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PETITIONER: UNION OF INDIA AND ANOTHER

       Vs.

RESPONDENT: TULSIRAM PATEL AND OTHERS

DATE OF JUDGMENT11/07/1985

BENCH: MADON, D.P. BENCH: MADON, D.P. CHANDRACHUD, Y.V. ((CJ) TULZAPURKAR, V.D. PATHAK, R.S. THAKKAR, M.P. (J)

CITATION:  1985 AIR 1416            1985 SCR  Supl. (2) 131  1985 SCC  (3) 398        1985 SCALE  (2)133  CITATOR INFO :  RF         1986 SC 335  (1,2,3,4,6)  RF         1986 SC 555  (4,5,6,7,8,9,15,16)  R          1986 SC 617  (3,7)  R          1986 SC1173  (13,13A,14,21,22,24)  RF         1986 SC1272  (79)  R          1986 SC1571  (99,105)  E&D        1987 SC 593  (25)  R          1987 SC1137  (3,5)  F          1987 SC1919  (9)  F          1987 SC2106  (8)  R          1988 SC 285  (1)  R          1988 SC2245  (11)  F          1989 SC 662  (8,9,10)  R          1989 SC1185  (29)  R          1990 SC 987  (10)  R          1990 SC1480  (110)  R          1991 SC 101  (14,19,31,32,35,40,41,62,67,68  RF         1991 SC 385  (4)  RF         1992 SC   1  (133)

ACT:      Constitution of India Articles 14,21,309,310,311.      Central  Civil   Services  (Classification   Control  & Appeal) Rules 1965 Rules 19, 22,23, 25, 27(2),29, 29A.      Central Industrial  Security  Force  Rules  1969  Rules 37,42, 42A, 47(2) and 49.      Railway Servants  (Discipline  &  Appeal)  Rules  1968, Rules 14, 17, 20, 22(2), 25, 25A.      Doctrine of  Pleasure-Scope of  in Art.311 - Whether an exception to Art.310(1).      Laws made  under  Art.309  whether  to  be  subject  to Art.310(1) and 311 and Part III.      Art. 311(2)  second  proviso  -  Principle  of  natural justice whether  excluded Mala  fide action  of disciplinary authority -  Whether can be assailed - Conduct of government servant must  justify dismissal  or removal  or reduction in rank - Condition precedent to applicability of the provision - Approach  of the  disciplinary authority  - The situations when it is not reasonably practicable to hold inquiry - What are -  Reasons to be recorded in writing for not holding the inquiry  -   Communication  of   reasons  to  the  aggrieved

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government servant  - Necessity  of -  Remedies available to the aggrieved government servant.      ’Security of  State’- What is - How affected - When not expedient to  hold  inquiry  in  interest  of  ’security  of state’-subjective satisfaction  of President  or Governor  - What is.      Though pre-decisional  hearing excluded post decisional departmental hearing  available -  Judicial review  open  on grounds of mala fides or non-application of mind. 132      Government Servant  convicted for causing grevious head injury - Punishment of compulsory retirement- Whether proper and justified.      Railway employees - Participating in all-India strike - En masse  dismissal of  participants -  Whether  proper  and justified.      Members of  CISF -  Creating riotous  situation - Break down of  discipline in the force - Members becoming security risk - Dismissal - Whether proper and justified.      Member of  State Police Force - Creating violent public disorder -  Inciting others  members to  do so  -  Dismissal whether proper and justified.      Natural Justice  - Principles of Natural Justice - What are - Origin of principle - ’audi alteram partem’ - When can be excluded  - Post  decisional hearing  whether  sufficient compliance of the rule.      Statutory Interpretation  - Provision  of  Constitution whether mandatory  or directory  - ’expressum  facit cessare tacitum’ -  maxim - external aids to interpretation - use of - mandatory  constitutional prohibition  strict construction of -whether necessary.      WORDS AND PHRASES - MEANING OF      ’Acts of  the  appropriate  legislature’  -  Art.  309. ’Except as  expressly provided  by this Constitution’ - Art. 310(1).      ’Not expedient’  - ’Security  of State’  -  ’Reasonably practicable’ - ’This clause shall not apply’ - Art. 311(2).      ADMINISTRATIVE LAW      Subordinate  legislation   -   Executive   instructions whether have force of statutory rule.

HEADNOTE:      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 133 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,  however,  not  available  when  a person is  dismissed, removed  or reduced  in rank in any of the three  cases set  out in clauses (a) to (c) mentioned in the second proviso to Article 311(2). Under clause (a), such person can  be dismissed, removed or reduced in rank without any inquiry  on the  ground of  conduct which has led to his conviction on  a criminal  charge. Under  clause (b), any of the three  penalties can  be  imposed  where  the  authority empowered to  impose any  of the penalties is satisfied that

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for some  reason,  to  be  recorded  by  that  authority  in writing, it  is not  reasonably  practicable  to  hold  such inquiry. Under  clause (c),  any of  the aforesaid penalties can be  imposed where  the President,  or the  Governor of a State, 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.      All the  Government servants  in the  above Appeals and Writ Petitions  had been  either dismissed  or removed  from service without  holding any  inquiry.  They  had  not  been informed  of   the  charges   against  them  nor  given  any opportunity of  being heard in respect of those charges. The penalty of  dismissal or  removal, as  the case  may be, had been imposed  upon them  under one or the other of the three clauses of  the second  proviso to  Article 311(2)  or under similar provisions  in  rules  made  under  the  proviso  to Article 309  or in  rules made  under an  Act  referable  to Article 309,  for instance,  Rule 19  of the  Central  Civil Services (Classification,  Control and  Appeal) Rules, 1965. Rule 14  of the  Railway Servants  (Discipline  and  Appeal) Rules 1968,  and Rule  37 of the Central Industrial Security Force Rules, 1969, or under such a rule read with one of the clauses of the second proviso to Article 311(2).      The affected government servants assailed the aforesaid order in  writ petitions under Article 226 in different High Courts, and some of these writ petitions were allowed on the basis  of  this  Court’s  decision  in  Divisional  Personal Officer, Southern Railway & Anr. v. T.R. Challappan [1976] 1 S.C.R. 783, and a few were dismissed.      Appeals by  Special Leave  against those judgments were filed, and  in three  such appeals it was noticed by a three Judge Bench of this Court that there was a conflict between 134 Challappan’s Case and another three Judge Bench in M. Gopala Krishna Naidu v. State of Madhya Pradesh [1968] 1 S.C.R. 355 and directed  that the papers in the three appeals be placed before the  Hon’ble Chief  Justice for reference to a larger Bench. These  appeals were thus referred to the Constitution Bench and  all other similar Appeals and Writ Petitions were also placed before the Constitution Bench for disposal.      The arguments  advanced on  behalf  of  the  government servants on  the pleasure doctrine and the second proviso to Article 311 (2) were :      1. The  pleasure doctrine  in England  is a part of the special prerogative  of the  Crown and had been inherited by India from  England  and  should,  therefore,  be  construed strictly against  the Government  and liberally in favour of government servants.      2. The  second proviso  which withdraws from government servants the  safeguards provided  by clause  (2) of Article 311  must  be  also  similarly  construed,  otherwise  great hardship would  result to  government servants as they could be arbitrarily  thrown out of employment, and they and their dependents would be left without any means of subsistence.      3. There are several stages before a government servant can be  dismissed or  removed or  reduced  in  rank  namely, serving upon  him of  a show-cause notice or a charge-sheet, giving  him   inspection  of   documents,   examination   of witnesses, arguments  and imposition  of penalty. An inquiry starts only  after a show cause notice is issued and served. A show cause notice is thus preparatory to the holding of an inquiry and  even if  the entire  inquiry is dispensed with, the giving  of  a  show  cause  notice  and  taking  of  the explanation of  the government  servant with respect thereto are not excluded.

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    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. 135      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 not  giving such  notices or  either of them renders the order of dismissal, removal or reduction in rank invalid.      On behalf of the Union of India it was submitted that:      1. The  second  proviso  is  unambiguous  and  must  be construed according to its terms.      2. Where  the second  proviso of  clause (2) of Article 311 is  made inapplicable, there is no scope for holding any partial inquiry.      3. The very contents of the three clauses of the second proviso show  that it is not necessary or not practicable or not expedient that any partial inquiry could be or should be held, depending upon which clause applies.      4. Article  14 does  not govern or control Article 311. The Constitution  must be  read as  a whole.  Article 311(2) embodies the principle of natural justice including the audi alteram partem  rule. Once  the application of clause (2) is expressly excluded  by the Constitution itself, there can be no question  of making  applicable what has been so excluded by seeking recourse to Article 14.      5.  Considerations   of  sympathy  for  the  government servants who  may be dismissed or removed or reduced in rank are irrelevant  to the  construction of  the second proviso. The doctrine  of tenure  at pleasure  in Article 310 and the safeguards given  to a  government servant under clauses (1) and (2)  of Article  311  as  also  the  withdrawal  of  the safeguard under  clause (2)  by the  second proviso  are all enacted  in   public  interest  and  where  public  interest conflicts with  private interest,  the latter  must yield to the former.      Allowing  the   Appeals  of  the  Union  of  India  and dismissing the  Writ Petitions  and Transferred Cases of the employees. ^      HELD: (Per  Chandrachud,  CJ.  V.D.  Tulzapurkar,  R.S. Pathak & D.P. Madon JJ. - M.P. Thakkar,J. dissenting) 136      I. The Pleasure Doctrine in the United Kingdom      1. The  pleasure doctrine  relates to  the tenure  of a government servant,  that is,  his right to continue to hold office. All public officers and servants of the Crown in the United Kingdom  hold their  appointments at  the pleasure of the Crown  and their  services can  be  terminated  at  will without assigning any cause. [166 F]      2. The  pleasure doctrine is not based upon any special prerogative of  the Crown  but is based on public policy and is in  public interest and for public good. The basis of the pleasure doctrine  is that  the public is vitally interested

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in the  efficiency and  integrity  of  civil  services  and, therefore, public policy requires, public interest needs and public good demands that civil servants who are inefficient, dishonest or  corrupt or  have become a security risk should not continue in service. [166 G]      3. In  the United  Kingdom, Parliament is sovereign and can make  any law  whatever and  the courts have no power to declare it  void. The pleasure doctrine is therefore subject to what  may be expressly provided otherwise by legislation. [167 A-168 B]      Halsbury’s Laws  of England.  Fourth Edn. Volume 8 para 1106;1162.      Sbenton v.  Saith, L.R.  [1895] A.C.  229 J.C., Dunn v. the Queen,  L.R. [1896] Q.B.D. 116; s.c. (1895-96) 73 L.T.R. 695 and  sub nomine Dunn v. Regen in [1895-99] All E.R. Rep. 907., Gould  v. Stuart,  L.R. [1896]  A.C.  575,578-9  J.C., Challiah Kodeeswaran  v. Attorney-General  of Ceylon  [1970] A.C. 1111,1118 (P.C.) referred to.      II. The Pleasure Doctrine in India      1.  In   India  the   pleasure  doctrine  has  received Constitutional sanction  by being  enacted in Article 310(1) of the Constitution of India. Under Article 310(1) except as expressly provided  in the Constitution, every person who is a member  of a  defence service or of a civil service of the Union of India or of any all-India service or holds any post connected with  defence or any civil post under the Union of India holds office during the pleasure of the President, and every person  who is  a member of a civil service of a State or holds  any civil  post under  a state holds office during the pleasure of the Governor of the State. [186 H, 187 E] 137      2. In India, unlike in the United Kingdom, the pleasure doctrine is  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. [187 E]      3. Several  exceptions to  the  pleasure  doctrine  are expressly provided in the Constitution.      4. 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. [179 D]      5. Under clause (1) of Article 311 no civil servant can be  dismissed  or  removed  from  service  by  an  authority subordinate to that by which he was appointed. [179 E]      6. 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  resonable opportunity  of being heard  in respect  of such charges. As a result of the amendment made  by the Constitution (Forty-second Amendment) Act, 1976,  in clause  (2) of  Article 311  it  is  now  not necessary to  give to  a civil  servant  an  opportunity  of making a representation with respect to the penalty proposed to be imposed upon him. [179 F,181 E]      7. An  order  of  compulsory  retirement  from  service imposed upon  a civil  servant by  way of penalty amounts to "removal"  from  service  and  attracts  the  provisions  of Article 311.[180 E, 197 B]      8.  Restrictions  on  the  operation  of  the  pleasure doctrine contained  in legislation made by Parliament in the

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United Kingdom  and in clauses (1) and (2) of Article 311 in India are  based on public policy and are in public interest and for  public good  in as  much  as  they  give  to  civil servants a feeling of security of tenure. [182 E-F]      9. The  safeguard provided  to civil servants by clause (2) of  Article 311  is taken  away when  any of  the  three clauses of  the second  proviso (originally the only proviso to Article 311(2)) becomes applicable. [182 D] 138      10. It  is incorrect  to say that the pleasure doctrine is a  prerogative  of  the  British  crown  which  has  been inherited by  India and  transposed into  its  Constitution, adapted to suit the Constitutional set up of the Republic of India. Authoritative  judicial dicta  both in England and in India, have  laid down  that the  pleasure doctrine  and the protection afforded  to civil servants by legislation in the United Kingdom  and by clauses (1) and (2) of Article 311 in India are based on public good. Similarly, the withdrawal of the safeguard  contained in clause (2) of Article 311 by the second proviso to that clause is also based on public policy and is in public interest and for public good. [191 C-E]      11. Neither Article 309 nor Article 310 nor Article 311 sets out  the grounds for dismissal, removal or reduction in rank or  for imposition  of any  other penalty  upon a civil servant. These  Articles also  do not specify what the 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. [191 G]      12. 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. [193 E]      North-West Frontier  Province v.  Suraj  Narian  Anand, L.R. [1947-48]  75 I.A., 343,352-3., State of Madhya Pradesh and Others  v. Shardul  Singh, [1970]  3 S.C.R. 302, 305-6., Sardari Lal  v. Union  of India  ans others, [1971] 3 S.C.R. 461, 465., Kameshwar Prasad and Others v. The State of Bihar and another[1962]  Supp.  3  S.C.R.  369.,  G.K.  Ghose  and another v.  E.X. Joseph,  [1963] Supp. 1 S.C.R. 789 referred to.      III. The Inquiry under Article 311(2)      1. Clause  (2) of  Article 311  gives a  Constitutional mandate to  the principles  of natural  justice and the audi alteram partem 139      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  given a reasonable opportunity of being heard in respect of those charges. [234 E]      2. The  nature of this inquiry has been elaborately set out by  this Court  in Khem  Chand v. The Union of India and Others [1958]  S.C.R.  1980,  1095-97  and  even  after  the Constitution (Forty-second Amendment) Act, 1976, the inquiry required by  clause (2)  of Article  311 would  be the  same except that  it would  not be  necessary to  give to a civil

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servant an opportunity to make a representation with respect to the penalty proposed to be imposed upon him. [235 B]      3. Apart from Article 311 prior to its amendment by the Constitution (Forty-second  Amendment) Act,  1976, it is not necessary either under the ordinary law of the land or under industrial law  to give  a second  opportunity to show cause against the penalty proposed to be imposed upon an employee. [243 H]      4. If  an inquiry  held against  a civil  servant under Article 311(2)  is unfair or biased or had been conducted in such a  manner as  not to  give him  a  fair  or  reasonable opportunity to  defend himself,  the principles  of  natural justice would  be violated;  but in such a case the order of dismissal, removal  or reduction  in rank  would be  bad  as contravening the  express provision  of Article  311(2)  and there is  no scope for having recourse to Article 14 for the purpose of invalidating it. [235 C]      IV. The Second Proviso to Article 311(2)      1. The language of the second proviso to Article 311(2) is plain  and  unambiguous.  The  key-words  in  the  second proviso are  "this clause  shall not  apply".  There  is  no ambiguity in these words. Where a situation envisaged in any of the  three clauses  of the  second  proviso  arises,  the safeguard provided  to a  civil servant  by  clause  (2)  of Article 311 is taken away. [204 C]      2.  The   second  proviso  to  Article  311(2)  becomes applicable an  the three  cases mentioned  in clauses (a) to (c) of that proviso, namely, (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led  to his  conviction on  a criminal charge; (b) Where the authority  empowered to dismiss or remove a person or to reduce him  in rank is satisfied that for some reason, to be recorded by that 140 authority in  writing, it  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. [203 A-C]      3. 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 facit 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 commonsense and not merely a technical rule of construction. [213 H-214 A]      4. The second proviso to Article 311(2) has been in the Constitution of  India since  the time  the Constitution was originally enacted.  It was  not blindly or slavishly copied from section  240(3) of  the Government  of India Act, 1935. There was  a considerable  debate on  this  proviso  in  the Constituent Assembly.  The majority  of the  members of  the Constituent Assembly had fought for freedom and had suffered imprisonment in the cause of liberty and were therefore, not likely to introduce into our Constitution any provision from the earlier  Government of India Acts which had been enacted

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purely for  the benefit  of a  foreign imperialistic  power. They retained  the second  proviso as  a  matter  of  public policy and  as being  in the  public interest and for public good. They further inserted clause (c) in the second proviso dispensing with  the inquiry under Article 311 (2) in a case 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 as also added a new clause, namely,  clause (3),  in Article 311 giving finality to the decision of the disciplinary authority that it is not reasonably practicable  to hold  the inquiry  under  Article 311(2). Section  240 of  the Government  of India Act, 1935, did not  contain any  provision similar to clause (c) of the second proviso  to Article  311(2) or  clause (3) of Article 311. [215 F-H] 141      Hira Lal  Rattan Lal  etc. v. State of U.P. and Another [1973] 2  S.C.R. 502,  Commissioner of Income Tax, Madras v. Madurai Mills  Co. Ltd.  [1973] 3  S.C.R. 662, Khem Chand v. The Union  of India  and others  [1958] S.C.R.  1080, Suresh Koshy George v. The University of Kerala and Others [1969] 1 S.C.R. 317,326,  Associated Cement  Companies Ltd.  v.  T.C. Shrivastava and other [1984] 3 S.C.R. 361,369 and B.Shankara Rao Badami  and Others v. State of Mysore and another [1969] 3 S.C.R. 1,12, referred to.      V. Article 14 and the Second Proviso      1. The  principles  of  natural  justice  are  not  the creation of  Article 14  of the  Constitution. Article 14 is not the begetter of the principles of natural justice but is their Constitution guardian.[230 D]      2. The  principles of natural justice consist primarily of two  main rules,  namely, "nemo  judex in cause sua" ("no man shall  be a  judge in  his own cause") and "audi alteram partem" ("hear  the other side"). The corollary deduced from the above two rules and particularly the audi alteram partem rule was  "qui  aliquid  statuerit  parte  inaudita  altera, adguum licet  dixerit, haud  aequum fecerit"  ("he who shall decide anything  without the  other side  having been heard, although he  may have  said what is right will not have done what is  right" or  as is  now expressed "justice should not only be  done but  should manifestly  be seen  to be done"). These two rules and their corollary are neither new nor were they the  discovery of English judges but were recognised in many civilizations and over many centuries. [235 D, 237 G]      Dr. Bonham’s  case [1610] 8 Co. Rep. 113b, 118, British Railway Board  v. Pickin  L.R. [1974] A.C. 765, Drew v. Drew and Lebrun  [1855] 2  Macq. 1,8,  James Dunbar  Saith v. Her Majesty the Queen [1977-78] 2 App. Case 614,623 J.C., Arthur John Spackman  v. The Plumstead District Board of Works L.R. [1884-85] 10  App.  Case  229,240,  Vionet  and  another  v. Barrett and  another [1885]  55 L.J. Q.B. 39,41, Hookins and another v.  Smethwick Local  Board of  Health L.R. [1890] 24 Q.B.D. 712,716,  Ridge v.  Baldwin and  others L.R. [1963] 1 Q.B. 539,578,  Maneka Gandhi  v. Union  of  India  [1978]  2 S.C.R. 621,676,  re H.K.  (An Infant)  L.R.  [1967]  2  Q.B. 617,630, Fair-amount  Investments Ltd. v. Secretary of State for the Environment [1976] 1 W.L.R. 1255, 1265-66, Regina v. Secretary of  State for  Home  Affairs  Ex  parte  Hosenball [1977] 1  W.L.R. 766, 784, Lewis v. Heffar and others [1978] 1 W.L.R.  1061, 1076,  Maclean v.  The  workers  Union  L.R. [1929] 1 Ch. 602,624, William 142 Green v.  Isidore J.  Blake  and  others  [1948]  I.R.  242, Hounslow  London   Borough  Council   v.  Twickenham  Garden Developments Ltd. L.R. [1971] Ch. 233, Errington and others.

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v. Minister  of Health L.R. [1935] 1 K. B. 249,280, Ridge v. Baldwin and  others L.R. [1964] A.C. 40, on appeal from L.R. [1963] 1 Q. B. 539 and Boswell’s case [1606] 6 Co. Rep. 48b, 52a, referred to.      3. 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.  Therefore,  a  violation  of  a principle  of  natural  justice  by  a  State  action  is  a violation of Article 14. [229 F-G]      4. The  principles of  natural justice  apply  both  to quasi judicial as well as administrative inquiries entailing civil consequences. [233 H-234 A]      5. 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 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 which  has to  decide a  particular matter  and the rules by which such tribunal is governed. [235 D-F]      6. If  legislation and  the necessities  of a situation can exclude  the principles of natural justice including the audi alteram partem rule, a fortiorari so can a provision of the Constitution  such as  the  second  proviso  to  Article 311(2). [238 B]      7. The audi alteram partem rule having been excluded by a Constitutional  provision, namely,  the second  proviso to Article 311(2),  there is no scope for reintroducing it by a side-door to  provide once  again the same inquiry which the Constitutional provision has expressly prohibited. [238 D]      8. A  right of  making a representation after an action is taken  against a person has been held by this Court to be a sufficient  compliance with  the requirements  of  natural justice. In  the  case  of  a  civil  servant  to  whom  the provisions of the second proviso to Article 311(2) have been applied, he has the 143 right of a departmental appeal in which he can show that the charges made  against him  are not  true, and an appeal is a wider and  more effective  remedy than  a right  of making a representation. [234 C]      9. The  majority view  in A. K. Gopalan v. The State of Madras, [1950]  S. C. R. 88 namely, that particular Articles governing certain  Fundamental  Rights  operate  exclusively without having  any inter-relation with any other Article in the Chapter  on Fundamental  Rights was disapproved and held to be not correct in Rustom Cawasji Cooper v. Union of India [1970] 3  S.C.R. 530,  its burial service was read in Sambhu Nath Sarkar  v. The State of West Bengal and Others [1974] 2 S.C.R. 1,  Haradhan Saha  and another  v. The  State of West Bengal and  Others [1975]  1  S.C.R.  832  and  its  funeral oration was  delivered in  Maneka Gandhi’s  case,  [1978]  2 S.C.R. 64  and it  is to  be hoped  that the  ghost of  that majority view  does not  at some  future time  rise from 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. [240 H-241 A]      10. R.C.  Cooper’s  case  and  the  other  cases  which followed it do not, however apply where a Fundamental Right, including the  audi alteram  partem rule comprehended within the  guarantee   of  Article   14,  is   excluded   by   the

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Constitution. Express  exclusionary provisions  contained in the Constitution  are Article  31A (1), Article 31B, Article 31C, Article 22 (5) and the second proviso to Article 311(2) as regards  the audi  alteram partem rule, namely, affording an opportunity  of a  hearing  to  a  civil  servant  before imposing the  penalty of  dismissal, removal or reduction in rank upon him. [241 B]      11. The  principles of natural justice must be confined within their  proper limits and not allowed to run wild. The concept of natural justice is a magnificant thorough bred on which this  nation gallops  forwards towards  its proclaimed and  destined   goal  of   "JUSTICE,  social,  economic  and political". This  thoroughbred must  not be  allowed to turn into a  wild and  unruly house, carrering off were it lists, unsaddling its  rider, and  bursting into  fields where  the sign "no passaran" is put up. [242 D]      In re  The Special  Courts Bill,  1978 [1979]  2 S.C.R. 476, State of Andhra Pradesh and Another v. Nalla Raja Reddy and Others  [1967] 3  S.C.R. 28,  E. P.  Royappa v. State of Tamil Nadu  and another [1974] 2 S.C.R. 348, Ajay Hasia etc. v. Khalid Mujib 144 Sehravardi and others etc. [1981] 2 S.C.R. 79, Norwest Holst Ltd. v.  Secretary of State for Trade and Others L.R. [1978] 1 Ch.  201, A.  K. Kraipak and others etc. v. Union of India and others [1970] 1 S.C.R. 457, Union of India v. Col. J. N. Sinha and another [1971] 1 S.C.R. 791, Swadeshi Cotton Mills v. Union  of India  [1981] 2  S.C.R. 533, J. Mohapatra & Co. and another  v. State  of Orissa and another [1985] 1 S.C.R. 322, 334-5,  Liberty Oil  Mills and others v. Union of India and Others  [1984] 3  S.C.C. 465,  Rustom Cavasji  Cooper v. Union of  India [1970]  3 S.C.R.  530, A.  K. Gopalan v. The State of  Madras [1950] S.C.R. 88, Sambhu Nath Sarkar v. The State of  West Bengal  and others  [1974] 1 S.C.R.1, Hardhan Saha and  Anr. v.  The State  of West Bengal & Ors. [1975] 1 S.C.R. 832  and Khudiram  Das v.  The State of West Bengal & Ors. [1975] 2 S.C.R. 832.      VI. Service Rules and Acts      1.  Article  309  is  expressly  made  subject  to  the provisions of the Constitution. Rules made under the proviso to Article  309, Acts  referable to  that Article, and rules made under such Acts are, therefore, subject both to Article 310(1) as  also to  Article 311.  If any  such rule  or  Act impinges upon  or restricts  the operation  of the  pleasure doctrine embodies  in Article  310(1)  except  as  expressly provided in  the Constitution or restricts or takes away the safeguards provided to civil servants by clauses (1) and (2) of Article  311, It  would be  void and  unconstitutional as contravening the  provisions of Article 310(1) or clause (1) or clause  (2) of  Article 311, as the case may be. Any such Act  or  rule  which  provides  for  dismissal,  removal  or reduction in  rank of  a civil  servant without  holding  an inquiry as  contemplated by clause (2) of Article 311 except in the  three cases  specified in the second proviso to that clause would  therefore, be  unconstitutional  and  void  as contravening Article 311(2). [243 A-C]      2. In  the same  way, for  an Act  or a rule to provide that in  a case  where the  second proviso to Article 311(2) applies, any of the safeguards excluded by that proviso will be  available   to  a   civil  servant  would  be  void  and unconstitutional as  impinging  upon  the  pleasure  of  the President or the Governor, as the case may be. [243 E]      3. A  well-settled rule  of construction of statutes is that where  two interpretations  are possible,  one of which would  preserve   and  save  the  constitutionality  of  the

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particular statutory  provision while the other would render it unconstitutional 145 and  void,   the  one   which  saves   and   preserves   its constitutionality should  be adopted and the other rejected. [243 F]      4. 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). [243 G]      5. Service  rules may  reproduce the  provisions of the second  proviso   to  Article   311(2)  and   authorise  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 provision,  however, is not valid and constitutional without  reference to  the second  proviso to Article 311(2) and cannot be read apart from it. Thus, while the source  of authority of a particular officer to act as a disciplinary authority  and dispense  with  the  inquiry  is derived from  the service  rules, the source of his power to dispense with the inquiry is derived from the second proviso to Article 311(2) and not from any service rule. [243 F-G]      6. The  omission to  mention in  an order of dismissal, removal or  reduction in  rank the  relevant clause  of  the second proviso  or the  relevant service  rule will not have the effect  of invalidating the order imposing such penalty, and the  order must  be read  as having  been made under the applicable clause  of the  second proviso  to Article 311(2) read with the relevant service rule. [266 H-267 A]      7. Rule  37 of  the Central  Industrial Security  Force Rules, 1969,  is clumsily  worded and makes little sense. To provide that  a member  of the  Central Industrial  Security Force who  has been  convicted to rigorous imprisonment on a criminal charge "shall be dismissed from service" and at the same time  to provide  that" only a notice shall be given to the party charged proposing the penalty of dismissal for his having been  convicted to  rigorous imprisonment  and asking him to  explain as  to why the proposed penalty of dismissal should not  be imposed" is a contradiction in terms. To read these provisions as mandatory would be to render 146 them  unconstitutional  and  void.  These  provisions  must, therefore, be  read as  directory in order to preserve their constitutionality. [263 C-G]      8.   Rule    19   of   the   Central   Civil   Services (Classification,  Control   and  Appeal)   Rules,  1965,  is identical with  Rule 14  of the Railway Servants (Discipline and Appeal)  Rules, 1968, and the interpretation of the said Rule 19  would be the same as that of the said Rule 14. [256 F-H]      VII. Challappan’s Case      1. The  three-Judge Bench  of this  Court in Divisional Personnel Officer,  Southern Railways  and another  v.  T.R. Challappan was  in error  in interpreting  Rule  14  of  the Railway Servants  (Discipline and  Appeal) Rules,  1968,  by itself and  not in  conjunction with  the second  proviso to Article 311(2). [256 D]      2. The Court in Challappan’s case also erred in holding

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that the  addition of  the words "the disciplinary authority may consider  the circumstances  of the  case and  make such order thereon 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). [254 G]      3. The Court in Challappan’s case also erred in holding that the  addition of  the words "the disciplinary authority may consider  the circumstances  of the  case and  make such order thereon 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). It also erred in  the interpretation  placed by  it  upon  the  word "consider" occurring in the above phrase in the said Rule 14 and  in   taking  the  view  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). [255 A-C]      4. The  word "consider"  in its  ordinary  and  natural sense is  not capable  of the  meaning  assigned  to  it  in Challappan’s case. [255 G]      5. 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. [255 H] 147      6. The  decision in  Challappan’s case  never held  the field for  the  judgment  in  that  case  was  delivered  on September 15, 1975 and hardly was that case reported when in the next  group of  appeals in  which the  same question was raised the matter was referred to a larger Bench by an order made on  November 18, 1976. The reference was in view of the earlier decision  of another  three-Judge Bench in M. Gopala Krishna Naidu v. State of Madhya Pradesh. The correctness of Challappan  Case  was,  therefore,  doubted  from  the  very beginning. [256 E]      VIII. Executive Instructions      Executive Instructions  stand on a lower footing than a statutory rule. Executive instructions which provide that in a case  where the  second proviso to Article 311(2) applies, any safeguard excluded by that proviso would be available to a civil  servant would  only be directory and not mandatory. [265 H]      IX. The Scope of the Second Proviso      1. The  three clauses  of the second proviso to Article 311 are  not intended  to be  applied in normal and ordinary situations. The second proviso is an exception to the normal rule and  before any of the three clauses of that proviso is applied to  the case of a civil servant, the conditions laid down in that clause must be satisfied. [204 F-205 C]      2. Where a situation envisaged in one of the clauses of the second  proviso to  Article 311(2)  exists,  it  is  not mandatory that  the  punishment  of  dismissal,  removal  of reduction in  rank should  be imposed  upon a civil servant. The disciplinary  authority will  first have to decided what punishment is  warranted by  the facts  and circumstances of the case. Such consideration would, however, be ex parte and without  hearing   the  concerned   civil  servant.  If  the disciplinary authority  comes to  the  conclusion  that  the punishment which is called for is that of dismissal, removal or reduction  in rank, it must dispense with the inquiry and then  decide   for  itself  which  of  the  aforesaid  three penalties should be imposed. [205 A-B]      X. Clause (a) of the Second Proviso

