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Zatia And Another v. State Of Assam And Others
Structured Summary of the Opinion — Civil Rule No. 7/69 (Zatia)
Factual and Procedural Background
The writ petition under Article 226 of the Constitution was filed by one Zatia, a constable under the Government of Assam, challenging his dismissal from service. The dismissal of the petitioner was effected by an order of the Governor dated 3 January 1969 (Annexure '1') and an earlier order by the Superintendent of Police, Special Branch, Assam, Shillong (No. D.O. 1817 dated 30-11-68) which dismissed the petitioner with effect from 8-11-67. The petitioner prayed for quashing of these orders and for reinstatement to his post. Civil Rule No. 7/69 arises out of that writ petition. The Court heard arguments on the validity of the dismissal order and the constitutional basis relied upon by the Governor.
Legal Issues Presented
- Whether the Governor's dismissal order (Annexure '1') was passed in terms of the appropriate provision of the Constitution, specifically clause (2) of Article 311 as amended by the 15th Amendment and proviso (c) thereto.
- Whether the Governor's order legitimately dispensed with the inquiry required by Article 311(2) — i.e., whether the Governor's satisfaction was that an inquiry was not expedient in the interest of the security of the State, as contemplated by proviso (c).
- Whether a mere reference to proviso (c) (or a possibly incorrect reproduction of the pre-amendment wording) in the Governor's order can be treated as sufficient compliance with the constitutional requirement for recording satisfaction and dispensing with the inquiry.
Arguments of the Parties
Petitioner's Counsel (as recorded)
- Mr. D.M. Sen (learned Advocate General of Nagaland, appearing for the petitioner) argued that the Superintendent of Police's order of dismissal was void on its face because no immediate effect was given to that order. The Court rejected this contention, noting that actions were done in terms of the Governor's order.
- It was further contended (attributed in the opinion to contentions raised by Mr. D.M. Sen) that the Governor's order only exempts the requirement of giving an opportunity to show cause and does not exempt the holding of the inquiry as required by proviso (c) to clause (2) of Article 311 after the 15th Amendment.
- Mr. J.P. Bhattacharjee (appearing for Mr. D.M. Sen) relied on the Supreme Court decision in Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740) to support the proposition that a mere incorrect or inexact reference to a legal provision in an order cannot cure non-compliance with the substantive requirements of law.
State's Counsel
- Mr. G. Talukdar, appearing for the State, argued that the Governor's invocation of proviso (c) in the second paragraph of the order should be taken to show that the Government dispensed with the inquiry itself and that the phrase referring to "an opportunity to show cause" was a superfluous expression that does not undermine the Governor's recorded satisfaction that an inquiry was not expedient in the interest of State security.
- He maintained it was incorrect to say the Governor's order only exempted the opportunity to show cause and not the inquiry required by Article 311(2).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 | Illustrates that an incorrect or imprecise reference in an order to a statutory or constitutional provision cannot cure substantive non-compliance; non-compliance with procedural rules may invalidate the action the reference seeks to justify. | The Court relied on the decision to hold that mere reference to proviso (c) or an inappropriate application of the old pre-15th Amendment clause in the Governor's order cannot be treated as showing that the Governor had the requisite satisfaction to dispense with the inquiry; strict compliance with the constitutional language was required in the order itself. |
Court's Reasoning and Analysis
The Court proceeded by focusing on whether the Governor's order was made in terms of the correct constitutional provision after the 15th Amendment to Article 311(2).
The Governor's order, as quoted in the opinion, stated that the Governor was satisfied that the constable Zatia was unfit to be retained and that under sub-clause (c) of the proviso to clause (2) of Article 311 the Governor was satisfied that "in the interest of the security of the State it is not expedient to give the said D.S.B Const. Zatia an opportunity to show cause against the action proposed to be taken in regard to him as stated above," and then dismissed him with immediate effect.
The Court set out the pre-15th Amendment form of Article 311(2) and then the amended form enacted by the 15th Amendment. Under the amended clause (2) the primary requirement is an inquiry in which the person is informed of the charges and given a reasonable opportunity of being heard; the provisos (including proviso (c)) permit dispensing with the inquiry itself in certain circumstances (proviso (c): where the President or Governor is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry).
The Court observed that the Governor's order, on its face, appeared to have been drafted in a way that suggested initially an inquiry (with the notices required by the amended clause) was contemplated, but then the second show-cause notice was dispensed with. The Court emphasized that after the 15th Amendment the proviso (c) permits dispensing with the inquiry itself — not merely dispensing with a show-cause opportunity while still holding the inquiry. Therefore the Governor's recorded satisfaction, if it is to be relied upon to dispense with the inquiry, must clearly show that no inquiry was necessary as contemplated by the amended Article 311(2).
The Court noted that the language used in the Governor's order reproduced a provision in terms that were consistent with the pre-15th Amendment wording and that this apparent reproduction was likely inadvertent. The Court stated that whether inadvertent or advertent was not for it to decide, but the operative question was whether the constitutional provisions had been adopted in their true letters in the Governor's order.
