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....226 and transferred to this Court raise a substantial question of law as to the interpretation of Articles 309, 310 and 311 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, ho....
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....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 t....
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....nd 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 t....
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....ervice 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,....
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....amination. 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 supe....
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....ut 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 Governm....
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.... 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 decide....
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....rsons 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....
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....nviction 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....
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.... 309 and 310 were amended by the Constitution (Seventh Amendment) Act, 1956, to omit from these Articles the reference to the Rajpramukh. Articles 309 and 310, 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 ....
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....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 ....
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....nt 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 wit....
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.... 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 no....
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....t 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 intel....
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....ding; 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....
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....sed 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]....
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....p 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 t....
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....icle 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. Thes....
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....is 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 t....
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....ce 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., ....
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.... 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 E....
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.... 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 ....
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....ble 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 t....
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....h 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 310 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 Co....
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....r 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....
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....d 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 e....
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.... 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 al....
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....t 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 languag....
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....e, 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, 193....
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....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 crossexamining 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 h....
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....ory 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 ....
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....lly 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 t....
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....ted 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....
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....triment. 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 t....
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.... 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 requi....
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.... 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....
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....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 se....
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....nd 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 Picki....
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....ished 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....
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.... 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. S....
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.... 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 tai....
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....ide 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-....
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.... 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 concep....
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....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 ....
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....nst 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 allembracing 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 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valent releva....
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.... 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 ....
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....y 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 14 as a result of the interpretation placed upon that Article by recent decisions of this Court. Clauses (2) of Article 311 requires ....
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....trait-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 165 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 ca....
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.... 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 ....
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.... clause (2) of Article 311 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 ma....
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.... 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 Constitutio....
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.... 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....
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....rred 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 expre....
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....lapan'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 sup....
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....sonably 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 Stat....
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....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 i....
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....l 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 r....
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....r 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 consider....
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...., 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....
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....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. I....
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....econd 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 ....
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....cond 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 ....
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....hat 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 p....
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.... 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 9 provided as follows: "8. Dismissal, removal, etc., of members of the Force. Subject to the provisions o....
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....ches 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 ....
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....hat "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 ra....
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....ry 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....
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....e 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 sta....
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....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....
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....ituation 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 troublemakers 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 "im....
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....nary 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 appe....
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....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 woul....
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....e government servant to approach the High Court under Article 226 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 nonproduction 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 contr....
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....rrelevant, 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 decisio....
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....ity 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 o....
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....he 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....
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....uation, 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 inqui....
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.... 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 ....
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....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 i....
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.... 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....
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....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 Pla....
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....ces, 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 ....
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....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, 1968 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 ....
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....imeter 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 wh....
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....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.....
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....f 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 seri....
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....e 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....
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....an 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 310 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 ....
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....r 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 ....
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....iscuss 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 circumstanc....