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    1. In  a case where clause (a) of the second proviso to Article 311(2) applies the disciplinary authority is to take the conviction  of the concerned civil servant as sufficient proof of 148 misconduct on  his part. It has thereafter to decide whether the conduct  which had led to the civil servant’s conviction on a  criminal charge  was such as to warrant the imposition of a  penalty and,  if so,  what that penalty should be. For this purpose  it must  peruse the  judgment of  the criminal court  and   take  into  consideration  all  the  facts  and circumstances of the case and the various factors set out in Chalappan’s Case  such as,  the entire  conduct of the civil servant of  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 parte  and without  hearing the  concerned civil servant. [267 C-E]      2. 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. [267 H]      3. Where  a civil  servant goes  to the  office of  his superior officer  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  imprisonment, applies to  him the provisions of section 4 of the Probation of Offenders  Act,  1958,  and  after  such  conviction  the disciplinary  authority,   taking  the   above  facts   into consideration, by way of punishment compulsorily retires the delinquent civil  servant under  clause (i) of section 19 of the Central  Civil  Services  (Classification,  Control  and Appeal) Rules,  1965, it  cannot be said that the punishment inflicted  upon     the   civil  servant  was  excessive  or arbitrary. [267 F-G]      XI. Clause (b) of the Second Proviso.      1. There  are two  conditions precedent  which must  be satisfied before clause (b) of the second proviso to Article 311(2) can  be applied.  These conditions are (i) there must exist a  situation which  makes the  holding of  an  inquiry contemplated by  Article 311(2)  not reasonably practicable, and (ii) the disciplinary authority should record in writing its reason  for its  satisfaction that  it is not reasonably practicable to hold such inquiry.[269 D-E] 149      2. Whether  it was  practicable to  hold the inquiry or not must  be  judged  in  the  context  of  whether  it  was reasonably practicable to do so. [269 F]      3. It is not a total or absolute impracticability which is required  by clause  (b) of  the second  proviso. What is requisite  is  that  the  holding  of  the  inquiry  is  not practicable in  the opinion  of a  reasonable man  taking  a reasonable view of the prevailing situation. [270 B]      4. The  reasonable practicability of holding an inquiry is a  matter of  assessment to  be made  by the disciplinary authority  and   must  be   judged  in   the  light  of  the circumstances then prevailing. The disciplinary authority is generally on  the spot  and knows  what is  happening. It is because the  disciplinary authority is the best judge of the

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prevailing situation  that clause  (3) of  Article 311 makes the decision  of the disciplinary authority on this question final. [270 C]      5. It  is not  possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry.      Illustrative cases would be      (a) Where  a civil  servant,  particularly  through  or together with  his associates,  so terrorizes,  threatens or intimidates witnesses who are going to give evidence against him with  fear of reprisal as to prevent them from doing so, or [270 A]      (b) Where the civil servant by himself or together with or through  others threatens, intimidates and terrorizes the officer who  is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held, or [270 B]      (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. [270 C]      6.  The  disciplinary  authority  is  not  expected  to dispense with  a disciplinary inquiry lightly or arbitrarily or out of 150 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. [270 C]      7. The  word "inquiry"  in clause  (b)  of  the  second proviso includes a part of an inquiry. It is, therefore, 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 evidence has been led in part. [271 D-E]      8. When  at the  commencement of the inquiry or pending it, the  civil servant abscards and cannot be served or will not participate  in the  inquiry it  will not  be reasonably practicable to  afford to  the civil servant and opportunity of a  hearing or  further hearing. In such cases, the matter must proceed  ex parte  and  on  the  materials  before  the disciplinary authority. [271 E]      9. The  recording of the reason for dispensing with the inquiry is  a condition  precedent  to  the  application  of clause (b)  of the  second proviso. This is a Constitutional obligation and  if such  reason is  not recorded in writing, the order  dispensing with  the inquiry  and  the  other  of penalty  following   thereupon  would   both  be   void  and unconstitutional. It  is, however,  not necessary  that  the reason should  find a  place in the final order but it would be advisable  to record  it in  the final  order in order to avoid an  allegation that  the reason  was not  recorded  in writing before  passing the final order but was subsequently fabricated. [271 G]      10. The reason for dispensing with the inquiry need not contain details particulars but it cannot be vague or just a repetition of  the language  of clause  (b)  of  the  second proviso. [272 C]      11. It  is also not necessary to communicate the reason for dispensing  with the  inquiry  to  the  concerned  civil servant but  it would  be  better  to  do  so  in  order  to

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eliminate the  possibility of  an allegation being made that the reason was subsequently fabricated. [272 B]      12. The  obligation to  record the reason in writing is provided in clause (b) of the second proviso so that the 151 superiors of the disciplinary authority may be able to judge whether such  authority had exercised its power under clause (b) properly or not.[272 F]      13.  It   is,  however,  better  for  the  disciplinary authority to  communicate to the concerned civil servant its reason  for   dispensing  with   the  inquiry  because  such communication  would   eliminate  the   possibility  of   an allegation being  made that the reason had been subsequently fabricated. It  would  also  enable  the  civil  servant  to approach the High Court under Article 226 or, in a fit case, the Supreme Court under Article 32. [272 H]      14. It  would be  illogical to hold that administrative work carried  out by  senior officers should be paralysed by sending them  to other  stations to  hold the  inquiry  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. [273 C]      15. 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. In certain cases, the exigencies of a situation would require that prompt action should be taken and suspending  a civil servant would not serve the purpose, and sometimes  not taking  prompt action might result in the trouble spreading  and the  situation worsening and at times becoming uncontrolable. Not taking prompt action may also be construed by the trouble-makers as a sign of weakness on the part of  the authorities  and thus encourage them to step up their activities  or agitation.  Where such prompt action is taken there  is an  element of  deterrence in it but this is unavoidable and  a necessary concomitance of such an action. [273 D]      16. If  an inquiry  into the  charges against  a  civil servant is  not reasonably  practicable, it stands to reason that an  inquiry into  the question whether the disciplinary inquiry should  be dispensed  with or  not  is  equally  not reasonably practicable. [273 D]      17. In situations where a large group of members of the Central Industrial  Security collectively indulge in several of acts  of insubordination  indiscipline  and  intimidation with the 152 common  object   of  coercing   those  in   charge  of   the administration of  the Force  and the  Government to  compel them to  grant  recognition  to  their  Association  and  to concede their  demands, it  is not possible to particularise 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 the  security  force itself had become a security risk. [291 C-E]      18. The quantum and extent of the penalty to be imposed in each  case would depend upon the gravity of the situation and the extent to which the acts said to be committed by the

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praticular  civil  servants,  even  though  not  serious  in themselves, in  conjunction with  acts committed  by others, contributed to  bringing about the situation. The fact, that at a particular centre certain civil servants were dismissed from service  while at  some other  centres they  were  only removed from  service does  not mean that the penalties were arbitrarily imposed. [292 A-B]      XII. Clause (c) of the Second Proviso.      The expression "security of the State" in clause (c) of the second  proviso to Article 311(2) does not mean security of the entire country or a whole State but includes security of a part of a State. [275 E]      2. Security of the State cannot be confined to an armed rebellion or  revolt for there are various ways in which the security of  the State  can be  affected such  as  by  State secrets or  information relating  to defence  production  or similar matters  being passed on to other countries, whether inimical  or   not  to   India,  or  by  secret  links  with terrorists. [275 E]      3. The  way in  which the  security  of  the  State  is affected may be either open or clandestine. [275 F]      4. Disaffection  in the  armed forces  or  paramilitary forces or  the police force would affect the security of the State. The  importance of the proper discharge of the duties by members of these Forces and the maintenance of discipline among them  is emphasised in Article 33 of the Constitution. [275 G]      5. Disaffection  in any  armed force  or  para-military force  or   police  force   is  likely   to  spread  because dissatisfaction and 153 disaffected members  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 public order but is a matter  vitally affecting  the security of the State. [276 A-B]      6. The  interest of  the security  of the  State can be affected by  actual acts  or even  by the likelihood of such acts taking place. [277 D]      7. 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  source  of  information involving a  civil servant  in such acts, would be disclosed and thus  in such  cases an inquiry into acts prejudicial to the interest  of the  security of  the State  would as  much prejudice the interest of the security of the State as those acts themselves would. [279 D]      8. The  condition for  the application of clause (c) of the second  proviso to Article 311(2) is the satisfaction of the President  or the  Governor, as the case may be, that it is not  expedient in  the interest  of the  security of  the State to hold a disciplinary inquiry. [277 D]      9. Such  satisfaction is not required to be that of the President or the Governor personally but of the President or the  Governor,   as  the   case  may   be,  acting   in  the Constitutional sense. [278 A]      State of  Rajasthan and  Others etc.  etc. v.  Union of India etc. etc. [1978] 1 S.C.R. 1, 82., referred to.      10.  "Expedient"   means  "Advantageous,   fit,  proper suitable. Where,  therefore, the  President of the Governor, as the  case may  be, is  satisfied  that  it  will  not  be advantageous or  fit or proper or suitable or politic in the

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interest of the security of the State to hold an inquiry, he would be  entitled to  dispense with  it under clause (c) of the second proviso. [277 F]      11.  Under   clause  (c)  of  the  second  proviso  the satisfaction reached  by the  President or  the Governor, as the  case   may  be,   must  necessarily   be  a  subjective satisfaction because  expediency involves matters of policy. [278 G] 154      12. Satisfaction of the President or the Governor under clause (c)  of the  second proviso  may be  arrived at  as a result of  secret information received by the Governor about the brewing  danger to  the security  of the  State and like matters. There  are other factors which are also required to be considered,  weighed and  balanced in  order to reach the requisite satisfaction  whether holding  an inquiry would be expedient or  not. If  the requisite  satisfaction has  been reached as  a result  of secret  information received by the Government, making  known such  information may  very  often result in  disclosure of  the source of such information and once known, the particular source would no more be available to the  Government. The  reason for the satisfaction reached by the  President or  the Governor  under clause  (c) of the second proviso cannot, therefore, be required to be recorded in the  order of dismissal, removal or reduction in rank nor can it be made public. [279 E, 280 B]      13. When  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 remained into judicial custody  because of an incident which took place at the annual  Mela 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  senior district  and police  officers had to approach the  judicial Magistrate  at night  to get  the two arrested constables  released on  bail and, after discussion at a Cabinet meeting, a decision was taken and the advice of the Council  of Ministers  was tendered  to the  Governor of Madhya  Pradesh   who  accepted  it  and  issued  orders  of dismissal of  these persons  by applying  clause (c)  of the second proviso to them it cannot be said that the provisions of the said clause (c) were not properly applied. [295 E-296 C]      14. Similarly,  when after  these members of the Madhya Pradesh District Police Force and the Madhya Pradesh Special Armed force  were dismissed,  some other  members  of  these Forces began  carrying on  an active  propaganda against the Government, visiting  various places  in the State of Madhya Pradesh, holding  secret meetings, distributing leaflets and inciting the  constabulary in  these places  to rise against the administration  as a  body in protest against the action taken by  the Government  and,  on  such  information  being received, there  were also  dismissed by applying clause (c) of the  second proviso  to them,  it cannot be said that the said clause (c) was not properly applied. [296 F-297 B] 155      A civil  servant who  has been  dismissed,  removed  or reduced in  rank by  applying to his case one of the clauses of the  second proviso  to Article  311(2) or  an  analogour service rule  has  two  remedies  available  to  him.  These remedies are;      (i)  The appropriate  departmental remedy  provided for           in the relevant service rules, and      (ii) if still  dissatisfied, invoking the court’s power

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         of judicial review. [216 A-B]      XIV. Departmental Remedies.      Service  rules   generally  provide   for  departmental remedies by  way of  an appeal,  revision and  review in the case of disciplinary action taken against a civil servant.      2. Sub-clause  (ii) of  clause (c) of the first proviso to Rule  25(1)  of  the  Railway  Servants  (Discipline  and Appeal) Rules,  1968, provides that where an inquiry has not been held,  the revising  authority shall  itself hold  such inquiry or  indirect such  inquiry to  be  held.  A  railway servant has  therefore a  right to  demand  in  revision  an inquiry into  the charges against him subject to a situation envisaged in  Rule 14  of the  said Rules  not prevailing at that time. [248 G-H]      3. Although  a provision  similar to sub-clause (ii) of clause (c) of the first proviso of the first proviso to Rule 25(1) of  the  Railways  Servants  (Discipline  and  Appeal) Rules, 1968,  does  not  exist  in  the  rules  relating  to appeals, having regard to the factors set out in Rule 22 (2) 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  Rules 25(1) should  be  read  and  imported  into  the  provisions relating to appeals in the said Rules. [249 D-F]      4. Even  in a  case where at the time of the hearing of the appeal  or revision,  as the  case may  be, a  situation envisaged by the second proviso to Article 311(2) exists, as the  civil   servants,  if  dismissed  or  removed,  is  not continuing in service and, if reduced in rank, is continuing in service  with the reduced rank, the hearing of the appeal or revision,  as the  case may be, should be postponed for a reasonable length  of time to enable the situation to return to normal. [273 G] 156      5. An order imposing penalty passed by the President or the Governor,  as the case may be, cannot be challenged in a departmental appeal or revision. [265 D]      6. A  civil servant  who has  been dismissed or removed from service  or reduced in rank by applying to his case one of the clauses of the second proviso of Article 311(2) or of an analogous  service rule  has, therefore,  the right  in a departmental appeal  or revision  to  a  full  and  complete inquiry into  the allegations  made against him subject to a situation envisaged  in the second proviso to Article 311(2) not existing  at the  time of  the hearing  of the appeal or revision application.  Even in a case where such a situation exists, he  has the  right to have the hearing of the appeal or revision application postponed for a reasonable length of time for the situation to become normal. [273 F]      7. In  an appeal, revision or review by a civil servant who has been dismissed or removed from service or reduced in rank by  applying to  his case  clause  (a)  of  the  second proviso or  an analogous service rule, it is not open to the civil servant  to contend  that he  was wrongly convicted by the criminal  court.  He  can,  however,  contend  that  the penalty imposed  upon him  is to  severe or excessive or was one not  warranted by  the facts  and circumstances  of  the case. If  he is  in fact  not  the  civil  servant  who  was actually convicted  on a  criminal charge, he can contend in appeal, revision  or review  against such  order of  penalty that it was a case of mistaken identity. [264 E]      8. A  civil servant  who has  been dismissed or removed from service  or reduced  in rank  by applying  to his  case clause (b)  of the  second proviso  to Article  311(2) or an analogous service  rule can claim in appeal or revision that

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in inquiry  should be  held with  respect 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. [264 B]      9. 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  contend in appeal, revision or review that the inquiry was wrongly dispensed with. [264 G] 157      10. 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 (Discipline and  Appeal) Rules,  1968, and  clause (iii)  of Rule 19  of  the  Central  Civil  Services  (Classification, Control and  Appeal) Rules,  1965) a  departmental appeal or revision will  lie. In such an appeal or revision, the civil servant can  ask for  an inquiry to be held into his alleged conduct unless  at the  time of the hearing of the appeal or revision a  situation to  envisaged by the second proviso to Article 311(2)  is prevailing.  Even in such a situation the hearing of  the appeal  or revision  application  should  be postponed for  a reasonable length of time for the situation to become normal. The civil servant, however, cannot contend in such  appeal or  revision that  the inquiry  was  wrongly dispensed with by the President or the Governor. [265 B-E]      XV. Judicial Review.      1. Where  a clause  of the  second proviso  to  Article 311(2) or  an  analogous  service  rule  is  applied  on  an extraneous ground  or a  ground having  no relation  to  the situation envisaged  in such  clause or  rule, the action of the disciplinary  authority in  applying that clause or rule would be  mala fide and, therefore, bad in law and the court in exercise  of its  power of  judicial review  would strike down both  the order  dispensing with  the inquiry  and  the order of penalty following thereupon. [273 C-D]      2. Where  a civil servant has been dismissed or removed from service  or reduced  in rank  by applying clause (a) of the second proviso to Article 311(2) or an analogous service rule and he invokes the court’s power of judicial review, if 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 was not warranted by the facts  and circumstances of the case or the requirements of the  particular government service to which the concerned civil servant  belonged, the  court  will  strike  down  the impugned  order.  In  such  a  case,  it  is,  however,  not necessary that  the court should always order reinstatement. The court  can instead  substitute a  penalty which  in  its opinion would be just and proper in the circumstances of the case. If 158 however, the  court finds  that he was not in fact the civil servant who  was convicted, it will strike down the impugned order of  penalty and order his reinstatement. [267 G-268 A,

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273 F]      3. In  the  case  of  a  civil  servant  who  has  been dismissed or  removed from  service or  reduced in  rank  by applying clause  (b) of the second proviso to Article 311(2) or an  analogous service  rule, the High Court under Article 226 of 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. [274 A]      4. 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. [274 B]      5. 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 reason  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 a  court of first appeal in order to  decide whether  or not  the reasons are germane to clause (b)  of the  second proviso  or an  analogous service rule. 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 manner would  have done.  It will  judge the  matter in  the light of  the then  prevailing situation. Where two view are possible, the court will decline to interfere. [274 C-D]      6. Where  it is  alleged that  clause (b) of the second proviso or  an analogous service rule was applied mala fide, the court will examine the charge of mala fides. A mere bare allegations of  mala fides  without any  particulars of mala fides will  not, however, amount to a plea of mala fides and requires to be ignored. [280 H]      7. If  the reasons  for dispensing with the inquiry are not 159 communicated to  the concerned  civil servant and the matter comes to  court, the  court can  direct the  reasons  to  be produced and  furnished to the civil servant and if still no produced, a presumption should be drawn 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  non-production  of  the written reasons. [272 H-273 A]      8. Where  a civil  servant is dismissed or removed from service or  reduced in  rank by  applying clause  (c) of the second proviso or an analogous service rule to his case, the satisfaction of the President or the Governor that it is not expedient in  the interest  of the  security of the State to hold an inquiry being a subjective satisfaction would not be a fit matter for judicial review. [278 F]      9. It  is not  necessary for  the court  to decide  the question whether  the satisfaction  of the  President or the Governor can  be challenged  on the  ground that it has been reached mala  fide or  is  based  on  wholly  extraneous  or irrelevant  grounds  in  a  case  where  all  the  materials including the  advice of  the Council of Ministers have been produced and  such materials  show that  the satisfaction of

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the President  or the Governor was neither reached mala fide nor was  it based  on any  extraneous or  irrelevant ground. [279 E]      10. By reason of the express provision of Article 74(2) and Article  163(3) of the Constitution the question whether any, any 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. [279 F]      11. 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. [277 G-278 B]      In re Tulsiram Patel 160      The Respondent-Tulsiram  Patel was  a permanent auditor in  the  Regional  Audit  Office.  Orders  were  issued  for stopping his  increment for  one year, where-upon he went to the Regional  Audit Officer demanded an explanation from him as to  why he  had stopped  his increment, and not satisfied with the  reply of  the auditor  officer struck  him with an iron  rod,   whereupon  the  officer  fell  down,  his  head bleeding. The  Respondent was tried and convicted under Sec. 332 of  the Indian  Penal Code but the Magistrate instead of sentencing  the  respondent  to  imprisonment,  invoked  the provisions Sec.  4 of  the Probation  of Offenders Act, 1958 and released  him for  a period  of one  year on executing a bond of  good behaviour. The Respondent’s appeal against his conviction was dismissed. [281 F-H]      The  Controller   General  of   Defence  Accounts,  the disciplinary authority,  imposed  upon  the  Respondent  the penalty of compulsory retirement under clause (1) of Rule 19 of the  Civil Service  Rules. The  respondent’s departmental appeal was dismissed. [282 A, D]      The Respondent  thereafter filed  a Writ  Petition, and the High  Court relying  upon Challappan’s Case held that no opportunity had  been  afforded  to  the  Respondent  before imposing the  penalty of  compulsory retirement  on him  and that the impugned order was defective inasmuch as it did not indicate the  circumstances which  were  considered  by  the disciplinary authority  except the fact of conviction of the Respondent. [282 E-F]      The appeal  of the  Union of  India  was  allowed,  the judgment and  order appealed  against were  reversed and set aside and  the writ  petition filed by the Respondent in the High Court is dismissed. [284 A]      CISF MATTERS      The respondents  who were members of the CIS Force Unit at Bokaro  Steel Plant  and were dismissed from service. The members of this CIS’F Unit at Bokaro had formed an All-India association and  one of  the dismissed person was elected it General Secretary.  Thereafter a  country-wide agitation was carried on  for recognition of the association. In June 1979 some of the members went to Delhi to meet the Home Minister. A demonstration  was staged  and some  of the  demonstrators were arrested. At Bokaro Steel Plant the agitation which was going became aggravated and out of 1900 persons belonging to CISF Unit Bokaro, about 1000 161 persons   participated    in   processions    and    violent demonstrations. They  indulged in  several acts  of violence

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and created  serious in-discipline.  The agitation  and  the violent activity reached serious proportion in the last week of June 1979 with the result that the Army that to be called by the  State Authorities  on 23.6.1979,  took up  positions round the  CISF Lines  and called upon the agitators to give up charge  of the  Aroury. The agitators refused and started firing at  the Army, who returned the fire, and the exchange of fire resulted in the instant death of one Army Major. The offending CISF members were over powered, and arrested. [284 F-285 D]      The authorities were of the opinion, that having regard to the  violent and  disturbed situation  which prevailed in the Bokaro  Steel Plant,  the collective action of violence, mass terror  and intimidation and threats to the supervisory and loyal staff, any inquiry in accordance with Rules 34, 35 and 36  of  CISF  Rules  1969  or  in  accordance  with  the requirements of  Article 311(2)  would be dangerous counter- productive  and   would  aggravate  the  existing  dangerous situation,  the   delinquent  personnel  were  dismissed  in exercise of  the powers conferred by sub-rule (b) of rule 37 of the  CISF Rules  1969 read  with clause (b) of the second proviso of  clause (2)  of Article  311 of the Constitution. [288 C-289 A]      The CIS  Force has  been constituted under the CISF Act for  the   better  protection  and  security  of  industrial undertakings owned  by the  government. 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. [289 B, G]      All the  acts indulged  in by  the members of the Force virtually amounted  to a  mutiny and how grave the situation was can  be judged  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. [291 A]      No person  with any  reason or  sense of responsibility can say  that in  such a situation the holding of an inquiry was reasonable and practicable. [291 B]      The appellate  authority under  the Central  Industrial Security Force  Rules 1969  was directed  to dispose  of  an expeditiously as possible such appeals of the members of the Force as  might still  be pending. Such of those members who had 162 not  filled  any  appeal,  in  view  of  their  reliance  on Challappan’s case,  time was  granted  to  them  to  file  a departmental  appeal,   and  the   concerned  authority  was directed to  condone the  delay in  the filing of the appeal and to dispose it of on merits.[291 H-292 C]      RAILWAY SERVICE MATTERS      Railway Servants  were either dismissed or removed from service by  applying to  their cases  either clause  (ii) of Rule 14  of the  Railways Servants  Rules or  clause (ii) of Rule 14  read with  clause (b)  of  the  second  proviso  to Article 311(2),  as they were alleged to have been concerned in incidents  which took  place in  the all-India strikes of railway employees.  Many of  these employees belonged to the all-India loco-running  staff. The  railway servants went on these strikes  with the  object of forcing the Government to meet their demands. [292 E-F]      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  a vital  to the  country. Where,  therefore, the railway  employees   went  on   an  illegal  strike  without complying  with   the  provisions   of  section  22  of  the

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Industrial Disputes  Act  1947,  and  thereby  committed  an offence punishable  with imprisonment and fine under section 26(1) of  the  said  Act,  and  the  railway  services  were paralysed, loyal workers and superior officers assaulted and intimidated, the  country held to ransom, the economy of the country and  public interest  and public  good prejudicially affected, prompt  and immediate  action was  called  for  in order  to   bring  the   situation  to   normal.  In   these circumstances,  it  cannot  be  said  that  an  inquiry  was reasonably practicable  or that  clause (b)  of  the  second proviso to  Article 311  was not properly applied. [294 C-F, 295 C] MADHYA PRADESH POLICE FORCES MATTERS      Members of  the M.P.  District  Police  Force  or  M.P. Special Armed Force were dismissed by orders of the Governor of Madhya  Pradesh by  applying clause  (c)  of  the  second proviso to Article 311(2). [295 E]      An incident  took place  on January  18,  1981  at  the annual Mela  held at  Gwalior in  which one  man  was  burnt alive. Some persons including a constable from each of these two forces,  were arrested and remanded to judicial custody. On January 20, 1981 163 several members  of these  two Forces  indulged  in  violent demonstration and  rioted at  the Mela  ground demanding the release  of  their  colleagues.  They  attacked  the  police station at  the Mela  Grounds, ransacked  it and  forced the operator to close down the wireless set. [296 D]      The police  are the  guardians of Law and order, and if these guards  turn law-breakers  and create  violent  public disorder and incite others to do the same, 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.[297 A-B] (Per M.P. Thakkar J-dissenting)      ’Challappan’s has been rightly decided. And there is no compulsion to  overrule it - Even if the other point of view were to  appear to be more ’attractive’ it is neither a good nor  a  sufficient  ground  to  overrule  ’Challappan’.  The decision, does  no more  than enjoin  in the context of Rule 14(1) (a) and therefore, as a logical corollary, also in the context  of  Rule  14  (a)  (b)  of  the  Railways  servants (Discipline and  Appeal) Rules,  1968, that an employee must atleast be  heard on  one question  of quantum of punishment before he  is dismissed  or  removed  from  service  without holding any  inquiry.  The  ratio  of  the  decision  is  so innocuous that there is hardly any need to overturn it. [299 F-G]      Concurrence with  the consequential orders being passed in these cases and association with the exposition of law in regard to  the true  meaning and  content of  the  ’pleasure doctrine’ and  its implications  and impact is not possible. [300 B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal Nos. 6814 of 1981 etc.      From the  Judgment and  Order dated  23.6.1982  of  the Madhya Pradesh High Court in M. P. No. 1028 of 1981.      L. N.  Sinha, M. K. Rammamurthy, K. K. Vinugopal, V. M. Tarkunde, P.  R. Mirdul,  P. P.  Singh, R.  N. Poddar, Umesh Mishra,  M.   A.  Krishnamoorthy,   Indira  Sawhney,   Kittu

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Bansilal, Chandan  Malhotra, J.  Rammurthy, R. Vaigai, H. K. Puri, V.  K. Bhal,  K.  V.  Sreekumar,  R.  Sathish,  S.  S. Khanduja, Yashpal  Dhingra, P.  H. Parekh, P. K. Manohar, C. L. Sahu,  A. K.  Jha, T.  G. N.  Nayar, A.  K. Panda,  S. K. Gambhir, S.  Gambhir, Ashok  Mahajan, Sunita Kriplani, C. V. Subba Rao,  G. D.  Gupta, Hemant  Sharma, Indu  Malhotra and Jayshre for the appearing parties.      R. K.  Garg, S.  N. Singh  and K.  M. K.  Nair for  the intervener.      The following Judgments were delivered : 164      MADON, J. The above Appeals by Special Leave granted by this Court and the above Writ Petitions filed either in this Court under  article 32  of the  Constitution of India or in different High  Courts under  Article 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, however, not  available to him when he is dismissed, removed or reduced  in rank  in any  of the three cases mentioned in the second  proviso to Article 311(2). These three cases are set out  in clauses  (a) to (c) of the second proviso. Under clause (a), such person can be dismissed, removed or reduced in rank  without any  inquiry on the ground of conduct which has led to his conviction on a criminal charge. Under Clause (b), any  of these  three penalties  can be imposed upon him where  the  authority  empowered  to  impose  any  of  these penalties is  satisfied that for some reason, to be recorded by  that   authority  in   writing,  it  is  not  reasonably practicable to  hold such  inquiry. Under clause (c), any of the above  penalties can  be  imposed  upon  him  where  the President or the Governor of a state, 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.      All the  government servants  in the  above Appeal  and Writ Petitions  have been  either dismissed  or removed from service without  holding any  inquiry. They  have  not  been informed of  the charges  against them  nor been  given  any opportunity of being 165 heard in  respect of those charges. The penalty of dismissal or removal,  as the  case may be, has been imposed upon them under one  or the  other of  the three clauses of the second proviso to  Article 311(2)  or under  similar  provision  in rules made under the proviso to Article 309 or in rules made under an Act referable to Article 309, for instance, Rule 19

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of the  Central Civil  Services Classification,  Control and Appeal)  Rules,  1965,  Rule  14  of  the  Railway  Servants (Discipline and  Appeal) Rule  1968,  and  Rule  37  of  the Central Industrial Security Force Rules, 1969, or under such a rule read with one of the clauses of the second proviso to Article 311(2).      Aggrieved by  these orders  of dismissal  and  removal, several  government  servants  filed  writ  petitions  under Article 226  of the  Constitution in  different High Courts. Some of  these writ  petitions were  allowed, mainly  on the basis of  a decision of a three-Judge Bench of this Court in Divisional Personnel  Officer, Southern  Railway &  Anr.  v. T.R. Challappan, [1976] 1 S.C.R. 783, given on September 15, 1975, while  a few  were dismissed. Appeals by Special Leave against those  judgments were  filed in this Court. In three other similar appeals, namely, Civil Appeals Nos. 1088, 1089 and 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 : 166      "The Law  embodies the  story of a nation’s development      through many  centuries, and it cannot be dealt with as      if it  contained only  the axioms  and corollaries of a      book of  a mathematics.  In order to know what it is we      must know  what it  has  been  and  what  it  tends  to      become." It will  not, therefore,  be out  of  place  to  begin  this Judgment with a brief historical sketch of the civil service in India as also of the law applicable to civil servants and the changes which have taken place in it from time to time.      Civil servants,  that is,  persons who are members of a civil service  of the Union of India or an all-India service or a civil service of a State or who hold a civil post under the Union  or a State, occupy in law a special position. The ordinary law  of master  and servant does not apply to them. Under that  law, whether  the contract  of service  is for a fixed period  or not.  If it  contains a  provision for  its termination by  notice, it can be so terminated. If there is no provision for giving a notice and the contract is not for a fixed  period, the  law implies  an obligation  to give  a reasonable notice.  Where no  notice in the first case or no reasonable notice  in the second case is given, the contract is wrongfully  terminated and such wrongful termination will given rise  to a  claim for damages. This is subject to what may otherwise  be provided  in industrial  and  labour  laws where such  laws  are  applicable.  The  position  of  civil

