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PETITIONER: BAKSHI SARDARI LAL (DEAD) THROUGH LRs& ORS. ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT31/07/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1987 AIR 2106            1987 SCR  (3) 704  1987 SCC  (4) 114        JT 1987 (3)   180  1987 SCALE  (2)147

ACT:     Constitution  of India, 1950: Article  311(2)(c)  Police personnel--Dismissed  from service--Enquiry dispensed  with- Satisfaction  of  President--Whether  personal  satisfaction necessary-Communication of reasons-- Whether obligatory.     Practice  and procedure: Order of  dismissal--Set  aside for  noncompliance of requirements of law--Whether  employer entitled  to pass fresh order of dismissal after  reinstate- ment--Leave of Court--Whether necessary.

HEADNOTE:    The Supreme Court having quashed in appeal the  dismissal orders  dated April 14, 1967 passed against  the  appellant- policemen,  they  were served fresh orders of  dismissal  on June 5, 1971 In exercise of the power conferred under clause (c) of second proviso to Article 311(2) of the Constitution. The  appellants  challenged that these  orders,  without  an inquiry  as envisaged in Ariticle 311(2), were  vitiated  as the power under sub-clause (c) of the second proviso to that Article had not been exercised upon personal satisfaction of the  President. On behalf of the respondent-Union of  India, it  was contended that the President had personally  consid- ered all the facts and circumstances of each case and, after having  satisfied  himself,  passed the order  that  in  the interest  of the security of the State it was not  expedient to hold the inquiry.     The  High Court held that the exercise of the  power  by the  President  under clause (c) to the proviso  to  Article 311(2)  was fully covered by clause (1) of Article  361  and the President was not answerable to any court for the  exer- cise  and  performance of his powers and duties  under  this clause of the proviso to Article 311 and no court had juris- diction  to examine the facts and circumstances that led  to the  satisfaction of the President envisaged in  clause  (c) except  probably on the ground of mala fide,  and  dismissed the Writ Petitions. 705     In  the appeals before this Court, it was  contended  on behalf of the appellant that the impugned order of dismissal in 1971 which was claimed to have been passed on the person- al satisfaction of the President was vitiated in view of the

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rule  laid  down in the case of Shamsher Singh and  Anr.  v. State of Punjab, that the appellants having been  reinstated in service in terms of judgment of this Court, without leave of  the  Court,  no second order of dismissal  on  the  same material could have been passed, and that the High Court was wrong in holding that the sufficiency of satisfaction of the President was not justiciable. Dismissing the appeals, this Court,     HELD:  1.1  The order of the President was  not  on  the basis  of his personal satisfaction as required by the  Rule in Sardari Lal’s case but was upon the aid and advice of the Council of Ministers, as required in Shamsher Singh’s  case. The  dismissal  order was, therefore, not  vitiated.  [711H, 712A]     1.2  This Court quashed the orders of dismissal  earlier on  account of non-compliance of the requirement of law  and when the police officers returned to service it was open  to the  employer to deal with them in accordance with  law.  No leave  of  Court was necessary for making a fresh  order  in exercise of the disciplinary jurisdiction after removing the defects. [712B]     1.3  There was a constitutional obligation to record  in writing  the  reason for the satisfaction that  one  of  the sub-clauses  was applicable and if such reason was  not  re- corded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be  void and unconstitutional, and the communication of the reason to the  aggrieved  Government servant was  not  obligatory  but perhaps advisable. [712D]     In  the instant case, the record of the  case  indicates that  the reason has been recorded though not  communicated. That would satisfy the requirements of law. [712E]     Union of India & Anr. v. Tulsiram Patel & Ors., [1985] 3 SCC 398, followed.     1.4  No  malafides could be attributed to  the  impugned order  of dismissal. The President’s order is dated  2nd  of June and the typed orders of dismissal bear the date of  the following day. There is, there- 706 fore,  no  scope to suggest that typed  orders  representing Government’s  decision were available on the record  by  the time the matter was placed before the President. [712F]     [This  Court  has no sympathy for  indiscipline.  In  an orderly  force  like police, indiscipline is bound  to  give rise  to serious problems of administration. The  Government had  made  it known that they intended to treat  even  these policemen liberally by giving them compassionate aliowances. The situation would be met in a just way if lump-sum amounts are  paid  to the dismissed policemen who are  alive  or  to their  legal  representatives in the case of those  who  are dead, at the rate of Rs.60,000 to Sub-Inspectors,  Rs.50,000 to Head Constables and Rs.40,000 to Constables.] [713B, D-F]     Sardari  Lal v. Union of India & Ors., [1971] 3 SCR  461 and  Shamsher Singh & Anr. v. State of Punjab, [1975] 1  SCR 814, referred to.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  Nos.  149 1--1501 of 1974.     From the Judgment and Order dated 21.12.1973 of the High Court  of Delhi in C.W. Nos 954/71, 211 to 218 and  249  and 251 of 1972.     F.S.  Nariman, U.S. Prasad, S.K. Mehta, M.K.  Dua,  S.M.

