, the Police (Incitement to
Disaffection) Act, 1922, applies to supervisory officers and
members of the CIS Force as it applies to members of a
Police Force. Under
section 20
, neither the
Payment of Wages
Act, 1936
, nor the
Industrial Disputes Act, 1947
, nor the

Factories Act, 1948
, nor any corresponding State Act applies
to the member of the CIS Force.

The facts set out in the Supplementary Return of Shri
Mohan Gopal and in the impugned orders show that there was a
total breakdown of discipline in the CIS Force. There was a
wilful and deliberate disobedience of orders of the
supervisory officers and 'gherao' of such officers. There
was a hunger strike, dharna,
shouting of revellious slogans and threats of violence and
bodily harm to supervisory officers and acts tending to
intimidate the supervisory officers and loyal members of the
staff. There were acts of insubordination and deliberate
neglect and wilful violation of their duties by a very large
section of the members of the CIS Force stationed at Bokaro.
All these acts virtually amounted to a mutiny and how grave
the situation was can be judge from the fact that the army
had to be called out and a pitched battle took place between
the army and the members of the Force. No person with any
reason or sence of responsibility can say that in such a
situation the holding of an inquiry was reasonably
practicable.

It was said that the impugned orders did not set out
the particular acts done by each of the members of the CIS
Force in respect of whom the dismissal orders was made, and
these were merely cyclostyled orders with the names of
individual members of the CIS Force filled in. Here was a
case very much like a case under
section 149
of the Indian
Penal Code. The acts alleged were not of any particular
individual acting by himself. These were acts of a large
group acting collectively with the common object of coercing
those in charge of the administration of the CIS Force and
the Government in order to obtain recognition for their
association and to concede their demands. It is not possible
in a situation such as this to particularize the acts of
each individual members who participated in the commission
of these acts. The participation of each individual may be
of greater or lesser degree but the acts of each individual
contributed to the creation of a situation in which a
security force itself became a security risk.

It was submitted at the Bar that the real reason for
passing the orders impugned in Civil Appeal No. 1484 of 1982
was the encounter with the army on June 25, 1979, and this
real reason as not mentioned in the impugned order because
the Respondents had been arrested and were being prosecuted
and, therefore, before passing the impugned orders, the
disciplinary authority would have had to wait till the
prosecutions were over. Such an allegation has not been made
in the writ petition filed in the High Court. In fact, there
is no mention in the writ petition of the help of the army
being sought or of the encounter with the army. The impugned
orders mentioned the reasons why they were passed. Then
Supplementary Returns bears out these reasons. We have,
therefore, no hesitation in accepting what is stated in the
impugned orders. In our opinion, clause (b) of Rule 37 of
the CISF Rules and clause (b) of the second proviso to

Article 311(2)
were properly applied to the cases of the
Respondents.

Finally, a grievance was made at the Bar that the
dismissed members of the CIS Force had filed departmental
appeals and the appeals of those who had been discharged by
the Magistrate were allowed and these appellants were
reinstated. We do not know how far this is correct nor the
reasons for allowing such appeals, but if what is stated is
ture, it is not fair and the remaining appeals should be
disposed of as early as possible.

The impugned order in Civil Appeal No. 3512 of 1982 is
in the same terms as the impugned orders in Civil Appeal No.
3484 of 1982. The situation at Hoshangabad was very much the
same as at Bokaro and in our opinion clause (b) of Rule 37
of the CISF Rules and clause (b) of the second proviso to
clause (2) of
Article 311
were properly applied to the case
of the Respondent.

Both these Appeals, therefore, require to be allowed.
Railway Service Matters
Civil Appeals Nos. 3231 of 1981 and 4067 of 1983 and
all the writ petitions filed in this Court (except Writ
Petitions Nos. 1953 of 1981, 7393,1392 and 2022 of 1981) and
all Transferred Cases, that is, writ petitions filed in High
Courts and transferred to this Court, relate to railway
servants who were either dismissed or removed from service
by applying to their cases either clause (ii) of Rule 14 of
the Railway Servants Rules or clause (b) of the second
proviso to
Article 311(2)
or clause (ii) of Rule 14 read
with clause (b) of the second proviso.