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servants both  in England  and in  India is, however, vastly different.      The Civil Service in England      Our  civil  services  are  modelled  upon  the  British pattern  though   in  some   respects  there  are  important differences  between  the  two.  In  England,  except  where otherwise provided  by  statute,  all  public  officers  and servants  of  the  Crown  hold  their  appointments  at  the pleasure of  the Crown or durante bene placito ("during good pleasure" or  "during the  pleasure of  the appoint  or") as opposed to an office held dum bene se gesserit ("during good conduct"), also  called quadiu se bene gesserit ("as long as he shall  behave himself  well"). When a person holds office during the  pleasure of  the Crown,  his appointment  can be terminated at any time without assigning cause. The exercise of pleasure  by the  Crown can,  however, be  restricted  by legislation enacted  by Parliament  because  in  the  United Kingdom Parliament is sovereign and has the right to make or unmake any law whatever 167 and 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  the  several  statutes  for           triennial and  septennial elections.  It  can,  in           short,  do   everything  that   is  not  naturally           impossible; and therefore some have no scrupled to           call its  power, by  a figure rather too bold, the           omnipotence of  Parliament. True  it is, that what           the Parliament  doth, no  authority upon earth can           undo." Jean  Louis   De   Lolme,   the   eighteenth-century   Swiss constitutionalist in  his "Constitution  de  1  ’Angleterre" ("Constitution  of   England"),  which   gave  many  on  the continent their ideas of one British Constitution, summed up the position of Parliament in the English constitutional law in the  following apophthegm  quoted in Dicey’s Introduction to the  Study of  the Law  of  the  Constitution  (see  10th Edition, p.43):           "It  is   a  fundamental  principle  with  English           lawyers, that  Parliament can  do  everything  but           make a woman a man, and a man a woman." 168      So  far   as  the   pleasure  doctrine  in  England  is

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concerned, Lord Diplock in Chelliah Kodeeswaran v. Attorney- General of  Ceylon, L.R.  [1970] A.C.  1111, 1118, P.C., has succinctly stated its position in English law as follows:           "It   is   now   well   established   in   British           Constitutional theory,  at  any  rate  as  it  has           developed since  the eighteenth  century, that any           appointment   as    a   Crown   servant,   however           subordinate, is  terminable at  will unless  it is           expressly otherwise provided by legislation." In practice,  however, a  dismissal would take place only as the result of well-established disciplinary processes.      In recent  years, though  the Crown  still retains  the right to  dismiss at  pleasure, the  legal position of civil servants has  radically changed  as a result of legislation, and legally  binding collective  agreements can  be  entered into between  the Crown  and representative of its staff and those representatives  can sue  for breach of any conditions of service  covered by  these agreement.  Further,  a  civil servant can  bring an  action for unfair dismissal or sue on his conditions  of service. But just as an ordinary employee cannot insist  on continuing  in employment, so also a civil servant cannot  insist  on  continuing  in  employment.  The remedy in  both cases  is to  recover damages  for  wrongful dismissal. (See  Halsbury’s Laws of England, Fourth Edition, Volume 8, Paras 1106 and 1303).      The Pre-Constitution Civil Services in India      It is unnecessary to go back more than two centuries to trace the  origin and  development of  the Civil  Service 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 169 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, recall  or dismiss  any of such officers or servants at their will and pleasure in the like manner as if that Act had not been passed. Similar provisions were made in the Act of 1833  (3 & 4 will IV, c.85) by sections 74 and 75 of that Act. Section  74 made  it lawful  "for His  Majesty  by  any Writing  under   His  Sign   Manual,  countersigned  by  the President of  the said  Board of Commissioners, to remove or dismiss  any   person  holding  any  office,  employment  or commission, civil  or military,  under the  said Company  in India, and  to vacate  any Appointment  or Commission of any person  to  any  such  office  or  employment."  Section  75 provided that  nothing contained in that Act would take away the power of the Court of Directors to remove or dismiss any of the  officers or  servants of  the Company  "but that the said Court  shall and  may at all Times have full Liberty to

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remove or  dismiss any of such officers or servants at their will and pleasure."      By the  end of  the nineteenth century a well-organized civil service  had developed  in India,  the control over it being vested in the executive, and the members of the "civil service of  the Crown  in India" were governed in the matter of their  appointments as also the regular of the conditions of  their   service,  such  as,  classification  methods  of recruitment, pay and allowances, and discipline and conduct, by rules made by the executive.      The Government  of India  Act, 1858  (21  &  22  Vict., c.106), which  vested in  the British  Crown the territories under  the  government  of  East  India"  Company,  repeated certain sections  of the Government of India Act, 1853 (16 & 17 Vict.,  c.95), in  so far  as they applied to or provided for the  admission or  appointment of  persons to  the Civil Service of  the East  India Company  and conferred  upon the Secretary of  State in Council the power to make regulations for the  admission of  candidates to  the Civil  Service  of India as  also  with  respect  to  other  matters  connected therewith. Three  years later  the Indian  Civil Service  so envisaged received statutory recognition by the enactment of the Indian Civil Service Act, 1861 (24 & 25 Vict., c.54). 170      The above Acts were repealed by the Government of India Act of  1915 (5 & 6 Geo. V, c.61). Part VIII of the 1915 Act conferred upon  the Secretary  of State in Council, with the aid and advice of the Civil Service Commissioners, the power to make rules for the Indian Civil Service examination.      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           superior does  not receive the redress to which he           may consider  himself entitled,  he  may,  without           prejudice to  any other right of redress, complain           to the governor of the province in order to obtain           justice, and  the governor  is hereby  directed to           examine such  complaint and require such action to           be taken  thereon as  may appear to him to be just           and equitable.           (2)  The Secretary  of State,  in Council may make           rules for  regulating the  classification  of  the           civil services  in India,  the  methods  of  their           recruitment,

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171           their conditions  of services, pay and allowances,           and discipline  and conduct.  Such rules  may,  to           such extent  and in respect of such matters as may           be prescribed,  delegate the power of making rules           to the  Governor-General in  Council or  to  local           governments, or  authorise the  Indian legislature           or local  legislatures to make laws regulating the           public services:           Provided that  every person  appointed before  the           commencement of the Government of India act, 1919,           by the  Secretary of State in Council to the civil           service of the Crown in India shall retain all his           existing or accruing rights, or shall receive such           compensation, for  the loss  of any of them as the           Secretary of  State in  Council may  consider just           and equitable.           (3)  The right  to  pensions  and  the  scale  and           conditions of pensions of all persons in the civil           service of  the Crown  in India  appointed by  the           Secretary of  State in  Council shall be regulated           in accordance  with the rules in force at the time           of the  passing of  the Government  of India  Act,           1919. Any  such rules may be varied or added to by           the Secretary  of State  in Council and shall have           effect as  so varied  or added  to, but  any  such           variation or  addition shall  not adversely affect           the pension of any member of the service appointed           before the date thereof.           Nothing in  this section or in any rule thereunder           shall prejudice  the rights  to which  any  person           may,  or  may  have,  become  entitled  under  the           provisions in  relation to  pensions contained  in           the East India Annuity Funds Act, 1874.           (4)  For  the  removal  of  doubts  it  is  hereby           declared that  all rules  or other  provisions  in           operation at  the  time  of  the  passing  of  the           Government of India Act, 1919, whether made by the           Secretary of  State in  Council or  by  any  other           authority, relating  to the  civil service  of the           Crown in  India, were duly made in accordance with           the powers  in that behalf, and are confirmed, but           any such  rules  or  provisions  may  be  revoked,           varied or  added to  by rules  or laws  made under           this section." 172 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  Government.  Under

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section 96E  rules under  Part VIIA could not be made except with the  concurrence of  the majority of votes at a meeting of the Council of India.      Thus, after  the 1919  Act, the civil services of India continued to  be under the control of the Secretary of State in Council  who was  to regulate by rules the classification of the  civil services,  the  methods  of  recruitment,  the conditions of  services, pay  and allowances, and discipline and conduct. Such rules could also provide for delegation of the rule-making  power to the Governor-General in Council or the local Governments or authorize the Indian Legislature or Local  Legislatures  to  make  laws  regulating  the  public services but only to the extent and in respect of matters as were prescribed by the rules. Thus, even the power of making rules as  also the  authority to  the Indian Legislature and the Local  Legislatures to  enact Acts regulating the public services was  derived by  delegation of  power made  by  the Secretary of State in Council.      What is really material for the purposes of the present Appeals and  Writ Petitions  is  that  section  96B  of  the Government of  India Act, 1919, for the first time expressly stated that  every person  in the civil service of the Crown in India  held office  "during His Majesty’s pleasure." This was, however, made subject to three safeguards, namely-           (1)  a civil servant could not be dismissed by any           authority subordinate  to that  by  which  he  was           appointed; 173           (2)  the Secretary  of State  in Council  had  the           power, unless  he provided  to the contrary in the           rules, to  reinstate any person in service who had           been dismissed; and           (3)  if a civil servant appointed by the Secretary           of State  in Council thought himself wronged by an           order of  an official  superior  in  a  Governor’s           Province and  on  due  application  made  to  that           superior did  not receive  the redress to which he           considered himself  entitled,  he  could,  without           prejudice to  any other right of redress, complain           to the Governor of the Province in order to obtain           justice and  the  Governor  had  to  examine  such           complaint and  require such  action  to  be  taken           thereon as  might appear  to him  to be  just  and           equitable.      The position  which prevailed with respect to the civil services in  India during the intervening period between the Government of  India Act,  1919, and the Government of India Act, 1935  (25 &  26 Geo. V, c.42) was that the top echelons of the  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

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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 decided  that,  as  a consequence of  the decision  to effect progressive transfer of power  to Governments  in India,  the number of all-India services under  the direct control of the Secretary of State should be  progressively reduced  especially in those fields of  administration  that  were  transferred  to  ministerial control. It was now to 174 be left  to the  Provincial  Governments  to  reorganize  in gradual stages  the higher  cadres of  their services in the transferred subjects,  and recruitment  and control  of  the Secretary of State in Council were accordingly discontinued. This policy  resulted by  the early  thirties in  the Indian Civil Service, the Indian Police Service, the Ecclesiastical Service and  the civil  branch of the Indian Medical Service being retained  by the Secretary of State and the rest being converted  into   Provincial  services,   safeguards   being provided to  secure the  rights and privileges guaranteed to officers recruited  earlier to  the all-India services. (See Report   of   the   Joint   Select   Committee   on   Indian Constitutional Reform, (1934), para 277.)      The above position received legislative recognition and sanction under  the Government  of India  Act, 1935 (25 & 26 Geo. v,  c.42), often cited with the year and chapter of the Act in  pursuance of  which it  was reprinted,  namely,  the Government of  India (Reprinting)  Act, 1935  (26 Geo. V & 1 Edw, VIII,  c.1). Part  X of  the 1935  Act dealt  with  the services of  the Crown  in India.  Chapter II of Part X made provisions with  respect of  the civil services. Section 240 provided for  the tenure  of office  of persons  employed in civil capacities  in India  and conferred  upon them certain statutory safeguards  as regards  dismissal or  reduction in rank.  Section   241  dealt   with  their   recruitment  and conditions of  service. Under  that section  power  to  make appointments was  vested in  respect of  central services in the  Governor-General  and  in  respect  of  the  Provincial services in the respective Governors. In the same manner the power to  regulate conditions  of service  of the members of these services  was conferred  upon the Governor- General or the Governor,  as the  case may  be. The Governor-General as also the  Governor could  authorize such  person as he might direct to  make appointments  and rules  with respect to the conditions of service. Provision was also made for enactment of  Acts   by  appropriate   Legislatures  to  regulate  the conditions of  service of  persons 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. 175      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.-

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         (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 was appointed.           (3) No such person as aforesaid shall be dismissed           or reduced  in rank  until he  has  been  given  a           reasonable opportunity  of showing  cause  against           the action proposed to be taken in regard to him:           Provided that this sub-section shall not be apply-           (a) where a person is dismissed or reduced in rank           on the  ground of  conduct which  has led  to  his           conviction on a criminal charge; or           (b) where  an authority  empowered  to  dismiss  a           person or reduce him in rank is satisfied that for           some reason,  to be  recorded by that authority in           writing, it  is not reasonably practicable to give           to that person an opportunity of showing cause.           (4) Notwithstanding  that a person holding a civil           post under  the Crown in India holds office during           His Majesty’s pleasure, any contract under which a           person, not  being a  member of a civil service of           the Crown  in India is appointed under this Act to           hold such a post may, if the Governor-General, or,           as  the  case  may  be,  the  Governor,  deems  it           necessary in  order to  secure the  service  of  a           person having  special qualifications, provide for           the payment  to him of compensation, if before the           expiration of an agreed 176           period that  post  is  abolished  or  he  is,  for           reasons not  connected with  any misconduct on his           part, required to vacate that post."      While under  the 1935 Act, as under the 1919 Act, every person who was a member of the civil service of the Crown in India or  held any  civil post under the Crown in India held office "during  His Majesty’s  pleasure", greater safeguards were provided for him under the 1935 Act than under the 1919 Act. Those safeguards were:           (1) under  sub-section (2)  of section 240, such a           person could  not be dismissed from service by any           authority subordinate  to that  by  which  he  was           appointed, and           (2) under  sub-section (3)  of section 240, such a           person could  not be  dismissed or reduced in rank           until he  had been  given a reasonable opportunity           of showing cause against the action proposed to be           taken in regard to him. The safeguard as regards a reasonable opportunity of showing cause provided  for in  section 240(3)  did not exist in the 1919 Act.  The proviso  to sub-section  (3) of  section 240, however, took  away this  safeguard in the two cases set out in clauses  (a) and (b) of the said proviso. These two cases were:           (a) where a civil servant was dismissed or reduced           in rank  on ground of conduct which had led to his           conviction 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.

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    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 177 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 State, Article 310 for the  tenure of  office of  such persons, and Article 311 for the  mode of  dismissal removal  or reduction in rank of persons employed  in civil  capacities under  the Union or a State. Article  312 deals  with all-India services and inter alia provides  that where  the Council of State has declared by resolution  supported by  not less than two-thirds of the members present and voting that it is necessary or expedient in the  national interest  so to do, Parliament might by law provide for  the creation  of one or more all-India services common to  the Union and the States and subject to the other provisions  of   Chapter  I  regulate  the  recruitment  and conditions of  service of  persons  appointed  to  any  such service;  and   it  further   provides   that   the   Indian Administrative Service  and the  Indian Police Service shall be deemed to be services created by Parliament under Article 312. Article  313 provides  for the continuance in force, so far as  consistent with  the provisions of the Constitution, of all the laws in force immediately before the commencement of the  Constitution and applicable to any public service or any post  which continued to exist after the commencement of the Constitution  as an  all-India service  or as service or post under  the Union  or a  State until other provision was made in  this behalf  under the  Constitution. Under  clause (10) of Article 366 the expression "existing law" means "any law, Ordinance, order, bye-law, rule or regulation passed or made before  the commencement  of this  Constitution by  any Legislature, authority or person having power to make such a law, Ordinance,  order, bye-law,  rule or  regulation. Thus, all Acts,  rules and  regulations  applicable  to  different services  immediately   before  the   commencement  of   the Constitution continue to apply to such services in so far as they were consistent with the provisions of the Constitution until amended, varied, revoked or replaced by Acts, rules or regulations made  in accordance  with the  provisions of the Constitution.      From what  has been  stated above  it will be seen that the  provisions  with  respect  to  civil  services  in  the Government of  India Act,  1935, were taken as the basis for Chapter I of Part XIV of the Constitution. 178      Articles 309,310 and 311      It is  necessary for  the purpose  of these Appeals and Writ Petitions  to set  out in  extenso  the  provisions  of Articles 309, 310 and 311.      Articles 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

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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           Union or a State.-           (1)  Except   as  expressly   provided   by   this           Constitution, every  person who  is a  member of a           defence service or of a civil service of the Union           or of  an all-India  service  or  holds  any  post           connected with defence or any civil post under the           Union holds  office during  the  pleasure  of  the           President, and  every person  who is a member of a           civil service  of a  State or holds any civil post           under a  state holds office during the pleasure of           the Governor of the State. 179           (2) Notwithstanding  that a person holding a civil           post under  the Union  or  a  State  holds  office           during the  pleasure of  the President  or, as the           case may  be, of  the Governor  of the  State  any           contract under  which a person, not being a member           of a defence service or of an all-India service or           of a  civil service  of the  Union or  a State, is           appointed under  this Constitution  to hold such a           post may, if the President or the Governor, as the           case may be, deems it necessary in order to secure           the  services   of   a   person   having   special           qualifications, provide  for the payment to him of           compensation,  if  before  the  expiration  of  an           agreed period that post is abolished or he is, for           reasons not  connected with  any misconduct on his           part, required to vacate that post."           Article 311  as  originally  enacted  was  in  the           following terms:           "311. Dismissal,  removal or  reduction in rank of           persons 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  until he has been           given a  reasonable opportunity  of showing  cause

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         against the  action proposed to be taken in regard           to him:           Provided that this clause shall not apply-           (a) where  a person  is dismissed  or  removed  or           reduced in rank on the ground of conduct which has           led to his conviction on a criminal charge;           (b) where  an authority  empowered to  dismiss  or           remove a  person or  to  reduce  him  in  rank  is           satisfied that  for some reason, to be recorded by           that authority  in writing  it is  not  reasonably           practicable to  give to that person an opportunity           of showing cause; or 180           (c) where the President or Governor or Rajpramukh,           as the  case may  be, 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 not apply-           (a) where  a person  is dismissed  or  removed  or           reduced in rank on the ground of conduct which has           led to his conviction on a criminal charge; or           (b) where  the authority  empowered to  dismiss or           remove a  person or  to  reduce  him  in  rank  is           satisfied that  for some reason, to be recorded by           that authority  in writing,  it is  not reasonably           practicable to hold such inquiry; or           (c) where  the President  or the  Governor, as the           case may  be, is satisfied that in the interest of           the 181           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."      The Constitution  (Forty-second Amendment)  Act,  1976, made certain  amendments in  the substituted  clause (2)  of Article 311 with effect from January 3, 1977. Article 311 as

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so amended reads as follows :           "311. Dismissal,  removal or  reduction in rank of           persons employed  in civil  capacities  under  the           Union or a state. -           (1) No  persons 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  reasonable           opportunity of  being heard  in respect  of  those           charges :           Provided that  where it  is  proposed  after  such           inquiry, to impose upon him any such penalty, such           penalty  may  be  imposed  on  the  basis  of  the           evidence adduced  during such inquiry and it shall           not  be   necessary  to   give  such   person  any           opportunity  of   making  representation   on  the           penalty proposed :           Provided further  that this clause shall not apply           -           (a) where  a person  is dismissed  or  removed  or           reduced in rank on the ground of conduct which has           led to his conviction on a criminal charge; or 182           (b) where  the authority  empowered to  dismiss or           remove a  person or  to  reduce  him  in  rank  is           satisfied that  for some reason, to be recorded by           that authority  in writing,  it is  not reasonably           practicable to hold such inquiry; or           (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.           (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 with  this difference that  while Article  311 also  affords safeguards against removal  from service  section 240 did not. Further, though the  proviso to  section 240(3) is reproduced in what originally was  the only  proviso  and  is  now  the  second proviso to  Article 311  (2), an  additional clause, namely, clause (c)  has been  added thereto.  A provision similar to clause  (3)   of  Article  311  was  also  absent  from  the

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Government of  India Act,  1935. Thus, while on the one hand Article  311  enlarges  the  protection  afforded  to  civil servants, on  the other  hand it increases by one the number of cases in which that protection can be withdrawn.      With the  above historical  background and  bearing  in mind the relevant provisions of the Constitution, it will be now convenient  to turn  to the  submissions made at the Bar with respect to 183 the pleasure  doctrine and  the second  proviso  to  Article 311(2) and test the correctness of these submissions.      The Second Proviso - Rival Submissions      The arguments  advanced on  behalf  of  the  government servants on  the pleasure doctrine and the second proviso to Article 311 (2) may be sketched in broad outlined as under :           (1) The  pleasure doctrine in England is a part of           the special  prerogative of the Crown and has been           inherited  by   India  from  England  and  should,           therefore,  be   construed  strictly,   that   is,           strictly against  the Government  and liberally in           favour of government servants.           (2)  The   second  proviso  which  withdraws  from           government servants  the  safeguards  provided  by           clause (2)  of Article  311 must be also similarly           construed for,  unless a liberal construction were           placed upon  it, great  hardship would  result  to           government servants  as they  could be arbitrarily           thrown  out  of  employment  and  they  and  their           dependents would  be left  without  any  means  of           subsistence.           (3) There  are several  stages before a government           servant can  be dismissed or removed or reduced in           rank, namely,  serving upon  him of  a show  cause           notice or a charge-sheet, giving him inspection of           documents, examination of witnesses, arguments and           imposition of  penalty.  An  inquiry  starts  only           after a  show cause  notice is  issued and  served           upon a  government servant. A show cause notice is           thus preparatory  to the holding of an inquiry and           even if  the entire inquiry is dispensed with, the           giving of  a show  cause notice and asking for the           explanation of the government servant with respect           there to are 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. 184           (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

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         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 not admit           of any  such interpretation  as canvassed  for  on           behalf of the government servants.           (2) Where  under the second proviso, clause (2) of           Article 311  is made  inapplicable,  there  is  no           scope for holding any partial inquiry.           (3) In  any event,  the very contents of the three           clauses of  the second proviso show that it is not           necessary or not practicable or not expedient that           any partial  inquiry could  be or  should be held,           depending upon which clause applies.           (4) Article  14 does not govern or control Article           311. The  Constitution must  be read  as a  whole.           Article 311(2)  embodies the principles of natural           justice including the audi alteram partem rule. It           thus  expressly  states  what  is  required  under           Article 14  as  a  result  of  the  interpretation           placed upon  it by recent decisions of this Court.           Once the  application of  clause(2)  is  expressly           excluded by the Constitution 185           itself,  there   can  be  no  question  of  making           applicable what  has been  so excluded  by seeking           recourse to Article 14.           (5) Consideration  of sympathy  for the government           servants  who  may  be  dismissed  or  removed  or           reduced in rank are irrelevant to the construction           of the  second proviso.  The doctrine of tenure at           pleasure in  Article 310  and the safeguards given           to a  government servant under clauses (1) and (2)           of Article  311 as  also  the  withdrawal  of  the           safeguard under  clause (2)  by the second proviso           are all  enacted  in  public  interest  and  where           public interest  conflicts with  private interest,           the latter must yield to the former.      The Pleasure Doctrine      The concept  of civil  service is  not now or of recent origin. Governments  - whether  monarchial,  dictatorial  or republican -  have to  function; and  for  carrying  on  the administration and  the varied functions of the government a large number  of persons  are required  and have always been required, whether  they are  constituted in  the form  of  a civil service or not. Every kingdom and country of the world throughout history  had a  group of  persons who  helped the ruler to  administer the  land, whether  according to modern notions we  may call  that group  a civil  service  or  not, because it  is not  possible for  one man by himself to rule and govern  the land  and look  after and  supervise all the details of  administration. As it was throughout history, so it has been in England and in India.      In England,  all public  officers and  servants of  the Crown hold  their appointments  at 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

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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 186 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 intellectual attainment,  and the  establishment of  a Civil Service Commission to ensure proper recruitment.      In the  United  Kingdom,  until  about  the  middle  of November 1981,  the Civil  Service Department, which was set up in  1968 with  the Prime  Minister, as  Minister for  the Civil Service,  as its Head, looked after the management and personnel functions  in connection  with the  Civil  Service which were  until then  being looked  after by the Treasury. These functions included the organization and conduct of the Civil Service  and the  remuneration, conditions of service, expenses and  allowances of  persons serving  in it; mode of recruitment of  persons to  the Civil  Service; the  pay and allowances of,  and the  charges payable  by, members of the armed forces;  with certain  exceptions, superannuation  and injury payments, compensation for loss of employment or loss or diminution  of emoluments or pension rights applicable to civil servants  and others  in  the  public  sector  and  to members of  the armed  forces; the exercise by other persons and bodies of powers to determine, subject to the minister’s sanction, the  pay or  conditions of  service of  members of public bodies  (excluding judicial  bodies), or the numbers, pay or  conditions of  service of  staff  employed  by  such bodies or  by the  holders of  certain non-judicial offices; and the  appointment or  employment  and  the  remuneration, conditions of  service, personal  expenses or  allowances of judges and  judicial staff  (See Halsbury’s Laws of England, Fourth Edition, Volume 8, para 1162).      The Permanent Secretary to the Civil Service Department was the  Head of  the Home  Civil Service and gave advice to the  Prime   Minister  as  to  civil  service  appointments, decorations,  etc.   The  Civil   Service  Departments   was abolished on  November 12,  1981, and its functions, instead of reverting  to the  Treasury,  were  divided  between  the Treasury and  the newly  created  Management  and  Personnel Office.      In  India,   the   pleasure   doctrine   has   received constitutional sanction  by being enacted in Article 310(1). Unlike in  the United  Kingdom in India it is not subject to any law made by Parliament 187 but is  subject only  to what  is expressly  provided by the Constitution.      The pleasure  doctrine  relates  to  the  tenure  of  a government servant.  "Tenure" means  "manner, conditions  or term of  holding something" according to Webster’s Third New International Dictionary,  and  "terms  of  holding;  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".

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    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 tenure of government servants  which Article  310(1) makes  subject to the pleasure  of the  President or  the Governor of a State, except as expressly provided by the Constitution.      While it  was vehemently  contended on  behalf  of  the government servants that the pleasure doctrine is a relic of the feudal  age -  a part  of the special prerogative of the Crown -  which was  imposed upon  India by an Imperial power and thus is an anachronism in this democratic, socialist age and  must,  therefore,  be  confined  within  the  narrowest limits, it  was submitted  on behalf  of the  Union of India that this doctrine was a matter of public policy, and it was in public  interest and  for public  good that  the right to dismiss at  pleasure  a  government  servant  who  has  made himself unfit  to continue  in  office,  albeit  subject  to certain safeguards,  should exist  and be exercisable in the Constitutional sense  by the  Crown in  England and  by  the President or  the Governor  of a  State in  India. It is not possible to  accept the  arguments advanced on behalf of the government servants for 188 all the authoritative judicial dicta are to the contrary. As pointed out by Lord Hobhouse in Shenton v. Smith, L.R.[1895] A.C. 229  J.C., the  pleasure doctrine  is founded  upon the principle that  the  difficulty  which  would  otherwise  be experienced in  dismissing those whose continuance in office is detrimental  to the  State would  be such as seriously to impede the  working of  the public  service. In  Dunn v. The Queen, L.R.  [1896] Q.B.D. 116; s.c. [1895-96] 73 L.T.R. 695 and sub nomine Dunn v. Regem in [1895-99] All E.R. Rep. 907, the Court  of Appeal  in England held that it was an implied term of  every contract  of service  that  servants  of  the Crown, civil  as well  as military,  except in  special case where it  is otherwise  provided by  law, hold their offices only during  the pleasure  of the  Crown. In  that case Lord Herschell observed (pages 119-120) :           It seems  to me  that it  is the  public  interest           which has  led to  the term which I have mentioned           being imported  into contracts  for employment  in           the service  of the  Crown. The  cases cited  shew           that, such  employment being  for the  good of the           public, it  is essential  for the public good that           it should  be capable  of being  determined at the           pleasure  of   the  Crown,   except   in   certain           exceptional cases  where it  has been deemed to be           more for  the public  good that  some restrictions           should be  imposed 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

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         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 189 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]  A.C. 575,578-9  J.C., the Judicial Committee  of the  Privy Council  further held that where  by   regulations  a   civil  service  is  established prescribing qualifications for its members and imposing some restriction on  the power  to dismiss them, such regulations should be  deemed to  be  made  for  the  public  good.  The position that  the pleasure  doctrine is  not based upon any special prerogative  of the Crown but upon public policy has been accepted by this Court in The States of Uttar Pradesh & Ors. v.  Babu Ram Upadhya, [1961] 2 S.C.R. 679, 696 and Moti Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaon, Pandu etc.,  [1964] 5 S.C.R. 683, 734-5. This Court has also accepted the  principle that  society has an interest in the due discharge  of their  duties by  government servants.  In Roshan Lal  Tandon v.  Union of  India, [1968] 1 S.C.R. 185, Ramaswami, J., speaking for the Court said (at page 195) :           "It is  true that the origin of Government service           is contractual.  There is  an offer and acceptance           in every  case. But  once appointed to his post or           office the  Government servant  acquires a  status           and his  rights  and  obligations  are  no  longer           determined by  consent of  both  parties,  but  by           statute or statutory rules which may be framed and           altered unilaterally  by the  Government. In other           words, the  legal position of a Government servant           is more  one of status that of contract. The Hall-           mark of  status  is  the  attachment  to  a  legal           relationship of  rights and  duties imposed by the           public law  and  not  by  mere  agreement  of  the           parties. The  emolument of  the Government servant           and his  terms of  service are governed by statute           or  statutory  rules  which  may  be  unilaterally           altered by  the Government  without the consent of           the employee.  It is true that Article 311 imposes           constitutional  restrictions  upon  the  power  of           removal granted  to the President and the Governor           under Article  310. But  it is  obvious  that  the           relationship  between   the  Government   and  its           servant  is  not  like  an  ordinary  contract  of           service between  a master  and servant.  The legal           relationship  is   something  entirely  different,           something in the nature of status. It is much more           than a 190           purely   contractual    relationship   voluntarily           entered into  between the  parties. The  duties of

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         status are fixed by the law and in the enforcement           of these  duties society  has an  interest. In the           language of jurisprudence status is a condition of           membership 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 the other members of such services, even on  those in  the most subordinate posts. For instance, railways do  not run  because of  the members of the Railway Board or  the General  Managers of different railways or the heads   of    different   departments    of   the    railway administration. They  run also  because  of  engine-drivers, fireman, signalmen, booking clerks and those holding hundred other similar posts. Similarly, it is not the administrative heads who  alone can  set to  the proper  functioning of the post  and   telegraphs  service.   For  a   service  to  run efficiently there  must, therefore, be a collective sense of responsibility. But  for a  government servant  to discharge his duties  faithfully and  conscientiously, he  must have a feeling of  security of  tenure. Under our Constitution this is provided for by the Acts and rules made under Article 309 as also  by the  safeguards in respect of the punishments of dismissal, removal  or reduction in rank provided in clauses (1) and  (2) of  Article 311.  It is,  however, as  much  in public interest and for public good that government servants who are  inefficient, dishonest  or corrupt or have become a security risk 191 should not  continue in  service  and  that  the  protection afforded to  them by  the Acts  and rules made under Article 309 and  by Article  311  be  not  abused  by  them  to  the detriment  of  public  interest  and  public  good.  When  a situation as  envisaged in  one of  the three clauses of the second proviso  to clause  (2) of Article 311 arises and the relevant clause  is properly  applied and  the  disciplinary inquiry dispensed  with, the  concerned  government  servant cannot be  heard to  complain that  he is  deprived  of  his livelihood. The  livelihood of  an individual is a matter of great concern  to him and his family but his livelihood is a matter of  his private interest and where such livelihood is provided by the public exchequer and the taking away of such livelihood is  in the  public interest  and for public good, the former  must yield  to the  latter.  These  consequences follow not  because  the  pleasure  doctrine  is  a  special prerogative of the British Crown which has been inherited by India and  transposed into  our Constitution adapted to suit

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the Constitutional set up of our Republic but because public policy requires,  public  interest  needs  and  public  good demands that there should be such a doctrine.      It is thus clear that the pleasure doctrine embodied in Article 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.  These  three Articles are interlinked and form an integrated whole. There is an organic and thematic 192 unity running  through them  and it  is now necessary to see the interplay of these three Articles.      These Articles  occur in  Chapter I  of Part XIV of the Constitution. Part XIV is entitled "Services under the Union and  the   States"  and   Chapter  I   thereof  is  entitled "Services". While Article 309 deals with the recruitment and conditions of  service of  persons appointed  to the  public services and  posts in  connection with  the affairs  of the Union or  a State,  Article 310  deals with  the  tenure  of office or  members of  the defence  services  and  of  civil services of  the  Union  and  the  States  and  Article  311 provides certain  safeguards to  persons employed  in  civil capacities under  the Union or a State but not to members of the defence  services. The  first thing which is required to be noticed  about Article  309 is  that it  itself makes  no provision  for  recruitment  or  conditions  of  service  of government servants  but confers  power upon the appropriate Legislature to  make laws  and upon  the President  and  the Governor of  a State  to make  rules  in  respect  of  these matters. The  passing of these Acts and the framing of these rules are,  however, made "Subject to the provisions of this Constitution." This  phrase which preceeds and qualifies the power conferred  by Article  309 is  significantly different from the  qualifying  phrase  in  Article  310(1)  which  is "Except as expressly provided by this Constitution".      With reference  to the  words "conditions  of  service" occurring in  section 243  of the  Government of  India Act, 1935,  under   which  the   conditions  of  service  of  the subordinate ranks of the various police forces in India were to be  determined by or under Acts relating to those forces, the Judicial  Committee of  the Privy Council held in North- West Frontier Province v. Suraj Narain Anand, L.R. [1947-48] 75  I.A.,   342,  352-3,   that  this   expression  included provisions which  prescribed the  circumstances under  which the employer  would be  entitled to terminate the service of an employee,  whether such provisions were constitutional or

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statutory.      In State  of Madhya  Pradesh &  Ors. v.  Shardul Singh, [1970] 3  S.C.R.  302,  305-6,  this  Court  held  that  the expression  "conditions   of  service"   means   all   those conditions which  regulate the holding of a post by a person right from  the time of his appointment until his 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 193 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 the provisions of the Constitution, if any such  Act or rule, violates any of the provisions of the Constitution, it  would be  void. Thus,  as held in Moti Ram Deka’s case (supra), if any such Act or rule trespasses upon the rights guaranteed to government servants by Article 311, it would  be void.  Similarly, such  Acts and  rules  cannot abridge or  restrict the  pleasure of  the President  or the Governor of a State exercisable under Article 310(1) further than what  the Constitution  has expressly done. In the same way, such  Act or  rule would  be void  if it  violates  any Fundamental  Right   guaranteed   by   Part   III   of   the Constitution. Two  instances of  this may be given by way of illustration. In  Kameshwar Prasad  & Ors.  v. The  State of Bihar &  Anr., [1962]  Supp. 3  S.C.R. 369,  Rule 4A  of the Bihar Government  Servants’ Conduct  Rules, 1956, insofar as it prohibited  any form  of demonstration was struck down by this Court  as being violative of sub-clauses (a) and (b) of clause (1)  of Article  19.  In  G.K.Ghose  and  another  v. E.X.Joseph, [1963]  Supp. 1  S.C.R. 789,  this court  struck down Rule  4A of the Central Civil Services (Conduct) Rules, 1955, on  the ground  that it  violated  sub-clause  (c)  of clause (1)  of Article  19  of  the  Constitution  and  that portion of  Rule 4A  which prohibited  participation in  any demonstration as  being violative of Sub-Clauses (a) and (b) of clause  (1) of  Article 19.  Further, the  application of article  309  is  excluded  by  certain  provisions  of  the Constitution itself  which empower  authorities  other  than those specified  in Article  309 to  make appointments or to make rules  relating to the conditions of service of certain classes of  public service,  such as,  Article  146(1)  with respect to the officers and servants of the Supreme 194 Court, Article 148(5) with respect to persons serving in the Indian Audit  and  Accounts  Department,  Article  229  with respect to  the officers and servants of the High Court, and Article 324(5)  with respect  of Election  Commissioners and Regional Commissioners.