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Sarin, Aman Vachhar and R. Jagannath for the appellants.     Anil Dev Singh, Miss Halida Khatoon. P. Parmeswaran  for the Respondents. The judgment of the Court was delivered by     RANGANATH  MISRA,  J.These appeals  are  by  certificate under  Article  132  and involve the  determination  of  the amplitude contained and nature of the power conferred on the President  by  clause (c) of the second proviso  of  Article 311(2) of the Constitution.     18  policemen---Sardari  Lal and two others  being  Sub- Inspectors and the remaining being either Head Constables or Constables--of  the Delhi Armed Police Force were  dismissed from  service  by  separate but similar  orders  dated  14th April,  1967,  by way of punishment. They  challenged  those orders before the Delhi High Court mainly contend- 707 ing  that  the  exercise of power under clause  (c)  of  the second  proviso to Article 311(2) was not  upon  President’s personal  satisfaction and as there had been no  inquiry  as mandated  by  Article 311(2), the dismissals were  bad.  The High  Court did not accept the contention and  rejected  the writ  petitions. The dismissed policemen carried appeals  to this  Court  and by judgment dated 2 1st  January,  1971  in Sardari  Lal  v. Union of India & Ors., [1971] 3 SCR  461  a Constitution  Bench of this Court set aside the judgment  of the High Court in each of the writ petitions and quashed the several orders of dismissal on the ground that each of  them was illegal, ultra vires and void. This Court held:-               "On the principles which have been  enunciated               by  this Court, the function in clause (c)  of               the proviso to Article 311(2) cannot be  dele-               gated by the President to any one else in  the               case of a civil servant of the Union. In other               words, he has to be satisfied personally  that               in the interest of the security of the  State,               it  is not expedient to hold the inquiry  pre-               scribed by clause (2). In the first place, the               general  consensus  has  been  that  executive               functions  of  the  nature  entrusted  by  the               Articles,  some of which have  been  mentioned               before  and  in particular those  Articles  in               which  the President has to be satisfied  him-               self  about the existence of certain  fact  or               state of affairs cannot be delegated by him to               any  one  else. Secondly even with  regard  to               clause (c) of the proviso, there is a specific               observation  in  the passage  extracted  above               from   the  case  of  Jayantilal   Amrit   Lal               Shodban--[1964] 5 SCR 294--that the powers  of               the  President under that provision cannot  be               delegated.  Thirdly, the dichotomy  which  has               been   specifically  introduced  between   the               authority  mentioned  in clause  (b)  and  the               President  mentioned  in  clause  (c)  of  the               proviso  cannot be without  significance.  The               Constitution  makers  apparently felt  that  a               matter  in which the interest of the  security               of  the  State  had to  be  considered  should               receive  the personal attention of the  Presi-               dent or the head of the State and he should be               himself  satisfied that an inquiry  under  the               substantive part of clause (2) of Article  311               was  not expedient for the reasons  stated  in               clause  (c)  of the proviso in the case  of  a               particular servant."

