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PETITIONER: BACHHITTAR  SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 07/03/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  395            1962 SCR  Supl. (3) 713  CITATOR INFO :  D          1964 SC  72  (50,57)  R          1964 SC1823  (4,26,27)  R          1965 SC 596  (11)  RF         1967 SC 459  (17)  D          1969 SC 323  (9)  RF         1970 SC 214  (13,14)  D          1977 SC 629  (15)  R          1979 SC 220  (21)  RF         1980 SC 383  (3)  D          1984 SC1271  (27)  F          1987 SC 331  (40)  F          1987 SC1554  (17,29)  RF         1988 SC 782  (45)

ACT: Public      Servant-Disciplinary       Proceeding-Dismissal- --Appeal-Minister   passing   order   on   file-Order    not communicated-Whether  binding-If order can  be  varied-Chief Minister passing final order--Validity-Rules of Business  of Punjab  Government, rr. 4, 8, 25, 28-Constitution  of  India Arts.166, 311.

HEADNOTE: The appellant was appointed a qanungo in Pepsu and latter as Assistant  Consolidation  Officer.  Complaints  having  been received  against  him, an enquiry was held as a  result  of which  he was dismissed by the Revenue  Secretary.   Against this  order he preferred an appeal to the State  Government. The Revenue Minister Pepsu wrote on the file ’chat dismissal would  be  too  hard and instead he should  be  reverted  as qanungo but no written order to that effect was served  upon the  appellant.   After  merger of Pepsu  with  Punjab,  the Revenue  Minister  Punjab  sent up the  file  to  the  Chief Minister  with  the remarks "C.M. may kindly  advise".   The Chief  Minister passed the order confirming  the  dismissal. and  the order was duly communicated to the appellant.   The appellant challenged the order of the Chief Minister  Punjab on  the ground that the Chief Minister Punjab could not  sit in  review  on the order of the Revenue Minister  Pepsu  and

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that  the Chief Minister was not competent to deal with  the matter  as  it  pertained to the portfolio  of  the  Revenue Minister. Held, that the order of the Revenue Minister Pepsu could not amount  to  an order by the State Government unless  it  was expressed  in  the name of Rajpramukh as  required  by  Art. 166(1) of the Constitution and was then communicated to  the appellant.  Until the order was so communicated it was  only of  a provisional character and could be  reconsidered  over and ever again.  Before communication the order was  binding neither on the appellant nor on the State Government. State of Punjab v. Sodhi Sukdev Singh A.I.R. (1961) 2 S.C.R. 3 71 referred to. 714 Held,   further,   that  the  Chief  Minister   Punjab   was competent  to  deal with the appeal and to  pass  the  order which  he did.  Under r. 25 of the Rules of Business of  the Punjab     Government the matter undoubtedly related to  the portfolio  of  the Revenue Minister.  But  since  tinder  r. 28(1)(ii) and (xix) which     provide   that cases     involving questions      of policy and  cases     of   administrative importance and such other cases or classes of cases as   the Chief  Minister may consider necessary shall be referred  to the  Chief Minister, the case was properly referred  to  the Chief  Minister.  Under r. 4 the order passed by  the  Chief Minister,  even though it pertained to the portfolio of  the Revenue  Minister,  would be deemed to be an  order  of  the Council  of  Ministers.   It would be  the  Chief  Ministers advice  to the Governor, for which the Council of  Ministers Would  be collectively responsible and action taken  thereon would be the action of the Government. Departmental proceedings cannot be divided into two parts  : (i) enquiry and (ii) taking of action ; there is one  conti- nuous  proceeding though there are two stages.   Any  action decided  to be taken against a public servant  found  guilty misconduct  is  a judicial order and as such  it  cannot  be varied at-the will of the authority.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 155 of 1961. Appeal  by  the special leave from the  judgment  and  order dated  January  5, 1959, of the Punjab High Court  in  Civil Writ Application No. 460 of 1957.      I. M. Lal, and M. L. Aggarwal, for the appellant. S. M. Sikri, Advocate-General for the State of Punjab, N. S. Bindra and P. D. Menon, for the respondents. 1962.  March 7. The Judgment of the Court was delivered by MUDHOLKAR, J.-This is an appeal by special leave against the judgment of the Punjab High Court dismissing the  appellants petition under Art. 226 of the Constitution.  715 The appellant was appointed a qanungo in the former State of PEPSU  in  the  year  1950.  On  December  1,  1953  he  was appointed   Assistant   Consolidation   Officer.     Certain complaints  having  been received regarding  tampering  with official  records he was suspended and an enquiry  was  held against  him by the Revenue Secretary of  PEPSU  Government. As a result of that enquiry the Revenue Secretary  dismissed him  by order dated August 30, 1956, on the ground that  the appellant was not above board and was not fit to be retained in  service.   ""his  order was  duly  communicated  to  the appellant.   Thereupon  the appellant  preferred  an  appeal before the State Government.