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    Which would  be the  appropriate Legislature  to  enact laws or  the appropriate  authority  to  frame  rules  would depend upon  the provisions of the Constitution with respect to legislative  competence and  the division  of legislative powers. Thus,  for instance, under Entry 70 in List I of the Seventh Schedule to the Constitution, Union Public Services, all-India Services  and Union  Public Service 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.,  [1926]  S.C.  (i.e.  Sessions Cases) 842. Relying heavily upon this decision, the Judicial Committee of  the Privy  Council in  High  Commissioner  for India and High Commissioner for Pakistan v. I.M. Lall,, L.R. [1947-48] 75  I.A. 225,  243-4, though  it held  that Lall’s dismissal was  contrary to  section 240(3) of the Government of India  Act, 1935, negatived his claim for arrears of pay. In The  State of  Bihar v. Abdul Majid, [1954] S.C.R. 786, a Constitution Bench  of  this  Court  pointed  out  that  the attention of the Judicial Committee was not drawn to section 60 and  the other  relevant provisions  of the Code of Civil Procedure, 1908,  and that  the rule  of English  law that a Crown servant  cannot maintain  a suit against the Crown for recovery of arrears of salary did not 195 prevail in  India as it had been negatived by the provisions of statutory  law in  India. It may be mentioned that in its subsequent decision  in Chellaih  Kodeeswaran  v.  Attorney- General of  Ceylon in  appeal from  the  Supreme  Court  for Ceylon, the  Judicial Committee  held that  Lord Blackburn’s reasoning in  Mulvenna’s case  had not  been concurred in by the other  two members  of the  Scottish Court  of  Session, namely, Lord  Sands and  Lord  Ashmore,  and  had  not  been subsequently treated  in Scotland  as correctly  laying down the law and that it was defective and the conclusion reached by Lord  Blackburn was  contrary to authority and was wrong. It further pointed out that there was a current of authority for a  hundred years  before 1926  (that being  the year  in which Mulvenna’s  case was  decided) to  the effect that the arrears of  salary of  a civil  servant  of  the  Crown,  as distinguished  from   a  member   of  the   armed  services, constituted a  debt recoverable  by  a  petition  of  right. According  to   the  Privy  Council,  as  the  relevant  and prestigious authorities  to the  contrary, did not appear to have been  cited before  the Judicial  Committee  in  Lall’s case, this  part of  the  judgment  is  that  case  must  be regarded as given per incuriam.

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    As seen  earlier, in  India for the first time a fetter was imposed  upon the pleasure of the Crown to terminate the service of  any  of  its  servant  by  section  96B  of  the Government of  India Act,  1919,  but  that  was  only  with respect to  the authority  which could  dismiss him. In that section  the   holding  of   office  "during  His  Majesty’s pleasure" was  made subject  to both  the provisions of that Act and  the rules  made 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) 196 with respect to the Chief Election Commissioner, and Article 324(5)  with  respect  to  the  Election  Commissioners  and Regional Commissioners.      Clauses (1)  and (2) of Article 311 impose restrictions upon the  exercise by  the President  or the  Governor of  a State of  his  pleasure  under  Article  310(1).  These  are express provisions with respect to termination of service by dismissal or  removal as  also with  respect to reduction in rank of  a civil  servant and  thus come within the ambit of the  expression   "Except  as  expressly  provided  by  this Constitution" qualifying Article 310(1). Article 311 is thus an exception  to Article 310 and was described in Parshottam Lal Dhingra  v. Union  of India,  [1958] S.C.R.  820,829, as operating as a proviso to Article 310(1) though set out in a separate Article.  Article 309  is,  however,  not  such  an exception. It  does not lay down any express provision which would  derogate  from  the  amplitude  of  the  exercise  of pleasure under  Article 310(1).  It merely  confers upon the appropriate Legislature  or executive the power to make laws and frame  rules but  this power  is  made  subject  to  the provisions of the Constitution. Thus, Article 309 is subject to Article 310(1) and any provision restricting the exercise of the  pleasure of  the President  or Governor in an Act or rule made  or frame  under Article  309 not being an express provision  of  the  Constitution,  cannot  fall  within  the expression   "Except   as   expressly   provided   by   this Constitution" occurring  in Article  310(1) and  would be in conflict  with  Article  310(1)  and  must  be  held  to  be unconstitutional.  Clauses   (1)  and  (2)  of  Article  311 expressly restrict  the manner in which a Government servant can be  dismissed, removed  or reduced in rank and unless an Act made  or rule  framed under Article 309 also conforms to these restrictions, it would be void. The restriction placed by clauses  (1) and  (2) of  Article 311  are two : (1) with respect to  the authority  empowered to  dismiss or remove a government servant  provided for  in clause  (1) of  Article 311; and  (2)  with  respect  to  the  procedure  dismissal,

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removal  or  reduction  in  rank  of  a  government  servant provided for  in clause(2).  The second  priviso to  Article 311(2), which  is the  central point of controversy in these Appeals and Writ Petitions, lifts the restriction imposed by Article 311(2)  in the  cases specified in the three clauses of that proviso.      None of  these three Articles (namely, Articles 309,310 and 311)  sets out  the grounds  for dismissal,  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. 197 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  that point  of  view  it  affects  the  government servant’s tenure in the rank from which he is reduced. It is unnecessary to  decide this  point  because  Article  311(2) expressly  gives   protection  as  against  the  penalty  of reduction in rank also.      Exercise of Pleasure      A question  which arises  in this connection is whether the pleasure  of the President or the Governor under Article 310(1) is  to be  exercised by the President or the Governor personally or  it can  be exercised  by a  delegate or  some other authority  empowered under  the Constitution  or by an Act or  Rules made  under Article 309. This question came up for consideration  before a Constitution Bench of this Court in Babu  Ram Upadhya’s  case.  The  majority  of  the  Court (speaking through  Subba Rao, J., as he then was) stated (at page 701)  the conclusions  it had  reached in  the form  of seven propositions. These propositions are :           (1) In  India every  person who  is a  member of a           public service  described in  Article 310  of  the           Constitution holds  office during  the pleasure of           the President or the Governor, as the case may be,           subject to the express provisions therein.           (2) 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. 198           (3) This  tenure is  subject to the limitations or           qualifications mentioned  in Article  311  of  the           Constitution.           (4) 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

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         Article 310, as qualified by Article 311.           (5) 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  Constitution           read with  Article 310  of the  Constitution  read           with Article 311 thereof.           (6) The  Parliament and  the Legislatures also can           make a  law laying  down and  regulating the scope           and  content   of  the   doctrine  of  ‘reasonable           opportunity’  embodies   in  Article  311  of  the           Constitution; but the said law would be subject to           judicial review.           (7) If  a statute  could be  made by  Legislatures           within the  foregoing permissible 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 199           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 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.  In the  context,  it  would  be           clear that this latter observation is not intended           to lay  down that  a  law  cannot  be  made  under           Article 309  or a  Rule cannot be framed under the           proviso  to   the  said  Article  prescribing  the           procedure by which, and the authority by whom, the           said pleasure  can be  exercised. This observation           which is  mentioned as  proposition number(2) must           be read  along with  the  subsequent  propositions           specified as  (3),(4),(5) &  (6). The  only  point           made is  that whatever  is done  under Article 309           must be  subject to  the  pleasure  prescribed  by           Article 310."      While we are on this point we may as well advert to the decision of  this Court  in Sardari  Lal v. Union of India & Ors. In  that case  it was  held that where the President or the Governor,  as the  case may  be, if  satisfied, makes an order under  clause (c) of what is now the second proviso to

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Article 311(2)  that in  the interest of the security of the State it  is not  expedient to hold an inquiry for dismissal or  removal   or  reduction   in  rank  of  an  officer  the satisfaction of  the President  or the  Governor must be his personal satisfaction.  The correctness  of  this  view  was considered by  a seven Judge Bench of this Court in Shamsher Singh & Anr. v. State of Punjab, [1975] 1 S.C.R. 814, It was categorically stated  in that  case(at page  835)  that  the majority view in Babu Ram Upadhya’s case was no longer goods law after the decision in Moti Ram Doka’s case. Referring to these two cases the Court observed (at pages 834-5)) :           This Court  in State  of Uttar  Pradesh &  Ors. v.           Babu Ram Upadhya [1961] 2 S.C.R. 679 held that the           power of  the Governor  to  dismiss  at  pleasure,           subject to the provision of Article 311, is not an           executive  power   under   Article   154   but   a           Constitutional power  and is  not capable of being           delegated to officers subordinate 200           to him.  The effect  of the  judgment in  Babu Ram           Upadhya’s case(supra)  was that the Governor could           not delegate his pleasure to any officer nor could           any law  provide for the exercise of that pleasure           by an  office with the result that pleasure by any           officer  with  the  result  that  statutory  rules           governing dismissal  are binding  on every officer           though  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  Constitution           read with  Article 311.  Proposition No. 6 is that           the Parliament  and the Legislatures also can make           a law  laying down  and regulating  the scope  and           content   of    the   doctrine    of   ‘reasonable           opportunity’ embodied in Article 311, but the said           law would be subject to judicial review.           All  these   propositions  were  reviewed  by  the           majority opinion  of this Court in Moti Ram Deka’s           case  (supra)   and  this   Court  restated   that           proposition No.  2 must  be read  along  with  the           subsequent propositions  specified as propositions           No. 3,4,5  and 6.  The ruling  in Moti  Ram Deka’s           case  (supra)   is  that   a  law  can  be  framed

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         prescribing the procedure by which and the 201           authority  by’  whom  the  said  pleasure  can  be           exercised. The  pleasure of  the President  or the           Governor to  dismiss can  therefore  not  only  be           delegated but  is also subject to Article 311. The           true position as laid down in Moti Ram Deka’s case           (supra) is that Articles 310 and 311 must no doubt           be read  together but  once  the  true  scope  and           effect of  Article 311  is determined the scope of           Article 310(1)  must be  limited in the sense that           in regard  to cases  falling under  Article 311(2)           the pleasure  mentioned in  Article 310(2) must be           exercised in  accordance with  the requirements of           Article 311.           The majority  view  in  Babu  Ram  Upadhya’s  case           (supra) is  no longer  good law after the decision           in Moti  Ram Deka’s  case (supra). The theory that           only the  President or  the Governor is personally           to exercise  pleasure of  dismissing or removing a           public servant  is repelled  by express  words  on           Article 311  that no person who is a member of the           civil service  or holds  a civil  post  under  the           Union or  a State shall be dismissed or removed by           authority subordinate  to that  by  which  he  was           appointed. The  words ’dismissed  or removed by an           authority subordinate  to that  by  which  he  was           appointed’  indicate  that  the  pleasure  of  the           President or  the Governor  is exercised  by  such           officers on  whom the  President or  the  Governor           confers or delegates power." (Emphasis supplied)           The Court  then stated  its conclusion  as follows           (at page 836) :           "For  the  foregoing  reasons  we  hold  that  the           President or  the Governor  acts on  the  aid  and           advice of  the Council of Ministers with the Prime           Minister as  the head in the case of the Union and           the Chief  Minister at  the head  in the  case  of           State in  all matters which vest. in the executive           whether   those   functions   are   executive   or           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 202 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  or  remove  or  reduce  in  rank  a

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government servant  would  not  arise.  Thus,  though  under Article 310(1)  the tenure of a government servant is at the pleasure of  the President  or the Governor, the exercise of such pleasure can be either by the President or the Governor acting with  the aid  and on  the advice  of the  Council of Ministers or  by the  authority specified in Acts made under Article 309  or in  rules made under such Acts or made under the proviso to Article 309; and in the case of clause (c) of the second  proviso to  Article 311(2),  the inquiry  to  be dispensed with  not on  the  personal  satisfaction  of  the President or the Governor but on his satisfaction arrived at with the aid and on the advice of the Council of Ministers.      The Second Proviso to Article 311(2)      Clause  (2)  of  Article  311  gives  a  constitutional mandate to  the  principles  of  natural  justice  and  audi alteram partem rule by providing that a person employed in a civil capacity  under the  Union or  a State  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  against   him  and  has  been  given  a  reasonable opportunity of  being heard  in respect of those charges. To this extent, the pleasure doctrine enacted in Article 310(1) is abridged because Article 311(2) is a express provision of the Constitution.  This safeguard  provided for a government servant by clause (2) of Article 311 is, however, taken away when the  second proviso  to that clause becomes applicable. The safeguard provided by clause(1) of Article 311, however, remains  intact   and  continues  to  be  available  to  the government servant. The second 203 proviso to  Article 311(2)  becomes applicable  in the three cases mentioned in clauses (a) to (c) of that proviso. These cases are           (a) where  a person  is dismissed  or  removed  or           reduced in rank on the ground of conduct which has           led to his conviction on a criminal charge; or           (b) where  the authority  empowered to  dismiss or           remove a  person or  to  reduce  him  in  rank  is           satisfied that  for some reason, to be recorded by           that authority  in writing,  it 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.      The Construction  to be  placed upon the second proviso and the  scope and  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

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         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) : 204           "A proviso  cannot be  construed as  enlarging the           scope of  an enactment  when it  can be fairly and           properly construed  without attributing to it that           effect. Further,  if the  language of the enacting           part of  the statute  is plain and unambiguous and           does not  contain the provisions which are said to           occur in it, one cannot derive those provisions by           implication from a proviso."      The  language   of  the  second  proviso  is  plan  and unambiguous. The  key-words in  the second proviso are "this clause  shall   not  apply".   By  "this  clause"  is  meant clause(2). As  clause(2) requires  an  inquiry  to  be  held against a  government servant, the only meaning attributable to these words is that this inquiry shall not be held. There is no scope for any ambiguity in these words and there is no reason to  given them  any meaning  different from the plain and ordinary  meaning which  they bear. The resultant effect of these  words is that when a situation envisaged in any of the three  clauses of  the proviso  arises and  that  clause becomes applicable,  the safeguard  provided to a government servant by clause (2) is taken away. As pointed out earlier, this provision  is as much in public interest and for public good and  a matter of public policy as the pleasure doctrine and the  safeguards  with  respect  to  security  of  tenure contained in clauses (1) and (2) of Article 311.      Before, however,  any clause  of the second proviso can come into  play the  condition  laid  down  in  it  must  be satisfied. The  condition for  the application  of  each  of these clauses  is different.  In the  case of  clause (a)  a government servant  must be  guilty of conduct deserving the penalty of  dismissal, removal  or reduction  in rank  which conduct has led to him being convicted on a criminal charge. In the case of clause (b) the disciplinary authority must be satisfied that  it is  not reasonably practicable to hold an inquiry. In  the case  of clause  (c) the  President or  the Governor of  a State,  as the case may be, must be satisfied that in the interest of the security of the State, it is not expedient to  hold an  inquiry. When these conditions can be said to  be fulfilled  will be discussed later while dealing separately with  each of  the three  clauses. The  paramount thing, however,  to bear  in mind is that the second proviso will apply only where the conduct of a government servant is such as  he deserves the punishment of dismissal, removal or reduction in  rank. If  the conduct  is such as to deserve a punishment different  from those mentioned above, the second proviso cannot come into play at all, 205 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

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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  all the  arguments on  this part  of the case, leaving  aside to  be separately  dealt with the other arguments pertaining  only to  a particular  clause  of  the second proviso.      The Extent  of Denial  of Opportunity  under the Second Proviso      It was  submitted on  behalf of the government servants that an  inquiry consists  of several stages and, therefore, even where by the application of the second proviso the full inquiry is  dispensed with,  there is nothing to prevent the disciplinary authority  from  holding  at  least  a  minimal inquiry because no prejudice can because by doing so. It was further submitted  that even though the three clauses of the second proviso  are  different  in  their  content,  it  was feasible in the case of each of the three clauses to give to the government  servant  an  opportunity  of  showing  cause against the  penalty proposed  to be imposed so as to enable him to  convince the  disciplinary authority that the nature of the  misconduct attributed  to him  did not  call for his dismissal, removal  or reduction in rank. For instance, in a case falling  under clause  (a) the  government servant  can point out  that the  offence of which he was convicted was a trivial or  a technical one in respect of which the criminal court had  taken a lenient view and had sentenced him to pay a nominal  fine or  had given  him the benefit of probation. Support for  this submission  was derived  from Challappan’s case.  It   was  further   submitted  that  apart  from  the opportunity to  show cause  against the  proposed penalty it was also  feasible to give a further opportunity in the case of each of the three clauses though such opportunity in each 206 case may  not be  identical. Thus,  it was  argued that  the charge-sheet or  at least  a notice informing the government servant of  the charges  against him  and  calling  for  his explanation thereto  was always  feasible.  It  was  further argued that though under clause (a) of the second proviso an inquiry into  the conduct which led to the conviction of the government  servant  on  a  criminal  charge  would  not  be necessary, such  a notice would enable him to point out that it was a case of mistaken identity and he was not the person who had  been convicted  but  was  an  altogether  different individual. It  was urged  that there  could be no practical difficulty in  serving such  charge-sheet to  the  concerned government servant  because even  if he  were  sentenced  to imprisonment, the charge-sheet 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

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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 language certain  rules made  either under Acts referable to the Article  309 or  made under the proviso to that Article. We will  consider the  contentions with  respect to  each of these basis separately.      So far  as Article  311(2) was  concerned, it  was said that the  language of  the second  proviso did  not negative every single  opportunity  which  could  be  afforded  to  a government servant  under different  situations  though  the nature of  such opportunity  may be different depending upon the circumstances of the case. It was further submitted that the object  of the  Article 311(2)  was that  no  government servant should be condemned unheard and dismissed or removed or reduced  in rank  without affording  him  at  least  some chance of either showing his innocence or convincing 207 the disciplinary authority that the proposed penalty was too drastic and  was uncalled  for in  his  case  and  a  lesser penalty  should,  therefore,  be  imposed  upon  him.  These arguments, though attractive at the first blush, do not bear scrutiny.      The language  of the  second proviso  to Article 311(2) read in  the light  of the interpretation placed upon clause (2) of Article 311 as originally enacted and the legislative history of  that clause  wholly rule  out the  giving of any opportunity. While  construing Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and the phrase "a reasonable opportunity  of showing  cause against the action proposed to  be taken  in regard  to him"  occurring in sub- section (3)  of section  240 of the Government of India Act, 1935, the  Judicial Committee of the Privy Council in Lall’s case stated as follows (at page 242-3) :           "... sub-s.  3 of  s. 240  was not intended to be,           and was  not, a reproduction of rule 55, which was           left unaffected as an administrative rule. Rule 55           is concerned  that  the  civil  servant  shall  be           informed ’of  the grounds  on which it is proposed           to take  action,’ and  to afford  him an  adequate           opportunity of  defending himself  against charges           which have  to be  reduced to  writing; this is in           marked contrast  to the  statutory provision of ’a           reasonable opportunity  of showing  cause  against           the action proposed to be taken in regard to him.’           In the  opinion of  their Lordships,  no action is           proposed within  the meaning  of  the  sub-section           until a  definite conclusion  has been  come to on           the charges,  and the  actual punishment to follow           is provisionally determined on. Before that stage,           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

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         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 208           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,  1935, was  repeated in clause (2) of Article 311 as originally enacted, that is in the said clauses prior too its amendment by the Constitution (Fifteenth Amendment) Act, 1963. Approving  the construction  placed  by  the  Judicial Committee upon  this phrase, this Court in Khem Chand v. The Union of  India &  Ors. [1958]  S.C.R. 1080, held as follows (at page 1095-97) :           "It is true that the provision does not, in terms,           refer to  different stages at which opportunity is           to be  given to the officer concerned. All that it           says is  that the government servant must be given           a reasonable  opportunity of showing cause against           the action  proposed to be taken in regard to him.           He must  not only be given an opportunity but such           opportunity must  be a  reasonable one.  In  order           that the  opportunity to  show cause  against  the           proposed action  may be  regarded as  a reasonable           one, it  is quite  obviously  necessary  that  the           government servant should have the opportunity, to           say, if  that be  his case,  that he  has not been           guilty of  any misconduct  to merit any punishment           at all  and also  that the  particular  punishment           proposed to  be given  is much  more  drastic  and           server than  he deserves.  Both these pleas have a           direct bearing  on the  question of punishment and           may well  be put  forward in showing cause against           the proposed  punishment. If  this is  the correct           meaning of  the clause,  as we  think it  is, what           consequences  follow?   If  it   is  open  to  the           government  servant   under  this   provision   to           contend, if  that be  the fact,  that  he  is  not           guilty of any misconduct then how can he take that           plea unless  he is told what misconduct is alleged           against him?  If the  opportunity to show cause is           to be  a reasonable one it is clear that he should           be informed  about the  charge or charges levelled           against him and the evidence by which it is sought           to be  established, for  it is  only then  that he           will be able 209           to put forward his defence. If the purpose of this           provision is  to give  the government  servant  an           opportunity to  exonerate himself  from the charge           and if  this opportunity is to be a reasonable one           he should  be allowed  to show  that the  evidence           against  him   is  not   worthy  of   credence  or           consideration and  that he  can only  do if  he is           given a  chance  to  cross-examine  the  witnesses           called against  him and  to examine himself or any

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         other witness  in support of his defence. All this           appears to  us to be implicit in the language used           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  cross-           examining 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  him, which  he can  only do  if  the           competent authority, after the enquiry is over and           after  applying   his  mind   to  the  gravity  or           otherwise  of   the  charges  proved  against  the           government servant tentatively proposes to inflict           one of  the three punishments and communicates the           same to  the  government  servant.  In  short  the           substance of  the protection  provided  by  rules,           like 210           rule 55  referred to  above, was bodily lifted out           of the  rules  and  together  with  an  additional           opportunity embodied in s.240(3) of the Government           of India  Act, 1935  so as  to  give  a  statutory           protection to  the government servants and has now           been incorporated  in  Article  311(2)  so  as  to           convert  the   protection  into  a  constitutional           safeguard."      While the  Judicial Committee  in Lall’s case held that two opportunities  were required  - one under rule 55 of the Civil Services (Classification, Control and Appeal) Rules to show cause  against the charges of misconduct made against a government servant,  and the  other under sub-section (3) of section 240  of the  Government of  India Act, 1935, to show cause against  the proposed  penalty,  this  Court  in  Khem Chand’s case held that Article 311(2) bodily lifted the said rule 55  and the  additional  opportunity  provided  for  in section 240(3)  of  the  1935  Act  and  incorporated  these provisions in Article 311(2) so as to convert the protection afforded  to   government  servants  into  a  constitutional safeguard. This  conclusion was  reached by  this Court even though Article  311(2) used  the same  language  as  section 240(3). The  Constitution (Fifteenth  Amendment) Act,  1963, substituted the  whole of clause (2). The substituted clause specifically provided for two opportunities to be given to a government servant  :(1)  to  be  informed  of  the  charges against him  and to  be given  a reasonable  opportunity  of

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defending  himself   against  those   charges,  and   (2)  a reasonable  opportunity  of  making  representation  on  the penalty proposed where after such inquiry it was proposed to impose on him the penalty of dismissal, removal or reduction in rank.  No additional rights were, however, conferred upon government servants by the above amendment because it merely declared the  rights  which  a  government  servant  already possessed under  the original  clause (2)  of Article 311 as interpreted  by  this  Court  in  Khem  Chand’s  case.  This amendment, therefore,  was merely  declaratory, but in a way it was also clarificatory 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 211 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  of the  charges  framed against a  government servant  and a  notice to  show  cause against the  proposed  penalty  were  part  of  the  inquiry contemplated by  Article 311 (2). Even assuming for the sake of argument  that because  Article 311(2), as substituted by the Constitution  (Fifteenth Amendment)  Act,  spoke  of  "a reasonable  opportunity  of  making  representation  on  the penalty proposed"  in a  case "where  it is  proposed, after such inquiry,  to impose  on him any such penalty", the show cause notice  with respect  to penalty was not a part of the inquiry, the opening words of the proviso to clause (2) (now the second proviso to that clause) namely, "Provided further that this  clause shall  not apply", would, where any of the three clauses  of the  said proviso  applies, take away both the right  to have  an inquiry  held in which the government servant would  be entitled  to a  charge-sheet as  also  the right to  make a  representation on the proposed penalty. As mentioned above, the words "this clause shall not apply" are the key-words  in the  second proviso  and govern  each  and every clause  thereof and  by reason of these words not only the holding  of an  inquiry but all the provisions of clause (2) have been dispensed with.      The  question   which  then  arises  is,  "Whether  the Constitution  (Forty-second   Amendment)  Act,  1976,  which further amended  the substituted  clause (2)  of Article 311 with effect  from 1st  January 1977,  has made any change in the law?" The amendments made by this Act are that in clause (2) that  portion which required a reasonable opportunity of making representation on the proposed penalty to be given to a government  servant was deleted and in its place the first proviso was  inserted, which  expressly provides  that it is not necessary to give to a delinquent government servant any opportunity  of   making  representation   on  the  proposed

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penalty. Does  this affect  the operation  of  the  original proviso which,  by the Constitution (Forty-second Amendment) Act, became  the second  proviso? Such obviously was not and could not have been the intention of Parliament. The opening words of  the second proviso remain the same except that the word ’further’  was  inserted  after  the  word  ’Provided’, because the  original proviso  by reason of the insertion of another proviso before it became 212 the second proviso. It should be borne in mind that the show cause notice at the punishment stage was originally 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 that  "Provided further  that this  clause  shall  not apply" it means that whatever safe-guards are to be found in clause (2)  are wholly taken away in a case where any of the three clauses  of the  second proviso  is attracted. In this connection, the  following observations of this Court in the Case of  Suresh Koshy  George v.  The University of Kerala & Ors.(at page 326-7) are pertinent :           "There seems  to be  an  erroneous  impression  in           certain  quarters   evidently  influenced  by  the           provisions in  Article  311  of  the  Constitution           particularly as they stood before the amendment of           that article  that every  disciplinary  proceeding           must consist  of two inquiries, one before issuing           the show  cause notice  to be  followed by another           inquiry thereafter. Such is not the requirement of           the principles  of natural justice. Law may or may           not prescribe such a course." In Associated  Cement Companies  Ltd. v.  T.C.Shrivastava  & Ors., [1984] 3 S.C.R. 361,369, this Court held that "neither under the  ordinary law of the land nor under industrial law a second  opportunity to  show cause  against  the  proposed punishment is  necessary". Since a right to such opportunity does not  exist in law, it follows that the only right which the government  servant had  to make a representation on the proposed penalty was to be found 213 in clause  (2) of  Article 311 prior to its amendment by the Constitution (Forty-second Amendment) Act. This right having been taken away by the Constitution (Forty-second Amendment) Act, there  is no  provision of law under which a government servant can claim this right.      As for  the argument that in a case under clause (a) of the second  proviso a  government servant  could be  wrongly