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Following the judgment of this Court, the dismissed  police- men were reinstated in service with effect from 16th  April, 1971.  On 5th of June, 1971, fresh orders of dismissal  were served on these policemen again 708 invoking the power under clause (c) of the second proviso to Article  311(2) for dispensing with the inquiry. One of  the representative orders is extracted below:-                        "Whereas you, Shri Sardari Lal,  sub-               Inspector being No. D-331 (present No. D-1177)               of  Delhi Police, held your office during  the               pleasure of the President."                        "And  whereas  the  President,  after               considering all the facts and circumstances of               your  case, is satisfied under sub clause  (c)               of the proviso to clause (2) of Article 311 of               the Constitution, that in the interest of  the               security  of the State it is not expedient  to               hold,  in relation to you, such inquiry as  is               referred to in clause (2) of the said  Article               311 of the Constitution."                         "Now,  therefore, the  President  is               pleased  to  dismiss  you  from  service  with               immediate effect."     Several  writ applications were again flied  before  the High  Court. It was inter alia contended that the  order  of dismissal without an inquiry aS envisaged in Article  311(2) was vitiated as the power under sub-clause (c) of the second proviso  to Article 311(2) had not been made  upon  personal satisfaction of the President.     In the returns made to the Rule to two separate  affida- vits-one by the Inspector General of Police and the other by a Joint Secretary to the Union Government in the Ministry of Home  Affairs--it  was  maintained that  the  President  had personally  considered  all the facts and  circumstances  of each  case  and after having satisfied himself,  passed  the order that in the interest of the security of the State,  it was  not expedient to hold the inquiry. The original  orders of the President along with the connected papers were placed before the High Court and the High Court held:-               "The contention, therefore, that the President               himself  did not pass the impugned  orders  is               rejected.  The question for decision  then  is               whether  the court can scrutinize and  examine               the  facts  and  circumstances  that  led  the               President  to arrive at the satisfaction  that               it  was not expedient in the interest  of  the               security  of  the State to  hold  the  inquiry               envisaged  in  Article  ,311(2)  against   the               petitioners, and if so, to what extent."               709 While  examining this aspect of the matter, the  High  Court relied on the ratio of the decision of this Court in Sardari Lal’s  case (supra) and examining the second aspect  of  the contention, the High Court held:-               "The  result, therefore, is that the  exercise               of power by the President under clause (c)  to               the proviso to Article 311(2) is fully covered               by clause (1) of Article 361 and the President               is  not answerable to any court for the  exer-               cise and performance of his powers and  duties               under  this clause of the proviso  to  Article               311  and no court has jurisdiction to  examine               the  facts and circumstances that led  to  the               satisfaction  of  the President  envisaged  in

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             clause  (c) except probably on the  ground  of               mala fide." The  plea  of mala fides is based upon the  alleged  factual situation  that the respective impugned orders  had  already been  taken by the Government and the President  simply  en- dorsed them was not entertained by the High Court and  ulti- mately each of the writ petitions was dismissed.     Mr. Nariman, learned counsel appearing on behalf of  the appellants  has  advanced three contentions  in  support  of these appeals:-     (1)  the  impugned order of dismissal in 1971  which  is claimed to have been passed on the personal satisfaction  of the President is vitiated in view of the rule in the case of Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR 814.     (2)  appellants  having been reinstated  in  service  in terms  of the judgment of this Court, without leave  of  the Court,  no  second order of dismissal on the  same  material could have been passed; and     (3) the High Court was wrong in holding that the  suffi- ciency of satisfaction of the President was not justiciable.     The  first aspect argued by Mr. Nariman is on the  basis of  the  reversal  of the view expressed by  this  Court  in Sardari Lal’s case (supra) by a later larger Bench  judgment of  this  Court. The ratio in Sadari Lal’s case came  to  be considered in Shamsher Singh’s case (supra) by a seven-Judge Bench. Ray, CJ., who spoke for five members of the bench and with  whom  by  a separate judgment,  the  remain-  ing  two learned Judges agreed spoke thus:- 710               "The  decision in Sardari Lal’s case that  the               President  has to be satisfied  personally  in               exercise  of executive power or  function  and               that the functions of the President cannot  be               delegated  is  with respect  not  the  correct               statement  of  law and is against  the  estab-               lished  and  uniform  view of  this  Court  as               embodied in several decisions to which  refer-               ence  has already been made.  These  decisions               are  from the year 1955 up to the years  1971.               The decisions are Rai Saheb Ramjawaya Kapur v.               State of Punjab, [1955] 2 SCR 225; A. Sanjeevi               Naidu v. State of Madras, [1970] 3 SCR 505 and               U.N.R.  Rao  v.  Smt.  Indira  Gandhi,  [1977]               Suppl.  SCR  46. These decisions  neither  re-               ferred  to  nor considered  in  Sardari  Lal’s               case."               "The President as well as the Governor is  the               Constitutional  or formal head. The  President               as  well as the Governor exercises his  powers               and functions conferred on him by or under the               Constitution  on  the aid and  advice  of  his               Council  of Ministers, save in  spheres  where               the  Governor  is  required by  or  under  the               Constitution to exercise his functions in  his               discretion. Whoever the Constitution  requires               the  satisfaction  of  the  President  or  the               Governor for the exercise by the President  or               the  Governor  of any power or  function,  the               satisfaction  required by the Constitution  is               not the personal satisfaction of the President               or  the Governor but the satisfaction  of               the President or Governor in the Constitution-               al sense in the cabinet system of  Government,               that is, satisfaction of his Council of Minis-               ters on whose aid and advice the President  or

