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TMI Blog1985 (9) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... t and order dated September 25, 1981. It is against the said judgment and order of the Delhi High Court that the present two Appeals have been filed by Special Leave granted by this Court. Article 311 of the Constitution Prior to the amendment of the second clause of Article 311 of the Constitution by the Constitution (Forty-second Amendment) Act, 1976, with effect from January 3, 1977, the second proviso to the said clause was the only proviso to the said clause (2). Article 311 as amended by the Constitution (Fifteenth Amendment) Act, 1963, and the Constitution (Forty-second Amendment) Act, 1976, reads as follows: 311. Dismissal, removal or reduction in rank of person employed in civil capacities under the Union or a State. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reason able opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be consulted, where such consultation is necessary, before any order 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 . The Decision in Tulsiram Patel's Case It was not disputed at the hearing of these two Appeals that they fall to be decided in the light of what was held in Union of India and another v. Tulsiram Patel and other connected matters. [1985] 3 S.C.C. 398. By the decision in Tulsiram Patel's Case a large number of writ petitions either filed in this Court or in various High Courts and transferred to this Court and several Appeals by Special Leave, all involving the interpretation of Articles 309, 310 and 311 of the Constitution and in particular of the second proviso to Article 311 (2), were disposed of by a five-judge Constitution Bench of this Court, with one learned judge dissenting except as regards the interpretation to be placed upon clause (c) of the second proviso to Article 311 (2). A large number of points fell for decision in Tulsiram Patel's case. [1985] 3 S.C.C. 398. It will, therefore, be convenient first to summarize topic-wise the conclusions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not subject to any law made by Parliament or a State Legislature but is subject to only what is expressly provided in the Constitution. In India, therefore, the exceptions to the pleasure doctrine can only be those which are expressly provided in the Constitution. (6) There are several exceptions to the pleasure doctrine expressly provided in the Constitution. (7) Article 311, being an express provision of the Constitution, is an exception to the pleasure doctrine contained in Article 310 (1) of the Constitution. Clauses (1) and (2) of Article 311 restrict the operation of the pleasure doctrine so far as civil servants are concerned by conferring upon civil servants the safeguards provided in those clauses. (8) Under clause (1) of Article 311 no civil servant can be dismissed or removed from service by an authority subordinate to that by which be was appointed. (9) Under Clause (2) of Article 311 no civil servant can be dismissed or removed from service or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of such charges. By reason of the amendment made by the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other penalties are. These matters are left to be dealt with by rules made under the proviso to Article 309 or by Acts referable to that Article or rules made under such Acts. (15) The pleasure of the President or the Governor is not to be exercised by him personally. It is to be exercised by the appropriate authority specified in rules made under the proviso to Article 309 or by Acts referable to that Article or rules made under such Acts. Where, however, the President or the Governor, as the case may be, exercise his pleasure under Article 310 (1), it is not required that such act of exercise of the pleasure under Article 310 (1) must be an act of the President or the Governor himself but it must be an act of the President or the Governor in the Constitutional sense that is, with the aid and on the advice of the Council of Ministers. III. The Inquiry under Article 311 (2) (16) Clause (2) of Article 311 gives a Constitutional mandate to the principles of natural justice and the audi alteram partem rule by providing that a civil servant shall not be dismissed or removed from service or reduced in rank until after an inquiry in which he has been informed of the charges again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not reasonably practicable to hold such inquiry; and (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (2) The governing words of the second proviso to clause (2) of Article 311, namely, this clause shall not apply , are mandatory and not directory and are in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311 (2) or from giving any kind of opportunity to the concerned Civil servant in a case where one of the three clauses of the second proviso-becomes applicable. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity to show cause by a process of inference or implication. the maxim expressum facet cessare tacitum ( when there is express mention of certain things, then anything not mentioned is excluded ) applies to the case. This well-known maxim is a principle of logic and common sense and not merely a technical rule of construction as pointed out in B.Shankra Rao Badani and other v. State of Mysore and another [1969] 3 S.C.R. 1, 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . These two rules and their corollary are neither new nor were they the discovery of English judges but were recognized in many civilizations and over many centuries. (26) Article 14 applies not only to discriminatory class legislation but also to arbitrary or discriminatory State action. Violation of a rule of natural justice results in arbitrariness which is the same as discrimination, and where discrimination is the result of a State action, it is a violation of Article.