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Union of India and Another Vs. Tulsiram Patel and Others

Supreme Court Of India Civil Appeal /6814/1981

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UNION OF INDIA AND ANOTHER

. v.

TULSIRAM PATEL AND OTHERS

JULY 11, 1985

[Y.v. CHANDRACHUD,CJ.' v.D. TUIZAPURKAR, R.S. PATHAK,

D.P. MADON AND M.P. THAKKAR, JJ. J

Constitution of India Articles 14,21,309,310,311.

131

Central Civil Services (Classification Control & Appeal)

Rules 1965 Rules 19, 22,23, 25, 27(2),29, 29A. C

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. D

Doctrine of Pleasure-Scope of in Art.311 -Whether an excep

tion to Art.310(1) .

. ,. . Laws made under Art.309 whether to be subject>"to Ar,t.310(1)

· .fJ.ind 311 and Part III.

·~ E

Art. 311(2) second proviso -Principle of natural justice

whetµer. excluded-Mala fide action of disciplinary authority

Whetti~r.'r~an. be assailed -. Conduct of government servant must

justify \disinissal or removal or reduction in rank -Condition

precedent. t<f applicability of the provision -Approach of the

disciplinaty''"authority -The situations when it is not reasonably F

practicable to·.'ll6ld. inquiry -What are -Reasons to be recorded

in writing for riot holding the inquiry -Communication of reasons

to the aggrieved -.g<?ye~ent servant -Necessity of -Remedies

available to the aggrieved governmeilt servant.

'Security of State;.• .. ~ What is -How affected -When not G

expedient to hold inqUiry in· interest of 'security of state' -

subjective satisfaction -of-P~esident or Governor - What is.

Though pre-decisional ·hearing excluded post decisional

departmental hearing available·. -Judicial review open on grounds

of mala f ides or non-application of mind. H

132 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A Government servant convicted for causing grevious head

injury -Punishment of complusory 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 wl1ether

C 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.

D 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.

E WORDS AND PHRASES -MEANING OF

'~ts of the appropriate legislature' -Art. 309. 'Except

as expressly provided by this Constitution' -Art. 310(1).

'Not expedient' 'Security of State' ' -'Reasonably

F practtcable' -'This clause shall not apply' -Art. 311(2).

ADMINISTRATIVE LAW

Subordinate legislation -Executive instructions whether

have forC~ of statutory rule.

Article 311 of the Constitution confers certain safeguards

upon persons employed in civil capacities under the Union of

India or. a State. The f_irst safeguard (which is given by clause

(l) 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

U.Q.l, v. TULSIRAM 133

Article 311 is that he cannot be diomianed reoioved or reduced in

rank except after an·l.nquiry in which he has been informed of the

charges against him a."ld· given a reasonable opportunity of being

heard in respect of tho•e charges. 'rhe second safeguard is, Mow

ever, not available when a person in dismissed, removed or

reduced in rank in any of the three c.eses 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 cla11Be (b), any of

the three penalties can be imposed where the authority empowered

to impose any of the penalties is satisfied that for some reason,

to be recorded by that authority in writing, it is not reasonably

_practicable to hold such inquiry. tinder clauae · ( c) , any of the

aforesaid penalties can be imposed wher•> the Preside.nt, or the

Governor of a State, as the case may b•i, is satisfied that in the

interest of the &ccurity 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 with

out 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 difll!lisll'11 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. silrJ.lar provisions in rules '""de under the

proviso to Article 309 or in rules made under an A!;t 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 (Discipl.tne and Appeal) !Jules 1968, and Rule 37

of the Central Industrial Security Force &ules, 1969, or under

such a rule read with one of the clauses of the secoru:! proviso to

Article 311(2).

The affected government servants u.lailed the aiorasaid

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 llol::SODal. Officer,

Southern ll8illray & .Anr. v. T.1.. a.a11appan [1976] l s.c.&. 783,

and a few

were

diBlllissed.

Appeals by Special Leave agiinst those judgments were

filed, and in three •uch appeals it was noticed by a three Judge

Bench of this Court that there . was a conflict between

134 SUPREME COURT REPORTS [1985] SUPP.2 s.c:.a.

A a.al.lappan's Case and another three Judge Bench in H.Gofiala

Krishna llaidn v. state of lllldhya Pradeah [1968] l s.c.a. 355 and

directed that the papers in the three appeals be placed before

the Hon 'ble Chief Justice for reference to a lsrger Bench. These

appeals were thus referred to the Constitution Bench and all

other similar Appeals and Writ Petitions were also plsced before

B 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

C 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 similady construed, otherwise great hardship would

D result to government servants as they could be arbitrarily thr"""'

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 •:an

be dismissed or removed or reduced in rank namely, serving upon

E 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

F taking of the explanation of the government servant with · respect

thereto 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 r.an

G 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 patt,

it is obligatory upon the disciplinary authority to give an

opportunity to the government servant to make a representatl.on

H with respect to the penalty proposed to be imposed upon him.

u.0.1. v. TULSIRAM 135

6. Article 311 is subject to Article 14. Principles of

natural justice SDd the audi alteram partem rule are part of

Article 14, SDd 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 SDd 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 SDd 111USt 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 lllUSt be read as a whole. Article 311(2) embodies the

principle of natural justice including the ~ 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 baa 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 SDd the safeguards given to a

government

servant under clauses (1)

SDd (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 lllUSt

yield to the former.

Allowing the Appeals of the Union of India and dismissing

the Writ Petitions SDd Transferred Cases of the employees.

HELD : (Per Chmdracbad,CJ. V.D. Tulzapurbr, R.S. Pathak & H

D.P. lladao J.J. -K.P. Dvdrkar ,J. dissenting)

136 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

I. The Pleuure Doct:riDe ill the Dniti!d ltingrkn

'f,

1. :The pleasure doctrine relates to the tenure of a

government servant, thst is, his right to continue to hold •>ffice.