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             the Governor generally exercise all his powers               and functions. The decision of any minister or               officer under rules of business made under any               of these two Articles 77(3) and 166(3) is  the               decision  of  the President  or  the  Governor               respectively.  These Articles did not  provide               for any delegation. Therefore, the decision of               Minister  or Officer under the rules of  busi-               ness  is the decision of the President or  the               Governor." In their writ petitions, each of the appellants had contend- ed  before  the High Court, following the  ratio  of  Sadari Lal’s  case which was then the law, that the  President  had not  been personally satisfied before exercise of the  power under  the  proviso  to dispense with the  inquiry  and  the respondents  had  taken pains to establish by  pleading  and producing the original records that the President had satis- fied himself person- 771 ally  before be made the order dispensing with the  inquiry. To  reduce the argument on this aspect and to have an  exact impression of how the impugned orders were made, we directed learned counsel appearing for the Union of India to  produce the  original record and the same has been put  before  this Court.  It transpires therefrom that the papers were  placed by the Ministry of Home Affairs for the consideration of the President  by the Joint Secretary of the Union Territory  of Delhi on 22nd of March, 1971, and were returned with a  note of  20th  of April, 1971, to the effect that  the  President would like to have the advice of the Council of Ministers in the matter. A draft note for the Cabinet was prepared relat- ing to the matter and as the record indicates it got through the  Cabinet and the Prime Minister recorded  her  approval. Thereafter,  it was again placed before the President  along with  a  note prepared on 25th May, 1971. The  note  clearly indicated:               "President’s Secretariat may kindly see  their               note extracted at pre-page 7/n. As desired  by               the  President, the matter was  placed  before               the  Council of Ministers. A copy of the  Note               submitted to the Cabinet may kindly be seen at               flag ’H’. The Cabinet has approved the propos-               al  contained in paragraph 6 thereof.  Minutes               of  the  Cabinet meeting may be seen  at  flag               ‘I’."               "It  is requested that the matter may  now  be               placed     before    the     President     for               consideration."               On  2nd  June, 1971, the  President  made  the               following order:-               "I  have considered the cases of the  eighteen               Police officers, whose names are given in  the               list  appended  to  this order.  I  have  also               considered all the facts and circumstances  of               their cases stated in the notes of the  Minis-               try of Home Affairs, dated March 22, 1971, and               May 25,1971."               "I  am satisfied, under paragraph (c)  of  the               proviso  to clause (2) of Article 311  of  the               Constitution,  that  in the  interest  of  the               security  of the State it is not expedient  to               hold  an inquiry into the case of any  one  of               these  Police  Officers. I  accordingly  order               that  these eighteen Police Officers  be  dis-               missed from service with immediate effect."