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It would appear that he had submitted an advance copy of his appeal  to the Revenue Minister of PEPSU who called for  the records  of  the case immediately.  After perusing  them  he wrote  on  the file that the charges against  the  appellant were  serious and that they were proved.  He  also  observed that  it was necessary to stop the evil with a strong  band. He,  however-, expressed the opinion that as  the  appellant was  a  refugee and bad a family to support,  his  dismissal would  be  too  hard  and that  instead  of  dismissing  him outright  he  should  be reverted to his  original  post  of qanungo  and warned that if be does not behave  properly  in future he will be dealt with severely.  On the next day  the State of PEPSU merged in the State of Punjab. According  to the appellant the aforesaid remarks amount  to an  order of the State Government and that they were  orally communicated to him by the Revenue Minister.  This is denied on behalf of the State.  It is, however, common ground  that the aforesaid remarks or order, whatever they be, were never communicated officially to the appellant.     After the merger of PEPSU with the State of 716 Punjab  the file was put up before the Revenue  Minister  of Punjab,  Mr.Darbara  Singh.   On  December  1/4,  1956,  Mr. Darbara  Singh  remarked on the file "Serious  charges  have been  proved  by the Revenue Secretary and  Shri  Bachhittar Singh  was  dismissed.  I would like the  Secretary  i/c  to discuss the case personally on 5th December, 1956." Then  on April  2/8,  1957 the Minister noted on the file  "C.M.  may kindly advise." With this remark the file went up before the Chief Minister, Punjab, who on April 16/18, 1957, passed  an order, the concluding portion of which reads thus :               "Having  regard to the gravity of the  charges               proved against this official, I am  definitely               of the opinion that his dismissal from service               is a correct punishment and no leniency should               be  shown to him merely on the ground  of  his               being  a displaced person or having  a’  large               family to support.  In the circumstances,  the               order of dismissal should stand." This order was communicated to the appellant on May 1, 1957. Thereafter  he  preferred  petition under Art.  226  of  the Constitution which, as already stated, was dismissed by  the Punjab High Court. The   validity  of  the  order  of  the  Revenue   Secretary dismissing the appellant was not challenged before us.   The point  urged  before  us is that the order  of  the  Revenue Minister  of  the PEPSU having reduced the  punishment  from dismissal  to reversion, the Chief Minister of Punjab  could not  sit  in review over that order and set it  aside.   Two grounds  are urged in support of this point.  The  first  is that  the  order of the Revenue Minister of  PEPSU  was  the order  of the State Government and was not open  to  review. The second ground is that in any case it was not within  the competence of the Chief Minister of Punjab to deal with  the matter  717 inasmuch  as  it pertained to the portfolio of  the  Revenue Minister. Before we’ deal with the grounds we may state that the  High Court was of the opinion that proceedings taken against  the appellant were made up of two parts : (a) the enquiry (which involved a decision of the question whether the  allegations made against the appellant were true or not) and (b)  taking action (i.e., in case the allegations were found to be true, whether the appellant should be punished or not and if so in

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what  manner.) According to the High Court the  first  point involved a decision on the evidence and may in its nature be described  as  judicial  while  the  latter  was  purely  an administrative  decision  and  that in so far  as  this  was concerned  there was no reason why the State Government  was incompetent   to   change  its  decision  "if   it   thought administratively advisable to do so".  We cannot accept  the view taken by the High Court regarding the nature of what it calls  the  second part of  the  proceedings.   Departmental proceedings  taken  against  a Government  servant  are  not divisible  in the sense in which the High Court  understands them to be.  There is just one continuous proceeding  though there  are  two  stages in it.  The first  is  coming  to  a conclusion on the evidence as to whether the charges alleged against  the Government servant are established or  not  and the  second is reached only if it is found that they are  so established.   That stage deals with the action to be  taken against  the Government servant concerned.  The  High  Court accepts  that the first stage is a judicial  proceeding  and indeed  it  must be so because charges have  to  be  framed, notice  has to be given and the person concerned has  to  be given  an  opportunity of being heard.  Even so far  as  the second  stage is concerned Art. 311(2) of  the  Constitution requires  a notice to be given to the person  concerned’  as also an opportunity of being heard. 718 Therefore, this stage of the proceeding is no less  judicial than the earlier one.  Consequently any action    decided to be  taken  against  a Government  servant  found  guilty  of misconduct,  is  a judicial order and as such it  cannot  be varied  at  the will of the authority who  is  empowered  to impose  the punishment.  Indeed, the very object with  which notice is required to be given on the question of punishment is to ensure that it will be such as would be justified upon the  charges  established  and  upon  the  other   attendant circumstances  of the case.  It is thus wholly erroneous  to characterise  the  taking of action against a  person  found guilty  of  any  chargo  at a  departmental  enquiry  as  an administrative order. What  we  have  now to consider is the effect  of  the  note recorded by the Revenue Minister of PEPSU upon the file.  We will  assume  for  the purpose of this case that  it  is  an order.   Even so the question is whether it can be  regarded as  the  order  of  the State  Government  which  alone,  as admitted by the appellant, was competent to hear and  decide an  appeal  from the order of the Revenue  Secretary.   Art. 166(1)  of  the  Constitution requires  that  all  executive action  of the Government of a State shall be  expressed  in the  name of the Governor.  Clause (2) of Art. 166  provides for the authentication of orders and other instruments  made and  executed  in the name of the Governor.  Clause  (3)  of that Article enables the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business. What the appellant calls an order of the State Government is admittedly not expressed to be in the name of the  Governor. But with that point we shall deal later.  What we must first ascertain is whether the order of the Revenue Minister is an order  of  the State Government i.e., of the  Governor.   In this                             719 connection we may refer to r. 25 of the Rules of Business of the Government of PEPSU which reads thus :                   "Except as otherwise provided by any other               Rule, cases shall ordinarily be disposed of by