All public officers and servants of the Crown in the IJnited

Kingdom hold their appointments at the pleasure of the era.ill and

their services can be terminated at will without assigniug any

cause. [166 F]

2. ·The pleasure doctrine is not base.d 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 p1'"'8ure

doctrine is thst the public is vitally interested in the effi

ciency and integrity of civil services and, therefore, public

policy requires •. public interest needs and public good dmnands

thst civil servants who are inefficient, dishonest or corrupt or

hsve become a security risk should not contim:.e in seit'Vice.

[166 G]

3; In the United Kingdom, Parliament is sovereign mid can

make any law whatever and the courts hsve no power to declare it

void. The pleasure doctrine is therefore subject to .what •oay be

expressly provided otherwise by legislation. [167 A-168 BJ

'•·

Bala bury' a Lan of Engl and. Fourth J!dn, Volm!e 8 para

1106;1162.

': '~

Shenton V• Saith, L.R. [1895) A.C. 229 J.C., Dwm v. the

Queeea, L.R. [1896] Q.B.D. 116; a.c. (1895-96) 73 L.T.R. 695 and

sub namiDe Dunn v. llegen·in [1895-99] All E.R. Rep. 907., Gould

v. Stuart:, L.R. [1896] A.C. 575,578-9 J.C., Challfah ~Alilrlul

v. ~toJ:DerGeneral of Ceylon (1970] A.C. 1111,1118 (P.C.)

referred to.

I•

II. The Pleasure Docttine in lDdia

1. · In India the pleasure doctrinP. has re<:ei v'ed

Constitutional 88DCtion by being enacted in Article 310(1) c>f the

Constitution of India. Under Article 310(1} except as exp10essly

provided . in the Constitution, every person who is s member of a

defence service or of a civil service of the Union of India or of

an all-Iiidia service or holds any post connected with defe11Ce 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)

u.o.r. v. TULSIRAM 137

2, In India, unlike in the United Kingdcm, the pl.eaaure A

doctrine is DOt subject to any law llllde by Puliament or a State

Legislature but is subject to only what ia ezpresaly provided in

the Constitution. · In India, therefore, the exception&· 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

ezpreasly provided in the Constitution.

4. Article 311, beixig an express proviaion of the

Constitution, is ·an exception to the pleasure doctrine contained

in Article 310(1) of. the Constitution. Clauee& (1) and (2) of

Article 311 restrict the oper&tion .of the pleaaure doctrine so

far as civil. servants are concerned by conferring upon civil

servants the safeguards provided in those clauses~ [179 DJ

5• Under clause (l) of Article 311 no civil servant can be

dismissed or removed ·fJ::om service by an authority subordinate to

that by which he was appointed· [179 E J

6. Uruier clause (2) of Article 311 DO civil servant can be

dismissed or removed from service or reduced.in.rank except after

an inquiry in llhich be hu been informed of the charges .againat

him and given a reasonsble opportunity· of beixig heard in respect

of such chsrges. As a result of the """"'dment made by the

Constitution (Forty-second Amendment) Act, 1976, in clause (2) of

Article 311 it 18 now DOt ueceasary to give to a civil aenant an

opportunity of making a representation . with respect to the

penalty proposed to be imposed upon him. (179 F,181 EJ

7. An order of compulsory :retirement from service illlpoaed

upon a civil servant by way of penalty amounts to "removal• from

service and attracts the provisions of Article 311. [180 E, 197 BJ

8. Restrictions on the operation of the pleaaure doctrine

contained in lesislation made by Parliament in the· United lllilgdom

and in clauses (l) and (2) of Article 311 in India are based on

public policy and are in public interest and for public good in

asmueh as they give to civil servants a feelillg of security of

tenure. (182 E-FJ

9. The safeguard provided to civil servants by clause (2)

of Article 311 is taken away w1ien· any of the three clauses of the

second proviso (originally the only proviso to Article 311(2))

becomes applicable. (162 DJ

138 SUPREME COURT REPORTS [1985] SUPP.2 S.C:.R.

10. It is incorrect to say that the pleasure doctrine 1.s a

prerogative of the British crown which has been inherited by

India and transposed into its Constitution, adapted to suit the

Consti.tutional 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 ( l)

and (2) of Article 311 in India are based . on public good.

S:lmilariy, 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 3U

sets out the grounds for dismissal, removal or reduction in rank

or for imposition of any other penalty upon a ci.vil servan.t.

These Articles also do not specify what the other penalties ar•.•

These matters are left to be dealt with by rules made under tht ..

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,

aa the case may be, exerci,es his pleasure under Article 310( l) ,

it is not required that such set of exercise of the pleasure

under Article 310(1) must be an set of the President or the

Governor himaelf 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]

.. rth-Weat l'roat1er ProviDce V• Suraj llara1D Anmld, L.,R.

[1947-48] 75 I.A., 343,352-3., State of Madhya Pndeab mad Otben

V• smnlul Sillgb, [1970] 3 S.C.R. 302, 305-6., Sardad. Lal v.

IJDioD of India and otbem, [1971] 3 s.c.R. 461, 465. ,l:amabmr

Prasad mad Otben v. D>e State of Bihar mad -tber [1962] Su.pp.

3 s.c.R. 369.. G.K. Qaoae mad 81K1tber V• E.x. Joseph, [1963]

Supp. l s.c.R. 789 referred to.