- 14. Therefor , a violation of a principle of natural justice by a State action is a violation of Article 14. (27) The principles of natural justice apply both to quasi-judicial as well as administrative inquiries entailing civil consequences. (28) It is well established both in England and in India that the principles of natural justice yield to and change with the exigencies of different situation and do not apply in the same manner to situations which are not alike. They are neither cast in a rigid mould nor can they be put in a legal strait-jacket. They are not immutable but flexible and can be adapted, modified or excluded by statute and statutory rules as also by the constitution of the tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sambu Nath Sarkar v. The State of West Bengal and others [1974] 1 S.C.R.1. Hardhan Saha and another v. The State of West Bengal and others, [1975] 2 S.C.R. 832. Kudiram Das v. The State of West Bengal and others, [1975] 2 S.C.R. 832 and Mane Gandhi' Case [1978] 2 S.C.R. 621, 681. Thus, the majority view in Gopalan's Case [1950] S.C.R.88, was buried in R.C. Cooper's Case [1970] 3 S.C.R. 530. its burial service was read in Sambhu Nath Sarkar v. The State of West Bengal and others,[1974] 1 S.C.R. 1. Hardhan Saha and another v. The State of West Benagland others [1975] 1 S.C.R. 832 and Khudiram Das v. The State of West Bengal and others [1975] 2 S.C.R. 832 and its funeral oration was delivered in Maneka Gandhi's Case [1978] 2 S.C.R. 621,681 and it is to be hopel that the ghost of that majority view does not at some future time rise form its grave and stand, clanking its chains, seeking to block the onward march of our country to progress, prosperity and the establishment of a Welfare State. (33) The decisions in R.C. Cooper's Case [1970] 3 S.C.R. 530 and the other cases which followed it do not, however, apply where a Fundamental Right, including the audi alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat where two interpretations are possible, one of which would preserve and save the constitutionality of the particular statutory provision while the other would render it unconstitutional and void, the one which saves and preserves its constitutionality should be adopted and the other rejected. (38) Where an Act or a rule provides that in a case in which the second proviso to Article 311 (2) applies any of the safeguards excluded by that proviso will be available to a civil servant, the constitutionality of such provision would be preserved by interpreting it as being directory and not mandatory. The breach of such directory provision would not, however, furnish any cause of action or ground of challenge to a civil servant because at the threshold such cause of action or ground of challenge would be barred by the second proviso to Article 311 (2). (39) Service rules may reproduce the provisions of the second proviso to Article 311 (2) and authorize the disciplinary authority to dispense with the inquiry as contemplated by clause (2) of Article 311 in the three cases mentioned in the second proviso to that clause or any one or more of them. Such a provisions however, is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereon as it deems fit' in the said Rule 14 warranted an interpretation of the said Rule different from that to be placed upon the second proviso to Article 311 (2). (45) The Court in Challappan's Case, [1976] 1 S.C.R. 783, also erred in the interpretation placed by it upon the word consider occurring in the above phrase in the said rule 14. The view taken by the Court in that case that a consideration of the circumstances of the case cannot be unilateral but must be after hearing the delinquent civil servant would render this part of the said Rule 14 unconstitutional as restricting the full exclusionary operation of the second proviso to Article 311 (2). (46) The word consider in its ordinary and natural sense is not capable of the meaning assigned to it in Challappan's Case., [1976] 1 S.C.R. 783. (47) The consideration of the circumstances under the said Rule 14 must, therefore, be ex parte and without affording to the concerned civil servant an opportunity of being heard. (48) The decision in Challappan's Case, [1976] 1 S.C.R. 783, never held the field for the judgment in that case was delivered on September 15, 1975, it was reported in [1976] 1 S.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Court and take into consideration all the facts and circumstances of the case and the various factors set out in Challappan's Case, [1976] 1 S.C.R. 783, such as, the entire conduct of the civil servant, the gravity of the offence committed by him, the impact which his misconduct is likely to have on the administration, whether the offence for which he was convicted was of a technical or trivial nature, and the extenuating circumstances, if any, present in the case. This, however, has to be done by the disciplinary authority ex part and without hearing the concerned civil servant. (53) The penalty imposed upon the civil servant should not be arbitrary or grossly excessive or out of all proportion to the offence committed or one not warranted by the facts and circumstances of the case. (54) Where a civil servant goes to the office of his superior office whom he believes to be responsible for stopping his increment and hits him on the head with an iron rod, so that the superior officer falls down with a bleeding head, and the delinquent civil servant is tried and convicted under section 332 of the Indian Penal Code but the Magistrate, instead of sentencing him to imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers of his family so that he is afraid to hold the inquiry or direct it to be held, or (c) where an atmosphere of violence or of general indiscipline and insubordination prevails, it being immaterial whether