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             or   under  the  authority  of  the   Minister               incharge  who may by means of standing  orders               give such directions as he thinks fit for  the               disposal  of cases in the Department.   Copies               of  such standing orders shall be sent to  the               Rajpramukh and the Chief Minister." According  to learned counsel for the appellant  his  appeal pertains  to  the  department which was  in  charge  of  the Revenue Minister and, therefore, he could deal with it.  His decision  and order would according to him, be the  decision and  order of the State Government.  On behalf of the  State reliance  was, however, placed on r. 34 which required  cer- tain classes of cases to be submitted to the Rajpramukh  and the  Chief Minister before the issue of orders.  But it  was conceded  during the course of the argument that a  case  of the kind before us does not fall within that rule.  No other provision  bearing on the point having been brought  to  our notice  we would, therefore, hold that the Revenue  Minister could make an order on behalf’ of the State Government. The question, therefore, is whether he did in fact make such an  order.   Merely writing something on the file  does  not amount to an order.  Before something amounts to an order of the  State Government two things are necessary.   The  order has to be expressed in the name of the Governor as  required by  cl. (1) of Art. 166 and then it has to be  communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made.  Until such an order is drawn up the State Government cannot, in our opinion, be 720 regarded as bound by what was stated in the file.  As  along as  the  matter rested with him the Revenue  Minister  could well score out his remarks or minutes on the file and  write fresh ones. The  business  of  State  is  a  complicated  one  and   has necessarily  to be conducted through the agency of  a  large number  of  officials and  authorities.   The  constitution, therefore, requires and so did the Rules of Business  framed by the Rajpramukh of PEPSU provide, that the action must  be taken  by  the authority concerned in the name of  the  Raj- pramukh.  It is not till this formality is observed that the action can be regarded as that of the State or here, by  the Rajpramukh.   We may further observe that,  constitutionally speaking,  the Minister is no more than an adviser and  that the  head of the State, the Governor or Rajpramukh,*  is  to act  with  the aid and advice of his Council  of  Ministers. Therefore,  until  such advice is accepted by  the  Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action  of the  State until the advice of the Council of  Ministers  is accepted or deemed to be accepted by the Head of the  State. Indeed,  it  is possible that after expressing  one  opinion about  a particular matter at a particular stage a  Minister or  the Council of Ministers may express quite  a  different opinion, one which may be completely opposed to the  earlier opinion.   Which of them can be regarded as the  "order’  of the State Government?  Therefore to make the opinion  amount to  a decision of the Government it must be communicated  to the  person concerned.  In this connection we may quote  the following  from the judgment of this Court in the  State  of Punjab v. Sodhi Sukhdev Singh (1).               "Mr.   Gopal  Singh attempted  to  argue  that               before the final order was passed the Council *Till  the abolition of that office by the Amendment of  the Constitution in 1956. (1)  [1961] 2 S.C.R. 371. 409.