III. Die IDquiry under Article 311(2)

l. Clause (2) of Article 311 gives a Constitutional man<l.ate

to the principles of natural justice and the aud1 alteram E~

U.O.I. v. TULSIRAM 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~ beard

in respect of those charges • .[234 EJ

2. The nature of this inquiry has been elaborately set out

by this Court in a-Qiand v. 'lbe 1JDioo of India ad Others

(1958J s.c.R. 1980, 1095-97 and even after the Constitution

(Forty-second Am<mdment) 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 servant an opportunity to

make a representation with respect to the penalty proposed to be

imposed upon him. [235 BJ

3. Apart from Article 311 prior to its amendment by the

Constitution (Forty-second Am<mdment) Act, 1976, it is not

necessary either under the ordinacy law of the land or under

industrial law to give a second f>pportunity to show cause against

the penalty proposed to be imposed upon an employee. [243 HJ

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

provisions of Article 311(2) and there is no scope for having

recourse to Article 14 for the purpose of invalidating it«

[235 CJ

IV. 'Die Secaad l'l<ov1ao to Article 311(2)

l. The language of the second proviso to Article 311(2) is

plain and unambiguous. The keywords in the second proviso are

"this clause shall not apply". There is no ambiguity in these

words. Where a situation envisaged in MJY 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 CJ

2. The second proviso to Article 311(2) becomes applicable

in the three cases mentioned in clauses (a) to (c) of that

proviso, namely, (a) Where a pexson is dismiased 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

llllpOllered to dilllliae or remove a person or to reduce him in rank

is eatiafied that for - reason, to be recorded by that

140 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

authority in writing, it is not reasonably practicable to hold

such inquiry; and (c) Where the President or the Governor, 88 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 goveruing words of the second proviso to clause ( 2)

·of Article 311, namely, "this clause shall not apply", are mauda

tory and, not directory and are in the nature of a ConstituUonal

prohibitory injunction restraining the disciplinary authority

from holding an inqu.try 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 bec:omes

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 ~~

facit cessare tacitum" ("when there is express mention of ce1<tain

things, then anything not mentioned is excluded·) applies to the

case. This well known maxim is a principle of logic and cOlllllOn

sense 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 purely for the benefit of a foreign

imperialistic power. They retained, the second proviso 88 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 tc. the

decision of the disciplinary authority that it is not reaso,nably

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-1!]

J.0.1, v. TULSIRAM 141

liira Ial Katt.an Ial etc. V• State of o.P. and Another

(1973] 2 s.c.R. 502, .ec-tssioaer of Incme Tax, H!ldras v.

lladurai Mills eo. I.rd. (1973 J 3 s.c.R. 662, a- a.and v. 'lbe

llDion of India and Others [l958J s.c.&. 1080, Suxesh losby George

v. 'I.be llDlversity of Kexala and Others (1969] l s.c.&. 317,326,

Associated Cement Ccwpanh'B Ltd. v. t.c. Sbrivaatava and Others

[1984] 3 S.C.R. 361,369 and B.Shpnkara Hao W and Others v.

State of Mysore and aootber [1969] 3 s.c.&. 1,12, referred to.

v. Article 14 and the Secowl Provi8o

l. The principles of natural justice are not the creation

of Article 14 of the Con:stitution. Article 14 is not the begetter

of the principles of natural justice 1"1t is their Constitutional

guardian, [230 DJ

2. The principles of natural justice consist primarily of

two main rules, ll81llely, "nemo judex .!.!!_ � sua" ("no man shall

be a judge in his own cause") and "audi alteram partem" ("hear

the other side") • Tne corollary dedUCed"from the above two rulea

and particularly the audi alteram parU!m rule was "qui aliquid

statuerit � inaudita altera, adguum licet dixerit, �

aeqUlllll 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 apressed "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 tM discovery of English judges but were recognised in

111811Y civilizations and over many centuries. [235 D, 237 G]

Dr. Bonhaa's cue [1610] 8 eo. Rep. 113b,118, . British

Rat.hay Doud V• Pick1n 1.R. (1974] A.C. 765, Drw y, Drw ad

Lebam [1855] 2 Macq. 1,8, Jaes llaDIJ.r Sllitb v. lier Majesty the

Queen [1977-78] 2 App. Case 614,623 J.C., Artbar Jolm Spvtwm V•

Die P1-tead D.lstrict llollrcl of llorb 1.R. (1884-85] 10 App. Case

229,240, Viooet and aootber v. llumtt mid 8JK1tber [1885] 55 1,J,

Q.B. 39,41, llgglrfns and another Vo Slletlmdt Local. Board of

llealtb 1.R, (1890) 24 Q.ll.Do 712, 716, liAlge V• llA1dldA ad otlms

1.R. [1963] 1 Q.B, 539,578, llmeka Glmdbi V• lmiOll of India

[1978] 2 s.c.R. 621,676, re B.L (An Infmd:) 1.R. (1967) 2 Q.B.

617 ,630, F•f--t lllveal:Mats J.td, Vo SecntarJ of State for the

IDvinJmml: [1976) 1 W.L.R. 1255,l26H6, lleglm v. Secretary of

state for Ba• Affair• k parte Be snP.11 [1977] 1 w.1.a. 766,

784, Lffl1I ,, Beffll' 111111 others [1978) l w.1.a. 1061, 1076,

!loc:l"D v. 1be worlleQ 1miGD 1.R. (1929) 1 Ch. 602,624, Willia

142 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Green v. Isidore J. Blake and others [1948] I.R. 242, Hounslow

London Borough Comrll v. Twlckenlym Garden DevelopJients Ltd.

L.R. [1971] Ch. 233, KrriDgtcn and others. V• Kini.ster of Health

L.R. (1935] l K.B. 249,280, llidge v. Bslclwin and others L.R.