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dismissed, removed  or reduced  in rank  mistaking  him  for another with the same name unless he is given an opportunity of bringing to the notice of the disciplinary authority that he is not the individual who has been convicted, it can only be described  as being  too  fanciful  and  far-fetched  for though  such   a  case   of   mistaken   identity   may   be hypothetically possible,  it is highly improbable. As in all other  organization,  there  is  in  government  service  an extremely active  grapevine, both  departmental  and  inter- departmental,  which   is  constantly  active,  humming  and buzzing with  service news  and office  gossip, and it would indeed be  strange if the news that a member of a department was facing  prosecution or had been convicted 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 mandatory and not directory.  It   is  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 government servant.  There is  thus no scope for introducing into 214 the second  proviso some kind of inquiry or opportunity by a process of  inference or  implication. The  maxim "expressum facit cessare  tacitum" ("when  there is  express mention of certain things,  then anything  not mentioned  is excluded") applies to  the case.  As pointed  out by  this Court  in B. Shankara Rao  Badam & Ors. v. State of Mysore & Anr., [1969] 3 S.C.R.  1, 12,  this well-known  maxim is  a principle  of logic and  common sense  and not  merely a technical rule of construction. The  second proviso  expressly  mentions  that clause (2)  shall not apply where one of the clauses of that proviso becomes  applicable. This  express mention  excludes everything that  clause (2)  contains and  there can  be  no scope for  once again introducing the opportunities provided by clause (2) or any one of them into the second proviso. In Atkinson v. United States of America Government, L.R. [1971] A.C. 197, Lord Reid said (at page 232) :           "It is  now well  recognised that  the  court  has           power to  expand procedure laid down by statute if           that  is  necessary  to  prevent  infringement  of           natural justice and is not plainly contrary to the           intention of Parliament." Here, however,  the attempt  is not  merely to  do something contrary to  the intention  of "Parliament", that is, in our case, the Constituent Assembly, but to do something contrary

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to an express prohibition contained in the Constitution. The conclusion which  flows from  the express  language  of  the second proviso is inevitable and there is no escape from it. It may  appear harsh  but, as  mentioned earlier, the second proviso has been inserted in the Constitution as a matter of public policy  and in  public interest  and for  public good just as  the pleasure  doctrine and  the  safeguards  for  a government servant provided in clause (1) and (2) of Article 311 have  been. It is in public interest and for public good that government  servant who  has been  convicted of a grave and serious  offence or  one rendering him unfit to continue in office  should be  summarily dismissed  or  removed  from service instead of being allowed to continue in it at public expense and  to public  detriment. 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 215 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 the payment  at least  of  subsistence  allowance  and  such allowance is paid at public expense, and that neither public interest would  be  benefited  nor  public  good  served  by placing such  government servant under suspension because it may take a considerable time for the situation to improve or the danger  to be  over. Much  as this  may seem  harsh  and oppressive to  a government  servant, this  Court  must  not forget that  the object  underlying the  second  proviso  is public policy, public interest and public good and the Court must, therefore,  repel the temptation to be carried away by feelings of  commiseration and sympathy for those government servants who have been dismissed, removed or reduced in rank by applying  the second  proviso. Sympathy and commiseration cannot be  allowed to  out weigh  considerations  of  public policy, concern  for public interest, regard for public good and the  peremptory dictate of a Constitutional prohibition. The Court must bear in mind that the second proviso has been in the  Constitution since it was originally enacted. It was not blindly  or slavishly  copied from section 240(3) of the Government of India Act, 1935. Article 311 was article 282-B of the  draft Constitution  of India  and the  draft Article 282-B was  discussed and a considerable debate took place on it in  the Constituent  Assembly (see the Official Report of the Constituent  Assembly  Debates,  vol.IX,  page  1099  to 1116). The  greater part  of this  debate centred  upon  the proviso to  clause (2)  of the draft article 282-B, which is now the  second proviso  to Article  311. Further, the Court should also  bear in  mind that  clause (c)  of  the  second proviso and  clause (3)  of Article  311 did  not feature in section 240  of the  Government of India Act, 1935, but were

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new provisions  consciously introduced  by  the  Constituent Assembly in  Article 311.  Those who  formed the Constituent Assembly were not the advocates of a despotic or dictatorial form of  government. They  were the persons who enacted into our Constitution  the Chapter  on  Fundamental  Rights.  The majority of  them had  fought for  freedom and  had suffered imprisonment in the cause of liberty 216 and they,  therefore, were  not likely to introduce into our Constitution any  provision from  the earlier  Government of India Acts which had been intended purely for the benefit of a foreign  imperialistic power. After all, it is not as if a government applied  to him.  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  required by  the audi  alteram partem rule which is one of  the two  main principles  of natural Justice. In the alternative it  was submitted  that though  an order  may be valid and  supportable under  the second  proviso to Article 311(2), it  could none  the less be void under Article 14 on the ground  that the principles of natural justice have been wholly  disregarded.  These  arguments  are  based  upon  an imperfect understanding of the principles of natural justice in their application in courts of law to the adjudication of causes before  them and the function of Article 14 vis-a-vis the other  provisions of  the Constitution  and particularly the second proviso to Article 311(2).      The principles  of natural justice are not the creation of Article  14. Article  14 is  not their begetter but their Constitutional guardian. Principles of natural justice trace their ancestry  to ancient  civilizations and centuries long past. Until  about  two  centuries  ago  the  term  "natural justice" was  often used  interchangeably with "natural law" and at  times it  is still  so used. The expression "natural law" has been variously defined. 217 In Jowitt’s  Dictionary of English Law (Second Edition, page 1221) it  is defined  as "rules  derived from God, reason or nature,  as   distinct  from   man-made  law."  Black’s  Law Dictionary (Fifth Edition, page 925) states :           "This expression,  ’natural law’,  or jus natural,           was largely used in the philosophical speculations           of the  Roman jurists of the Antonine age, and was           intended  to   denote  a   system  of   rules  and           principles  for  the  guidance  of  human  conduct           which, independently  of enacted  law  or  of  the

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         systems peculiar  to  any  one  people,  might  be           discovered by  the rational  intelligence of  man,           and would  be found  to grow  out of an conform to           his nature, meaning by that word his whole mental,           moral, and  physical constitution.  The  point  of           departure  for   this  conception  was  the  stoic           doctrine of  a life ordered ’according to nature’,           which  in   its  turn   rested  upon   the  purely           supposititious existence, in primitive times, of a           ’state of nature;’ that is, a condition of society           in which men universally were governed solely by a           rational and  consistent obedience  to the  needs,           impulses, and  promptings of  their  true  nature,           such nature being as yet underacted by dishonesty,           falsehood, or indulgence of the baser passions. In           ethics  it   consists   in   practical   universal           judgments which man himself 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 218 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 and  towns sacked  and pillaged,  their   populace  dragged   into  captivity   and condemned to  slavery - the men to labour, the women and the girls to  concubinage, and  the young  boys to  be castrated into eunuches  - their only crime being that their ruler had the misfortune  to be  defeated in battle and to lose one of his cities  or towns  to the  enemy. Thus, there was neither hope nor  help in  man-made laws  or man-established customs for they  were one-sided and oppressive, intended to benefit armed might  and monied  power and  to subjugate  the  down- trodden poor  and the  helpless needy. If there was any help to be  found or  any hope to be discovered, it was only in a law based  on justice  and reason which transcended the laws and customs  of men,  a law  made by  some one  greater  and mightier than  those men who made these laws and established these customs.  Such a  person could  only be a divine being and such  a law  could only  be "natural law" or "the law of nature" meaning  thereby "certain  rules of conduct supposed to be  so just  that they  are binding upon all mankind." It was not  "the law of nature "in the sense of "the law of the jungle" where  the lion devours the lamb and the tiger feeds upon the  antelope because  the lion is hungry and the tiger famished but  a higher  law of  nature or  "the natural law" where the  lion and the lamb lie down together and the tiger frisks with the antelope.      Most, if  not all, jurists are agreed that "reason" and

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"the nature  of man" constitute the fountain-head of natural law but  there  is  a  considerable  divergence  of  opinion amongst them  as also  amongst philosophers about the nature and meaning  of that  law and  its relation to positive law. Among the  ancients Greeks  the Sophists,  Artistotle in his treatises on  "Logic" and  Ethics", and the Stoics developed different theories.  The theory  propounded by  Aristotle in his "Logic"  adhered substantially  to the  point of view of the Sophists,  namely, that man is a natural creature but is also endowed  with reason. Later, in his "Ethics", Aristotle came  to   distinguish  between   natural   and   legal   or conventional justice  and postulated  that natural  law  had authority everywhere  and was  discoverable by  the  use  of reason. The  ancient Romans  were not given to philosophical speculations or  creative orignality  in Art. They preferred to borrow  these from  the Greeks.  The Romans  were a hard- headed, practical  race of  conquerors,  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 219 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 sense of justice and reason would be part of  the jus  gentium. The jus gentium of the Romans was different from what we call international law and should not be confused  with it,  for the  scope of the jus gentium was much wider than our international law. Because of the theory of its  identity with  justice and  reason,  the  term  "jus gentium" came  at times  to be  used for  aequitas, that is, equity as  understood by  the Romans, which was the basis of praetorian law  or  the  power  of  the  praetors  to  grant remedies where non existed under the jus civile. In the Dark Ages the  expression "natural  law" acquired  a  theological base  and  the  Fathers  of  the  Church,  particularly  St. Ambrose, St. Augustine and St. Gregory, held the belief that it was  the function  of the  Church to bring about the best possible  approximation   of   human   laws   to   Christian principles. As  Europe emerged  from the  Dark Ages in about the  ninth  century,  Christianity  became  substituted  for reason as the supreme force in the universe, and this led to the development of a theory of law in which Christianity had the supreme  spiritual and  legal force  and was superior to all other  laws, with  the Church as the authentic expositor of the  law of  nature. Gratian  (Francisco Graziano) in the twelfth   century   in   his   "Decretum"   or   "Concordies discordantium canonum" consider the law of nature as part of the law  of God.  According to St. Thomas Aquinas (1226-74), natural law  was derived  from the  law  of  God  which  was supreme and  such of  it as  was  intelligible  to  men  was

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revealed through  Church law  as the incorporation of divine wisdom. Thus, according to this Theory, natural law was that part of  divine law which revealed itself in natural reason, and man  as a  reasonable being  applied this part of divine law to human affairs. This theory, though it upheld 220 the supreme authority of the Church, made some concession to the authority  of the  Emperor,  that  is,  the  Holy  Roman Emperor.  Dante   in  his   "De  Monarchia"  championed  the supremacy of  the Holy Roman Empire as against the Church on the ground  that the Emperor was the legitimate successor of the Roman  people and  was chosen  by God to rule the world. The authority  of the  law of  nature  or  natural  law  was repeatedly sought  support from  during the  centuries which saw the  struggle for  supremacy between  the Popes  and the General Councils of the Church and between the Popes and the Emperors and 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  Pickin  v. British Railways  Board, L.R.  [1974] A.C. 765, the argument was once  again advanced  before the  House of  Lords that a court was  entitled to  disregard a  provision in  an Act of Parliament and  a distinction  was sought  be drawn for this purpose between a public Act and a private Act. Referring to the arguments  to this  point, Lord  Reid observed  (at page 782) :           "In earlier  times many  learned lawyers  seem  to           have believed  that an  Act of Parliament could be           disregarded in  so far  as it  was contrary to the           law of  God  or  the  law  of  nature  of  natural           justice, but since the supremacy of Parliament was           finally demonstrated by the Revolution of 1688 any           such idea has become obsolete." 221 Rejecting the above argument, the House of Lords unanimously held that  the function  of the  court was  to consider  and apply the  enactments of Parliament, and accordingly, in the course of  litigation, it  was  not  lawful  to  impugn  the validity  of   a  statute   by  seeking  to  establish  that Parliament, in passing it, was misled by fraud or otherwise, nor might  a litigant seek to establish a claim in equity by showing that  the other  party, by  fraudulently  misleading Parliament,  had   inflicted  damage   on   him;   for   any investigation  into  the  manner  in  which  Parliament  had exercised  its   function  would   or  might  result  in  an adjudication by  the courts,  bringing about a conflict with Parliament.

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    As a  result of  the infusion  of new  ideas during the Renaissance and  the Reformation, the intellectual authority of reason  again came  to be  substituted for  the spiritual authority of  divine law  as the  basis of natural law. This new or  rather resuscitated basis of natural law was laid by Grotius (Huigh  de Groot)  in his "De jure belli ac Pacis" - the precursor or of modern public international law.      Reason  as  the  theoretical  basis  for  natural  law, however, once again suffered a reversal at the hand of David Hume.  According   to  Hume,   only  knowledge  obtained  by mathematical reasoning  was certain; knowledge obtained from other sciences  being only  probable. His  theory of justice was that  it served  both  an  ethical  and  a  sociological function. He  contended that  public utility  was  the  sole origin of  legal justice  and the  sole  foundation  of  its merit, and  that for  a legal  system to  be useful, it must adhere to  its rules  even though  it may cause injustice in particular cases.  He did  not make a formal analysis of law but distinguished 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." 222      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   twentieth  centuries   could  not   favour hypotheses which were vague and unprovable. In the twentieth century, disillusionment  with the  theory that  good  could come out  of the  power of  the State  and positive law has, however, once  again brought  about a revival of interest in natural law.      Apart   from    providing   the    subject-matter   for philosophical dissertations  and speculative theories on the origin and attributes of natural law, the concept of natural law has  made invaluable  contribution to the development of positive law. It helped to transform the rigidity of the jus civile of  the Romans  into a more equitable system based on the theory of the jus gentium. It provided arguments to both sides in  the struggle  during the  Middle Ages  between the Popes and  the  Emperors.  It  inspired  in  the  eighteenth century the  movement for  codification of  law in  order to formulate ideas derives from the concept of natural law into detailed rules. England, the idea of natural law and natural justices has  influenced its  law in  several respects.  The origin and  development of  equity in  England owed  much to natural law. It also served as the basis for the recognition or rejection  of a  custom. It  was looked to for support in the struggle  for supremacy  which took  place  between  the

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judges  and  Parliament  in  the  seventeenth  century.  The concept of  natural law  and natural  rights influenced  the drafting of the Constitution of the United States of America and  many  of  the  amendments  made  thereto  as  also  the Constitutions of  its various States. It has provide a basis for much  of  modern  international  law  and  International Conventions, Covenants  and Declarations.  Above all, it has enriched positive  law by introducing into it the principles of natural  justice, divested  of all  their  philosophical, metaphysical and  theological  trappings  and  disassociated from their identification with, or supposed derivation from, natural law.      Natural justice has been variously defined by different judges. A  few instances  will suffice.  In Drew v. Drew and Leburn [1855]  2 Macq.  1,8, Lord  Craworth  defined  it  as "universal justice".  In James  Dunbar Smith  v. Her Majesty The Queen 223 [1877-78] 3  App. Cas.  614,623 J.C.,  Sir Robert P.Collier, speaking for  the Judicial  Committee of  the Privy Council, used the  phrase "the  requirements of substantial Justice", while in  Arthur John  Spacmkman v.  The Plumstead  District Board of Works 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. Secretary of  State for  Home Affairs,  Ex  parte  Hosenball [1977] 1 W.L.R. 766,784, preferred the homely phrase "common fairness".      As some judges, for instance, Ormond, L.J., in Lewis v. Heffer and  others [1978] 1 W.L.R. 1061,1076, have found the phrase "natural  justice" to  be  a  highly  attractive  and potent phrase".  it may not be out of place, in order to set the balance  right, to  reproduce a  passage, full of robust common sense and biting Irony, from the judgment of Maugham, J.., in  Maclean v.  The Workers  Union L.R.  [1929]  1  Ch. 602,624. That passage is as follows :           "Eminent judges have at times used the phrase ’the           principles of  natural justice’. The phrase is, of           course, used  only in a popular sense and must not           be taken to mean that there is any justice natural           among men.  Among most  savages there  is no  such           thing as  justice in  the modern sense. In ancient           days, a  person wronged  executed his own justice.           Amongst our  own ancestors, down to the thirteenth           century,  manifest  felony,  such  as  that  of  a           manslayer taken  with his  weapon, or a thief with           the stolen goods, might be

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224           punished by  summary execution without any form of           trial.  Again   every   student   has   heard   or           computation and  of or  deal;  and  it  is  hardly           necessary to  observe that  (for example) a system           of or  deal by water in which sinking was the sign           of innocence  and floating  the sign  of guilt,  a           system which  lasted in  this country for hundreds           of years,  has little  to do  with modern ideas of           justice.  It   is  unnecessary   to  give  further           illustrations. The truth is that justice is a very           elaborate conception, the growth of many centuries           of  civilization;  and  even  now  the  conception           differs widely  in countries  usually described as           civilized."      In the  Supreme Court of Ireland, Black. J., in William Green v.  Isidore J. Blake and others [1948] I.R. 242, after referring to the above passage from the judgment of Maugham, J., proceeded to state (at page 268) :           "I agree,  but what  then does it mean? We may, if           we   choose,    describe   as    ’natural’   every           evolutionary advance in our conception of justice.           But for  me, natural  justice means  no more  that           justice without any epithet. I take the essentials           of justice  to mean those desiderata which, in the           existing   stage   of   our   mental   and   moral           development, we  regard as  essential, in  contra-           distinction  from   the  many  extra  precautions,           helpful to  justice, but  not indispensable to it,           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) 225      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  tainted by  the  perennial           fallacy that  because something  cannot be cut and           dried or  nicely weighed  or measured therefore it           does not  exist. The idea of negligence is equally           insusceptible of  exact  definition,  but  what  a           reasonable man  would regard  as fair procedure in           particular circumstances  and what he would regard           as  negligence  in  particular  circumstances  are           equally capable  of serving  as tests  in law, and           natural justice  as it has been interpreted in the

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         courts in much more definite than that. It appears           to me  that one  reason  why  the  authorities  on           natural  justice  have  been  found  difficult  to           reconcile is  that insufficient attention has been           paid to the great difference between various kinds           of cases  in which it has been sought to apply the           principle." (Emphasis supplied)      How then  have the  principles of  natural justice been interpreted in the courts and within what limits are they to be confined?  Over  the  years  by  a  process  of  judicial interpretation two  rules have  been evolved as representing the principles  of  natural  justice  in  judicial  process, including   therein    quasi-judicial   and   administrative processes. They  constitute the  basic elements  of  a  fair hearing, having  their roots  in the innate sense of man for fair play  and justice  which is  not the  preserve  of  any particular race  or country  but is  shared in common by all men. The  first rule  is "nemo  judex in causa sua" or "nemo debet esse  judex in propria causa" as stated in 12 Co. Rep. 114, that  is, no  man shall  be a  judge in his own cause". Coke used  the form  "aliouis non debt esse judex in propria causa quia  non potest esse judex et pars" (Co. Litt. 141a), that is,  "no man  ought to  be a  judge in  his own  cause, because he  cannot act  as a judge and at the same time be a party". The  form "nemo  potest esse  simul actor et judex", that is, "no one can be at once suitor and judge" is also at times used. The second rule - and 226 that is  the rule  with which are concerned in these Appeals and Writ  Petitions -  is "audi  alteram partem".  that  is, "hear  the   other  side".  At  times  and  particularly  in continental countries  the form "audietur et altera pars" is used, meaning very much the same thing. A corollary has been deduced from  the above  two rules and particularly the audi alteram partem  rule, namely,  "qui alliquid statuerit parte inaudita altera, aequum licet dixerit, haud aequum fecerit". that is,  "he who  shall decide  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-matter of a proverb which was often referred to or quoted by Greek playwrights, as for instance, by  Aritophanes in  his  comedy  "The  Wasps"  and Euripides in  his tragedies  "Heracleidae" and "Andromache", and by  Greek orators,  for  instance,  Demosthenes  in  his speech "De  Corona". Among the Romans, Seneca in his tragedy "Medea" referred  to the  injustice of  coming to a decision

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without a  full hearing.  In fact,  the corollary  drawn  in Boswell’s case  is taken from a line in Seneca’s "Medea". In the Gospel  according to  St. John(vii,51),  Nicodemus asked the chief priests and the Pharisees, "Doth our law judge any man, before  it hear  him, and know what he doeth?" Even the proverb and songs of African tribesmen, for instance, of the Lozi tribe  in Barotseland  refer to  this  rule  (see  "The Judicia Process  Among the Barotse Northern Rhodesia" by Max Gluckman, p.102.)      The two  rules "nemo  judex in  causa  sua"  and  "audi alteram 227 partem" and  their corollary that justice should not only be done but  should manifestly  be seen  to be  done have  been recognized from  early days in English courts. References to them are  to be  found in the Year Books - a title preferred to the  alternative one of "Books of Years and Terms"- which were a  regular series,  with a  few gaps, of law reports in Anglo-norman or  Norman-French  or  a  mixture  of  English, Norman-French and  French, which  had then  become the court language, from  the 1270s  to 1535  or, as printed after the invention of the printing press, from 1290 to 1535, that is, from the  time  of  Edward  II  to  Henry  VIII.  The  above principles of  natural justice came to be firmly established over the  course of  centuries and have become a part of the law of  the land. Both in England and in India they apply to civil as  well as  to criminal  cases and to the exercise of judicial,  quasi-judicial  and  administrative  powers.  The expression "natural  justice" is  now so  well understood in England that  it has  been used  without any  definition  in statutes of Parliament, for example, in section 3(10) of the Foreign Compensation  Act, 1969,  and section  6(13) of  the Trade Union  and Labour  Reforms Act,  1974, which was later repealed by the Trade Union and Labour Relations (Amendment) Act,  1976.   These  rules  of  natural  justice  have  been recognized  and  given  effect  to  in  many  countries  and different  systems   of  law.   They   have   now   received international recognition  by being  enshrined 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." 228 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  concepts are new. They are based upon similar provisions  in other  Constitutions. One instance is section 40(1)  of the  Constitution of  Eire of  1937, which

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occurs in  the Chapter  entitled Fundamental  Rights in that Constitution. The  Constitution of  Eire begins  on a strong religious note. It starts by stating :           "In the  name of  the Most Holy Trinity, from Whom           is all  authority and  to Whom,  as our final end,           all  actions  both  of  men  and  States  must  be           referred.           We, the people of Eire,           Humbly acknowledging  all our  obligations to  our           Divine  Lord,  Jesus  Christ,  Who  sustained  our           fathers through centuries of tiral, ...... ".      Section 40(1)  of that Constitution provides as follows :           "All Citizens  shall, as  human persons,  be  held           equal before the law.           This shall  not be  held to  mean that  the  State           shall not  in its  enactments have  due regard  to           differences of  capacity, physical  and moral, and           of social functions." Another instance  is Article 3(1) of the Constitution of the Federal Republic of Germany of 1948 which states:      "All persons  shall  be  equal  before  the  law."  Yet another instance is section 1 of the Fourteenth Amendment to the Constitution  of the  United  States  of  America  which reads:           "All persons  born or  naturalized in  the  United           States, and  subject to  the jurisdiction thereof,           are citizens of the United States and of the State           wherein  they  reside.  No  State  shall  make  or           enforce any law which shall abridge the privileges           or immunities  of citizens  of the  United States,           nor shall  any State  deprive any  person of life,           liberty, or  property, without due process of law,           nor deny to any person within its jurisdiction the           equal protection of the laws." 229 Constitution of  some  other  countries  also  have  similar provisions  but   as  these   Constitutions  have   suffered political vicissitudes,  it is unnecessary to refer to them. Provisions  similar  to  Article  14  are  to  be  found  in International Charters  and Conventions.  Thus, Article 7 of the Universal  Declaration Human Rights of 1948, provides as follows:           "All are  equal before  the law  and are  entitled           without any  discrimination to equal protection of           the law ....."      Article 14  is divided  into two  parts.  In    Re  The Special Courts  Bill, 1978 [1979] 2 S.C.R. 476, Chandrachud, C.J., describe  the two  parts of  Article 14 as follows (at page 534):           "The first  part of  article 14, which was adopted           from the  Irish Constitution,  is a declaration 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

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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 classification by law and is directed against discriminatory class legislation. The propositions deducible from decisions of this court on this point have 230 been set  out in  the form  of thirteen  propositions in the judgment of  Chandrachud, C.J.,  in In Re The Special Courts Bill, 1978.  The first of these propositions which describes the nature of the two parts of Article 14 has been extracted earlier. We  are not  concerned in  these Appeals  and  Writ Petitions with  the  other  propositions  set  out  in  that judgment. In  early days,  this  Court  was  concerned  with discriminatory and  hostile class  legislation and it was to this aspect  of Article  14 that its attention was directed. As fresh thinking began to take place on the scope an anoint of Article  14, new dimensions to this guarantee of equality before the  law and  of the  equal protection  of  the  laws emerged and  were recognized  by this Court. It was realized that to treat one person differently from another when there was no  rational basis  for doing  so would be arbitrary act thus discriminatory.  Arbitrariness can  take many forms and shapes but  whatever form  or shape it takes, it is none the less discrimination. It also became apparent that to treat a persons or a class of persons unfairly would be an arbitrary act amounting  to discrimination  forbidden by  Article  14. Similarly, this  Court, recognized that to treat a person in violation of  the principles of natural justice would amount to arbitrary  and discriminatory treatment and would violate the guarantee given by Article 14.      In State  of Andhra  Pradesh and  another v. Nalla Raja Reddy and  others [1967]  3  S.C.R.  28,  Subba  Rao,  C.J., speaking for the Court, said (at page 46):           "Official arbitrariness  is more subversive of the           doctrine    of     equality     than     statutory           discrimination.  In   respect   of   a   statutory           discrimination one  knows where he stands, but the           wand of official arbitrariness can be waved in all           directions indiscriminately."      While considering  Article 14 and Article 16, Bhagwati, J., in  E.P. Royappa  v. State  of Tamil  Nadu  and  another [1974] 2 S.C.R. 348, in a passage which has become a classic said (at page 386):           "Article 14  is the  genus while  Article 16  is a           species, Article  16 gives  effect to the doctrine           of equality  in all  matters  relating  to  public           employment. The  basic principle which, therefore,           informs both  Articles 14  and 16  is equality and           inhibition against  discrimination. Now,  what  is           the content  and reach  of this  great  equalizing           principle? It is a founding 231           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

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         countenance  any  attempt  to  truncate  its  all-           embracing 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 relevant principles           applicable alike  to all  similarly situate and it           must not be guided by any extraneous or Irrelevant           coordinations because  that  would  be  denial  of           equality. Where  the operative  reason  for  State           action, as distinguished from motive inducing from           the antechamber of the mind, is not legitimate and           relevant but is extraneous and outside the area of           permissible considerations,  it  would  amount  of           mala fide  exercise of  power and  that is  hit by           Articles 14  and 16.  Mala fide  exercise of power           and arbitrariness  are different lethal radiations           emanating from  the same vice : in fact the latter           comprehends the  former.  Both  are  inhibited  by           Articles 14 and 16." (Emphasis supplied)      Bhagwati, J.,  reaffirmed in  Maneka Gandhi’s case what he had  said in  Royappa’s case in these words (at page 673- 74):           "Now, the  question immediately  arises as to what           is the  requirement of  Article 14  : what  is the           content  and   reach  of   the  great   equalising           principle enunciated in this article? There can be           no doubt  that it  is  a  founding  faith  of  the           Constitution. It  is indeed  the pillar  on  which           rests securely the foundation of our 232           democratic republic.  And, therefore,  it must not           be   subjected    to   a   narrow,   pedantic   or           lexicographic approach.  No attempt should be made           to truncate  its all-embracing  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 imprisoned           within traditional and doctrinaire limits. We must           reiterate  here   what  was  pointed  out  by  the           majority in  E.P.Royappa v.  State of Tamil Nadu &           Another namely, that ’from a positivistic point of           view, equality  is antithetic 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           there  fore  violative  of  Article.’  Article  14           strikes  at  arbitrariness  in  State  action  and

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         ensures fairness  and equality  of treatment.  The           principle of reasonableness, which legally as well           as philosophically,  is  a  essential  element  of           equality or  non-arbitrariness pervades Article 14           like a  brooding  omnipresence.......".  (Emphasis           supplied) In the course of his judgment in the same case Bhagwati, J., 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 233           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 for the Court, said (at pages 100-101):           "The true  scope and  ambit of Article 14 has been           the subject matter of numerous decisions and it is           not necessary  to make  any detailed  reference to           them. It  is sufficient  to state that the content           and reach  of Article 14 must not be confused with           the doctrine  of classification. Unfortunately, in           the  early   stages  of   the  evolution   of  our           constitutional  law,   Article  14   came  to   be           identified with  the  doctrine  of  classification           because the  view taken  was that  Article forbids           discrimination   and    there    would    be    no           discrimination where the classification making the           differentia fulfils  two conditions,  namely,  (i)           that  the   classification  is   founded   on   an           intelligible   differentia   which   distinguishes           persons or  things that  are grouped together from           others left  out  of  the  group,  and  (ii)  that           differentia has  a rational relation to the object           sought to  be achieved by the impugned legislative           or executive action."      The principles  of natural justice have thus come to be recognized as  being a  part of  the guarantee  contained in Article 14  because of  the new  and dynamic  interpretation given by  this Court to the concept of equality which is the subject-matter of  that Article.  Shortly put, the syllogism runs thus  violation of a rule of natural justice results in arbitrariness which  is the  same as  discrimination;  where discrimination is  the result  of  state  action,  it  is  a violation  of  Article  14:  therefore,  a  violation  of  a principle  of  natural  justice  by  a  State  action  is  a

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violation of  Article 14.  Article 14,  however, is  not the sole repository  of the  principles of natural justice. What it does  is to  guarantee  that  any  law  or  State  action violating them  will  be  struck  down.  The  principles  of natural justice,  however, apply not only to legislation and State action  but also where any tribunal, authority or body men, not coming within the definition 234 of "State"  in Article  12, is  charged  with  the  duty  of deciding a matter. In such a case, the principles of natural justice require  that it  must decide such matter fairly and impartially.      The rule of natural justice with which we are concerned in these  Appeals  and  Writ  Petitions,  namely,  the  audi alteram partem  rule, in  its fullest amplitude means that a person against  whom an order to his prejudice may be passed should be  informed of  the allegations  and charges against him, be  given an  opportunity 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 that  before a  government servant  is dismissed, removed  or reduced  in rank,  an inquiry must be held in  which he is informed of the charges against him and given a  reasonable opportunity of being heard in respect of those charges.  The nature  of the  hearing to be given to a government servant under clauses (2) of Article 311 has been elaborately set  out by  this Court  in Khem chand’s case in the passages  from the judgment extracted above. Though that case related  to the original clause (2) of Article 311, the same applies to the present clause (2) of Article 311 except for the  fact that  now a government servant has no right to make any  representation against  the penalty proposed to be imposed upon him but, as pointed out earlier, in the case of Suresh Koshy  George v. The University of Kerala and others, such an opportunity is not the requirement of the principles of  natural   justice  and  as  held  in  Associated  Cement Companies Ltd.  v. T.  C. Shrivastava and others neither the ordinary law of the land nor industrial law requires such an opportunity to be given. The 235 Opportunity of  showing cause  against the  proposed penalty was only  the result  of the  interpretation placed  by  the Judicial Committee  of the Privy Council in Lall’s Case upon section 240(3)  of the  Government of India, 1935, which was accepted by  this Court in Khem Chand’s Case. If, therefore, an inquiry  held against  a government  servant under clause (2) of Article 311 is unfair or biased or has been conducted

