1985 (7) TMI 371 - SC - Indian Laws

Government servants dismissed without inquiry under Article 311(2) second proviso for rioting and attacking police station

UNION OF INDIA AND ANOTHER Versus TULSIRAM PATEL AND OTHERS

SC upheld dismissal of government servants without inquiry under Article 311(2) second proviso. Police personnel from two forces rioted at Gwalior Mela in ... Interpretation of Articles 309, 310 and 311 of the Constitution - dismissal or removal from to service several government servants - without holding any inquiry - Application of the second proviso to Article 311(2) - Validity of service rules vis-à -vis the second proviso to Article 311(2) - reasonable opportunity of being heard - Principles of natural justice - audi alteram partem rule - The Pleasure Doctrine - HELD THAT:- 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. 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 The same orders dismissing the Writ Petitions coupled with the same directions as per the majority judgment Issues Involved:1. Interpretation of Articles 309, 310, and 311 of the Constitution of India.2. Application of the second proviso to Article 311(2).3. Validity of dismissals and removals without inquiry under the second proviso to Article 311(2).4. Impact of the pleasure doctrine on the tenure of civil servants.5. Relationship between Article 14 and Article 311.6. Validity of service rules vis-à-vis the second proviso to Article 311(2).7. Judicial review of decisions made under the second proviso to Article 311(2).Summary:1. Interpretation of Articles 309, 310, and 311 of the Constitution of India:The judgment addresses the interpretation of Articles 309, 310, and 311, particularly focusing on the second proviso to Article 311(2) after its amendment by the Constitution (Forty-second Amendment) Act, 1976. Article 311 provides safeguards for civil servants, including protection against dismissal, removal, or reduction in rank without an inquiry, except in specific cases outlined in the second proviso.2. Application of the second proviso to Article 311(2):The second proviso to Article 311(2) allows for the dismissal, removal, or reduction in rank of a civil servant without an inquiry in three cases: (a) conviction on a criminal charge, (b) impracticability of holding an inquiry, and (c) expediency in the interest of the security of the State. The judgment emphasizes that these exceptions must be narrowly construed and applied strictly.3. Validity of dismissals and removals without inquiry under the second proviso to Article 311(2):The Court held that dismissals and removals without inquiry under the second proviso to Article 311(2) are valid if the conditions specified in the proviso are met. The disciplinary authority must record reasons in writing for dispensing with the inquiry, and these reasons must be relevant and sufficient to justify the action.4. Impact of the pleasure doctrine on the tenure of civil servants:The pleasure doctrine, as embodied in Article 310(1), means that civil servants hold office at the pleasure of the President or the Governor. However, this doctrine is subject to the express provisions of the Constitution, including Article 311, which provides safeguards against arbitrary dismissal, removal, or reduction in rank.5. Relationship between Article 14 and Article 311:The judgment clarifies that Article 14, which guarantees equality before the law, does not override the specific provisions of Article 311. The principles of natural justice, including the audi alteram partem rule, are inherent in Article 14 but are expressly excluded by the second proviso to Article 311(2) in the specified cases.6. Validity of service rules vis-à-vis the second proviso to Article 311(2):Service rules made under Article 309 must conform to the provisions of the Constitution, including Article 311. Rules that provide for dismissal, removal, or reduction in rank without inquiry must align with the exceptions in the second proviso to Article 311(2). Any rule that restricts the exclusionary effect of the second proviso would be unconstitutional.7. Judicial review of decisions made under the second proviso to Article 311(2):The Court retains the power of judicial review to ensure that the conditions for applying the second proviso to Article 311(2) are met. The decision of the disciplinary authority to dispense with the inquiry is subject to review to check for relevance, sufficiency, and absence of mala fides. The Court will not interfere if two views are possible and the decision is reasonable.Final Orders:1. Civil Appeal No. 6814 of 1983 is allowed, reversing the High Court's decision.2. Writ Petitions Nos. 1953, 7393, 1392, and 2022 of 1981 are dismissed.3. Other writ petitions and transferred cases are dismissed, while Civil Appeals Nos. 3484 and 3512 of 1982 are allowed.4. All interim orders are vacated, and no costs are awarded.5. Pending matters involving the interpretation of the second proviso to Article 311(2) are disposed of in accordance with this judgment.