Narendra N. Das v. State Of West Bengal

JUDGMENT

1. The plaintiff was a constable in the Calcutta Police. He was a permanent incumbent in that office. On February 7, 1955, he was served with an order of dismissal. The order of dismissal is challenged in this suit, on the ground that it is un-authorised and contrary to the provision of the Constitution. A declaration is claimed that the order of dismissal is invalid and that the plaintiff is still in service. Alternatively, reinstatement or damages for wrongful dismissal is claimed. The suit is instituted after service of notice under section 80 of the CPC. In the written statement filed by the defendant it is contended that the order of dismissal is valid and not contrary to the provision of the Constitution. The validity and sufficiency of the notice under section, 80 has also been disputed. The learned Advocate-General, however, appearing for the defendant, did not press this point and the only point I am invited to decide in this suit is whether the order of dismissal is contrary to the provisions of the Constitution. The facts relevant for the determination of this question are not in dispute. No evidence, oral or documentary, has been tendered.

2. The order of dismissal reads as follows:

“Government of West Bengal

Home Department

Police

No. 58 PLS

Dated, Calcutta, the 7th February, 1955.

Whereas, you Shari Naren Das, Constable of the Calcutta Police hold, your office during the pleasure of the Governor, and

Whereas, the Governor is satisfied that you are entirely unsuitable for retention in service, and

Whereas, the Governor is satisfied further that in the interest of the security of the State, it is not expedient to give you any opportunity of showing cause against the order terminating your service,

Now, therefore the Governor is pleased to dismiss you from service with immediate effect

By order of the Governor,

R.K Mitra

Secy. to the Govt. of West Bengal,

Home Dept.”

3. The question for consideration is — does the order set out above satisfy the provisions of Article 311 of the Constitution? Article 311 is hereunder set out:

“311(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 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 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 this conviction on a criminal charge;

(b) Where an authority empowered to dismiss or remove a person or to reduce him to 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

(c) Where the President or Governor, 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.”

4. This Article is the same as section 240 of the Government of India Act, 1935, with this difference that proviso (c) to sub-section (2) of Article 311 was not in section 240 of the Government of India Act. This is a new proviso.

5. It is settled law as laid down by the Judicial Committee in Lall's case (High Commr. for India v. I.M Lall, AIR 1948 PC 121) and affirmed by the Supreme Court in various other cases that two opportunities must be given to a Government employee before a final order of dismissal or reduction in rank can be passed against him. There must first be an enquiry to find out whether the Government servant is guilty of the charge levelled against him in which enquiry he will have a right to appear. A second opportunity must be given to him after he is found guilty in the first enquiry to show cause against the disciplinary action, that is, dismissal or reduction in rank, intended to be taken against him. It is contended by Mr. S.K Acharya, learned Counsel appearing for the plaintiff, that by adding proviso (c) to sub-section (2) of Article 311, one of the two enquiries, namely, the second enquiry indicated above, mandatory under section 240 of the Government of India Act, 1935, has been dispensed with. It is still obligatory to have an enquiry as to whether the charges levelled against the Government servant have been substantiated and to give an opportunity to the Government servant to be represented in such enquiry. Once, however, the Government servant is held guilty in the first enquiry, no second opportunity need be given to the Government servant and the Government is free to take any disciplinary action against him, either by way of dismissal or reduction in rank, without giving a further opportunity to show cause. The second enquiry, therefore, hag been dispensed with by the new proviso (c). The Constitution-makers could not have intended to give the President or Governor such extraordinary power without giving the Govt. Servant an opportunity to prove his innocence. This would be contrary to all principles of natural justice which the Constitution clearly intended to uphold and safeguard, certainly not to restrict or destory. The language of proviso (c) to sub-section (2) however, is in very wide terms and does not support the argument advanced by Mr. Acharya. Further enquiry is dispensed with in each of the three cases set out in clauses (a), (b) and (c) of the proviso namely, first, when the Government servant is convicted of a criminal offence; second, where it is not reasonably practicable to give the person an opportunity to show cause; and third, when the President or Governor is satisfied that in the interest of security of the State it is not expedient to give an opportunity. In the first case, there need be no enquiry, because an enquiry has already been held in a Court of law. In the second case, enquiry is dispensed with on the ground of impracticability. It is clear that in the third case as well, enquiry is dispensed with on equally substantial ground, namely, interest of security of the State demands it. In my judgment, in each of the cases set out in the provisos, the executive is relieved of the obligation to hold an enquiry or to give the Government servant an opportunity to show cause. Each of the three classes of cases were treated on the same footing and procedure provided in each of them is the same. Mr. Acharya's argument implies that the procedure intended in the class of cases covered by proviso (c) should be treated on a different tooting from the cases covered by provisos (a) and (b). In my judgment, this argument of Mr. Acharya cannot be accepted.