[1964] A.C. 40, on appeal from L.R. [1963] l 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 dlscriminatory 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 justic:e by a

c 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

conaequences. [233 H-234 A)

5. It is well established both in England .and in India that

D the principles of natural justice y~eld to and change with the

exigenciea of different situations which are not alike. They are

neither cast in s 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, !. fortiorari so can a provision of the

F Constitution such as the second proviso to Article 311(2). [238

•

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 t

provision has expressly prohibited. [238 DJ ~

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 t_he case of a civil servant to whom the provisions of the

second proviso to Article 311(2) have been applied, he has the •

·•

U.Q.I. v. TULSIRAM 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 CJ

9. The majority view in A.K.Gopalan v. The State of Madras,

[1950J S.C.R. 88 namely, that particular Articles governing

certain F~ntal Rights operate exclusively without having any B

inter-relation with any other Article in the Chapter on Fundamen-

tal Rights was disapproved and held to be not correct in Kustom

Cawasji Cooper v. Union of ludia [1970J 3 $.C.R. 530, its burial

service was read in Sambhu Nath Sarkar v. The State of West

Jleogal and Others (1974] 2 s.c.R. 1, Haradhan Saba and another v.

lbe State of West Bengal and Others [1975J 1 s.c.R. 832 and its C

funeral oration was delivered in Maneka Gandhi's case, [1978J 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 Aj D

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 Constitution. Express exclusionary

provisions contained

in the Constitution are .Article 31A (1),

Article

3lli, Article 31C, Article 22 (5) and the second proviso

to. ArticJ_e 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 BJ

11. The principles of natural justice must be' confined with- F

in 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 throughbred

must not be allowed to turn into a wild and. unruly house,

carrering off were it listst unsaddli% its rider, and bursting G

into fields where the sign "no passaran" is put up. [242 DJ

In re The Special Courts Bill, 1978 [1979 J z s.c.R. 476,

State of Andhra Pradesh and llnother v. Nalla Kaja Reddy and

Others [1967J 3 s.c.R. 28, E.P. Royappa v. State of Tamil Nadu

and another [1974] 2 s.c.R. 348, Ajay llasia etc. v. Khalid Mujib H

144 SUPREME COURT REPORTS [1985] sUPP;2 s.c.R.

Sehnmlrdi and others etc. [1981] 2 s.C.R. 79, Boniest Holst

Ltd. V• Secretary of State for Trade and Others L.ll. [1978] 1

Ch.201, A.K. Kraipalt and others etc. v. Union of India and ocbers

[1970] 1 s.c.ll. 457, Union of India v. Col. J.B.Sinha and anotbet

[1971] 1 $.C.R. 791, Swadeshi Cotton Mills v. Union of India

[1981] 2 s.C.R, 533, J. Mobapatra & Co. and another v. State of

Orissa and another [1985] 1 s.c.R. 322, 334-5, Liberty Oil 1t1.11a

and others v. Union of lnd1a and Otb2rs [1984] 3 S.C.C. 465,

Rustam Cavasji Cooper V• Union of India [1970] 3 S.C,R. 530, A.L

Gopalan · v. The State of lladras [1950] s.c.il. 88, SareNn Bath

Satbr v. The State of West lleng!il and others [1974] l s.c.R.l,

Barclban Saba and Anr. v. The State of ll'est Bengal & Om. [1975)

l S.C,R• 832 and Klmdiram Das v. The State of West Bengal & Ora.

[1975] 2 s.c.R. 532;

VI• Service Rules and Acts

1. Article 309 is expressly Wlde 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 contemplsted by

clause (2) of Article 311 except in the three cases specified in

the second proviso to that clause would therefore, be unconstitu

tional and void as contravening Article 311(2). [243 A-CJ

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

G upon the pleasure of the ?tesident or the ~vernor, 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 particular statu

tory provision while the other would render it unconstitutional

·•

•

U.O.I. v. TULSIRAM 145

and void, the one which saves and preserves its constitutionality

should be adopted and the other rejected. l243 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.

h01oever, 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 GJ

5, Service rules may reproduce the provisions of the second

proviso to Article 311(2) and authorise the disciplinary autho

rity to dispense with the inquiry as contemplated by clause (2)

of Article 311 in the three cases mentioned in the second proviso

to thst clause or any one or more of them. Such a pro vi -sion,

however, is not valid and constitutional without reference to the

second proviso to Article 311(2) and cannot be read apart ffom

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 F

rule. [266 H-267 A]

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 imprisoment on a criminal charge "shall be G

dismissed from service". and at the same time to provide that"

only a notice shall be given to the party charged proposing the

penality 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

te:r:ms. To read these provisions as mandatory would be to render H

146

SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

them unconstitutionsl and void. These provisions must, therefore,

be read as directory in order to preserve their constitutiona

lity. [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, 196.8, and the

interpretation of the said Rule 19 would be the same as that of

the said Rule 14. [256 F-11]

VII. Cballoppan 's Case

1. The three-Judge Bench of this Court in Di visiooal

l'ersoDnel Officer, Sou!=bern Railways and another v. T .11..

Clallsppan 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 DJ

2. The Court in Cballappan'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 frOlll that to be placed

upon the second proviso to Article 311(2). [254 G]

3. The Court in Chcllappan'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 ordl!r

thereon as it deems fit" in the said Rule 14 warranted an inter

pretation of the said Rule different f rOlll 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" occuring 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 afterhearing 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-CJ

4. The word "consider" in its ordinary and natural sense is

not capable of the meaning assigned to it in Clallspi>an 's cue.

[255 GJ

5. The consideration of the circumstances under the said

Rule 14 must, therefore, be ~~and· without affording to the

concerned civil servant an opportunity of being heard. (255 HJ

U.O.l. v. TULSIRAM 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

H. Gopala Krishna l!aidu v. State of lfadhya

Pradesh. The correctness of Cballappan Case was, therefore,

doubted from the very beginning. [256 EJ

VIII. IW!cutive 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 HJ

IX.

'lhe Scope of the Second Proviso

l· 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 noraml 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 1D11St

be satisfied. [204 F-205 CJ

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 ~~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 1D11St dispense with the inquiry and then

decide

for itself which of the aforesaid three penalties should

be imposed.