the concerned civil servant is or is not a party to bringing about such a situation. In all these cases, it must be remembered that numbers coerce and terrify while an individual may not. (60) The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and must fail. (61) The word inquiry in clause (b) of the second proviso includes a part of an inquiry. It is, there fore, not necessary that the situation which makes the holding of an inquiry not reasonably practicable should exist before the inquiry is instituted against the civil servant. Such a situation can also come into existence subsequently during the course of the inquiry, for instance, after the service of a charge sheet upon the civil servant or after he has filed his written statement thereto or even after evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that neither that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry cannot be accepted. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that administrative work carried out by senior officers should be paralysed just because a delinquent civil servant either by himself or along with or through others makes the holding of an inquiry by the designated disciplinary authority or inquiry officer not reasonably practicable. (69) In a case falling under clause (b) of the second proviso it is not necessary that the civil servant should be placed under suspension until such time as the situation improves and it becomes possible to hold the inquiry because in such cases neither public interest nor public good requires that salary or subsistence allowance should be continued to be paid out of the public exchequer to the concerned civil servant. It would also be difficult to foresee how long the situation would last and when normalcy would return or be restored. In certain cases, the exigencies of a sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Hoshangabad. (72) In cases such as the above, it is not possible to state in the order of dismissal the particular acts done by each of the members of the concerned group as such cases are very much like a case under section 149 of the Indian Penal Code. (73) In situations such as the one where a large group acting collectively with the common object of coercing those in charge of the administration of the Central Industrial Security Force and the Government to compel them to grant recoginition to their Association and to concede their demands, it is not possible to particularize in the orders of dismissal the acts of each individual member who participated in the commission of these acts. The participation of each individual might be of a greater or lesser degree but the acts of each individual contributed to the creation of a situation in which a security force itself became a security risk. (74) Railway service is a public utility service within the meaning of clause (a) of section 2 of the Industrial Disputes Act, 1947, and the proper running of the railway service is vital to the country. (75) Where, therefore, the railway employees went on an illegal all-India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be either open or clandestine. (80) One of the obvious acts which would affect the security of the State would be disaffection in the armed forces or paramilitary forces or the police force. The importance of the proper discharge of the duties by members of these Forces and the maintenance of discipline among them is emphasized in Article 33 of the Constitution. (81) Disaffection in any armed force or para- military force or police force is likely to spread because dissatisfied and disaffected member of such a Force spread dissatisfaction and disaffection among other members of the Force and thus induce them not to discharge their duties properly and to commit acts of indiscipline, insubordination or disobedience to the orders of their superiors. Such a situation cannot be a matter affecting only law and order or pubic order but is a matter vitally affecting the security of the State. (82) The interest of the security of the State can be affected by actual acts or even by the likelihood of such acts taking place. (83) In an Inquiry into acts affecting the interest of the security of the State, several matters not fit or proper to be made public, including the sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and guard at the border between the green valleys of law and order and the rough and hilly terrain of lawlessness and public disorder, and if these guards turn law-breakers and create violent public disorder and incite others to do the same, one can only exclaim with Juvenal, Quis custodietimsos! Custodes? Who is to guard the guards themselves? (Satires, VI, 347). In such a situation prompt and urgent action becomes necessary and the holding of an inquiry into the conduct of each individual member of the police force would not be expedient in the interest of the security of the State. (90) When, therefore, a number of members of the Madhya Pradesh District Police Force and the Madhya Pradesh Special Armed Force, in order to obtain the release on bail of two of their colleagues who had been refused bail and remanded into judicial custody because of an incident which took place at the annual Mela held at Gwalior in which one man was burnt alive, indulged in violent demonstrations and rioted at the Mela ground, attacked the police station at the Mela ground, ransacked it and forced the wireless operator to close down the wireless set and the situation became so dangerous that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Rule 14 of the said Rules not prevailing at that time. (95) Although a provision similar to sub-clause (ii) of clause (c) of the first proviso to Rule 25 (1) of the Railway Servants (Discipline and Appeal) Rules, 1968, does not exist in the rules relating to appeals in the said Rules, having regard to the factors set out in