We have carefully gone through the facts of each of
these cases. The majority of the railway employees who were
dismissed or removed are alleged to have been concerned in
incident which took place in all-India strikes of railway
employees. Many of these employees belonged to the all-India
loco-running staff.

The proper running of the railway service is vital to
the country. Railway trains carry not only those going for a
holiday but also those who commute to work or business. In
certain cities, for instance - Bombay, Lakhs commute daily
by train for
this purpose. The railway trains also carry those going to
attend the funeral or obsequiel ceremonies of near and dear
ones and equally they carry marriage parties. They carry
those who are in urgent need of medical treatment or have
been seriously injured and not having proper medical aid in
the places where they reside, have to be rushed to the
nearest town, city or district headquarter where such
medical aid is available. They carry essential commodities
like foodgrains, oil, etc. They carry equipment and
machinery vital for the needs of the country. In times of
disturbances they carry members of the Defence Forces and
the Central Reserve Police Force.
In this connection, it is
pertinent to note what Shah,J., as he then was, had to say
in
Moti Ram Dekh
's case (at pages 795-6) about the railway
administration and employment in railway service:

"... employment in the Railways is in a vitally
important establishment of the Union in which the
employees are entrusted with valuable equipment
and a large measure of confidence has to be
reposed in them and on the due discharge of the
duties the safety of the public and the efficient
functioning of the governmental duties depend. Not
only the travelling public, but the Union and the
States have in a considerable measure to depend
upon rail transport for the functioning of the
governmental machinery and its welfare activities.

It would be possible even for one or a few
employees of the Railway to paralyse
communications and movement of essential supplies
leading to disorder and confusion. The Railway
service has therefore a special responsibility in
the smooth functioning of our body politic...."

As pointed out in
Kameshwar Prasad and others v. The
State of Bihar and another
(at page 385) there is no
Fundamental Right to resort to a strike. A strike is only
legal if an Act permits it and only if it is called in
compliance with the conditions prescribed by the Act. The
definition of "public utility service" in clause (n) of

section 2
of the Industrial Disputes Act, 1947, includes and
railway service. The term "strike" is defined in clause (q)
of
section 2
of the said Act. The said clause (q) is as
follows :

"strike' means a cessation of work by a body of
persons employed in any industry acting in
combination
or a concerted refusal, or a refusal under a
common understanding, of any number of persons who
are or have been so employed to continue to work
or to accept employment".

Under sub-section (1) of
section 22
of the said Act, no
person employed in a public utility service can go no strike
in breach of contract without giving to his employer a
notice of strike as prescribed by that section. Under

section 24
a strike is illegal if it is commenced or
declared in contravention of
section 22
. Under
section 26(1)

any workman who commences, continues or otherwise acts in
furtherance of a strike which is illegal under the said Act,
commits an offence punishable with imprisonment for a term
which may extend to one month or with a fine which may
extend to fifty rupees or with both. The railway strikes
were all commenced without complying with the provisions of

section 22
. These strikes were, therefore, illegal and each
of the railway servants who participated in these strikes
committed an offence punishable under
section 26(1)
of the
said Act.

It may be that the railway servants went on these
strikes with the object of forcing the Government to meet
their demands. Their demands were for their private gain and
in their private interest. In seeking to have these demands
conceded they caused untold hardship to the public and
prejudicially affected public good and public interest and
the good and interest of the nation.

It was contended that the conduct charged against all
employees was not of equal gravity. This is true for in the
case of some of the railway servants the acts alleged to
have been committed by them would not if committed in normal
times, merit the penalty of dismissal or removal from
service, but when committed in furtherance of an all-India
strike which has paralysed a public utility service they
cannot be viewed in the same light.