(205 A-BJ

x. Clause (a) of the Second Proviso

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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

misconduct on his part. It has thereafter to decide whether the

A 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, 1f 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 circumsr.,.nces of the caae and the

various factors set out in Qmllappan's Case such as, the rm.tj_re

H conduct of the civil servant of the gravity of the offence

committed by him, the impact which his misconduct is likelv to

· have on' tne administration, whether the offence for .,..ich he was

convicted· was of . a technical or trivial nature, and the

extenuating circumstances, 1f any, present in the case. This,

however, has to be done by the disciplinary authority ~ ~

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 circum

stances of the case. [267 H]

3. Where a civil servant goes to the office of his superior

D 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

E section 4 of the Probation of Offenders Act, 1958, and after such

conviction the disciplinary authority, taking the abvoe facts

·into consideration, by way of punishment comiiulsorily 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 arbitraty. [267

F-G]

XI. Clause (b) of l:be Secood Prov:lBo.

l. There are two conditions precedent which lllllSt be

satisfied before ciause (b) of the second' proviso to Article

G 311(2) can be applied. These conditions are. (i) there lllllSt exist

a situation which makes the holding of an inquiry contemplated by

Article 311(2) not reasonably practicable, and (ii) the discipli

nary authority should record in writing its reason for its satis

faction that it is not reasonsbly practicable to hold such

inquiry. [269 D-E]

U.O.I. v. TULSIRAH 149

2. Whether it was practicable to hold the inquiry or not

1Dll8t be judged in the context of whether it was reasonably

practicable to do so. (269 FJ

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 BJ

4, The reasonable practicability of holding an inquiry is a

matter of assessment to be made by the disciplinary authority and

1Dll8t 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 prevailing situation that clause (3) of

Article 311

m8kes the decision of the disciplinary authority on

his question final. [270 CJ

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, 8.o 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 AJ

(b) Where the civil servant by himself or together with or

through others threatens, intimidates and terrorizes the officer

whu 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 BJ

indiscipline and insubordination prevails, it being 1.Dmat.erial

whether the cooce"lM!d civil servant is or is not a party to

bringing abour aucb a situation. In all these cases, it 1Dll8t be

remembered that numbers coerce and terrify while an individual

may not. [270 <lJ

6. The disciplinary authority is not expected to dispense

with a disciplinary inquiry lightly or arbitrarily· or out of

150 SUPREME COURT REPORTS [l985J SUPP.2 s.c.R.

A 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 CJ

7. The word "inquiry" in clause (b) of the second proviso

includes a part of an inquiry. It is, therefore, not necessary

B that the situation which makes the holding of an inquiry not

reaaonably practicable should exist before the inquiry is insti

tuted againat the civil servant. Such a situation can also ccime

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 hie written statement thereto or

even after evidence has been led in part. [271 D-E]

8. When at the comnencement of the inquiry or pendiug 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 hesriug or

further hearing. In such cases, the matter must proceed~~

and on the materials before the discplinary authority. (271 EJ

9. The recordiug of the reason for dispensiug with the

inquiry is a condition precedent to the application of clauae (b)

of the second proviso. ·This is a Constitutional obligation and

if such reason is not recorded in writiug, the order dispensiug

with the inquiry and the other of penalty following thereupon

E 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 passiug the final order but was subsequently

fabricated. [271 GJ

lQ, The reason for dispensing with the inquiry need not

contain details particulars but it cannot be vague or just a re

petition of the language of clsuae (b) of the second proviso.

[272 CJ

ll. It is also not necessary to commmicate the reaaon for

dispensing with the inquiry to the concerned civil servant but it

would be better to do so in order to elilllinste the possibility of

an allegation beiug made that the reason was subsequently

fabricated. (272 BJ

12. The obligation to record the reason in writiug is

provided in clause ( b) of the second proviso so that the

U.O.I v. TULSIRAM 151

superiors of the disciplina1y authority may be able to j\ldge whe-A

ther such authority had exercised its power under clause (b)

properly or not. [272 FJ

13. It is, however, better for the disciplinary authority

to communicate to the concerned civil servant its reason for dis

pensing with the inquiry because such communication would B

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 HJ

14. It WQuld be illogical to hold that administrative work C

carried out by senior officers should be paralysed by sending

them to other stations to hold the inquiry just because a delin

quent civil servant either by himself or along with or through

others makes the holding of an inquiry by the designated disci

plinary authority or inquiry officer not reasonably practicable.

[ill CJ D

15. In a case falling under clause (b) of the second

proviso it is not necessary that the civil servant should be pla-

ced 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 s•ibsistence allowance should be· continued to be paid E

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 F

action may also be construed by the troubl~rs 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 DJ G

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 DJ H

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

SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

COlllllOn object of coercing those in charge of the administratio~

of the Force and the Government to compel them to grant recogni

tion 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

gre&ter 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 pBrticular

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-BJ

xn. Clause (c) of the Second Pi:oviao.

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 se

curity of the· State can be affected such as by State secrets or

infonnation 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 FJ

4. Disaffection in the armed forces or paramilitary forces

or the p0lice 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 GJ

5. Disaffection in any armed fo,ce or para-military force

or police force is likely to spread because dis-satisfaction and

U.O. I. v • .TULSIRAM 153

disaffected members of such a Force spread dissatisfaction 'awl A

disaffection among other members of the Force and thus induce

them not to discharge their duties properly and to commit acts of

indiscipline, inaubordination or disobedience to the orders of

their superiors. Such a situation cannot be a J>atter affecting

only law and order or public order but is a matter vitally

affecting the security of the State. [276 A-B] 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 c

security of the State, several matters not fit or proper to be

made public, including the source of information involving a

c1 vil servant in such aCts, would be disclosed and thus in such

cases an inquiry into acts prejudicial to the interest of the

seeurity of the State would as much prejudice the interest of the

security of the State as those acts themselves would. [279 D] D

8. The corulition 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 ex

pedient in the interes't of the security of the State to hold a

disciplinary inqUiry. [277 DJ

9. Such satisfaction is not required to be that of the

President or the Governor personally but of the President or the

Governi>r, as thecase may be, acting in the Constitutional sense.