Rule 22 (2) of the said Rules which are to be considered by the appellate authority in deciding an appeal, a provision similar to the said sub-clause (ii) of clause (c) of the first proviso to Rule 25 (1) should be read and imported into the provisions relating to appeals in the said Rules. (96) Where service rules do not contain a provision similar to sub-clause (ii) of clause (c) of the first proviso to Rule 25 (1) of the Railway Servants (Discipline and Appeal) Rules, 1968, having regard to the factors to be taken into account by the appellate authority in deciding an appeal, a provision similar to the said sub-clause (ii) of clause (c) of Rule 25 (1) of the Railway Servants (Discipline and Appeal) Rules, 1968, should be read and imported into the provisions relating to appeals and revision contained in such service rules. This would, however, be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect to the charges on which such penalty has been imposed upon him unless a situation envisaged by the second proviso is prevailing at the hearing of the appeal or revision application. Even in such a case the hearing of the appeal or revision application should be postponed for a reasonable length of time for the situation to return to normal. (102) In a case where a civil servant has been dismissed or removed from service or reduced in rank by applying clause (b) of the second proviso or an analogous service rule to him, by reason of clause (3) of Article 311 it is not open to him to contend in appeal, revision or review that the inquiry was wrongly dispensed with. (103) In a case where a civil servant has been dismissed or removed from service or reduced in rank by applying clause (c) of the second proviso or an analogous service rule to him, no appeal or revision will lie if the order of penalty was passed by the President or the Governor. If, however, the inquiry has been dispensed with by the President or the Governor and the order of penalty has been passed by the disciplinary authority (a position envisaged by clause (iii) of Rule 14 of the Railway Servants (Discipl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso to Article 311 (2) or an analogous service rule, the High Court under Article 226 or this Court under Article 32 will interfere on grounds well- established in law for the exercise of its power of judicial review in matters where administrative discretion is exercised. (107) The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court and the court would consider whether clause (b) of the second proviso or an analogous service rule had been properly applied or not. (108) In examining the relevancy of the reasons given for dispensing with the inquiry, the Court will consider the circumstances which, according to the disciplinary authority, made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, the order dispensing with the inquiry and the order of penalty following upon it would be void and the Court will strike them down. In considering the relevancy of the reasons given by the disciplinary authority, the Court will not, however, sit in judgment over the reasons like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e express provision of Article 74 (2) and Article 163 (3) of the Constitution the question whether any, and if so what, advice was tendered by the Ministers to the President or the Governor, as the case may be, cannot be inquired into by any Court. (114) Whether the Court should order production of the materials upon which the advice of the Council of Ministers to the President or the Governor, as the case may be, was based in order to determine whether the satisfaction of the President or the Governor was arrived at mala fide or was based on wholly extraneous or irrelevant grounds would depend upon whether the documents fall within the class of privileged documents and whether in respect of them privilege has been properly claimed or not. In Tulsiram Patel's Case [1985] 3 S.C.C. 398, where appeals filed by certain dismissed members of the Central Industrial Security Force had not been disposed of by the appellate authority, the majority judgment directed the appellate authority to dispose of such appeals as expeditiously as possible. In those matters where civil servants had been dismissed or removed from service by applying to their cases clause (b) of the second provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not concerned in these Appeals with the reasonableness or otherwise of the said demands. Earlier, the different branches and departments of the RAW in New Delhi were scattered in several buildings. Ultimately, a new building was constructed for the RAW at Lodhi Road. In the said building the Counter Intelligence Section ( CIS , for short) was housed. The other departments were housed in the South Block at R.K. Puram. After the CIS was shifted to the building at Lodhi Road, Strict security measures were introduced and the employees, when going from one floor to the other, had to show their identity cards. This was resented by the employees and they demanded the withdrawal of this regulation and insisted that the identification check should be made only at the time of entering the building. This demand can only be characterized as wholly unreasonable. The RAW is a security and intelligence section the Government of India dealing with many sensitive matters affecting national security and relations with other countries including counter intelligence. The basic rule of intelligence work is that no person engaged in it should know more than what he needs to know. It is for this reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder investigation. The next day, namely, on November 28, 1980, the agitation continued and many employees did not perform their duties. Instead, they collected inside the building and in the premises in groups stopping work in many branches. A large