Relying on the Ram Manohar Lohia decision, the Court held that a mere reference to the proviso or an incorrect application of the earlier version of the clause cannot be taken to demonstrate the Governor's satisfaction as required by the amended provision. The Lohia principle — that non-compliance cannot be cured by inexact references — was applied to say the Governor's satisfaction must be clearly and properly recorded on the face of the order.
The Court further acknowledged the general principle that the Governor's satisfaction when given in good faith is not subject to objective scrutiny by the Court; however, the Court's role includes ensuring that the constitutional formalities (the "true letters" of the Constitution) have been followed in the recorded order. Because the order did not properly record satisfaction as required by proviso (c) of clause (2) of Article 311 (post-15th Amendment), the Court concluded that the constitutional requirement had not been complied with in the order itself.
Holding and Implications
Holding: The Court QUASHED the Governor's order as per Annexure '1' and the subsequent dismissal orders passed by the Superintendent of Police dismissing the petitioner.
Direct consequences recorded by the Court:
- The petitioner (Zatia) shall be deemed to be continuing in his appointment as a Constable from the date of the Superintendent of Police's order of dismissal.
- The petitioner may be proceeded against afresh, if so advised, according to law (i.e., the State may initiate fresh proceedings that comply with Article 311(2) as amended).
- The rule was made absolute with costs; advocate's fee assessed at Rs. 100. Civil Rule No. 8/69 was disposed of in terms of the order in Civil Rule No. 7/69. The petitioner Chalbunga is separately noted to get costs, advocate's fee being assessed at Rs. 100.
Broader implications: The opinion enforces strict compliance with the post-15th Amendment text of Article 311(2) and its provisos in dismissal orders. The Court applied established precedent to hold that imprecise references or reproduction of an older textual form in an order cannot be treated as compliance with the Constitution's requirements. The opinion does not purport to create a new precedent beyond applying the principle cited from Ram Manohar Lohia.
Rule made absolute. (S.K. Dutta, C.J. agreed.)
Sen, J.:— The writ petition under Article 226 of the Constitution out of which Civil Rule No. 7/69 has arisen, has been filed by one Zatia. He was a constable under the Government of Assam and was dismissed from service by an order of the Governor dated the 3rd January, 1969 as per Annexure ‘1’ of the petition. It is prayed in this petition that the impugned orders passed by the Governor of Assam and the order No. D.O 1817 dated 30-11-68 passed by the Superintendent of Police. Special Branch, Assam, Shillong dismissing the petitioner with effect from 8-11-67 should be quashed. He has also prayed for reinstatement to the post, which he was holding.
2. Mr. D.M Sen, learned Advocate General of Nagaland appearing for the petitioner has urged that the order of dismissal passed by the Superintendent of Police was void on the face of it as no immediate effect thereon was given. We are not impressed by this contention, as everything was done in terms of the order of the Governor, although no immediate effect thereto was given.
3. The most important point for consideration is whether the order of the Governor as per Annexure ‘1’ was passed in terms of the appropriate provision of the Constitution. It runs as follows:
“The Governor of Assam is satisfied that D.S.B Const. Zatia of the Mizo Hills D.E.F is unfit to be retained in the Public Service and that he should be dismissed from service.
2. The Governor is further satisfied under Sub-clause (c) of the proviso to clause (2) of Article 311 of the Constitution that in the interest of the security of the State it is not expedient to give the said D.S.B Const. Zatia an opportunity to show cause against the action proposed to be taken in regard to him as stated above.
3. Accordingly the Governor hereby dismisses the said D.S.B Const. Zatia from service with immediate effect.”
4. It appears from the contention raised by Mr. D.M Sen that the order of the Governor only exempts the requirement of being given an opportunity to show cause against the action proposed to be taken in regard to the petitioner and does not exempt the holding of the inquiry, as is required under proviso (c) to clause (2) of Article 311 of the Constitution. Previous to the 15th Amendment of the Constitution clause (2) read as follows:
“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.”
5. Under the 15th Amendment it was explicitly provided for in Article 311(2) that
“No such person as aforesaid shall be dismissed 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 Page: 81heard in respect of those charges against him and where it is proposed, after 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.”
6. The 15th Amendment envisages two methods of notice and such notices must, therefore, be required to be served when an inquiry is held. The inquiry can be dispensed with only under provisos (a), (b) and (c). The amended proviso (c) of clause (2) runs as follows:
“Provided that this clause shall not apply—
(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 hold such inquiry.”
7. The Governor in terms of this proviso may dispense with an inquiry as contemplated by clause (2) if he is satisfied that inquiry should not be embarked upon in the interest of the security of the State. In the instant case we have already shown from the order of the Governor quoted before, that he was satisfied under proviso (c) of clause (2) of Article 311 of the Constitution that in the interest of the security of the State it was not expedient to give to the petitioner Zatia an opportunity to show cause against the action proposed to be taken. It appears to us that the Governor's satisfaction as to proviso (c) after the 15th Amendment was not, on the face of the order, complied with, but it seems that such an order was passed on the basis of proviso (c) of Clause (2), which existed prior to the 15th Amendment. It is provided therein that clause (2) shall not apply
“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 that person such an opportunity”.