[278 A]

State of Bajastban and Others et:c. et:c. v. llDioD of India F

et:c. et:c. '(1978] l s .• c.R. l, 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 interest of the security of G

the State to hold an inquiry, he would be entitled to dispense

with it under clause (c) of the second proviso. [217 F]

ll. 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 H

invol~ matters of policy. [278 G]

154 SUPREME

COURT REPORTS [l985J SUPP.2 s.c.R

12. Satisfaction of the President or the Governor under

clause (c) of the second proviso may be arrived at 8s a result of

secret information received by the Government 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, malting known such information uy

very often result in disclosure of the source of such information

and once lcnoW, the particulsr 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 lll8de

public. [279 E, 280 BJ

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 remaned 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 dawn 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 relea&ed 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 acc;epted 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 CJ

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 theae Forces

began carrying on an active propaganda against the Government,

visiting various ·places in the State of Madhya Pra•!esh, holdill8

secret meetill8a, distributill8 leaflets and incitill8 the consta

bulary in these places to rise against the adminiatration as a

body

in protest

against the action taken liy 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

u.o.r. v. TULSIRAM

XIII. R Un ..,.nehle to a Civil SenlmC

155

A civil aervant who bas been dillllliased, removed or reduced

in rank by applying to bis case one of the clauees of the second

proviso to Article 311(2) or SD awtlogous service rule has two

rmedies available to him· These .remedies are;

(1) The appropriate departmental remedy provided for in the

relevant service rn1es, and

(ii) if stiU disBBtisfied, invoking the court's ponr of

jwlicial review. [216 A-II]

nv. Deparmeotal. 1 11•.

Service rn1es generally provide for departmental rl!llll!die&

bY way of SD appeal, revision and revie. in the case of discipli

nary action taken sgainat a civil servant.

2. Sub-clause (ii) of clause (c) of the first proviso to

Rule 25(1) of the Railway Servants (Diacipline and Appeal) Rules,

1968, provides that where an inquiry has not been held, the

revising authority shall itself bold such iuquiry or indirect

such iuquiry to be held. A railway servant baa therefore a right

to delland in revision an inquiry into the charges sgainat him

subject to a situation enviaaged in Rule 14 of the BBid Rulee not

prevailing at tbat time. [248 G-;1]

3. Althougb a provision similar to sub-clause (ii) of

clauee (c) of the first proviso to Rule 25(1) of the RailJrays

.Servants (Discipline and Appeal) Rules, 1968, does not exist in

the rnles 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 I>-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 enviaeged 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 post,J>Oned for a resaonsble length of time to

enable the situation to return to normal. (273 G]

156 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

5. An order imposing penalty passed by the President or the

A 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

clauaes of the second proviso of Article 311(2) or of an

B analogous service rule has, therefore, the right in a departmen

tal 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 hear

ing of the appeal or revision application postponed for a reason-

c able 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

D 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]

s .. 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 in inquiry should be held

with respect to the charges on which such penalty has been

F imposed upon him unless a situation envisaged by the second

pl'.oviso is prevailing at the hearing of the appeal or revision

<'.pplication. 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 norma).. [264 B]

G 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 GJ .

•

U.O.I. v. TULSIRAM 157

10. In a case where a civil servant has been dismissed or

removed from service or re.duced 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 dis

pensed with by the President or the Governor and the order of

penalty haB 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 Bule 19

of the Central Civil Services (Classification, Control and

Appeal) Rules, 1965) a departmental appeal or revision will lie.

In such an appeal ur 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 cl vil 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. Jnd1cfa1 Reviev.,,.

l. Where a clause of the second proviso to Article 311(2)

or an analogous service rule is applied on an extraneoua ground

or a ground having no relation to the situation envisaged in

such clause or rule, the action of the disciplinary authority in E

applying that clause or rule would be mala fide and, therefore,

bad in law and the court in exercise Ofits power of judicial

review would strike down both the order dispensing with the in

quiry and the order of penalty following thereupon. [273 C-D)

2 • Where a civil servant has been dismissed or reJ:>Oved 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 impuged 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 reqcirements 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 SUPREME

COURT REPORTS [1985] SUPP.2 s.c.R.

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 snd order his reinstatement. [267 G-268 A, 273 FJ

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 analogoils service

rule, the High Court under Article 226 of this Court under

Article 32 will interfere on grounds well-..stablished in law for

the exercise of its power of judicial review in matters where

administrative discretion is exercised. [274 AJ

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 BJ

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 inqui:r:y 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 disciplina:r:y 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 llll1St put itself in the place of the disciplina:r:y

authority snd 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 analogouei '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 ~

will not, however, aioount to a plea of mala fides and ri!<juires to

be ignored. [280 HJ

7. If the reasons for dispensing with the inquiry are not

U.Q.I. v. TULSIRAM 159

colllllUllicated to the concerned civil servant and the matter C'!""'S

to conrt, the court can direct the reasons to be produced and

furnished to the cl vil 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 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 Consti.tution the question whether any, and

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]

n. 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 growldS wou~pend upon whether the

doc.-nts fall within the class of privileged doc.-nts and

whether in respect of them privilege has beeD. pi:operly claimed or

not. !277 G-278 BJ

In re Tuls:lraa Patel

160. SUPREME COURT REPORTS (1965] SUPP.2 s.c.R.

The Respondent-Tulsiram Patel was a perimment allditor 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, wherupon the officer fell

do-wn, 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 impriso;_,,t, invoked the

provisions Sec. 4 of the Probation of Offend~rs Act, 1956 and

released him for a period of one year on executing a bond of good

behaviour. The Respondent's appeal against bis conviction was

dismissed. [281 F-fl]

The Controller General of Defence Accounts, the

disciplinary authority, imposed upon the Respondent the penalty

of compulsory reUrement under clause ( l) of Rule 19 of the Civil

Service Rules. The respondent 's departmental appeal was

dismissed. (262 A,D]