It was also contended that the punishments were
arbitrarily meted out because in some centres the railway
servants were dismissed from service while in some other
centres they were removed from service. The quantum and
extent of penalty would depend upon the gravity of the
situation at a particular centre and the extent to which the
alleged acts, though not serious in themselves, in
conjunction with acts committed by others, contributed to
the bringing about of this situation.
In the context of an all-India strike where a very
large number of railway servants had struck work, the
railway services paralysed, loyal workers and superior
officers assaulted and intimidated, the country held to
ransom, the economy of the country and public interest and
public good prejudicially affected, prompt and immediate
action was called for to bring the situation to normal. In
these circumstances, it cannot be said that an inquiry was
reasonably practicable.

On a careful examination of the facts of these cases
and the impugned orders, we find that in each of these cases
clause (ii) Rule 14 of the Railway Servants Rules or clause

(b) of the second proviso to
Article 311(2)
or both, as the
case may be, were properly applied. All these matter
therefore require to be dismissed.

The Madhya Pradesh Police Forces Matters
The matters which now remain to be dealt with are Writ
Petitions Nos. 1953,7393,1392 and 2022 of 1981. The
Petitioners belonged either to the Madhya Pradesh District
Police Force or the Madhya Pradesh special Armed Force. The
Petitioners were dismissed by orders of the Governor of
Madhya Pradesh by applying clause (c) of the second proviso
to
Article 311(2)
to them. All the orders are in the same
terms except for the same and designation of the concerned
policeman. One of the orders may be reproduced as a
specimen. That order is as follows:

"As the Governor of M.P. Under
article 311(2)
C
clause 2, sub-clauses (c) of the proviso of
Constitution is satisfied, that it is not
expedient in the interest of the security of State
that in case of Shri Karan Singh const. no. 602,
2nd Bn. SAF the alleged charges to be told,
enquiry to be conducted, or opportunity to show
cause is to be provide as per provisions of clause
(2) of the above article,
And, as Governor of M.P. is satisfied that the
conduct, which appears from his actions or
omissions, is such that it is sufficient ground
for his dismissal/termination,
As such, the Governor of M.P. on the ground of
powers vested to him under
article 311(2)
C read
with
article
of the Constitution dismisses/terminates Shri
Karan singh Const. no. 602, 2nd B.n. SAF, under
said power, from the services, which will apply
with immediate effect.

On behalf and under orders of
the Governor of M.P.
Sd/- (Indira Mishra)
Under Secretary
Govt. of M.P., Home (Police) Deptt."

We have already held that in applying clause (c) of the
second proviso the Governor of a State acts on his
subjective satisfaction taking into consideration facts and
factors which are not proper matters for judicial review.
However, the claim of privilege was waived by the Government
and all the materials produced at the hearing and inspection
given to the other side. These materials disclose that an
incident took place on January 18, 1981, at the annual Mela
held at Gwalior in which one man was burnt alive. Some
persons, including a constable from each of these two
Forces, were arrested. These persons were remanded into
judicial custody. On January 20, 1981, several members of
these two Forces indulged in violent demonstrations and
rioted at the Mela ground, demanding the release of their
colleagues. They attacked the police station at the Mela
ground, ransacked it and forced the operator to close down
the wireless set. The situation became so dangerous that
senior district and police officers had to approach the
Judicial Magistrate at night and get the two arrested
constables released on bail. The incident was discussed at a
Cabinet meeting, a decision was taken and the advice of the
Council of Ministers was tendered to the Governor of Madhya
Pradesh who accepted it and issued the impugned orders. On
further scrutiny some names were deleted from the list of
dismissed personnel and some others included. As a result of
this, some other members of these Forces began carrying on
an active propaganda against the Government, visiting
Jabalpur and other places in the State of Madhya Pradesh,
holding secret meetings, distributing leaflets, and inciting
the constabulary in these places to rise against the
administration as a body in protest against the action taken
by the Government. On this information being received, they
too were similarly dismissed. These facts speak for
themselves. The police normally oppose the grant of bail to
an accused but here we have the paradoxical situation of
some of the highest police and district officers going at
midnight to the Magistrate's house to apply for bail for
the accused. The police are the guardians of law and order.
They stand guard at the border between the green valleys of
law and order and the rough and hilly terrain of lawlessness
and public disorder. If these guards turn law-breakers and
create violent public disorder and incite others to do the
same, we can only exclaim with Juvenal, "Quis custodiet
ipsos' Custodes?"- who is to guard the guards themselves?"