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It  is  clear from what has been extracted  above  that  the order of the President was not on the basis of his  personal satisfaction as required 712 by  the Rule in Sardari Lal’s case but was upon the aid  and advice of the Council of Ministers, as required in  Shamsher Singh’s  case.  In view of this  factual  position,  learned counsel  for the appellants fairly stated that there was  no force in his first contention.     We  see  no force in the second point canvassed  by  Mr. Nariman.  This  Court  quashed the orders  of  dismissal  on account of noncompliance of the requirements of the law  and when the Police Officers returned to service it was open  to the  employer to deal with them in accordance with  law.  No leave  of this Court was necessary for making a fresh  order in exercise of the disciplinary jurisdiction after  removing the defects.     Now  coming to the third contention of Mr. Nariman,  the matter  appears  to have been concluded by the  judgment  of this Court in the case of Union of India & Anr. v. Tulsirara Patel  &  Ors., [1985] 3 SCC 398. Those were also  cases  of striking  railwaymen  against whom orders of  dismissal  had been  made after dispensing with the inquiry by exercise  of powers  under the same proviso. Four learned  Judges  repre- senting the majority spoke through Madon, J. and this  Court held that there was a constitutional obligation to record in writing  the  reason for the satisfaction that  one  of  the sub-clauses  was applicable and if such reason was  not  re- corded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be  void and unconstitutional. The Court further stated that communi- cation of the resaon to the aggrieved Government servant was not obligatory but perhaps advisable. The record of the case produced  before  us clearly indicates that the  reason  has been  recorded though not communicated. That  would  satisfy the requirements of the law as indicated in Tulsiram Patel’s case.  The plea of mala fides as had been  contended  before the High Court and casually reiterated before us arises  out of the fact that typed orders dated 3rd of June, 1971,  were already  on record in the file when the papers  were  placed before  the  President;  such a contention  is  without  any substance.  The President’s order is dated 2nd of  June  and the typed orders of dismissal bear the date of the following day.  In  this setting, there is no scope  to  suggest  that typed orders representing Government’s decision were  avail- able on the record by the time the matter was placed  before the President.     All  the  legal contentions have failed.  Ordinarily  in such  a  situation, the appeals have to  be  dismissed.  Mr. Nariman,  however, has placed before us for consideration  a statement made by the Home Minister before the Lok Sabha  on 18th of December, 1978. Therein he had stated:- 713               "   ..............  18 persons who  have  been               dismissed by invoking clause (c) of the provi-               so  to Article 311(2) will be  considered  for               grant of compassionate allowances." This  statement  was also reiterated in  the  papers  placed before  the President. Obviously the Government intended  to pay  them compassionate allowances. We have no sympathy  for indiscipline. In fact, in an orderly force like the  Police, indiscipline  is bound to give rise to serious  problems  of administration. It is, however, unnecessary to go into  that aspect  of  the matter as the Government had made  it  known that they intended to treat even these 18 policemen liberal-

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ly  by giving them compassionate allowances. The matter  has been  sufficiently protracted, the first order of  dismissal was  made a little more than 20 years back and in the  mean- time  some  of the policemen out of this group  of  18  have died.  In  such  circumstances to leave this  matter  for  a future date for fixing compassionate allowance would not  be just  and  proper. We had suggested to the  learned  counsel appearing  for the Union of India to have  instructions  and give us an indication of what was in view of the  Government when compassionate allowance was thought of. There has  been no  response yet. We are not prepared to detain delivery  of the  judgment on that ground. In our opinion, the  situation would be met in a just way if instead of paying a  recurring allowance,  a lump sum amount is paid to the  policemen  who are alive or their legal representatives in the case of  the policemen  who are dead. We accordingly direct that  in  the case of Sub-Inspectors who were dismissed, a lump sum amount of  Rs.60,000 (Rupees Sixty Thousand only), in the  case  of Head-Constables  who  were  dismissed  a  sum  of  Rs.50,000 (Rupees Fifty Thousand only) and in the case of Constables a lump sum of Rs.40.000 (Rupees Forty Thousand only) should be paid within one month from today.     The  appeals are dismissed subject to the direction  for payment  of the lump sum amounts indicated above in lieu  of compassionate allowance. There would be no orders for costs. N.P.V.                                        Appeals   dis- missed. 714