The Respondent thereafter filed a Writ Petition, and the

High Court relying upon a.allappan 's Case held that no oppor

tunity 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 circuni

stances 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 llA1"D!RS

The respondents who were members of the CIS Force Unit at

Bokaro Steel Plant and were disDiissed 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-wi.de · agitation was carried ou for

recognition of the association. In June 1979 some of the members

went

to Delhi to meet the

Home Miuister. 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

•

u .. o.:r:. v. TULSIRAA.. 16i

persons participated in processions and. violent deaKxlstratiOllll• A

They

indulged in serveral acts of

violence and created serious

in-discipline. The agitation and the violent activity reecbed

serious proportion ·in the last week ·of June 1979 with the result

that the A:rJJJ:f bad 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 Armoury. The agitators B

refused and started firing at the Ar:JJJ:f, who. returned the fire,

and the exchange· of ftre resulted in the instant death of one

A:rJJJ:f Major. The offending CISF members were over powered, ·and

arrested. (284 F-2.85 DJ

The authorities were of the opinion; that having regard to · c

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 requirl!ments of Article 311(2) lllOUld be

dangerous Counter-productive and would aggravate the existing D

dangerous situation, the delinquent persorinel were diamiased in

ei<ercise 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

clawie (2) of Article 311 of the Constitution. [288 C-289 AJ

The Cis Force bas been constitnted under the CISF Act for

the better protection and sei:urity of industrial undertakings E

owned by the gl)vernment. The .CIS Force is an armed Force and the

security duties to be performed by the CIS Force are of vital

iiuportance to the industrial production of the country, [289 Jl,GJ

All the acts indulged in by the members of the Force vir

tually amounted to a 11111tiny and boll grave the situation was can F

be judged from

the fact that

the army. bad to be called 0ut and a

pitched battle took place betweeo the army and the members of the

Force. (291 AJ ·

No person with any reason or sense of responsibility can

say that in such s situation the holding of an inquiry was G

reasonable and practicable. [291 BJ

The appellate authority under the Central Industrial

Security Force Rules i969 was directed to dispose of as

expeditiously as possible such appeals of the members of the

Force as lllig)lt a.till be pending. Such of those members ·who bad H

162 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A not filed any appeal, in view of their reliance on Cball.appan '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 CJ

KADllAY Sl!B.VICE llA1Tl!llS

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

c employees belonged to the all-India loco-running staff. The rail

way 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 s

D vital to the country. Where, therefore, the railway employees

went on

an illegal

strike without complying with the provisions

of section 22 of the Industrial Disputes Act 1947, and thereby

cOlllllitted an offence punishable with imprisonment and fine under

section 26(1) of the said Act, and the railway serviCllS were

paralysed, loyal workers and superior officers assaulted and

E intimidated, the country held to ransom, the economy of the

country and public interest and public good prejudicially

affected, prompt and iDDediate action was called for in order to

bring the situation to normal. In these circ.-cances, it

cannot be said that an inquiry was reasonably practicable or that

clause (b) of the second proviso to Article 311 was not properly

F applied. [294 C-F, 295 CJ

IWllIA. PIWl!SH l'OLICI! Flll(:l!S llA1Tl!llS

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 EJ

An incident took place on January 18, 1981 at the annual

Mela held at Gwalior in which one man was burnt all ve. Some per

sons including a constable from each of these two forces, were

arrested and remanded to judicial custody. On January 20, 1981

•

u.o.I. V• TULSIRAM [MADON,J.] 163

several members of these two Forces indulged in 'Violent demon

stration 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 DJ

The police are the guardians of lav and order, and if theae

guards tum law-breakers and create violent public disorder and

incite others to do the saa, prompt and urgent action ~s

necessary and the holding of an inquiry into the conduct of each

indirldual member of the police force -Ud not be expedient in

the interest of the security o.f the State. {297 A-BJ

(Nr x.r; Tblllibr J-cllil• attng)

'a..Jlappan • has been rightly decided. And there is no

compulsion to overrule U -Eftll if the other point of view were

to appear to be more 'attractive' it is neither a good nor a

· aufficient ground to overrule •a..uappea•. The decision, does no

more than enjoin in the context of Rule .14(1) (a) and tlterefore,

u a logical corollary, also in the context of Rule 14 (a) (b) of

the llaf.lways Servants (Discipline and Appeal) Rules, 1968, that

an mployee 1111St atleast be heard on one question of quantum of

punis1-ct before he is dismissed or removed frOlll service without

holcl1ng 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

thue cuea and association with the exposition of 1av in regard

to the true meaning and content of the 'pleasure doctrine' and

its illplications and impact is not possible. [300 BJ

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6814 of

1981 etc.

From .the Judgment and Orde dated 23.6.1982 of the Madhya

ptadesh High Court in M.P: No. 1028 of 1981.

L.N.Sinha, M.K.Ramanurthy, K.K.Vinugopal, V.M.Tarkunde,

p;a. Mirdul, p;p:singh, R.N.P6ddar, Umesh Mishra, M.A.Krishna-

moorty, Indira

Sawhney, Kittu Bansilal, Chandan Malhotra, J -Rama- G

1111rthy, R.Vaigai, H.K.PUri, V.K.Bahl, 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, Inclu 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 SUPREME COURT REPoRTS [1985) SUPP.2 s.c.R.

A lllillON, J, The above Appeals by Special Leave granted by

this Court and the above Writ Petitions filed either in this

Court under .artilce 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 interpreta

tion of Articles 309, 310 and 311 of the Constitution and in

B particular of what is now, after the amendment. of cl.iuse (2) of

Article · 311 by the Constitution (Forty-second Amendment) Act,

1976, the second proviso to that clause. ·

1'be Genesis olO the Appeals aod Vd.t: PetitiODS

To ·understand what questions fall for determination by this

c Court in these Appeals and Writ Petitions, it is first. necessary

to sketch briefly how they have come to be heard by .this Consti

tution Bench.