(Satires, VI,347). These facts leave no doubt that the
situation was such that prompt and urgent action was
necessary and the holding of a inquiry into the conduct of
each of the Petitioners would not have been expedient in the
interest of the security of the State. All these four
Petitions, therefore deserve to be dismissed.

Final Orders in the Appeals and Writ Petitions
For the reasons set out above, we pass the following
orders in the above matters :

(1) Civil Appeal No. 6814 of 1983 is allowed and
the judgment and order appealed against are
reversed and set aside and the writ petition filed
by the Respondent in the High Court is hereby
dismissed.

(2) Writ Petitions Nos. 1953,7393,1392 and 2022 of
1981 are hereby dismissed.

(3) All the remaining Writ Petitions and all the
Transferred Cases and Civil Appeals Nos. 3231 of
1981 and 4067 of 1983 are dismissed while Civil
Appeals Nos. 3484 and 3512 of 1982 are allowed and
the judgments and orders appealed against are
reversed and set aside and the writ petitions
filed by the Respondents in the High Courts are
hereby dismissed. We direct the appellate
authority under the Central Industrial Security
Force Rules, 1969, to dispose of as expeditiously
as possible such appeals of the members of the
Central Industrial Security Force as may still be
pending. In the case of those government servants
in this particular group of matters who have not
filed any appeal, in view of the fact that they
were relying upon the decision of this Court in
Chalappan's case, we give them time till September
30, 1985, to file a departmental appeal, if so
advised, and we direct the concerned appellate
authority to condone in the exercise of its power
under the relevant service rule
the delay in filing the appeal and, subject to
what is stated in this Judgment under the headings
"Service Rules and the Second Proviso -
Challappan's case and "The Second Proviso - Clause

(b)", to hear the appeal on merits.

(4) All interim orders made in the above matters
are vacated but the government servants will not
be liable to refund any amount so far paid to
them.

(5) There will be no order as to costs in all the
above matters.

(6) All other matters pending in this Court in
which a question of the interpretation of the
second proviso to clause (2) of
Article 311
or of
an analogous service rule is involved will stand
disposed of in accordance with this Judgment.

THAKKAR, J. A benevolent and justice-oriented decision
of a three-Judge Bench of this Court, rendered ten years
back in a group of service matters, (D.P.O. Southern Railway
v. T.R. Challappan), [1976] 1 S.C.R. 783, is sought to be
overruled by the judgment proposed to be delivered by my
learned Brother Madon, J, with which, the majority appear to
agree. "Challappan" having held the field for such a long
time, it would have been appropriate if a meeting of the
Judges Constituting the Bench had been convened to seriously
deliberate and evolve a consensus as to whether or not to
overrule it. A 'give' and 'take' of ideas, with due respect
for the holders of the opposite point of view (in a true
democratic spirit of tolerance), with willingness to accord
due consideration to the same, would not have impaired the
search for the true solution or hurt the cause of justice.
The holders of the rival view points could have, perhaps,
successfully persuaded and converted the holders of the
opposite point of view or got themselves persuaded and
converted to the other point of view.

Brother Madon, J, to whom the judgment was assigned by
the learned Chief Justice, also appears to suffer heart-ache
on the same score, for, in his covering letter dated July 6,
1985 forwarding the first instalment of 142 pages he says :

"...... I regret to state that the draft judgment
could not be sent to you earlier. The reason was
that
as we did not have a meeting to discuss this
matter, I did not know what would be the view of
my other Brothers on the large number of points
which fall to be determined in these cases, except
partly in the case of two of my Brothers with whom
by chance I got an opportunity to discuss certain
broad aspects......".