6. The next argument of Mr. Acharya is that the proviso contemplates the satisfaction, of the President, Governor or Raj Pramukh, which is different from the satisfaction of the Government, Central or State. According to Mr. Acharya, the Constitution intended that he highest dignitary in the Indian Union or in the respective States should be personally satisfied that in the interest of security of the State it is not expedient to give the Government servant an Opportunity to show cause. The top man in the Union or the State is charged with this supreme responsibility so that the Government servant is deprived of this very valuable safe-guard when and only when the highest dignitary, in the exercise of his individual judgment, considers that such deprivation is necessary in the interest of the security of the State. The provision may be equated to the special responsibility of the Governor in the olden days under the 1935 Act. The Constitution-framers did not intend that the supreme executive of the Union or the States would be nothing more than mere figure-heads a mere fifth wheel in a cart whose only function would be to read the ceremonial speeches prepared by the Government on ceremonial occasions. The President or the Governors were never intended to be stripped of all powers and responsibilities. Their power and responsibilities were never intended to be equated to the King or Queen of England, whose only function is to sit in the Tower of London to be gazed at by the sightseers'. If one looks to the history of Constitution development of India, one finds that though the British Constitution with its Parliamentary form of Government and Cabinet and Ministerial responsibility, was kept as a model and the head of the Government — Central and Provincial has been gradually stripped of powers and responsibilities, substantial powers and responsibilities were still retained in the hands of the Governor General and the Governors in the Government of India Act, 1935. They had still great responsibilities to be discharged and substantial powers were reserved to be exercised in their individual judgment. Provisions as to the powers of the President and Governors in the Constitution have been taken substantially from the Government of India Act, 1935. Strike out the crowned head from the Government of India Act, 1935 and you get the Constitution of India. While previously all powers of the Governor-Generals and Governors were derived from the British Parliament with the British Crown at the head, under the Indian Constitution the President and the Governors derive their power from the people of India. The powers of the President and Governors enumerated in the Constitution are the same as those of the Governor-General and Governors as the case may be. It is true that the powers of the President and the Governors as chief executives have been curtailed but it is certainly not true that they have been completely taken away. The Constitution, of 1950 in that sense may be considered as a continuation of the Constitutional evolution of India Though the Ministers, both individually and as a collective body, have been vested with much more power and responsibility in the matter of Government, the President who is the elective head of the State and the Governors of the respective steps appointed in a democratic regime from amongst the more respected and experienced public men, were never intended to be stripped of all powers and responsibilities. The Constitution still gives the President and Governors real powers to act without the advice of the Ministers. These acts are to be performed in the individual judgment. Depriving the Government servant of an opportunity to show cause against a disciplinary action against him by way of dismissal or demotion is one such special responsibility to be discharged by the president or Governor in their individual judgment. Mr. Acharya cited some of the Articles of the Constitution to illustrate his point that the President or Governor is not a mere figurehead but has still powers which were intended to be exercised in their individual judgment. The Governor is directed by the Constitution to have some powers in financial matters. See Articles 202 to 205. So also great powers have been given to the President in case of emergency — (see Articles 352 to 360), When reference is made to these Articles, one finds that extensive powers — legislative, executive and financial — have been given to the President in cases of emergency. Even the fundamental rights granted under Part III of the Constitution is suspended on proclamation of such emergency. So also the Governor has been empowered by the Constitution to grant mercy to a convicted criminal under Article 161 of the Constitution.