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in such  a manner  as not  to give  him a fair or reasonable opportunity to  defend himself,  undoubtedly, the principles of natural justice would be violated, but in such a case the order of  dismissal, removal  or reduction  in rank would be held to  be bad  as contravening  the express  provisions of clause (2)  of Article  311 and  there will  be no scope for having  recourse   to  Article   14  for   the  purpose   of invalidating it.      Though  the  two  rules  of  natural  justice,  namely, nemojudex in  causa sua  em audi  alteram part,  have now  a definite meaning  and connotation  in law  and their content and implications  are well understood and firmly established the are  none the  less not  statutory rules.  Each of these rules yields to and changes with the exigencies of different situations.  They  do  not  apply  in  the  same  manner  to situations which  are not alike. These rules are not case in a rigid  mould nor can they be put in a legal strait-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): 236           "The question  whether the requirements of natural           justice have  been met by the procedure adopted in           a given  case must depend to a great extent on the           facts and  circumstances of the case in point, the           constitution of  the Tribunal  and the rules under           which it functions."      After referring  to this  case,  in  A.K.  Kraipak  and others etc.  v. Union  of India  and others  [1970] 1 S.C.R. 457, Hegde, J., observed (at page 469):           "What particular  rule of  natural justice  should           apply to  a given  case must  depend  to  a  great           extent on  the facts  and  circumstances  of  that           case, the  framework of  the law  under which  the           inquiry  is  held  and  the  constitution  of  the           Tribunal or  body of  persons appointed  for  that           purpose. Whenever  a complaint  is made  before  a           court that  some principle  of natural justice had           been contravened  the court  has to decide whether           the observance  of that  rule was  necessary for a           just decision on the facts of that case."      Again in  Union of India v. Col. J.N. Sinha and another [1971] 1 S.C.R. 791, it was said (at page 794-5):           "As observed  by this Court in Kraipak and Ors. v.           Union of India the aim of rules of natural justice           is to  secure justice  or to  put it negatively to           prevent miscarriage  of justice.  These rules  can

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         operate only  in areas  not  covered  by  any  law           validly made.  In other words they do not supplant           the law  but supplement  it. It  is true that if a           statutory provision  can be read consistently with           the principles  of  natural  justice,  the  courts           should do  so because it must be presumed that the           legislatures and  the statutory authorities intend           to  act  in  accordance  with  the  principles  of           natural justice.  But  if  on  the  other  hand  a           statutory  provision  either  specifically  or  by           necessary implication  excluded the application of           any or  all the principles of natural justice then           the  court   cannot  ignore  the  mandate  of  the           legislature or  the statutory  authority and  read           into the  concerned provision  the  principles  of           natural justice.  Whether the  exercise of a power           conferred should be made in accordance with any of           the principles of natural 237           justice or  not depends  upon the express words of           the provision  conferring the power, the nature of           the power  conferred, the  purpose for which it is           conferred and  the effect  of the exercise of that           power"      In Swadeshi  Cotton Mills  v. Union  of India  [1981] 2 S.C.R. 533,  Chinnappa Reddy, J., in his dissenting judgment summarized the  position in law on this point as follows (at page 591):           "The principles of natural justice have taken deep           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 but  in exceptional cases they can even be excluded.  There are  well-defined exceptions to the nemo judex in  causa sua  rule as also to the audi alteram partem rule. The  nemo judex  in causa  sua rule  is subject to the doctrine of  necessity and  yields to  it as  pointed out by this Court  in J.Mohapatra  & Co.  and another  v. State  of Orissa and  another [1985] 1 S.C.R. 322,334-5. So far as the audi alteram  partem rule  is concerned, both in England and in India,  it is  well established  that where  a right to a prior notice  and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a

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238 right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the  scheme of the relevant statutory provisions warrant its exclusion;  nor can  the audi  alteram  partem  rule  be invoked if  importing it would have the effect of paralysing the administrative process or where the need for promptitude or the  urgency of  taking action so demands, as pointed out in Maneka Gandhi’s  case at page 681. If legislation and the necessities of  a situation  can exclude  the principles  of natural justice  including the  audi alteram  partem rule, a fortiorari so  can a  provision or  the Constitution,  for a Constitutional provision has a far greater and all-pervading sanctity than  a statutory  provision. In  the present case, clause (2)  of Article  311 is  expressly  excluded  by  the opening words  of the  second proviso  and particularly  its key-words this clause shall not apply. As pointed out above, clause (2) of Article 311 embodies in express words the audi alteram partem  rule.  This  principle  of  natural  justice having  been   expressly  excluded   by   a   Constitutional provision, namely,  the second  proviso  to  clause  (2)  of Article 311,  there is  no scope  for reintroducing  it by a side-door to  provide once  again the same inquiry which the Constitutional provision  has expressly  prohibited. Where a clause of  the second  proviso is  applied on  an extraneous ground or  a ground  having no  relation  to  the  situation envisaged in that clause, the action in so applying it would be mala  fide, and,  therefore, void.  In such  a  case  the invalidating factor may be referable to Article 14. This is, however, the  only  scope  which  Article  14  can  have  in relation to  the second  proviso. but  to hold that once the second proviso is properly applied and 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 239 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 made against  him   he has  the opportunity  to show  in  an appeal filed  by him  that the  charges made against him are not true.  This would  be a  sufficient compliance  with the requirements of natural justice. In Maneka Gandhi’s case and in Liberty Oil Mills and others v. Union of India and others [1984] 3  S.C.C. 465   the  right to  make a  representation after an  action was  taken was  held  to  be  a  sufficient remedy, and  an appeal  is a  much wider  and more effective remedy than a right of making a representation.      In support  of the  contention  that  even  though  the second proviso  to Article  311(2)  excludes  any  right  of

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hearing, such  a right  is none  the  less  available  under Article 14,  reliance was placed on behalf of the government servants upon the case of Rustom Cavasjee Cooper v. Union of India [1970]  3 S.C.R. 530. In our opinion, this reliance is misplaced. One of the questions which arose in that case was the correctness  of the  majority view in A.K.Gopalan v. The State of  Madras [1950]  S.C.R. 88. In Gopalan’s case it was held by  the majority  that the  law of preventive detention did not have to satisfy the combined test of Articles 19 and 21. According  to the  majority view, it was the form of the State action  which would  determine which  Article  in  the Chapter on  fundamental Rights  would be attracted, and that in respect  of preventive  detention  Article  21  protected substantive rights  by requiring  a procedure and Article 22 laid  down   the  minimum  rules  of  procedure  which  even Parliament could not abrogate or overlook. Fazal Ali, J., in his  dissenting   judgment,  however,  took  the  view  that preventive detention  was a direct violation of a sub-clause (d)  of   clause  (1)  of  Article  19,  even  if  a  narrow construction were  to be  placed upon that sub-clause, and a law relating to preventive detention was, therefore. subject to such  limited judicial  review as was permitted by clause (5) of  Article 19.  In R.Cooper’s case the majority view in Gopalan’s case  was overruled.  In Sambbu Nath Sarkar v. The State of  West Bengal  &  Ors.  [1974]  1  S.C.R.  1,  after referring to  both these cases, this Court observed (at page 24) :           "In R.C.Cooper  v. Union  of India  the  aforesaid           premise of the majority in Gopalan was disapproved           and therefore it no longer holds the field. Though           Cooper’s case dealt with the inter-relationship of           Article 19  and Article  31, the basic approach to           construing the 240           fundamental 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 Constitution           do not  represent  entirely  separate  streams  of           rights which  do not  mingle at  many points. They           are all  parts of  an  integrated  scheme  in  the           Constitution. Their  waters must mix to constitute           that grand flow of unimpeded and impartial Justice           (social, economic  and  political),  Freedom  (not           only of  thought, expression,  belief,  faith  and           worship,  but   also  of   association,  movement,

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         vocation or  occupation as  well as of acquisition           and  possession   of  reasonable   property),   of           Equality (of  status  and  of  opportunity,  which           imply   absence    of   unreasonable   or   unfair           discrimination  between  individuals,  groups  and           classes), and  of Fraternity(assuring  dignity  of           the individual and the unity of the nation), which           our Constitution  visualises. Isolation of various           aspects of  human freedom,  for purposes  of their           protection, is  neither realistic  nor  beneficial           but  would   defeat  the   very  objects  of  such           protection." The question in Gopalan’s case and Cooper’s case was whether particular Articles guaranting certain Fundamental Rights 241 operated exclusively  without having any inter-relation with any other Article in the Chapter on Fundamental Rights. This is not  the question  before us.  Neither Article  19 or  21 excludes the  operation of the other Articles in Part III of the  Constitution.   Where  however,   an  Article   in  the Constitution expressly  excludes the  application of certain Fundamental Rights,  the view taken in Cooper’s case and the other cases  which followed it, namely, that the Articles in the  Chapter   on  Fundamental  Rights  do  not  operate  in isolation, cannot  apply. Article  13  invalidates  any  law which violates any of the Fundamental Rights. Article 31A(1) provides that "Notwithstanding anything contained in article 13, no law providing for ..... shall be deemed to be void on the ground  that it  is inconsistent  with, or takes away or abridges any  of the  rights conferred  by  article  14  and article 19".  Under  Article  31B,  none  of  the  Acts  and Regulations  specified   in  the   Ninth  schedule   to  the Constitution nor  any of  the provisions  thereof are  to be deemed to be void on the ground that such Act, Regulation or provision is inconsistent with or takes away or abridges any of the  rights conferred  by any  provisions  of  Part  III. Article  31C   provides   that   "Notwithstanding   anything contained in  Article 13, no law giving effect to the policy of the  State towards  securing .  . . shall be deemed to 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’s case;  its burial  service was  read in  Sambhu Nath Sarkar  v. The State of West Bengal and others, Hardhan Saha and another v. 242 The State  of West Bengal and others and Khudiram Das v. The

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State of  West Bengal  & Others. and its funeral oration was delivered in Maneka Gandhi’s case. Let us hope and pray that the ghost of that majority view does not at some future time rise from  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.  But none  the   less  what   was  buried   was  the   theory  of exclusiveness of each Fundamental Right operating separately and without having any inter-relation with other Fundamental Rights. The  decisions in  R.C.Cooper’s case  and the  other cases which  followed it,  however, will  not apply  where a Fundamental Rights  (including the  audi alteram partem rule comprehended  within   the  guarantee   of  Article  14)  is expressly excluded by the Constitution itself. Here, we must not forget  the warning  given  by  Megarry,  J.,in  Houslow London Borough Council v. Tickenhan Garden Developments Ltd. that the  principles of  natural justice  must  be  confined within their  proper limits and not allowed to run wild. The concept of  natural justice is a magnificent thoroughbred on which this  nation gallops  forwards towards  its proclaimed and let  us pray  its destines  goal  of  "JUSTICE,  social, economic and  political."  This  thoroughbred  must  not  be allowed to  turn into a wild and unruly horse, careering off where it  lists, unsaddling  its rider,  and  bursting  into fields where the sign "no pasaran" is put up.      Service Rules  and the  Second Proviso  -  Challappan’s Case      Rules made  under the  proviso to  Article 309 or under Acts referable  to that  Article very  often  reproduced  in whole or  in part  the provisions  of the  second proviso to Article 311(2)  either in the same or substantially the same language or  with certain  variations.  Such  variations  at times  confer   or  have   been  interpreted  to  confer  an opportunity of  hearing to  a government  servant  which  is excluded  by  the  second  proviso.  Three  such  rules  are involved in  the matters  before us,  namely, Rule 14 of the Railway  Servants   (Discipline  and   Appeal)  Rules,  1968 (hereinafter referred  to in  short as the "Railway Servants Rules  ),   Rule  19   of   the   Central   Civil   Services (Classification,   Control    and   Appeal)    Rules,   1965 (hereinafter referred  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. 243      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 express provision of the Constitution. Therefore, rules made under the proviso to Article 309  or under Acts referable to Article 309 would be

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subject  both  to  Article  310(1)  and  Article  311.  This position was  pointed out  by Subba Rao, J., as he then was, in his  separate but  concurring judgment in Moti Ram Deka’s case at  page 734,  namely, that rules under Article 309 are subject to  the pleasure  doctrine and the pleasure doctrine is itself  subject to the two limitations imposed thereon by Article 311.  Thus, as  pointed out  in that  case, any rule which contravenes  clause (1)  or clause  (2) of Article 311 would be invalid. Where, however the second proviso applies, the only  restriction upon  the exercise  of the pleasure of the President  or  the  Governor  of  a  State  is  the  one contained in  clause(1) of Article 311. For an Act or a rule to provide  that in  a case where the second proviso applies any of  the safeguards  excluded by  that  proviso  will  be available to  a Government  servant would amount to such Act or rule  impinging upon  the pleasure  of the  President  or Governor, as  the case  may be,  and would  be void as being unconstitutional. It  is, however,  a well-settled  rule  of construction of  statutes that 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.   Such constitutionality can  be  preserved  by  interpreting  that statutory provision  as directory  and not  mandatory. It is equally well-settled  that where  a statutory  provision  is directory,  the   courts  cannot  interfere  to  compel  the performance or  punish breach  of the  duty created  by such provision and  disobedience  of  such  provision  would  not entail any  invalidity -  see Craies on Statute Law, Seventh Edition, at  page  229.  In  such  a  case  breach  of  such statutory provisions  would not  furnish any cause of action or ground  of challenge  to a  government servant for at the very threshold,  such cause of action or ground of challenge would be barred by the second proviso to Article 311(2). 244      On behalf  of the  government servants  support for the above contention  raised by  them was  sought to  be derived from Challappan’s case. Bearing in mind what has been stated above, we  will, therefore,  now examine  Challapan’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 superannuation, and that the  entire period  of  absence  from  duty  should  be treated as  period spent  on duty  under rule  54(5) of  the Fundamental Rules  for purposes of pension only, but that he

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should not  be allowed  any pay  beyond what he had actually received or  what was  allowed to  him by way of subsistence allowance during  the period  of suspension. The appellant’s writ petition  was dismissed  by the High Court. In appeal a three Judge  Bench of  this Court  allowed the  appeal.  The court  held   that  rule   54  of   the  Fundamental   Rules contemplated a  duty to  act in  accordance with  the  basic concept  of  justice  and  fair  play,  and  the  authority, therefore had  to afford  a reasonable  opportunity  to  the appellant to  show cause  why clauses (3) and (5) of rule 54 should not  be applied and at this not having been done, the order was  invalid. While discussing the scope of rule 54 of the Fundamental  Rules the  Court observed  as  follows  (at page, 358-59) :           "It is  true that  the order  under F.R.54 is in a           sense a  consequential order  in that  it would be           passed after  an order  of reinstatement  is made.           But the fact that it is a consequential order does           not determine  the question whether the government           servant has to be 245           given an  opportunity to  show cause or not. It is           also true  that in  a case  where reinstatement is           ordered   after   a   departmental   inquiry   the           government servant  would ordinarily  have had  an           opportunity to  show cause.  In such  a case,  the           authority no  doubt  would  have  before  him  the           entire record  including the  explanation given by           the government  servant from  which all  the facts           and circumstances  of the case would be before the           authority and  from which  he can form the opinion           as to  whether he has been fully exonerated or not           and in  case of suspension whether such suspension           was wholly  unjustified or not. In such a case the           order passed  under a  rule such  as  the  present           Fundamental  Rule   might  be   said   to   be   a           consequential  order   following  a   departmental           inquiry. But  there are  three classes of cases as           laid down  by the  proviso in  Article 311 where a           departmental inquiry  would not be held, viz., (a)           where a person is dismissed, removed or reduced in           rank on the ground of conduct which has led to his           conviction on  a criminal  charge; (b)  where  the           authority empowered  to dismiss or remove a person           or to  reduce him in rank is satisfied for reasons           to  be   recorded  in   writing  that  it  is  not           reasonably 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."

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    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 246 in one  of these  appeals, was  a railway-pointsman.  He was arrested  at   Olavakkot  Railway   Station   platform   for disorderly,  drunken   and  indecent   behaviour   and   was prosecuted and  convicted under  section 51(a) of the Kerala Police Act.  Instead of  sentencing him, the sub-magistrate, Palghat, released  him on  probation under  section  of  the Probation of  Offenders Act, 1958. Thereafter he was removed from  service   by  the   disciplinary  authority   of   the Department, without holding any inquiry, on the basis of his conviction in  the said  criminal case. The order of removal from service  was made  under clause  (i) of  rule 14 of the Railway Servants  Rules. The  Kerala High Court held that as no penalty  was imposed  upon him, clause (i) of rule 14 did not in terms apply, and allowed his writ petition. So far as the other  two railway  employees were  concerned,  one  was convicted under  section 3 of the Railway Property (Unlawful Possession) Act,  1966, and  the other  under section 420 of the Indian  Penal  Code.  Both  of  them  were  released  on probation and were similarly removed from railway service.      The Railway  Servants  Rules  have  been  made  by  the President in exercise of the powers conferred by the proviso to Article  309. Rule 6 specifies the penalties which can be imposed upon  a railway servant. These penalties are divided into minor  penalties and  major penalties.  Major penalties include  removal   from  service   which  is  not  to  be  a disqualification for  future employment under the Government or railway  administration and  dismissal from service which is ordinarily to be a disqualification for future employment under the  Government or  railway administration. Under sub- rule (1)  of Rule  7, the  President may  impose any  of the penalties specified  in Rule  6 on  any railway servant. Sub rule (2)  of Rule  7 states  that without  prejudice to  the provisions of  sub-rule (1),  any of the penalties specified in Rule  6 may  be imposed  on  a  railway  servant  by  the authorities specified  in Schedules,  I, II  and III  to the Railway Servants  Rules. Rules 9 and 10 prescribe a detailed procedure  for   imposing  major  penalties  while  Rule  11 prescribes  the  procedure  for  imposing  minor  penalties. Originally, sub-rule  (5) of  Rule 10 required that a notice be given  to a  railway servant informing him of the penalty proposed  to   be  imposed   upon  him  and  giving  him  an opportunity of  making  a  representation  on  the  proposed penalty on  the basis  of the  evidence adduced  during  the inquiry held  under Rule  9. The  whole of that 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 247 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

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         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 is not           expedient  to   hold  an  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." Clause (b)  of Rule  2 of the Railway Servants Rules defines the word  "Commission" as  meaning the "Union Public Service Commission."      Rule 17  of the  Railway Servants  Rules sets  out  the orders against  which no  appeal lies.  Under that  rule, no appeal inter  alia  lies  against  any  order  made  by  the President. Under  Rule 18, subject to the provisions of Rule 17, an  appeal inter alia lies against an order imposing any of the  penalties specified  in Rule  6, whether made by the disciplinary authority  or by  any  appellate  or  reviewing authority. Rule 20 prescribes a period of limitation 248 for filing  an appeal.  The appellate authority is, however, 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. Rule 22 (2) provides as follows :           "(2) In  the case  of an  appeal against  an order           imposing any  of the penalties specified in Rule 6           or enhancing  any penalty  imposed under  the said           rule, the appellate authority shall consider           (a) whether the procedure laid down in these rules           has been  complied with,  and if not, whether such           non-compliance has  resulted in  the violation  of           any provisions  of the Constitution of India or in           the failure of justice;           (b)  whether  the  findings  of  the  disciplinary           authority are  warranted by  the evidence  on  the           record; and           (c) whether  the penalty  or the  enhanced penalty           imposed is  adequate, inadequate  or  severe;  and           pass orders           (i) confirming,  enhancing,  reducing  or  setting           aside the penalty: or           (ii) remitting  the case  to the  authority  which           imposed or  enhanced the  penalty or  to any other           authority with  such directions as it may deem fit           in the circumstances of the case.           X     X         X   X       X         X       X" Rule 25  confers power  upon (i) the President, (ii) Railway Board, (iii)  the General  Manager of  a Zonal Railway or an authority of  that status  in  any  other  Railway  Unit  or Administration in  the case  of a  railway  servant  serving under him  or its  control, (iv) the appellate authority not below  the  rank  of  a  Deputy  Head  of  Department  or  a Divisional Railway Manager in cases where no appeal has been preferred, or  (v) any other authority not below the rank of

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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 :- 249           "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  revision is  not subject  to any time-limit. Rule  25-A confers  power upon  the President at any time either on his own motion or otherwise to review any order passed  under the  Railway Servants Rules when any new material or  evidence which could not be produced or was not available at  the time of passing the order under review and which has  the effect of changing the nature of the case has come or  has been  brought to  his notice. Rules 25 and 25-A were substituted  by the  Railway Servants  (Discipline  and Appeal)(First Amendment)  Rules, 1983, for the original Rule 25 which  provided for  a view  in somewhat similar terms as the present Rule 25.      In Challappan’s  case the Kerala High Court allowed the writ petitions filed before it solely on the ground that the orders of  the Magistrate  releasing the  concerned  railway servants on  probation  did  not  amount  to  imposition  of penalty as  contemplated by  Rule 14 of the Railway Servants Rules. Reversing  that view  this Court  held that  the word "penalty" in  clause (i)  of Rule 14 of the Railway Servants Rules does  not refer  to a sentence awarded by the Court to the accused  on his  conviction but  it merely indicates the nature  of   the  penalty  impossible  by  the  disciplinary authority if  the delinquent  employee has been found guilty of conduct  which has  led to  his conviction  on a criminal charge. The Court observed (at pages 789-790) : 250           "The view  of the  Kerala High  Court,  therefore,           that as  the Magistrate  released  the  delinquent           employee on  probation no  penalty was  imposed as           contemplated by  rule 15  (i) of the Rules of 1968           does not  appear to  us to  be legally correct and           must be  overruled. Nevertheless  we would  uphold           the order of the Kerala High Court, on the ground,           that the last part of rule 14 of the rules of 1968           which   requires    the   consideration   of   the           circumstances not having been complied with by the           disciplinary authority,  the order of removal from           service of  the delinquent  employee  was  rightly           quashed." The Court  pointed out  that clause  (i) of  Rule 14  merely sought to  incorporate the  principle embodied in clause (a)

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of the  second proviso.  The Court  in  the  course  of  its judgment reproduced  the provisions of clause (2) of Article 311 alongwith  clause (a)  to the  proviso thereto,  at that time clause (2) of Article 311 in force being that clause as amended by the Constitution (Fifteenth Amendment) Act, 1963, that  is,   clause  (2)   prior  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 considered the extent and ambit of the  last   part  of   Rule  14,  namely,  the  phrase  "the disciplinary authority may consider the circumstances of the case and  make such  orders there  on as  it deems  fit" and stated its conclusions as follows (at pages 795-97) : 251           "The   word    ‘consider’   has   been   used   in           contradiction to  the word  ‘determine’. The rule-           making  authority   deliberately  used   the  word           ‘consider’ and  not ‘determine’  because the  word           ‘determine’ has  a  much  wider  scope.  The  word           ‘consider’ merely  connotes that  there should  be           active application of the mind by the disciplinary           authority    after    considering    the    entire           circumstances of  the case  in order to decide the           nature and  extent of the penalty to be imposed on           the delinquent  employee on  his conviction  on  a           criminal charge.  This matter  can be  objectively           determined only  if  the  delinquent  employee  is           heard  and  is  given  a  chance  to  satisfy  the           authority regarding  the final  orders that may be           passed by  the said authority. In other words, the           term ‘consider’  postulates consideration  of  all           the aspects, the pros and cons of the matter after           hearing the  aggrieved  person.  Such  an  inquiry           would be  a summary  inquiry to  be  held  by  the           disciplinary   authority    after   hearing    the           delinquent employee.  It is  not at  all necessary           for the  disciplinary authority  to order  a fresh           departmental inquiry which is dispensed with under           rule 14  of the  Rules of  1968 which incorporates           the principle  contained in Article 311(2) proviso           (a).  This   provision  confers   power   on   the           disciplinary authority  to decide  whether in  the           facts and  circumstances of a particular case what           penalty, if  at  all  should  be  imposed  on  the           delinquent  employee.   It  is   obvious  that  in           considering this matter the disciplinary authority           will have  to take into account the entire conduct

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         of the  delinquent employee,  the gravity  of  the           misconduct committed  by him, the impact which his           misconduct is  to have  on the  administration and           other extenuating  circumstances or  redeeming the           features if  any present in the case and so on and           so forth.  It may  be that  the conviction  of  an           accused may  be for  a trivial  offence as  in the           case of  the respondent  T.R. Challappan  in Civil           Appeal No. 1664 of 1974 where a stern warning or a           fine  would  have  been  sufficient  to  meet  the           exigencies of  service. It  is possible  that  the           delinquent employee  may be  found guilty  of some           technical offence,  for instance, 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 252           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           possible. This  appears to  us to be the scope and           ambit of  this provision. We must, however, hasten           to add  that we should not be understood as laying           down that the last part of rule 14 of the Rules of           1968 contains  a licence to employees convicted of           serious offences  to insist  on reinstatement. The           statutory  provision   referred  to  above  merely           imports a  rule of  natural justice  in  enjoining           that before  taking final action in the matter the           delinquent  employee   should  be  heard  and  the           circumstances  of  the  case  may  be  objectively           considered. This  is in  keeping with the sense of           justice and  fair-play. The disciplinary authority           has  the   undoubted  power   after  hearing   the           delinquent   employee    and    considering    the           circumstances of  the case  to inflict  any  major           penalty on  the  deinquent  employee  without  any           further departmental  inquiry if  the authority is           of the  opinion that  the employee has been guilty           of a  serious offence  involving  moral  turpitude           and, therefore,  it is  not desirable or conducive           in the  interests of administration to retain such           a person in service.           Mr.  S.N.Prasad   appearing  for   the  appellants           submitted that  it may  not be  necessary for  the           disciplinary authority  to hear  the  accused  and

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         consider the  matter where  no provision like rule           14 exists, because in 253           such cases  the Government can, in the exercise of           its executive powers, dismiss, remove or reduce in           rank any  employee who  has been  convicted  of  a           criminal charge by force of proviso (a) to Article           311(2) of  the Constitution.  In other  words, the           argument was  that to  cases where  proviso (a) to           Article 311(2)  applies a  departmental inquiry is           completely dispensed  with  and  the  disciplinary           authority  can   on  the   doctrine  of   pleasure           terminate     the  services   of  the   delinquent           employee. We  however, refrain from expression any           opinion on  this aspect  of the matter because the           cases of  all the  three respondents before us are           cases which  clearly fall  within rule  14 of  the           rules of  1968 where  they have  been removed from           service without  complying with  the last  part of           rule 14  of the  Rules of 1968 as indicated above.           In  none   of  the   cases  has  the  disciplinary           authority either  considered the  circumstances or           heard the  delinquent  employees  on  the  limited           point as  to the  nature and extent of the penalty           to be  imposed if at all. On the other hand in all           these  cases   the  disciplinary   authority   has           proceeded  to  pass  the  order  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.  It is,  however, not  possible to  agree with approach  adopted in  Challappan’s case  in considering Rule 14 of the Railway Servants Rules in isolation 254 and apart  from the  second proviso  to Article  311(2), nor with  the   interpretation  placed   by  it  upon  the  word "consider" in  the last  part of Rule 14. Neither Rule 14 of the Railways  Servants Rules  nor a  similar rule  in  other service rules can be looked at apart from the second proviso to Article  311(2). The authority of a particular officer to act as  a disciplinary  authority and  to impose  an penalty upon a  government servant  is derived from rules made under the proviso to Article 309 or under an Act referable to that Article. As  pointed out earlier, these rules cannot impinge upon the  pleasure of  the President  or the  Governor of  a State, as  the case  may be,  because they  are  subject  to Article 310(1). Equally, they cannot restrict the safeguards

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provided by  clauses (1)  and (2)  of Article  311 as such a restriction would be in violation of the provisions of those clauses.  In   the  same   way,  they  cannot  restrict  the exclusionary impact of the second proviso to Article 311 (2) because that  would be  to impose  a  restriction  upon  the exercise of  pleasure under  Article 310(1) which has become free of  the restrictions  placed upon  it by  clause (2) of Article 311 by reason of the operation of the second proviso to that clause. The only cases in which a government servant can be  dismissed, removed  or reduced  in rank  by  way  of punishment  without   holding  an  inquiry  contemplated  by clause(2) of  Article 311  are the  three cases mentioned in the second proviso to that clause. A rule which provides for any other  case in which any of these three penalties can be imposed  would   be  unconstitutional.   Service  rules  may reproduce the  provisions of  the second proviso authorizing the disciplinary  authority to  dispense  with  the  inquiry 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 rule,  however, cannot  be valid  and constitutional without  reference to  the second  proviso to Article 311(2) and cannot be read apart from it. Thus, while the source  of authority of a particular officer to act as a disciplinary authority  and to  dispense with the inquiry is derived from  the service  rules, the source of his power to dispense with the inquiry is derived from the second 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 255 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 be unilateral but must be after  hearing the delinquent government servant. If such were the  correct meaning  of the  word "consider", it would render this  part of Rule 14 unconstitutional as restricting the full  exclusionary operation  of the second proviso. The word "consider",  however, does  not bear the meaning placed upon it in Challappan’s case. The word "consider" is used in Rule 14  as a  transitive verb.  The  meaning  of  the  word "consider" as  so  used  is  given  in  the  Oxford  English Dictionary as  "To contemplate  mentally, fix the mind upon; to think  over, meditate  or reflect  on,  bestow  attentive thought upon,  given heed  to, take  note of."  The relevant definition of  the word  "consider" given in Webster’s Third New International  Dictionary is "to reflect on: think about with a degree of care of caution". Below this definition are given the  synonyms of  the word  "consider", these synonyms being  "contemplate,  study,  weigh,  revolve,  excogitate". While explaining  the exact  different shades  of meaning in

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this group  of words, Webster’s Dictionary proceeds to state as under with respect to the word "consider".           "CONSIDER often  indicates little  more than think           about. It  may occasionally  suggest somewhat more           conscious direction  of thought,  somewhat greater           depth   and    scope,   and    somewhat    greater           purposefulness." It is  thus obvious that the word "consider" in its ordinary and natural  sense is not capable of the meaning assigned to it in  Challappan’s case. The consideration under Rule 14 of what penalty  should be  imposed upon  a delinquent  railway servant  must,   therefore,  be   ex  parte  and  where  the disciplinary authority  comes to  the  conclusion  that  the penalty which  the  facts  and  circumstances  of  the  case warrant is  either of  dismissal or  removal or reduction in rank, no  opportunity of  showing cause against such penalty proposed to  be imposed  upon him  can be  afforded  to  the delinquent government servant. Undoubtedly, the disciplinary authority  must   have  regard   to  all   the   facts   and circumstances of the case as set out in Challapan’s case. As pointed out 256 earlier, considerations of fair play and justice requiring a hearing to  be given to a government servant with respect to the penalty  to be  imposed upon  him do  not enter into the picture when the second proviso to Article 311(2) comes into play and  the same  would be  the position  in the case of a service rule  reproducing the  second 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 question  was   raised,  namely,  the  three  Civil  Appeals mentioned earlier,  an order  of reference to a larger Bench was  made   on  November   18,  1976.   The  correctness  of Challappan’s case  was, therefore,  doubted  from  the  very beginning.      The next  service rule which falls for consideration in these matters  is Rule  19 of  the Civil Services Rules. The Civil Services  Rules are  also made  under the  proviso  to Article  309.   The  scheme   of  these   rules  so  far  as disciplinary proceedings  are concerned  is very  similar to that of  the Railway  Servants Rules.  Rule 11 specifies the penalties which  can be  imposed on  a  government  servant. These penalties  are divided  into minor penalties and major penalties. Clauses (i) to (iv) of that rule specify what the minor penalties are while clauses (v) to (viii) specify what the  major   penalties  are.  The  major  penalties  include