number of them went rung shouting slogans and made speeches in the corridors of the office. On November 29, 1980, a letter was issued by the said Association demanding the immediate withdrawal of the criminal cases against the said employees as also of the said security regulation. The letter stated that unless these demands were met, the employees would go on a pen-down strike with immediate effect. Thereupon, orders of suspension were issued against those who were taking a leading, active and aggressive role in the agitation and indulging in these activities. The said suspension orders were issued from the 1st December 1980 onwards but the pen-down strike continued spread to other offices of the RAW in New Delhi as well as in different parts of India including Lucknow and Jammu. Daily the situation worsened. There was complete insubordination and total breakdown of discipline. The atmosphere was charged with tension and there did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding meetings and demonstrations unauthorisedly and in violation of specific orders, within the office premises and its precincts; and whereas the said employees have resorted to coercion, intimidation and incitement of other fellow employees which has a serious demoralizing effect on the members of the organization, and whereas such conduct of the said employees is unbecoming of a Government servant and is in gross violation of the Central Civil Service (Conduct) Rules, 1964; and whereas Shri Satyavir Singh, Field Assistant, is one of the said employees actively participating in such activities; and whereas due to the practice of coercion, intimidation and such like threats and postures adopted by the said employees the atmosphere is so tense and abnormal that no witness will co-operate with any proceedings in accordance with the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965; and whereas I am satisfied that the circumstances are such that it is not reasonably practicable to hold a regular enquiry as contemplated by the Central Civil Services (Classification, Control and Appeal) Rules, 1965; and whereas on a consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonably practicable should exist before the disciplinary inquiry is initiated, because a situation which renders the holding of an inquiry not reasonably practicable can come into being even during the course of an inquiry. The affidavits filed in the High Court clearly show that the situation had so changed after the orders of suspension were issued against the appellants that it was not reasonably practicable to hold any inquiry against the Appellants. The all-India pen-down strike was spreading. More and more centres in India were joining in the said strike. The position was fast deteriorating. Employees were being instigated into further acts of indiscipline and insubordination and loyal employees and senior officers were being intimidated. Meetings and demonstrations were regularly being held within the office premises and their precincts and there was no possibility of any witness coming forward to give evidence against the Appellants who were said to have taken a leading part in this agitation. It is also pertinent to note that when the first batch of dismissal orders was served upon some of the Appellants on December 8, 1980, the pen-down strike was called off on December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Tulsiram Patel's case, it will not be reasonably practicable to hold an inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails. It is, therefore, not necessary that the disciplinary authority should wait until incidents take place in which physical injury is caused to others before dispensing with the inquiry. It was next submitted that after the suspension orders, the appellants were prohibited from visiting any of the Cabinet Secretariat Offices except for the purpose of collecting their they could not have held any meeting or demonstration inside the office premises. There is no substance in this submission. The admitted position is that the Appellants were regularly coming to the office building and talking with other employees over the wall and at the gate twice a day at 11.30 a.m. and 3.30 p.m. and were making inflammatory speeches and holding out threats. The point which was next urged in support of the contention that the impugned orders were passed mala fide was that even though co-workers may not have been available as witnesses, there were policemen and police officers posted inside and outside the building and they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 4th and 5th of December, 1980 and had instigated the other employees to continue the agitation and intimidated those who had not joined in the agitation into doing so. In a speech made by him on December 4, 1980, he had tried to make public some of the top secret operations of the RAW claiming to have special knowledge of these operations by virtue of having been posted earlier in a sensitive branch. He was also actively engaged in collecting funds for continuing the agitation. We are, therefore, of the opinion that clause (b) of the second proviso to Article 311(2) and Rule 19 of the Central Civil Services (Classification, control and Appeal) Rules, 1965, were properly applied to the case of each of the Appellants and the impugned orders of dismissal were validly passed against them. Final Orders In the result, both these Appeals fail and are dismissed and the interim orders passed in these Appeals are hereby vacated. If any payment has been made to any of the Appellants in the pursuance of any interim order, such Appellant will not be liable to refund such amount or any part thereof. The Appellants have a right to file a departmental appeal under the Central Civil Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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