Gauranga Karmakar v. State Of West Bengal & Ors.

1. This Rule is directed against an order of the Governor dated 10th July, 1971, by which the petitioner was dismissed from service with immediate effect in view of the fact that the Governor was satisfied that in the interest of the security of the State, it would not be expedient to hold an enquiry into the charges against the petitioner under Article 311(2)(c) of the Constitution of India.

2. The petitioner Gauranga Karmakar was recruited as a Constable in the West Bengal Police Force on 30th April, 1968. After training, he was posted in the 3rd Battalion of the State Armed Police. On or about 13th July, ??? when the petitioner was on duty, the respondent no. 2, Secretary to the Government of West Bengal, Home Department (Police) through respondent no. 4 — Commandant, State Armed Police III, West Bengal, served on the petitioner the impugned order dated 10th July, 1971, wherein it was stated that the Governor was satisfied that the petitioner was entirely unsuitable for retention in service and the Governor was further satisfied that it was not expedient to hold an enquiry in the interest of the security of the State and so the Governor was pleased to dismiss the petitioner from service with immediate effect.

3. A Division Bench of this Court in C.R 5354(W) of 1970, decided on 3rd October 1975, held that the exercise of power under Article 311(2) proviso (c) is justiciable. An order under that should be considered as an exercise of administrative power by the executive and the exercise of such power is subject to judicial review in the same manner as other discretionary orders scrutinised by Courts. Since the Governor is dispensing with the requirements of Article 311(2) only on being satisfied that it would not be expedient in the interest of the security of the State to hold such enquiry, the Court has power to see whether there has been compliance with the conditions for exercise of such executive powers. Naturally the Court does not examine the sufficiency of the grounds on which the executive discretion has been exercised. In the first place, the courts may enquire whether in fact there has been a decision by the President or the Governor or their delegated authority, if any, in terms of Article 311(2) proviso (c). Secondly, the exercise of discretionary powers must satisfy certain implied conditions — (a) good faith of the executive authority; (b) exercise of power for the purpose for which it is granted; (c) consideration of relevant matters; lastly (d) executive authority must act fairly. It is true that the satisfaction contemplated under the said provision being a subjective one, the courts of law cannot substitute its view for those of the executive as to whether or not it would be expedient in the interest of the security of the State to dispense with the enquiry under Article 311(2). But the court is entitled to enquire whether conditions precedents to the formation of such satisfaction have any factual basis. Secondly, whether the executive had acted in good faith. Thirdly, whether the existence of the relevant materials upon which the validity of the exercise of executive power is predicated are present. In case of administrative decision made on subjective satisfaction, the court can enquire whether any reasonable man could have come to the decision in question and whether the conditions precedents to the formation of the decision have any factual basis.

4. In the original affidavit no material was disclosed to come to the conclusion whether the formation of such satisfaction had any factual basis or not, or whether the prejudical activities were such which would endanger the security of the State. A supplementary affidavit has been filed on behalf of the respondents and affirmed by Sm. Lina Chakrabarti, Deputy Secretary, Home (Police) Department, and in dealing with the case of the petitioner in paragraphs 7 to 9 it is stated:

A short note about the antecedents of Constable 545 Gouranga Karmakar of State Armed Police III, Battalion, Barrackpore was prepared wherein the petitioner was depicted as an active member of new organisation of Policemen which aimed at furthering the case of a particular Political Party and acts as a representative leader of the organisation in the State Armed Police, 3rd Battalion. It further appears from the said report that the petitioner had delivered lectures in the meeting of the new organisation urging the constables to defy the superiors. The said report further discloses that the petitioner was persistently shirking his duties and maintaining contacts with some extremists of the political parties. He was also described as a threat to the discipline of the Police organisation.

On the basis of the said short note in the subversive activities of the petitioner, the then Inspector General of Police, Sri P.K Basu on June 4, 1971, prepared a note with the remark that the petitioner was unsuitable for retention in service. At the same time the Inspector General of Police observed that normal procedure for dismissal cannot be followed in the public interest and accordingly recommended that the petitioner be dismissed under Article 311(2)(c) of the Constitution.

On the basis of the said note, the then Chief Secretary, Sri N.C Sen Gupta, placed the entire file relating to the petitioner, together with the short notes and comments on July 8, 1971, upon which the then Governor of the State of West Bengal, Shri Shanti Swaroop Dhavan, passed the order of dismissal on July 9, 1971.

5. In the case of Ramesh Thaper v. State of Madras, 1950 SCR 594, the question arose whether the Madras Maintenance of Public Order Act (Act XXIII of 1949), 1949 in so far as it purported by S. 9(1-A) to authorise the Provincial Government for the purpose of securing the public safety and the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents, was a law relating to any matter which undermined the security of or tended to overthrow the State. The Supreme Court was of the view that the security of the State must be restricted to those aggravated forms of prejudicial activities which were calculated to endanger security of the State. Therefore, mere incitement to violent crimes or public disorder did not come within the scope of the expression “security of the State”.

6. In the supplementary affidavit, in the note of the Inspector General or Police, it is stated that normal procedure for dismissal cannot be followed in the public interest and accordingly recommended that the petitioner be dismissed under Article 311(2)(c) of the Constitution. It appears that even the Inspector General of Police in his note did not form any opinion that in the interest of the security of the State it was not expedient to hold an enquiry in the case of the petitioner. From the facts disclosed in the supplementary affidavit, in my view, no reasonable person could have come to the decision that in the interest of the security of the State, it was not expedient to hold an enquiry in the case of the petitioner. In my opinion, the condition precedent to the formation of such decision of the Governor had got no factual basis and there was no existence of relevant materials upon which powers under Article 311(2)(c) of the Constitution had been exercised by the Governor.

7. In the result, this Rule is made absolute. The impugned order of the Governor dated 10th July, 1971 which is annexure A to the petition, is quashed. Let a writ of Mandamus be issued upon the respondents not to give effect to the impugned order. This order, however, shall not prevent the authorities to start a disciplinary proceeding against the petitioner if so advised, according to law.

8. Let the operation of the order be stayed for two weeks from date on condition that the petitioner shall be paid his salary as he is entitled to.

9. The above order shall govern the other Rules in C.R.s 2330-31(W), 2334-46(W), 2856-51(W) of 1971 and 5628(W) of 1970, excepting that in C.R 5628(W) of 1970 the operation of the order will be stayed for two weeks on condition that the petitioner shall be paid his arrears of salaries which he did not receive during the period in question.

Rule made absolute.