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compulsory retirement,  removal from service which is not to be  a  disqualification  for  future  employment  under  the Government and dismissal from service which is ordinarily to be  a  disqualification  for  future  employment  under  the Government. Rules 14 and 15 257 prescribe the procedure to be followed where a major penalty is to  be imposed while Rule 16 prescribes the procedure for imposing a  minor penalty. Previously, under sub-rule (4) of Rule 15 the government servant was also to be given a notice of the  penalty proposed  to be  imposed  upon  him  and  an opportunity of  making representation  with respect  to such proposed penalty.  However, by Government of India, Ministry of Home  Affairs  (Deptt.  of  Personnel  &  Admn.  Reforms) Notification No.  11012/2/77 -  Ests. dated August 18, 1978, sub-rule (4)  was substituted  by a new sub-rule to bring it in conformity  with the  amendment made  in  clause  (2)  of Article 311  by the  Constitution  (Forty-second  Amendment) Act, and  the opportunity to show cause against the proposed penalty was done away with. Rule 19 Provides as follows           "19. Special procedure in certain cases.           Notwithstanding anything  contained in  rule 14 to           rule 18-           (i) where  any penalty  is imposed  on  Government           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 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 258 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 procedure laid down in these rules           has been  complied with,  and if not, whether such           noncompliance has resulted in the violation of any           provisions of  the Constitution of India or in the           failure of justice;           (b)  whether  the  findings  of  the  disciplinary           authority are  warranted by  the evidence  on  the           record; and

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         (c) whether  the penalty  or the  enhanced penalty           imposed is  adequate, inadequate  or  severe;  and           pass orders -           (i) confirming,  enhancing,  reducing  or  setting           aside the penalty; or           (ii) remitting  the case  to the  authority  which           imposed or  enhanced the  penalty or  to any other           authority with  such direction  as it may deem fit           in the circumstances of the case.           X     X    X    X    X Rule 29  provides for  a right  of  revision.  Under  it  an application for  revision is  to be  dealt with  in the same manner as  if it  were an  appeal under  the Civil  Services Rules. Rule  29-A confers  upon the  President  a  power  of review similar to Rule 25-A of the Railway Servants Rules.      It will  be noticed that the language of Rule 19 of the Civil Services  Rules is  identical with  that of Rule 14 of the Railway 259 Servants Rules  and the  interpretation of  Rule 19  of  the Civil Services  Rules would be the same as that placed by us upon Rule 14 of the Railway Servants Rules.      The rule  which now remains to be considered is Rule 37 of the  CISF Rules.  The CISF  Rules have  been made  by the Central Government  in pursuance  of the  power conferred by section 22(1)  of the Central Industrial Security Force Act, 1968 (Act  No. 50 of 1968) (hereinafter referred to in short as "the  CISF Act").  Section 22(1)  of the CISF Act confers upon the  Central Government  the power  to make  rules  for carrying out  the purposes  of that  Act. Sub-section (2) of Section 22 inter alia provides as follows:           "(2) In  particular, and  without prejudice to the           generality of the foregoing powers, such rules may           provide for-           (a) regulating the classes, ranks, grades, pay and           remuneration of  supervisory officers  and members           of the  Force and  their conditions  of service in           the Force;           X     X    X    X    X    X           (g) regulating  the  punishments  and  prescribing           authorities to  whom appeals  shall  be  preferred           from orders of punishment or remission of fines or           other  punishments,   and  the   procedure  to  be           followed for the disposal of such appeals;           X    X    X    X    X    X      Before we  turn to  the CISF  Rules, it is necessary to refer to certain other provisions of the CISF Act. Section 3 of  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 : 260           "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-

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         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  of Article  311 of the           Constitution and  to such  rules  as  the  Central           Government  may   make   under   this   Act,   any           supervisory officer may -           (i) dismiss,  suspend or reduce in rank any member           of the Force whom he thinks remiss or negligent in           the discharge  of his duty, or unfit for the same;           or           X            X                X              X."           "9. Appeal and revision. -           (1) Any  member of the Force aggrieved by an order           made under  Section 8 may, within thirty days from           the date  on which  the order  is communicated  to           him, prefer  an appeal  against the  order to such           authority as may be prescribed, and subject to the           provisions of  sub-section(3), the decision of the           said authority thereon shall be final :           Provided  that   the  prescribed   authority   may           entertain the  appeal after the expiry of the said           period of thirty days, if it is satisfied that the           appellant was  prevented by  sufficient cause from           filing the appeal in time.           (2) In  disposing of  an  appeal,  the  prescribed           authority shall  follow such  procedure as  may be           prescribed. 261           (3)  The  Central  Government  may  call  for  and           examine the record of any proceeding under Section           8 or  under sub-section(2) of this section and may           make such inquiry or cause such inquiry to be made           and subject  to the  provisions of  this Act,  may           pass such order thereon as it thinks fit:           Provided  that   no  order  imposing  an  enhanced           penalty  under  sub-section(2)  or  sub-section(3)           shall be  made unless  a reasonable opportunity of           being heard  has been given to the person affected           by such order."      We now  turn to  the relevant  CISF  Rules.  Rule  29-A specifies the  disciplinary authorities.  Rule 31  specifies the penalties  which may  be imposed  on a member of the CIS Force.  Amongst  these  penalties  are  dismissal,  removal, compulsory retirement  and reduction  to a  lower  class  or grade or  rank or  to a lower time-scale or to a lower stage in the time-scale of pay. CIS Rules do not specify which out of  the  penalties  specified  in  Rule  31  are  the  major penalties and  which are  minor penalties but as these terms are  well   understood  in  service  jurisdiction  the  same classification as  in  the  Civil  Services  Rules  and  the Railway Servants  Rules will  apply here. Rule 34 prescribes the detailed procedure for imposing major penalties and Rule 35 prescribes  the procedure  for imposing  minor penalties. Rule 32  specifies what are described as "petty punishments" to be  awarded ordinarily in Orderly Room for petty breaches 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

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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 : 262           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 be imposed". Rule 42  provides for  a right  of appeal  in the case of an order imposing  any of  the penalties  specified in Rule 31. Rule 42-A  prescribes the period of limitation for filing an appeal. The  appellate authority,  however, has the power to condone the  delay in  filing an  appeal if  it is satisfied that the  appellant had  sufficient cause for not submitting the appeal  in time.  Sub- rule(2)  of Rule  47 provides  as follows :           "47. Consideration of appeals -           X         X         X           (2) In  the case  of an  appeal against  an  order           imposing any  of the  penalties specified  in rule           31, the appellate authority shall consider -           (a) whether  the  procedure  prescribed  in  these           rules has  been complied with, and if not, whether           such non-compliance  has resulted  in violation of           any provisions  of the  Constitution or in failure           of justice;           (b) whether the findings are justified; and           (c) whether  the  penalty  imposed  is  excessive,           adequate or inadequate; and pass orders;           (i)  setting   aside,  reduction,   confirming  or           enhancing the penalty;           (ii) remitting  the case  to the  authority  which           imposed the  penalty; or  to any  other  authority           with such 263           direction as  it may deem fit in the circumstances           of the case :           X         X         X Rule 49  provides for  suo  motu  revision.  It  inter  alia enables the  revising authority to take further evidence and provides that  the provisions of Rule 47 relating to appeals shall apply so far as may be to orders in revision.      It will  be noticed  that  Rule  37,  except  the  last paragraph thereof,  is in  pari materia  with Rule 14 of the Railway Servants  Rules and  Rule 19  of the  Civil Services Rules with  this difference  that a provision akin to clause (iii) of  Rule 14  of the  Railway Servants Rules and clause (iii) of  Rule 19  of the  Civil Services Rules is not to be found in  Rule 37 of the CISF Rules. The same interpretation

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as placed  by us on the word "consider" occurring in Rule 14 of the  Railway Servants  Rules and  Rule 19  of  the  Civil Services Rules  must, therefore,  be placed  upon  the  word "consider" in  Rule 37 of the CISF Rules. The last paragraph of Rule  37 of the CISF Rules is peculiar to itself and does not find a place either in the said Rule 14 or the said Rule 19. It is clumsily worded and makes little sense. To provide that a  member of  the CIS  Force who  has been convicted to rigorous  imprisonment   on  a  criminal  charge  "shall  be dismissed from service" and at the same time to provide that "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. 264      A conspectus  of the  above service  rules and the CISF Act shows  that a government servant who has been dismissed, removed or  reduced  in  rank  without  holding  an  inquiry because his case falls under one of the three clauses of the second proviso  to Article  311(2) or  a  provision  of  the service rules  analogous thereto  is not  wholly  without  a remedy. He  has a remedy by way of an appeal, revision or in some cases  also by way of review. Sub-clause (ii) of clause (c) of  the first  proviso of  Rule  25(1)  of  the  Railway Servants Rules  expressly provides  that in  the case  of  a major penalty  where an  inquiry  has  not  been  held,  the revising authority  shall itself hold such inquiry or direct such inquiry  to be  held. This is, however, made subject to the provisions of Rule 14 of the Railway Servants Rules. The other service  rules referred  to above not appear to have a similar provision  nor does  the Railway Servants Rules make the same  provision in the case of an appeal. Having regard, however, to  the factors  to be  taken into consideration by the appellate  authority which  are set  out in  the service rules  referred   to  above  a  provision  similar  to  that contained in  sub-clause (ii)  of  clause(c)  of  the  first proviso to  Rule 25(1)  of the Railway Servants Rules should be read  and imported into provisions relating to appeals in the Railway  Servants Rules  and in  the other service rules and also in the provisions relating to revision in the other service rules.  This would,  of course,  be subject  to  the second proviso  to Article  311(2), Rule  14 of  the Railway Servants Rules  Rule 19 of the Civil Services Rules and Rule 37 of  the CISF  Rules. Thus,  such a  right to  an  inquiry cannot be  availed of where clause (a) to the second proviso of Article 311(2) or a similar provision in any service rule applies in  order to  enable a government servant to contend that he was wrongly convicted by the criminal court. He can, however, contend  that in the facts and circumstances of the case, the  penalty imposed  upon him  is too  severe  or  is

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excessive. He  can also  show that  he is  not in  fact  the government servant  who was  convicted on  a criminal charge and that  it is  a case  of mistaken identity. Where it is a case falling  under clause(b)  of the  second proviso  or  a provision  in  the  service  rules  analogous  thereto,  the dispensing with  the inquiry  by the  disciplinary authority was the  result of the situation prevailing at that time. If the situation  has changed  when the  appeal or  revision is heard, the  government servant  can claim to have an inquiry 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 265 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 interest of  the security  of the State would be that of the President or the Governor, the selection of one of the three penalties mentioned  in Article  311(2) as  being the proper penalty  to   be  imposed   would  be  of  the  disciplinary authority. The satisfaction of the President or the Governor cannot  be   challenged  in   appeal  or  revision  but  the government servant  can in  appeal or  revision ask  for  an inquiry to  be held  into his alleged conduct unless even at the time  of the  appeal or  revision, the  interest of  the security of  the State  makes it inexpedient to hold such an inquiry. Of  course, no  such right  would be available to a government servant where the order imposing penalty has been made by  the President  or the  Governor of  a State, as the case may be.      Executive Instructions and the Second Proviso      In  the  course  of  the  arguments  certain  executive instructions issued by the Government of India were referred to and  relied upon on behalf of the government servants. It is unnecessary to deal with these instructions in detail. At the highest  they contain  the opinion  of the Government of India on  the scope  and effect  of the  second  proviso  to Article 311(2)  and cannot  be binding  upon the  Court with respect to  the interpretation  it should  place  upon  that proviso.  To  the  extent  that  they  may  liberalized  the exclusionary effect  of the  second proviso they can only be taken as  directory. Executive  instruction stand on a lower footing than a statutory rule for they do not have the force of a  statutory rule.  If an  Act or  a rule cannot alter or liberalized the  exclusionary effect  of the second proviso, executive instructions can do so even much less. 266      Omission to  Mention the  Relevant Clause of the Second Proviso or the Relevant Service Rule in the Impugned Orders      Some of the orders impugned before us refer only to one

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or the  other of  the three clauses of the second proviso to Article  311(2)  for  dispensing  with  an  inquiry  without referring to the relevant service rule, some refer both to a clause of  the second proviso and the relevant service rule, while the  others refer  only to  the relevant  service rule without making  any mention  of the particular clause of the second proviso  which has  been  applied.  The  question  is whether the omission to mention the particular clause of the second proviso  or  the  relevant  service  rule  makes  any difference.      As pointed  out earlier,  the source  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 statutory or constitutional, and the order refers  to only one of them, the validity of the order should be  upheld by  construing it as an order passed under both those  provisions. Further, even the mention of a wrong provision or  the omission  to mention  the provision  which contains the  source of  power will  not invalidate an order where the  source of such power exists. (See Dr. Ram Manohar Lohia v.  State of  Bihar and others [1966] 1 S.C.R. 709,721 and The  Municipal Corporation  of the  City of Ahmedabad v. Ben Hiraben Manilal [1983] 2 S.C.R. 676,681. The omission to mention in  the impugned  orders the  relevant clause of the second proviso  or  the  relevant  service  rule  will  not, therefore, have the effect of invalidating 267 the orders  and the  orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read  with the  relevant  service  rule.  It  may  be mentioned that  in none of the matters before us has it been contended that  the disciplinary  authority which passed the impugned order was not competent to do so.      The Second Proviso - Clause (a)      Not much  remains to  be said  about clause  (a) of the second proviso  to Article  311(2). To recapitulate briefly, where  a   disciplinary  authority  comes  to  know  that  a government servant  has been convicted on a criminal charge, it must  consider whether  his conduct  which has led to his conviction was  such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have  to peruse  the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan’s case. This, however, has to  be done  by it  ex parte  and by  itself.  Once  the disciplinary  authority  reaches  the  conclusion  that  the government servant’s  conduct was  such as  to  require  his

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dismissal or  removal from  service or  reduction in rank he must decide which of these three penalties should be imposed on him.  This too it has to do by itself and without hearing the  concerned   government  servant   by  reason   of   the exclusionary effect  of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge  does not  automatically  entail  dismissal, removal or  reduction in  rank of  the concerned  government servant. Having  decided which  of these  three penalties is required to  be imposed, he has to pass 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 268 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 of dismissal  from service  imposed upon  the appellant  was whimsical and ordered his reinstatement in service with full back wages.  It is,  however, not  necessary that  the Court should always  order reinstatement.  The Court  can  instead substitute a  penalty which in its opinion would be just and proper in the circumstances of the case.      The Second Proviso - Clause (b)      The main  thrust of the arguments as regards clause (b) of the  second proviso  to Article  311(2) was that whatever the  situation  may  be  minimal  inquiry  or  at  least  an opportunity to  show cause  against the  proposed penalty is always feasible  and is  required by law. The arguments with respect to  a minimal  inquiry were  founded on the basis of the applicability  of  Article  14  and  the  principles  of natural  justice  and  the  arguments  with  respect  to  an opportunity to  show cause against the proposed penalty were in addition  founded upon the decision in Challappan’s case. These contentions have already been dealt with and negatived by us  and we have further held that Challappan’s case in so far as  it held  that a  government servant  should be heard before imposing a penalty upon him was wrongly decided.      The  next  contention  was  that  even  if  it  is  not reasonably practicable  to hold  an  inquiry,  a  government servant can  be placed  under suspension until the situation improves and  it becomes  possible to hold the inquiry. This contention also  cannot be  accepted. Very often a situation which makes it not reasonably practicable to hold an inquiry is of  the creation  of  the  concerned  government  servant himself or  of himself  acting in  concert with others or of his associates.  It can  even be  that he  himself is  not a party to  bringing about  that situation.  In all such cases neither public interest nor public good requires that salary or subsistence  allowance should be continued to be paid out

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of the public exchequer to the concerned government servant. It should  also be  borne in  mind that  in the  case  of  a serious situation  which renders  the holding  of an inquiry not reasonably practicable, it would be difficult to foresee how long  the situation  will last  and when  normalcy would return or  be restored. It is impossible to draw the line as to the  period of  time  for  which  the  suspension  should continue and  on the  expiry of that period action should be taken under clause (b) of the second proviso. 269 Further, the  exigencies of  a situation  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 trouble- makers 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  "impracticable".  According  to  the Oxford English  Dictionary "practicable"  means "Capable  of being put  into practice,  carried out  in action, effected, accomplished,  or   done;  feasible".  Webster’s  Third  New International  Dictionary  defines  the  word  "practicable" inter alia  as meaning  "possible to  practice or  perform : capable of  being put  into practice, done or accomplished : feasible". Further, the words used are not "not practicable" but  "not   reasonably  practicable".  Webster’s  Third  New International Dictionary  defines the  word "reasonably"  as "in a  reasonable manner  : to  a fairly sufficient extent". Thus, whether  it was practicable to hold the inquiry or not must be  judged in  the context of whether it was reasonably practicable to  do  so.  It  is  not  a  total  or  absolute impracticability which  is required  by clause  (b). What is requisite  is  that  the  holding  of  the  inquiry  is  not practicable in  the opinion  of a  reasonable man  taking  a reasonable view  of the  prevailing  situation.  It  is  not possible to  enumerate the  cases in  which it  would not be reasonably  practicable   to  hold  the  inquiry,  but  some instances by  way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government  servant, particularly  through  or  together with his  associates, so terrorizes, threatens or intimidate witnesses who  are going  to given evidence against him with fear of  reprisal as  to prevent them from doing so or where the government servant by himself or 270 together with  or through  other threatens,  intimidates and terrorizes the  officer who is the disciplinary authority or member of  his family  so that  he is  afraid  to  hold  the inquiry or  direct it  to be  held. It  would  also  not  be reasonably  practicable   to  hold   the  inquiry  where  an atmosphere  of  violence  or  of  general  indiscipline  and

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insubordination prevails,  and it  is immaterial whether the concerned government  servant  is  or  is  not  a  party  to bringing about  such an  atmosphere. In  this connection, we must bear  in mind  that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry  is a  matter of  assessment to  be made  by  the disciplinary authority.  Such authority  is generally on the spot  and  knows  what  is  happening.  It  is  because  the disciplinary authority  is  the  best  judge  of  this  that clause(3)  of   Article  311   makes  the  decision  of  the disciplinary   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 appellant saying that his explanation was not convincing and that another  chance was  being given  to him  to offer  his explanation with  respect to  those charges.  The  appellant submitted his  further explanation  but on the very next day the Deputy  Chief Commercial  Superintendent passed an order dismissing him  on the  ground that  he was  not fit  to  be retained in  service.  This  Court  struck  down  the  order holding that  seven out  of twelve  charges related  to  the conduct of  the appellant  with the  Deputy Chief Commercial Superintendent who  was the  disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would  have  been  the  Deputy  Chief  Commercial Superintendent himself,  resulting in  the same person being the main  accuser, the  chief witness  and also the judge of the matter. 271      It was  submitted that  where a  delinquent  government servant  so   terrorizes  the  disciplinary  authority  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.  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  the administrative work carried out by senior  officers should be paralysed because a delinquent government servant  either  by  himself  or  along  with  or through  others   makes  the   holding  of  an  inquiry  not reasonably practicable.      It is  not necessary  that a  situation which makes the holding of  an inquiry  not  reasonably  practicable  should exist before the disciplinary inquiry is initiated against a government servant.  Such a  situation can  also  come  into existence subsequently  during he  course of an inquiry, for instance, after  the service  of  a  charge-sheet  upon  the

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government  servant  or  after  he  has  filed  his  written statement thereto  or even  after evidence  has been  led in part. In  such a  case also the disciplinary authority would be entitled  to apply  clause  (b)  of  the  second  proviso because the  word "inquiry"  in that clause includes part of an inquiry.  It would  also not be reasonably practicable to afford to  the government  servant an opportunity of hearing or further  hearing,  as  the  case  may  be,  when  at  the commencement of  the inquiry  or pending  it the  government servant  absconds   and  cannot   be  served   or  will  not participate in  the inquiry.  In such cases, the 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. 272      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 would be usual to record the reason separately and then consider  the question of the penalty to be imposed and pass the  order imposing  the penalty. It would, however, be better to  record the  reason in the final order in order to avoid the  allegation that  the reason  was not  recorded in writing before  passing the final order but was subsequently fabricated. The  reason for dispensing with the inquiry need not contain  detailed particular, but the reason must not be vague or  just a repetition of the language of clause (b) of the second  proviso. For instance, it would be no compliance with the  requirement of  clause (b)  for  the  disciplinary authority simply  to state that he was satisfied that it was not reasonably  practicable to hold any inquiry. Sometimes a situation may  be such that it is not reasonably practicable to give  detailed reasons  for dispensing  with the inquiry. This would  not, however,  per se invalidate the order. Each case must  be judged  on its  own merits and in the light of its own facts and circumstances.      It was  vehemently contended  that if  reasons are  not recorded in  the final  order, they  must be communicated to the concerned  government servant to enable him to challenge the validity  of that  reasons in  a departmental  appeal or before a  court of  law and  the failure  to communicate the reasons would  invalidate the  order.  This  contention  too cannot be accepted. The constitutional requirement in clause (b) is  that the  reason for  dispensing  with  the  inquiry should be  recorded in  writing. There  is no  obligation to communicate the  reason to the government servant. As clause (3) of  Article 311  makes the  decision of the disciplinary authority on  this  point  final,  the  question  cannot  be agitated in  a departmental  appeal, revision or review. The

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obligation to  record the  reason in  writing is provided in clause  (b)  so  that  the  superiors  of  the  disciplinary authority may  be able  to judge  whether such authority had exercised its  power under clause (b) properly or not with a view to  judge the  performance and capacity of that officer for the  purposes of  promotion etc.  It would,  however, be better for  the disciplinary authority to communicate to the government  servant  its  reason  for  dispensing  with  the inquiry  because  such  communication  would  eliminate  the possibility of  an allegation  being made  that the  reasons have been  subsequently fabricated. It would also enable the government servant  to approach the High Court under Article 226 or, in 273 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  non- production 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 contradiction  in terms.  If an  inquiry into  the charges against  a  government  servant  is  not  reasonably practicable, it  stands to  reason that  an inquiry into the question  whether   the  disciplinary   inquiry  should   be dispensed with or not is equally not reasonably practicable.      A government servant who has been dismissed, removed or reduced in  rank by  applying to  his case  clause (b) or an analogous provisions of a service rule is not wholly without a remedy.  As pointed  out earlier  while dealing  with  the various service rules, he can claim in a departmental appeal or revision  that an  inquiry be  held with  respect to  the charges on  which  the  penalty  of  dismissal,  removal  or reduction in  rank has been imposed upon him unless the same or a  similar situation  prevails at  the time of hearing of the appeal or revision application. If the same situation is continuing or  a similar situation arises, it would not then be reasonably  practicable to hold an inquiry at the time of the hearing of the appeal or revision. Though in such a case as the  government servant  if  dismissed  or  removed  from service, is  not continuing  in service  and if  reduced  in rank, is  continuing in  service with  such reduced rank, no prejudice  could   be  caused   to  the  Government  or  the Department  if   the  hearing   of  an  appeal  or  revision application,  as  the  case  may  be,  is  postponed  for  a reasonable time.      Where a  government servant  is dismissed,  removed  or reduced 274 in rank  by applying clause (b) or an analogous provision of the service  rules and  the approaches either the High Court under Article  226 or this Court under Article 32, the court

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will interfere  on grounds  well established  in law for the exercise of  power  of  judicial  review  in  matters  where administrative discretion  is exercised.  It  will  consider whether clause  (b) or an analogous provision in the service rules was  properly applied  or not.  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. The court will also examine the  charge of  mala fides, if any, made in the writ petition. In  examining the  relevancy of  the reasons,  the court will  consider the  situation 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, 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 decisions. It is, however, unnecessary to refer to them. In so far as what was held in those decisions or any of them is contrary to or inconsistent with  what has been held by us, those decisions are not correct and are to that extent hereby overruled.      The Second Proviso - Clause (c)      We now turn to the last clause of the second proviso to Article 311(2) , namely, clause (c). Though its exclusionary 275 operation on  the safeguards  provided in  Article 311(2) is the same  as those  of the  other two  clauses, it  is  very different in  content from  them. While under clause (b) the satisfaction is  to  be  of  disciplinary  authority,  under clause (c) it is to be of the President or the Governor of a State, as  the case  may be. Further, while under clause (b) the satisfaction has to be with respect to whether it is not reasonably practicable to hold the inquiry, under clause (c) it is to be with respect to whether it will not be expedient in the  interest of  the security  of the  State to hold the inquiry. Thus,  in  one  case  the  test  is  of  reasonable practicability of  holding the inquiry, in the other case it is of  the expediency  of holding  the inquiry. While clause (b) expressly  requires that  the reason for dispensing with the inquiry  should be  recorded in writing, clause (c) does not so require it, either expressly or impliedly.      The expressions  "law and  order", "public  order"  and "security of  the State"  have been  used in different Acts. Situations which affect "public order" are graver than those which affect  "law and  order" and  situations which  affect "security of  the State"  are graver than those which affect "public order". Thus, of these situations these which affect

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"security of  the State"  are the  gravest.  Danger  to  the security of  the State  may arise from without or within the State. The  expression "security of the State" does not mean security of the entire country or a whole State. It includes security of  a part of the State. It also cannot be confined to an  armed rebellion  or revolt. There are various ways in which security  of the  State can  be affected.  It  can  be affected by State secrets or information relating to defence production or  similar matters  being  passed  on  to  other countries, whether  inimical or  not to  our country,  or by secret links  with terrorists.  It is difficult to enumerate the various  ways in  which security  of the  State  can  be affected. The way in which security 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 276 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 of these Forces and the maintenance of discipline among them  is considered can be seen from Article 33 of the Constitution. Prior to the Constitution (Fiftieth Amendment) Act, 1984, Article 33 provided as follows :           "33. Power  to Parliament  to  modify  the  rights           conferred by  this Part  in their  application  to           Forces.           Parliament may by law determine to what extent any           of the  rights conferred  by this  Part shall,  in           their application  to  the  member  of  the  Armed           Forces or  the Forces charged with the maintenance           of public  order, be restricted or abrogated so as           to ensure the proper discharge of their duties and           the maintenance of discipline among them." By the  Constitution (Fiftieth  Amendment) Act,  1984,  this Article was  substituted. By  the  substituted  Article  the scope of  the Parliament’s  power to so restrict or abrogate the application  of any  of the  Fundamental Rights  is made wider. The substituted Article 33 reads as follows :           "33. Power  to Parliament  to  modify  the  rights           conferred by  this Part  in their  application  to           Forces, etc.           Parliament may,  by law,  determine to what extent           any of the rights conferred by this Part shall, in           their application to,           (a) the members of the Armed Forces ; or           (b) the  members of  the Forces  charged with  the           maintenance of public order; or           (c)  persons  employed  in  any  bureau  or  other           organisation established by the State for purposes           of intelligence or counter intelligence; or

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277           (d) persons  employed in,  or in  connection with,           the  telecommunication  systems  set  up  for  the           purposes of  any  Force,  bureau  or  organisation           referred to in clauses (a) to (c),           be restricted  or abrogated  so as  to ensure  the           proper  discharge   of  their   duties   and   the           maintenance of discipline among them." Thus, the  discharge of their duties by the members of these Forces and  the maintenance  of discipline  amongst them  is considered of  such vital  importance to the country that in order to  ensure this  the Constitution  has conferred  upon Parliament to restrict or abrogate to them.      The question  under clause (c), however, is not whether the security  of the State has been affected or not, for the expression used  in clause  (c) is  "in  the interest of the security of  the State". The interest of the security of the State may  be affected by actual acts or even the likelihood of such  acts taking  place. Further, what is required under clause (c)  is not  the satisfaction of the 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 of the President would be  arrived at  with the aid and advice of his Council of Ministers  with the Prime Minister as the Head and in the case of  a State  by reason  of the  provisions  of  Article 163(1) by the Governor acting with the aid and advice of his Council of 278 Ministers with  the Chief  Minister as  the Head.  Whenever, therefore,  the   President   or   the   Governor   in   the Constitutional sense  is  satisfied  that  it  will  not  be advantageous or  fit or proper or suitable or politic in the interest of the security of the State to hold an inquiry, he would be  entitled to dispense with it under clause (c). The satisfaction so  reached by  the President  or the  Governor must necessarily  be a  subjective satisfaction.  Expediency involves matters  of policy.  Satisfaction may be arrived at as a result of secret information received by the Government about the  brewing danger  to the  security of the State and like matters.  There may  be  other  factors  which  may  be required to  be considered, weighed and balanced in order to reach the  requisite satisfaction whether holding an inquiry would be expedient or not. If the requisite satisfaction has been reached  as a  result of secret information received by the Government,  making, known  such  information  may  very often  result   in  disclosure   of  the   source  of   such

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information. Once  known, the  particular source  from which the information  was received  would no more be available to the Government.  The reasons for the satisfaction reached by the  President   or  Governor   under  clause   (c)  cannot, therefore, be  required to  be  recorded  in  the  order  of dismissal, removal or reduction in rank nor can they be made public.      In the case of clause (b) of the second proviso, clause (3) of  Article 311  makes the  decision of the disciplinary authority that it was not reasonably practicable to hold the inquiry final.  There is  no such clause in Article 311 with respect to  the satisfaction reached by the President or the Governor under  clause (c)  of the second proviso. There are two reasons for this. There can be no departmental appeal or other departmental  remedy against  the satisfaction reached by the  President or the Governor; and so far as the Court’s power of  judicial review is concerned, the Court cannot sit in judgment  over State policy or the wisdom or otherwise of such policy.  The court  equally  cannot  be  the  judge  of expediency or  inexpediency. Given  a known situation, 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 279 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 inquiry should not be expedient in  the interest  of the security of the State and not the  actual conduct  of a government servant which would be the  subject-matter of  the inquiry.  This submission  is correct so  far as  it goes but what it overlooks is that 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 source  of  information  involving  a government servant in such acts, would be disclosed and thus in cases  such as  these an inquiry into acts prejudicial to the interest  of the  security of  the State would prejudice the interest  of the  security of the State as much as those acts would.      It was  also submitted that the Government must produce before the  court all  materials upon which the satisfaction of the  President or  the Governor,  as the case may be, was reached. So  far as  the advice  given  by  the  Council  of Ministers to  the President  or the  Governor is  concerned, this submission  is negatived  by the  express provisions of the Constitution. Article 74(2) of the Constitution provides :           "(2) The  question whether  any, and  if so  what,           advice was  tendered by Ministers to the President