If only there had been a meeting in order to have a
dialogue, there might have been a meeting of minds, and we
might have spoken in one voice. Failing which, the holders
of the dissenting view point could have prepared their
dissenting opinions. That was not to be. On the other hand,
it has so transpired that, the full draft judgment running
into 237 pages has come to be circulated in the morning of
July 11, 1985, less than 3 hours before the deadline for
pronouncing the judgment. There is a time-compulsion to
pronounce the judgment, on 11th July, 1985, as the learned
Chief Justice who has presided over the Constitution Bench
is due to retire on that day, and the judge-time invested by
the five Judges would be wasted if it is not pronounced
before his retirement. The judge-time would be so wasted
because the entire exercise would have to be done afresh.
The neck-to-neck race against time and circumstances is so
keen that it is impossible to prepare an elaborate judgment
presenting the other point of view within hours and
circulate the same amongst all the Judges constituting the
Bench in this important matter which was heard for months,
months ago. I am, therefore, adopting the only course open
to me in undertaking the present exercise.

'Challappan', in my opinion, has been rightly decided.
And there is no compulsion to overrule it - Even if the
other point of view were to appear to be more 'attractive',
it is neither a good nor a sufficient ground to overrule
'Challappan'. After all what does 'Challappan' do? It does
no more than enjoin in the context of Rule 14(1) (a) and
therefore, as a logical corollary, also in the context of
Rule 14(a) (b) of the Railway Servants (Discipline and
Appeal) Rules, 1968, that an employee must at least be heard
on the question of quantum of punishment before he is
dismissed or removed from service without holding any
inquiry. The ratio of the decision is so innocuous that
there is hardly any need to overturn it. Apart from the
weighty reasons articulated by the three-Judge Bench, there
are some more which can be called into aid. But while the
'will' is very much there, not the 'time', to elaborate the
reasons to buttress 'Challappan' and to counter the
criticism levelled against the thesis
propounded therein. Or to expound my point of view in regard
to propositions in respect of which I have reservations. I
propose to do so later if deemed necessary.

For the present, therefore, suffice it to say, I am
unable to persuade myself to fall in line with the majority
in overruling 'Challappan' and unable to concur with the
consequential orders being passed in that context. I am also
unable to associate myself with the exposition of law in
regard to the true meaning and content of the 'pleasure
doctrine' and its implications and impact.

The sphere in which I am able to agree with the
proposed judgment is in regard to the matters arising out of
orders passed in exercise of powers under
Article 311(2) (c)

of the Constitution of India and the orders proposed to be
passed therein.

In the result:

I
Following the law laid down in 'Challappan' the under
mentioned appeals are dismissed with no order as to costs:-

Civil Appeal No. 6814 of 1983

Union of India & Anr. v. Tulsiram Patel

Civil Appeal No. 3484 of 1982

Union of India & Ors. v. Sadanand Jha & Ors.

Civil Appeal No. 3512 of 1982

Union of India & Ors. v. G.P. Koushal
II
Following the law laid down in 'Challappan', the Writ
Petitions and allied appeals and the companion matters
hereafter mentioned are allowed and the impugned orders
against the Petitioners are declared to be void and quashed
with no order as to costs:-

Writ Petitions Nos. 2267, 2268, 2269, 2273, 3349,
3350, 3351, 3352, 3353, 6500, 8120 of 1982 & 562
of 1983. Bishwaroop Chatterjee etc. v. Union of
India & Ors. etc. with Civil Appeal Nos. 3231 of
1981 and 4067 of 1983. Achinita Biswas etc. v.
Union of India & Ors. etc. and other allied
Transferred cases and matters arising out of
Railway Service matters.
III
The same orders dismissing the Writ Petitions coupled
with the same directions as per the majority judgment in :
Writ Petition No. 1953 of 1981,7393,1392, 2202 of
1981 and other allied M.P. Police Force matters
under
Article 311 (2) (c).

N.V.K.