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                           721               of Ministers had decided to accept the respon-               dent’s  representation and to  reinstate  him,               and  that,  according to him,  the  respondent               seeks  to  prove by calling the  two  original               orders.   We  are unable  to  understand  this               argument.   Even if the Council  of  Ministers               had  provisionally  decided to  reinstate  the               respondent that would not prevent the  Council               from reconsidering the matter and coming to  a               contrary  conclusion later on, until  a  final               decision is reached by them and is  communica-               ted  to the Rajpramukh in the form  of  advice               and  acted upon by him by issuing an order  in               that behalf to the respondent." Thus  it  is  of  the  essence that  the  order  has  to  be communicated  to  the person who would be affected  by  that order before the State and that person can be bound by  that order.   For, until the order is communicated to the  person affected by it, it would be open to the Council of Ministers to  consider the matter over and over again and,  therefore, till  its  communication  the order cannot  be  regarded  as anything more than provisional in character. We  are, therefore, of the opinion that the remarks  or  the order of the Revenue Minister, PEPSU are of no avail to  the appellant. Now as regards the next contention, Learned counsel for  the appellant contends that since his appeal was not decided  by the Revenue Minister of Punjab, Mr. Darbara Singh but by the Chief   Minister  Mr.  Pratap  Singh  Kairon,  who  bad   no jurisdiction  to deal with it, the appeal must be deemed  to be  still pending.  In this connection he relied upon r.  18 of  the Rules of Business framed by the Governor  of  Punjab which corresponds to r.  25 of the PEPSU rules, which  reads thus:               "’Except  as otherwise provided by  any  other               Rule., cases shall ordinarily be disposed               722               of by or under the authority of the  Minister-               in-charge who may, by means of standing orders               give such directions as he thinks fit for  the               disposal  of cases in the Department.   Copies               of  such standing orders shall be sent to  the               Chief Minister and the Governor." Now,  unquestionably  the  matter here did  pertain  to  the portfolio  of the Revenue Minister.  But it was  he  himself who,  after  seeing  the  file submitted  it  to  the  Chief Minister  for  advice.  Learned counsel,  however,  contends that  the  Chief Minister could, therefore,  only  give  him advice and not asurp the jurisdiction    of   the    Revenue Minister and decide the  case  himself.  But  this  argument ignores r.28 (1)    of  the  Punjab Rules of  Business,  the relevant portions of which run thus:               "28  (1) The following classes of cases  shall               be submitted to the Chief Minister before  the               issue of orders :-               x                 x                  x               (ii)  Cases  raising questions of  policy  and               Cases of administrative importance not already               covered by the Schedule.               x                 x                 x               (vii) Proposals,  for the  prosecutions,  dis-               missal,  removal or compulsory  retirement  of               any gazetted officer.               x                 x                 x

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             (xix) Such other cases or classes of cases  as               the chief Minister may consider necessary. The learned Advocate-General contends that the case would be covered  by  every one of these clauses.   In  our  opinion, cl.(vii) cannot assist him because it is not the  contention of the State that the appellant is a gazetted officer.   We, however, think that                             723 cl.  (ii) would certainly entitle the Chief Minister to  paw an  order of the kind which he has made here.  The  question to  be considered was whether though grave charges had  been proved against an official he should be removed from service forthwith  or merely reduced in rank.   That  unquestionably raises  a question of policy which would affect  many  cases all  and  the departments of the  State-The  Chief  Minister would, therefore, have been within his rights to call up the file of his own accord and pass orders thereon.  Of  course, the  rule  does  not say that the Chief  Minister  would  be entitled to pass orders but when it says that he is entitled to  call for the file before the issue of orders it  clearly implies   that  he  has a right to interfere and  make  such order     as  he thinks appropriate.  Finally there  is  cl. (xix)     which  confers  a wide discretion upon  the  Chief Minister  to  call for any file and deal  with  it  himself. Apart  from  that  we  may refer to r. 4  of  the  Rules  of Business of the Punjab Government, which reads thus :               "The Council shall be collectively responsible               for all executive orders issued in the name of               the  Governor in accordance with  these  Rules               whether  such  orders  are  authorised  by  an               individual Minister on a matter pertaining  to               his  portfolio or as the result of  discussion               it  a  meeting of the  Council,  or  howsoever               otherwise." Thus the  order passed by the Chief Minister  even though it is  on a matter pertaining to the portfolio of  the  Revenue Minister,  will be deemed to be an order of the  Council  of Ministers.   So  deemed  its contents  would  be  the  Chief Minister’s advice to the Governor, for which the Council  of Ministers  would  be collectively responsible.   The  action taken thereon in pursuance of r. 8 of the Rules of  Business made by the Governor under Art. 166(3) of the Constitution 724 would  then be the action of the Government.  Here  one  (if the  Under Secretaries to the Government of Punjab  informed the  appellant  by his letter dated May, 1,  1957  that  his representation "had been considered and rejected", evidently by  the State Government.  This would show that  appropriate action had been taken under the relevant rule. The  appeal is thus without substance and is dismissed.   In view  of the fact that the appellant is a  displaced  person with  heavy  responsibilities and with limited  or  possibly hardly any means we direct that the costs shall be borne  by the parties concerned.                             Appeal dismissed.                ____________________