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         shall not be inquired into in any Court."           Similarly, Article 163(3) provides :           "(3) The  question whether  any, and  if so  what,           advice was  tendered by  Ministers to the Governor           shall not be inquired into in any Court."      It was  then submitted  that leaving  aside the  advice given by the Ministers to the President or the Governor, the Government is  bound to disclose at least the materials upon which the advice of 280 the Council  of Ministers  was based  so that  the Court can examine whether  the satisfaction  of the  President or  the Governor, as  the case  may be,  was arrived at mala fide or based on  wholly extraneous  and irrelevant  grounds so that such satisfaction  would in law amount to no satisfaction at all. It  was further  submitted that  if the Government does not voluntarily  disclose such materials it can be compelled by the  Court to  do so.  Whether this should be done or not would depend  upon whether  the documents  in question  fall within the  class of  privileged documents  and  whether  in respect of  them privilege has been properly claimed or not. It is  unnecessary to  examine  this  question  any  further because in  the cases  under clause  (c) before us though at first privilege  was claimed,  at the  hearing privilege was 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 identical terms, if not, almost exact copies of other Petitions. No  attempt has  been made  in  such  matters  to distinguish the case of one Petitioner from the other. Apart from contesting  the legal  validity of the impugned orders, hardly any  one has  even stated in his Petition that he was not involved in the situation which has led to clause (b) or clause (c)  of the  second  proviso  to  Article  311  being applied in  his case.  There is  no allegation  of mala fide against the  authority passing the impugned orders except at times a  more bare allegation that the order was passed mala fide. No  particulars whatever  of such  alleged mala  fides have been given. 281 Such a  bare averment  cannot amount to a plea of mala fides and requires  to be ignored. In this unsatisfactory state of affairs go far as facts are concerned, the only course which this Court  can adopt  is to  consider whether  the relevant clause of  the second  proviso to  Article 311(2)  or of  an analogous service  rule has been properly applied or not. If this Court  finds that  such provision has not been properly

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applied, the  Appellant or  the Petitioner,  as the case may be, is entitled to succeed. If, however, we find that it has been properly  applied, the  Appeal  or  Petition  would  be liable  to   be  dismissed,  because  there  are  no  proper materials before  the Court  to  investigate  and  ascertain whether any  particular government  servant  was,  in  fact, guilty of  the charges  made against  him or not. It is also not the  function of  this Court  to do  so because it would involve an inquiry into disputed questions of facts and this Court will  not, except  in a rare case, embark upon such an inquiry. For  these reasons and in view of the directions we propose to  give while  disposing of  these matters, we will while dealing  with facts  refrain from  touching any aspect except whether  the particular  clause of the second proviso to Article  311(2) or an analogous service rule was properly applied or not.      C.A. No. 6814 of 1983      Civil Appeal No. 6814 of 1983 is the only matter before us under clause (a) of the second proviso to Article 311(2).      The respondent, Tulsiram Patel, was a permanent auditor in the  Regional Audit Officer, M.E.S., Jabalpur. It appears that  orders  were  issued  by  Headquarters,  C.D.A.  C.C., Meerut, stopping  the increment  of the  Respondent for  one year. One  Raj Kumar  Jairath was  at the  relevant time the Regional Audit  Officer, 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 282 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  is considered  that the conduct of the           said  Shri   T.R.Patel,  Pt.Auditor,(Account   No.           8295888) which  has led to his conviction, is such           as to  render his  further retention in the public           service undesirable,           Now,  therefore,   in  exercise   of  the   powers           conferred by  Rule  19(i)  of  the  Central  Civil           Services  (Classification,   Control  and  Appeal)           Rules, 1965,  the undersigned  hereby direct  that           the said  Shri T.R.  Patel, Pt.  Auditor, (Account           No.8295888) shall  be  compulsorily  retired  from           service with effect from 25.11.1980." The Respondent  thereupon filed  a departmental appeal which was dismissed.      Thereafter the  Respondent filed  in the Madhya Pradesh High Court a writ petition under Articles 226 and 227 of the Constitution. Relying  upon Challappan’s Case the High Court held that no opportunity had been afforded to the Respondent

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before imposing the penalty of compulsory retirement on him. It further  held  that  the  impugned  order  was  defective inasmuch as it did not indicate the circumstances which were considered by  the disciplinary authority except the fact of conviction of the Respondent.      We are  unable to  agree with either of the two reasons given by  the High  Court for  setting aside  the  order  of compulsory retirement. So far as the first ground upon which the High  Court proceeded  is concerned,  as already pointed out that  part of  the judgment  in Challapan’s  case is not correct and  it was, therefore, not necessary to give to the Respondent any  opportunity of  hearing before  imposing the penalty of compulsory retirement on him.      It was,  however, argued  that the penalty imposed upon the Respondent  was not of dismissal or removal from service but of 283 compulsory retirement  and, therefore, clause (a) of Article 311(2) did  not apply.  The argument cannot be accepted. The compulsory retirement of the Respondent was not by reason of his reaching  the age of superannuation or under other rules which provide for compulsorily retiring a government servant on his  completing the  qualifying period  of  service.  The order of compulsory retirement in this case was under clause (i) of Rule 19 of the Civil Services Rules and was by way of imposing upon him one of the major penalties provided for in Rule 11.  It is  now well settled by decisions of this Court that where  an order  of compulsory retirement is imposed by way of  penalty, it  amounts to removal from service and the provisions of  Article 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  committed would have  been the more serious one under section 333. The Respondent was  lucky in  being dealt  with leniently by the Magistrate but  these facts  clearly show that his retention in public  service was  undesirable. In fact, the conduct of the Respondent  was such  that he  merited  the  penalty  of dismissal from  government service  and it  is clear that by imposing upon him only the penalty of compulsory retirement, the disciplinary authority had in his mind the fact that the Magistrate had  released him  on probation.  We  accordingly hold that  clause (i) of Rule 19 of the Civil Services Rules was rightly applied to the case of the Respondent. 284      This Appeal,  therefore, requires to be allowed and the writ petition  filed by the Respondent in the Madhya Pradesh

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High Court deserves to be dismissed.      CISF Matters      Civil Appeal  No. 3484  of 1982  - Union  of India  and others v. Sada Nand Jha and others and Civil Appeal No. 3512 of 1982  - Union  of India and others v. G.P.Koushal- relate to the  members of the CIS Force who were dismissed from the Force after  dispensing with  the  disciplinary  inquiry  by applying clause  (b) of  Rule 37 of the CISF Rules read with clause (b)  of the  second proviso  of Article  311(2).  All except one  of them  filed a writ petition in the Patna High Court while  the remaining  one filed a writ petition in the Madhya Pradesh  High Court. Both the High Courts allowed the writ petitions  relying upon  the decisions  in Challappan’s case. Civil  Appeal No. 3484 of 1982 is directed against the judgment of the Patna High Court while Civil Appeal No. 3512 of 1982  is directed  against the  judgment of  the  Madhaya Pradesh High Court.      Before dealing  with the relevant facts, we may mention that the  counter affidavit  filed to  the writ  petition in both the  said  High  Courts  were  unsatisfactory.  At  the hearing of  these Appeals  an application was made on behalf of the  Appellants for leave to file a supplementary return. This application  was granted  by  us  in  the  interest  of justice and  the supplementary  Return annexed  to the  said application was taken on the record. We will now briefly set out the  facts which  led to  the passing  of  the  impugned orders. The Respondents in Civil Appeal No. 3484 of 1982 are dismissed members  of the CISF Unit at Bokaro Steel Plant of the Bokaro  Steel Limited  situate at Bokaro in the State of Bihar temporary  security guard  in the  CISF Unit posted 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 : 285           "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           Plant, Bokaro  about 1000  persons participated in           the processions  and violent  demonstrations.  The           said employees  indulged in  agitational acts  and           violent indiscipline. The said personnel unleashed           a reign  of terror  in the  unit lines  and openly           incited others  to disobey  the lawful orders. The           said persons  indulged in several acts of violence           and created a very serious law & order problem and           an   atmosphere   of   collective   violence   and           intimidation. The  said agitation  and the violent           activity reached  a very serious proportion in the           last week  of June, 1979 with the result that Army

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         had to  be called  by  the  State  Authorities  on           23.6.1979. Annexed hereto and marked Annexure AFD-           I is  the request  from the  Home    Commissioner,           Bihar  Government  to  the  Ministry  of  Defence,           Government of India dated 23.6.1979 requesting for           the deployment  of  the  Army  so  as  to  restore           normalcy in  the area.  The State  Government  had           also deployed  9 Magistrates  to assist  the  Army           authorities as  also the  CRPF for  restoring  the           normal conditions  at the  Bokaro Steel  Plant.  A           copy of  the order is enclosed herewith and market           as Annexure AFD-II           4. On  24.6.1979, on  seeing the  arrival  of  the           Army, the  agitators started  making  preparations           for armed  resistance by  putting  up  sand  bags,           flood lights  and barricades  in the  CISF  Lines.           They had  gained the control of CISF Lines and the           Officers were  not allowed  to have  any access to           the Lines or to other ranks of CISF.           5. On 25.6.1979, the Army along with 9 Magistrates           took up  positions round  the CISF  Lines  in  the           early hours  and called upon the agitators to give           up  charge  of  the  Armoury.  Inspite  of  giving           repeated warnings  by the  authorities to  give up           charge of  the Armoury, the agitators did not give           up arms,  but, instead,  resorted to violence. The           agitators started  firing at  0320  hours  at  the           Army.  The   Army  returned  the  fire.  The  said           exchange of  fire continued for 3 hours before the           Army could spell out the violent retaliation of 286           the agitators.  The said  violent exchange of fire           resulted in  the instant  death of  one Army Major           and 2  more Army  personnel were  also killed as a           result of firing by the CISF personnel.           6. It  may also be stated that there were 22 death           in the  course of  the said  pitched battle, which           went on  for three hours between the violent armed           agitators and the Army.           7. In  regard to  the aforesaid violent activities           and  the   commission  of   offences,  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

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         terror and  collective fear and the functioning of           the CISF Unit and its administration at Bokaro had           completely broken  down. It  was only  Army  which           could  control  the  situation  by  its  continued           presence. The  Army was  withdrawn from the Bokaro           Steel Plant  only on or about 2.7.1979, however it           may not  be out  of place  to  mention  here  that           although the Army was withdrawn in the early July,           1979  but   atmosphere  of   terror  and   tension           continued  for   a  couple  of  months.  The  CRPF           continued performing security duties till Nov. 79.           Besides this 287           Bihar Military  Police took charge of armoury from           army and continued to perform some of armed duties           of CISF  as CISF  Unit was  not in  a position  to           function normally  for a  considerable time.  Even           the  State   authority  apprehended   a  dangerous           situation after  the Army  action including threat           to lives of senior officers of CISF.           9. In  the meanwhile, having regard to the violent           and disturbed  situation which  prevailed  in  the           Bokaro Steel  Plant as also the collective actions           of violence,  mass  terror  and  intimidation  and           threats to  supervisory and  loyal staff,  it  was           reasonably believed that any inquiry in accordance           with the  provisions of the Rules 34, 35 and 36 of           CISF  Rules,   1969  or  in  accordance  with  the           requirements of Article 311(2) would be dangerous,           counter productive and would aggravate the already           existing  dangerous   situation.   It   was   also           reasonably believed  that the  circumstances  were           such as  would make  the holding  of  any  inquiry           self-defeating,  subversive  or  would  result  in           consequent detriment to public interest. It was in           these circumstances that the concerned authorities           formed  reasonable   nexus  that  any  inquiry  in           accordance   with   the   rules   was   reasonably           impracticable and  impugned orders  were passed in           view thereof."      We see  no reason to doubt the above statements made by Shri Madan  Gopal in  the  Supplementary  Return  for  these statements  are  supported  by  documents  which  have  been annexed to  the Supplementary  Return. The  facts set out in the  above   paragraphs  of  the  Supplementary  Return  are eloquent and  speak for  themselves. They are also reflected in the  impugned order.  All the  impugned orders are in the same terms  apart from  the mention  of the name and service number of  the particular  member  of  the  said  CISF  Unit against whom  the order is made. By way of a specimen we set out below  the impugned  order dated  June 29, 1979, made in the case of Sadanand Jha. The said order is as follows :           "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 288           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

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         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 has been rendered difficult and impossible;      And whereas  7205199 Security Guard Sada Nand Jha as an active participant of the aforesaid group has been extremely remiss and  negligent in  the discharge  of his duty and has proved totally  unfit for the same by absenting himself from parade unauthorisedly  and  indulging  in  various  acts  of extreme indiscipline and mis-conduct, as aforesaid;      And whereas  I am  satisfied  that  in  the  facts  and circumstances, any  attempt to  hold departmental inquiry by serving  a   written  charge-sheet   and   following   other procedures in  the manner provided in rules 35 and 36 of the CISF Rules, 1969 will be frustrated by the collective action on the  part of  the aforesaid  group and  hence it  is  not reasonably practicable to hold such inquiry;      And  whereas  on  a  consideration  of  the  facts  and circumstances of the case I am satisfied that the penalty of dismissal from service should be imposed on 7205199 Security Guard Sada Nand Jha;      Now, therefore,  in exercise of the powers conferred by sub-rule (b)  of the  rule 37  of the  CISF Rules, 1969 read with clause  (b) of  the second  proviso to  clause  (2)  of Article 311 of the 289 Constitution, I  hereby order  that 7205199  Security  Guard Sada Nand  Jha be  dismissed  from  service  with  immediate effect."      The CIS  Force has  been constituted under the CISF Act for  the   better  protection  and  security  of  industrial undertakings owned  by the  Government. Under  section 14 of the Act,  the Inspector-General  of the  CIS Force  may on a request in  that behalf  from the  Managing Director  of  an Industrial  undertaking   in  public   sector,  showing  the necessity  thereof,   depute  such   number  of  supervisory officers and  members of  the CIS  Force as  the  Inspector- General  may  consider  necessary  for  the  protection  and security of that industrial undertaking and any installation attached thereto.  The purpose of constituting the CIS Force is set  out in  the Statement  of Objects and Reasons to the Bill which  when enacted  became  the  CISF  Act.  The  said Statement of Objects and Reasons is published in the Gazette of India  Extraordinary  dated  August  2,  1966,  Part  II, Section 2, at page 435, and is as follows :           "At present  security  arrangements  at  important           industrial undertakings  in the  public sector are           handled  by  the  Watch  and  Ward  staff  of  the           Organization concerned.  The Watch  and Ward staff           is generally  engaged in guarding the entrances or           the perimeter of the industrial undertaking and in           preventing  entries   of   unauthorized   persons.           Unplanned  recruitment,   inadequate  supervision,           training and  discipline have  made  the  existing

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         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 290 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 who is found taking  precautions  to  conceal  his  presence  under circumstances which  afford reason  to believe  that  he  is taking  such   precautions  with  a  view  to  committing  a cognizable offence relating to the property belonging to any industrial undertaking  or other  installations.  Similarly, under section  12 for the same purpose a supervisory officer or member  of the  CIS Force, not below the prescribed rank, has the  power to  search the  person and  belongings of any person whom  he has  reason to believe to have committed any such offence  as is  referred to in section 11. From what is stated above,  it is  obvious that in a Force entrusted with such large responsibility, maintenance of discipline is most essential and  this is  made clear  by section  18(1) of the CISF Act which provides as follows :           "18. Penalties for neglect of duty, etc.-           (1) Without  prejudice to the provisions contained           in Section  8, every member of the Force who shall           be guilty  of any  violation  of  duty  or  wilful           breach or  neglect of  any rule  or regulation  or           lawful order made by a supervisory officer, or who           shall withdraw  from  the  duties  of  his  office           without permission, or who, being absent on leave,           fails, without reasonable cause, to report himself           for duty  on the  expiration of  the leave  or who           engages   himself   without   authority   in   any           employment other  than his duty as a member of the           Force, or who shall be guilty of cowardice, shall,           on conviction, be punished with imprisonment for a           term which may extend to six months." Under section  19 of the CISF Act, the Police (Incitement to Disaffection) Act, 1922, applies to supervisory officers and members of  the CIS  Force as  it applies  to members  of  a Police Force. Under section 20, neither the Payment of Wages Act, 1936,  nor the  Industrial Disputes  Act, 1947, nor the Factories Act, 1948, nor any corresponding State Act applies to the member of the CIS Force.      The facts  set out  in the Supplementary Return of Shri Mohan Gopal and in the impugned orders show that there was a total breakdown  of discipline in the CIS Force. There was a wilful  and   deliberate  disobedience   of  orders  of  the supervisory officers  and ’gherao’  of such  officers. There was a hunger strike, dharna, 291

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shouting of  revellious slogans  and threats of violence and bodily   harm to  supervisory officers  and acts  tending to intimidate the supervisory officers and loyal members of the staff. There  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. It is not possible in a  situation such  as this  to particularize  the acts of each individual  members who  participated in the commission of these  acts. The  participation of each individual may be of 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.      It was  submitted at  the Bar  that the real reason for passing the orders impugned in Civil Appeal No. 1484 of 1982 was the  encounter with  the army on June 25, 1979, and this real reason  as not  mentioned in the impugned order because the Respondents  had been arrested and were being prosecuted and, therefore,  before passing  the  impugned  orders,  the disciplinary authority  would have  had  to  wait  till  the prosecutions were over. Such an allegation has not been made in the writ petition filed in the High Court. In fact, there is no  mention in  the writ petition of the help of the army being sought or of the encounter with the army. The impugned orders mentioned  the reasons  why they  were  passed.  Then Supplementary Returns  bears out  these  reasons.  We  have, therefore, no hesitation in accepting what is stated in the 292 impugned orders.  In our  opinion, clause  (b) of Rule 37 of the CISF  Rules and  clause (b)  of the  second  proviso  to Article 311(2)  were properly  applied to  the cases  of the Respondents.      Finally, a  grievance was  made at  the  Bar  that  the dismissed members  of the  CIS Force  had filed departmental appeals and  the appeals of those who had been discharged by the  Magistrate  were  allowed  and  these  appellants  were reinstated. We  do not  know how far this is correct nor the reasons for  allowing such appeals, but if what is stated is ture, it  is not  fair and  the remaining  appeals should be disposed of as early as possible.      The impugned  order in Civil Appeal No. 3512 of 1982 is in the same terms as the impugned orders in Civil Appeal No. 3484 of 1982. The situation at Hoshangabad was very much the same as  at Bokaro  and in our opinion clause (b) of Rule 37 of the  CISF Rules  and clause  (b) of the second proviso to clause (2)  of Article 311 were properly applied to the case of the Respondent.

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    Both these Appeals, therefore, require to be allowed.      Railway Service Matters      Civil Appeals  Nos. 3231  of 1981  and 4067 of 1983 and all the  writ petitions  filed in  this Court  (except  Writ Petitions Nos. 1953 of 1981, 7393,1392 and 2022 of 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 293 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 seriously  injured and not having proper medical aid in the places  where they  reside, have  to be  rushed  to  the nearest  town,  city  or  district  headquarter  where  such medical aid  is available.  They carry essential commodities like  foodgrains,   oil,  etc.   They  carry  equipment  and machinery vital  for the  needs of  the country. In times of disturbances they  carry members  of the  Defence Forces and the Central  Reserve Police Force. In this connection, it is pertinent to  note what  Shah,J., as he then was, had to say in Moti  Ram Dekh’s  case (at pages 795-6) about the railway administration and employment in railway service:           "... employment  in the  Railways is  in a vitally           important establishment  of the Union in which the           employees are  entrusted with  valuable  equipment           and a  large  measure  of  confidence  has  to  be           reposed in  them and  on the  due discharge of the           duties the  safety of the public and the efficient           functioning of the governmental duties depend. Not           only the  travelling public, but the Union and the           States have  in a  considerable measure  to depend           upon rail  transport for  the functioning  of  the           governmental machinery and its welfare activities.           It would  be  possible  even  for  one  or  a  few           employees   of    the    Railway    to    paralyse           communications and  movement of essential supplies           leading to  disorder and  confusion.  The  Railway           service has  therefore a special responsibility in           the smooth functioning of our body politic...."      As pointed  out in  Kameshwar Prasad  and others v. The State of  Bihar and  another  (at  page  385)  there  is  no Fundamental Right  to resort  to a  strike. A strike is only legal if  an Act  permits it  and only  if it  is called  in compliance with  the conditions  prescribed by  the Act. The definition of  "public utility  service" in  clause  (n)  of section 2 of the Industrial Disputes Act, 1947, includes and railway service.  The term "strike" is defined in clause (q) of section  2 of  the said  Act. The  said clause  (q) is as

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follows :           "strike’ means  a cessation  of work  by a body of           persons  employed   in  any   industry  acting  in           combination 294           or a  concerted refusal,  or  a  refusal  under  a           common understanding, of any number of persons who           are or  have been  so employed to continue to work           or to accept employment". Under sub-section  (1) of  section 22  of the  said Act,  no person employed in a public utility service can go no strike in breach  of contract  without giving  to  his  employer  a notice 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 of  some of  the railway  servants the  acts alleged to have been committed by them would not if committed in normal times, merit  the  penalty  of  dismissal  or  removal  from service, but  when committed  in furtherance of an all-India strike which  has paralysed  a public  utility service  they cannot be viewed in the same light.      It  was   also  contended  that  the  punishments  were arbitrarily meted  out because  in some  centres the railway servants were  dismissed from  service while  in some  other centres they  were removed  from service.  The  quantum  and extent of  penalty would  depend upon  the  gravity  of  the situation at a particular centre and the extent to which the alleged  acts,   though  not   serious  in   themselves,  in conjunction with  acts committed  by others,  contributed to the bringing about of this situation. 295      In the  context of  an all-India  strike where  a  very large number  of  railway  servants  had  struck  work,  the railway  services  paralysed,  loyal  workers  and  superior officers assaulted  and intimidated,  the  country  held  to ransom, the  economy of  the country and public interest and public good  prejudicially affected,  prompt  and  immediate action was  called for  to bring the situation to normal. In these circumstances,  it cannot  be said that an inquiry was reasonably practicable.      On a  careful examination  of the  facts of these cases and the impugned orders, we find that in each of these cases clause (ii)  Rule 14 of the Railway Servants Rules or clause (b) of  the second proviso to Article 311(2) or both, as the case  may  be,  were  properly  applied.  All  these  matter therefore require to be dismissed.

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    The Madhya Pradesh Police Forces Matters      The matters  which now remain to be dealt with are Writ Petitions  Nos.   1953,7393,1392  and   2022  of  1981.  The Petitioners belonged  either to  the Madhya Pradesh District Police Force  or the Madhya Pradesh special Armed Force. The Petitioners were  dismissed by  orders of  the  Governor  of Madhya Pradesh  by applying clause (c) of the second proviso to Article  311(2) to  them. All  the orders are in the same terms except  for the  same and designation of the concerned policeman.  One  of  the  orders  may  be  reproduced  as  a specimen. That order is as follows:           "As the  Governor of  M.P. Under  article 311(2) C           clause  2,  sub-clauses  (c)  of  the  proviso  of           Constitution  is   satisfied,  that   it  is   not           expedient in the interest of the security of State           that in  case of  Shri Karan 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 296           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 January 18, 1981, at the annual Mela held at  Gwalior in  which one  man was  burnt  alive.  Some persons, including  a  constable  from  each  of  these  two Forces, were  arrested. These  persons  were  remanded  into judicial custody.  On January  20, 1981,  several members of these two  Forces indulged  in  violent  demonstrations  and rioted at  the Mela  ground, demanding  the release of their colleagues. They  attacked the  police station  at the  Mela ground, ransacked  it and  forced the operator to close down the wireless  set. The  situation became  so dangerous  that senior district  and police  officers had  to  approach  the Judicial Magistrate  at  night  and  get  the  two  arrested constables released on bail. The incident was discussed at a Cabinet meeting,  a decision was taken and the advice of the Council of  Ministers was tendered to the Governor of Madhya Pradesh who  accepted it  and issued the impugned orders. On further scrutiny  some names  were deleted  from the list of dismissed personnel and some others included. As a result of this, some  other members  of these Forces began carrying on an  active   propaganda  against  the  Government,  visiting Jabalpur and  other places  in the  State of Madhya Pradesh,

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holding secret meetings, distributing leaflets, and inciting the  constabulary  in  these  places  to  rise  against  the administration as a body in protest against the action taken by the  Government. On this information being received, they too  were   similarly  dismissed.   These  facts  speak  for themselves. The  police normally oppose the grant of bail to an accused  but here  we have  the paradoxical  situation of some of  the highest  police and  district officers going at midnight to the Magistrate’s house to apply for bail for 297 the accused.  The police are the guardians of law and order. They stand  guard at the border between the green valleys of law and order and the rough and hilly terrain of lawlessness and public  disorder. If  these guards turn law-breakers and create violent  public disorder  and incite others to do the same, we  can only  exclaim with  Juvenal,  "Quis  custodiet ipsos’ Custodes?"-  who is  to guard the guards themselves?" (Satires, VI,347).  These facts  leave  no  doubt  that  the situation  was  such  that  prompt  and  urgent  action  was necessary and  the holding  of a inquiry into the conduct of each of the Petitioners would not have been expedient in the interest of  the security  of  the  State.  All  these  four Petitions, therefore deserve to be dismissed.      Final Orders in the Appeals and Writ Petitions      For the  reasons set  out above,  we pass the following orders in the above matters :           (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 the  decision of  this Court in           Chalappan’s case, we give them time till September           30, 1985,  to file  a departmental  appeal, if  so           advised, and  we direct  the  concerned  appellate           authority to  condone in the exercise of its power           under the relevant service rule 298           the delay  in filing  the appeal  and, subject  to           what is stated in this Judgment under the headings           "Service  Rules   and   the   Second   Proviso   -           Challappan’s case and "The Second Proviso - Clause           (b)", to hear the appeal on merits.           (4) All  interim orders  made in the above matters           are vacated  but the  government servants will not           be liable  to refund  any amount  so far  paid  to           them.           (5) There  will be no order as to costs in all the

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         above matters.           (6) All  other matters  pending in  this Court  in           which a  question of  the  interpretation  of  the           second proviso  to clause (2) of Article 311 or of           an analogous  service rule  is involved will stand           disposed of in accordance with this Judgment.      THAKKAR, J.  A benevolent and justice-oriented decision of a  three-Judge Bench  of this  Court, rendered  ten years back in a group of service matters, (D.P.O. Southern Railway v. T.R.  Challappan), [1976]  1 S.C.R.  783, is sought to be overruled by  the judgment  proposed to  be delivered  by my learned Brother Madon, J, with which, the majority appear to agree. "Challappan"  having held  the field  for such a long time, it  would have  been appropriate  if a  meeting of the Judges Constituting the Bench had been convened to seriously deliberate and  evolve a  consensus as  to whether or not to overrule it.  A ’give’ and ’take’ of ideas, with due respect for the  holders of  the opposite  point of  view (in a true democratic spirit  of tolerance), with willingness to accord due consideration  to the  same, would not have impaired the search for  the true  solution or hurt the cause of justice. The holders  of the  rival view  points could have, perhaps, successfully persuaded  and converted  the  holders  of  the opposite point  of view  or  got  themselves  persuaded  and converted to the other point of view.      Brother Madon,  J, to whom the judgment was assigned by the learned Chief Justice, also appears to suffer heart-ache on the same score, for, in his covering letter dated July 6, 1985 forwarding the first instalment of 142 pages he says :           "...... I  regret to state that the draft judgment           could not  be sent  to you earlier. The reason was           that 299           as we  did not  have a  meeting  to  discuss  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 circumstances is so keen that  it is impossible to prepare an elaborate judgment presenting  the   other  point  of  view  within  hours  and circulate the  same amongst  all the Judges constituting the Bench in  this important  matter which was heard for months, months ago.  I am,  therefore, adopting the only course open to me in undertaking the present exercise.      ’Challappan’, in  my opinion, has been rightly decided. And there  is no  compulsion to  overrule it  - Even  if the other point  of view were to appear to be more ’attractive’,

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it is  neither a  good nor  a sufficient  ground to overrule ’Challappan’. After  all what  does ’Challappan’ do? It does no more  than enjoin  in the  context of  Rule 14(1) (a) and therefore, as  a logical  corollary, also  in the context of Rule 14(a)  (b) of  the  Railway  Servants  (Discipline  and Appeal) Rules, 1968, that an employee must at least be heard on the  question of  quantum  of  punishment  before  he  is dismissed  or  removed  from  service  without  holding  any inquiry. The  ratio of  the decision  is so  innocuous  that there is  hardly any  need to  overturn it.  Apart from  the weighty reasons  articulated by the three-Judge Bench, there are some  more which  can be  called into aid. But while the ’will’ is  very much there, not the ’time’, to elaborate the reasons  to   buttress  ’Challappan’   and  to  counter  the criticism levelled against the thesis 300 propounded therein. Or to expound my point of view in regard to propositions  in respect  of which I have reservations. I propose to do so later if deemed necessary.      For the  present, therefore,  suffice it  to say,  I am unable to  persuade myself to fall in line with the majority in overruling  ’Challappan’ and  unable to  concur with  the consequential orders being passed in that context. I am also unable to  associate myself  with the  exposition of  law in regard to  the true  meaning and  content of  the  ’pleasure doctrine’ and its implications and impact.      The sphere  in which  I  am  able  to  agree  with  the proposed judgment is in regard to the matters arising out of orders passed in exercise of powers under Article 311(2) (c) of the  Constitution of  India and the orders proposed to be passed therein.      In the result:                              I      Following the  law laid  down in ’Challappan’ the under mentioned appeals are dismissed with no order as to costs:-                Civil Appeal No. 6814 of 1983                Union of India & Anr. v. Tulsiram Patel                Civil Appeal No. 3484 of 1982                Union of India & Ors. v. Sadanand Jha & Ors.                Civil Appeal No. 3512 of 1982                Union of India & Ors. v. G.P. Koushal                              II      Following the  law laid  down in ’Challappan’, the Writ Petitions and  allied  appeals  and  the  companion  matters hereafter mentioned  are allowed  and  the  impugned  orders against the  Petitioners are declared to be void and quashed with no order as to costs:-           Writ Petitions  Nos. 2267, 2268, 2269, 2273, 3349,           3350, 3351,  3352, 3353,  6500, 8120 of 1982 & 562           of 1983.  Bishwaroop Chatterjee  etc. v.  Union of           India &  Ors. etc.  with Civil Appeal Nos. 3231 of           1981 and  4067 of  1983. Achinita  Biswas etc.  v.           Union of  India  &  Ors.  etc.  and  other  allied           Transferred  cases  and  matters  arising  out  of           Railway Service matters. 301                             III      The same  orders dismissing  the Writ Petitions coupled with the same directions as per the majority judgment in :           Writ Petition  No. 1953 of 1981,7393,1392, 2202 of           1981 and  other allied  M.P. Police  Force matters           under Article 311 (2) (c). N.V.K. 302

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