8. The latter part of the Governor's order quotes this proviso, although the 15th Amendment was in existence at the time when the impugned order by the Governor was passed. Accordingly if we may say so, this was done inadvertently by the officer who had drawn up the order. Whether it was done advertently or inadvertently is not a question for us to decide. The order on the face of it purports to show that presumably in the first instance an inquiry was ordered to be made, in which notice as per terms of the amended clause (2) is required to be served and the second show cause notice was dispensed with in the interest of the security of the State. This however cannot be the position in law in view of the clear terms of the amended clause and the Governor's satisfaction must be the satisfaction to the effect that no inquiry was necessary as contemplated by Article 311(2). From the order it does not appear that resort to proviso (c) was taken as stated above.
9. Mr. G. Talukdar, appearing for the State has argued that the condition of holding an inquiry as laid down in clause (2) of Article 311 is required to be dispensed with under proviso (c). It is also stated that it was absolutely incorrect to say that the Governor's order only exempts the requirement of giving an opportunity to show cause against the action proposed to be taken and does not exempt the holding of the inquiry. He further contends that when the proviso (c) cl. (2) of Article 311 of the Constitution has been clearly mentioned in the second paragraph of the order, that would impliedly show that the Government dispensed with the inquiry and the expression “an opportunity to show cause against the action proposed to be taken in regard to him as stated above”, is a superfluity and does not in any way affect the satisfaction of the Governor that no inquiry was to be made.
10. Upon hearing the learned counsel of both the sides it appears to us that as long as the Governor acted in good faith, his satisfaction cannot be determined by this Court by any objective test and inquired into by it. There is no dispute about this proposition of law. But we are concerned to see whether the true letters of the Constitution have been followed by the Governor in passing the impugned order. We have already stated that this order prima facie purports to show that in the first instance an opportunity was given to the petitioner to show cause, but in the interest of public security the second show cause notice was dispensed with. This is not the spirit of proviso (c) of clause (2) of Article 311 and as such since we find that the constitutional provisions have not been adopted regarding the satisfaction of the Governor under proviso (c) (ibid), we cannot say that by implication it should be deemed to have been passed under this clause.
11. In this connection Mr. J.P Bhattacharjee appearing for Mr. D.M Sen has referred us to the decision of the Supreme Court reported in AIR 1966 SC 740, Ram Manohar Lohia v. State of Bihar. The ratio of the decision in the matter of Rule 30(1)(b) of the Defence of India Rules is that ‘law and order’ cannot mean the same thing as ‘public order’ as used in the impugned order stated in that decision and as such the only course open to the court was to hold that the Page: 82rules were not strictly observed and the order did not justify detention. As for the purpose of justifying the detention, such compliance with the rule by itself was enough, a non-compliance necessarily had a contrary effect. We may quote the relevant observation as stated at paragraph 11 of the judgment:—
“I am not impressed by the argument that the reference in the detention order to R. 30(1)(b) shows that by law and order what was meant was public order. That is a most mischievous way of approaching the question. If that were right, a reference to the rule in the order might equally justify all other errors in it. Indeed it might with almost equal justification then be said that a reference to the rule and an order of detention would be enough. That being so, the only course open to us is to hold that the rules have not been strictly observed. If for the purpose of justifying the detention such compliance by itself is enough, a non-compliance must have a contrary effect.”
12. From this decision it is absolutely clear that mere reference to proviso (c) of clause (2) of Article 311 and inappropriate application of the old clause and the proviso, cannot impliedly show that the Governor had his satisfaction regarding dispensing with the inquiry, and unless the provisions of the Constitution in their true letters are complied with in the order itself, we may conclude that the Governor's satisfaction in this regard was not obtained. Therefore, the argument of Mr. Talukdar that mention of the aforesaid proviso is enough, cannot stand and we consider that it is of no substance.
13. In the above premises we are of opinion that since the constitutional provision regarding satisfaction of the Governor under proviso (c) of clause (2) of Article 311 of the Constitution was not recorded, the impugned order and the subsequent orders as passed by the Superintendent of Police dismissing the petitioner cannot have any legal validity. We accordingly quash the order passed by the Governor as per Annexure ‘1’ of the petition and direct that the petitioner shall be deemed to be continuing in his appointment as a Constable from the date of the order of his dismissal by the Superintendent of Police. We, however, observe that the petitioner may be proceeded against afresh, if so advised, according to law. The rule is made absolute in the above terms with costs, advocate's fee being assessed at Rs. 100 (one hundred). Civil Rule No. 8/69 is disposed of in terms of our order in Civil Rule No. 7/69 above. The petitioner Chalbunga will get costs, advocate's fee being assessed at Rs. 100 (One Hundred).
14. S.K Dutta, C.J:— I agree.
15. Rule made absolute.
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