7. That some powers are still retained in the Governors or the president by the Constitution may be conceded. The learned Advocate General himself conceded that in the sixth schedule of the Constitution, paragraph 9(2) the Governor is authorised ‘in his discretion’ to determine the amount of royalty payable in respect to prospecting license and leave for extracting minerals in Assam, should a dispute arise between the District Council and the Assam Government. It is submitted by the learned Advocate General that in this case the framers of the Constitution thought it necessary to state in express terms that in discharging this function the Governor is to act ‘in his discretion’. It follows that unless it is stated in express terms, the Governor is not intended to discharge any of his functions in his own discretion. The learned Advocate General also pointed out that there may be some other acts to be performed by the Governor which may not be characterised as the act of Government. His submission, however, is that the executive acts of Government are not acts of the Governor to be discharged in his discretion, though the order is issued in his name and that there is no warrant for the proposition that such an act must be proved to have received the personal approval of the Governor in order that it may be confirmed by the Court, should such act be challenged in Court Reference was made to Articles 154, 165 and 166 of the Constitution in support of this contention.

8. It is not necessary for me to decide in this case whether the Governor under the present Constitution is a mere nominal head of the State and each and every act purported to be done in his name is in reality the act of his Ministers. I agree with Mr. Acharya that under the Constitution the President and the Governors have still real power, specially in case of emergency. The only point that I called upon to decide in this case is whether the satisfaction contemplated in proviso (c) to sub-section (2) of Article 311 is the personal satisfaction of the Governor to this effect that in the interest of security of the State it is not expedient to give any opportunity to a Government servant to show cause against any disciplinary action intended to be taken against him. In my judgment the ‘satisfaction’ contemplated is not the personal satisfaction of the Governor, but the satisfaction of the Government. Security of the State is the most essential executive act of the State and as such is a matter which is a responsibility not of the Governor but that of the Government. It is for the Government to decide when the security of the State is in jeopardy and what step is necessary to preserve security and to see to it that the security of the State may not be endangered. Deprivation of an opportunity to a Government servant to show cause against any disciplinary action to be taken against him is clearly an act of and in relation to the security of the State Such an act cannot but foe the responsibility of the Government and not the personal responsibility of the Governor. The Constitution-makers could not have intended to take away from the hands of the Government, any matter relating to the security of the State and give it to the Governor to be discharged by him in his personal discretion. If the satisfaction contemplated is the satisfaction of the Government, then the offending order cannot be questioned. It is not disputed that the order is issued in the name of the Governor, duly authenticated by a Secretary of the Government. In other words, the order is in compliance with Article 166(2) of the Constitution, its validity, therefore, cannot be questioned on the ground that it is not an order made or executed by the Governor under Article 166(2) of the Constitution.

9. Mr. Acharya has drawn my attention to certain decisions of this Court to this effect that when the validity of an executive order depends on the subjective satisfaction of a particular Government officer, there must be evidence to indicate that the officer concerned has applied his mind and that in fact the act is the act of the officer concerned. The two cases relied on by Mr. Acharya, to be noticed present, say nothing more than this, that the immunity under Article 166(1) and (2) would be lost if the rules of business framed by the Governor under Article 166(3) have not been strictly complied with. In the case of Bejoy Luxmi Cotton Mills Ltd. v. State of West Bengal, 62 Cal WN 640: (AIR 1960 Cal 113), Sinha, J. held that an Order of acquisition under the West Bengal Land Development and Planning Act, 1948 was invalid on the ground that the rules of business embodied in the different standing orders have not been complied with. The learned Judge construed the standing orders to require the personal satisfaction of the Minister as to whether the land in the notified area was needed for the purpose of a development scheme under the Act. It was proved that the satisfaction in the cited case was not that of the Minister but that of a subordinate officer. Hence the order of acquisition was held to be invalid. So also in the case of Naib Transport (Private) Ltd. v. Regional Transport Authority, Calcutta Region, 65 Cal WN 1179, the same learned Judge held that an order nationalising a bus route whereby a route was taken over by the State Transport was bad inasmuch as the rules of business have not been complied with. It was held in this case that there was no formal Order duly signed by Mr. Taluqdar, the officer empowered to sign, even though it was proved that the draft order was approved by him. In other words, there was no formal order in existence. As observed at p. 1198:

“All that has been proved is that he (Mr. Taluqdar) was authorised to authenticate an order of the Governor. He did not in fact authenticate an order of the Governor.”

10. Hence no immunity under Article 166 can be claimed. In both the cases noticed above, the Court held that in the absence of compliance with the rules of proper authentication framed by the Governor, the immunity granted by Article 166(2) is lost. Once, however, there is a proper authentication of the order, there is complete immunity and the order cannot be questioned in any Court. In the instant case, neither in the pleadings nor in the documents tendered the order has been challenged on the ground that it was not properly authenticated according to the rules. The ground taken is that the failure to hold an enquiry constituted a breach of the Constitution. A further ground seems to have been taken in the documents that there was a mala fide exercise of power. Absence of authentication as prescribed by law has not been specifically taken as a ground for challenging the order and the Government was never called upon to prove authentication by production of any document apart from the Order which shows ex facie that it was duly authenticated.

11. Mr. Mrigen Sen, learned Junior Counsel appearing for the State, in his turn cited certain decisions which may be considered now. In the case of Jagadish v. Accountant General of Bombay, AIR 1958 Bom 283, a Division Bench of the Bombay High Court laid down the following proposition at p. 289:

“It was next urged that the order should be considered as contravening Article 311(2) of the Constitution in view of the fact that there was no material from which the President could be satisfied that it was not expedient to give to the petitioner an opportunity of showing cause against his proposed dismissal. In other words, this means that satisfaction of the President in terms of Article 311(2), proviso (c), should be made a ??? issue before the Court, and the satisfaction, of the President should be proved as an objective fact before this Court upholds the impugned order. It is not necessary to spend many words for rejecting such contention. Article 311 provides that no person in the services mentioned therein shall be dismissed until he has been given a reasonable opportunity of showing cause unless ‘the President is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.’ It is obvious that what the above provision of the Constitution requires is satisfaction of the President about the expediency of not giving an Opportunity to the employee concerned in the interest of the security of the State. To make such matter a justiciable issue would mean that the Court should be also satisfied about such expediency and then only the order of the President passed under the powers given by the Constitution should foe upheld by the Court. This would amount to substituting satisfaction of the Court in place of the satisfaction of the President. It is possible that what may satisfy the President may not satisfy the Court. What may be found expedient by the President may not be sound by the Court. If Courts were to demand proof of such satisfaction and the evidence of material on which the satisfaction was reached, the Courts would be virtually depriving the President of the powers and confidence which the Constitution in its wisdom has reposed in the President.”

12. With respect, I agree to the observation set out above. Reference was also made to the decision of the Andhra High Court in the case of B. Eswaraiah v. State of Andhra (Now Andhra Pradesh) AIR 1958 Andh Pra 288 and in the case of Md. Hyder v. State of Andhra, AIR 1960 Andhra Pra 479, where it is held that the question is non-justiciable. The decision of the Supreme Court in the case of Nageswar Rao v. A.P.S.R.T Corporation, reported in 1959 SC p. 325 (sic) has also been cited. I do not however think it necessary to deal with these cases. For reasons stated above, the suit fails and is dismissed. The parties will bear their own costs.

DF/J/D.H.Z

13. Suit dismissed.