Article 311 of the Constitution cohfer.s certain safeguards

upon persons employed in civil capacities under the Union of

India or a State. The first safeguard (which is given by clause

(l) of Article 311) is that such person cannot be dismissed or

removed by an authority subordinate to that by which he wail

appointed. The second BSfeguard (which is given by clause (2) of

Article 311) is that he cannot be dismissed, removed or reduced

in rank except after an iuquiry in which he has been informed of

the charges against him and given a reasonable opportunity of

being hearli in respect of those charges • The second safeguard

is. hOYever. 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 ~11(2). These three cases are set out

in clauses (a) to (c) of the second proviso. Under clause (a),

such person can be d:Lsmissed, removed or reduced in rank without

, !Jw,y inquiry ·on the ground of conduct which has led to his convic

tion 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 authoirty in writing,it is not

reasonably practicable. to hold such inquiry., Under clause (c),

any of ·the above penalties can be imposed upi>n hini where the

·President or the Governor of a state, as the case may be, is

,saHsfied that in the interest of the security of the State it is

hot ~ent to hold sueh :Lnq'uiry.

, All the government servants in the above,#~· and-Writ.

Petitions have been either · dismissed or removed' ftom service

'..itl>Oo.ii holding any inquiry· n;ey. have not. been 1ihf-O"-t.of die

charges ~i: ·1;tiem nor. beeii· giveri~any·,,opportllnity ~f· being

u.o.r. v. TULSilWI [MADON, J.j 165

heard in respect of those charges.. The penalty of dismissal or A

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 Arti -

cle 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 B

Railway

Servants (Discipline and

Appeal) Rule 1968, and Rule 37

of the Central Industrial Seeurity 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 rem.oval, several C

government servants filed writ petitions under Article 226 of the

Constitution in different High Courts. Some of these writ peti

tions were allowed, mainly on the baSis of a decision of a

three-Judge Bench of this Court in Divisional Persoonel Officer,

5out:hezn Railway & Anr. V• T.R. Challappan, (1976] l s.c.R. 783,

given on September 15, 1975, while a few were dismissed. Appeals D

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, mmely, M.Gopala Krishan lla.idu v. State of Madhya Pradesh,

(1968] 1 S.C.R. 355, and directed on November 18, 1976, that the E

~pers 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

tliis Constitu-F

tion 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.

Ci vi1 5"rvaots G

Justice Oliver Welldell Holmes in his. book ''The Common I.aw".,

consisting of lectures delivered by him while teaching law at

Harvard and published just (/ne year· before he was appointed in

1882 .an Associate Justice of' the Massachusetts Supreme Judicial

Court, sai.d : H

166 SUPRllME COURT RJWOR.TS [1985] SUPP.2 s.c.R.

"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 oust 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 chan&es

which have taken place in it from time to time.

Ci.vil servants, that is, persons who are members of a civil

C 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 tennination by notice, it can be

so tenninsted. If there is no provision for giving a notice and

D the contract is not for a fixed period, the law implies an obli

gation to give a reasonable notice. Where no' notice in the first

case or no reasonable notice in the s"econd case is given, the

contract is wrongfully tenninated and such wrongful tennination

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 servants both in ~ngland and in India is, however, vastly different.

lbe Civil Service in Kogl and

Our civil services are modelled upon the British pattern

F 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

appointor") as opposed to an office held. dum bene se gesserit

G ("during good conduct"), also called quadiu ~ 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

tenninsted 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

H sovereign and has the right· .to make or unmake any law whatever

U.O.I. v. TULSIRAM [MADON, J.J 167

and all that a court of law can do with an Act passed by Parlia

ment 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(l Bl., Conm.

PP• 160,161) :

"It hath sovereign and uncontrollable authority in

the making confirming, enlarging, restraining abrogat

ing, repealing, reviving, and expounding laws, concer

ning matters of all possible denominations, ecclesias

tical or temporal, civil, military, maritime, or

criminal " this being the place where that absolute

despotic power, which must inall govermnents reside

somewhere, is entrusted by the constitution of these

kingdoms. All mischiefs and grievances, operations

and the laws, are within the reach of this extraordi

nary tribunal. It can regulate or ne1MDOdel the

succession to the Crown; as was dot\e in the reign of

Henry Vlll, and William Ill. It can alter the estab

lished religion of the land; as was done in a variety

of instances, in the reigns of king Henry Vlll and

his three children. It can change and create afresh

even the conatitution of the kingdom and of parlia

ments 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 naturaly 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 aut;hority upon earth

can undo."

Jean Louis De Lolme, the eighteenth-century Swiss conatitu

tionalist in his "Constitution de 1 'Angleterre" ("Constitution

of Engl and"), which gave many on the continent their ideas of the

British Conatitution, sU11111ed 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 G

(see 10th Edition, p.43) :

"It is ii fundamental principle with English lawyers,

that Parliament can do everything but make a -.ill a

man, and a man a woman."

168 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

So far as the pleasure doctrine in England is concerned;

Lord Di plock in Chel 11 ab l(odeeswaran v. Attorney-General of

Ceylon, L.R. [1970j 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 legisla

tion."

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 bindj.ng

collective agreements can be entered into between the Crown ·and

representative of its staff and those representatives can sue for

breach df any conditions of service covered by these agreement.

Further, , a civil servant can bring an action for unfair dis

missal 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 dis

missal. (See llalsbury's Lsws of England, Fourth Edition, Volume

8, Paras 1106 and 1303).

'll1e Pre-<:cmstitution Civil Services in India

It is unnecessary to go back more than two centuries to

F traee the origin and development of the Civil Service in India.

The East India Corupany sent out to India its own servants and so

did the Crown, arui 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

G 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 writ

ing or instrument under his or their sign manual, countersigned

by the President of the Board of Commissioners for the affairs of

U.Q.I. v. TULSil!AM (MADON, J.] 169

India, to remove.or recall any person holding anY office, employ,

ment or cOllllllission, civil or military, under the East India Com

pany; while section 36 of that Act provided that nothing contain

ed in that Act should extend, or be construed to extend, to pre,

clude 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

t~s 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 nol been passed. Similar . provisions

were made in the Act. of .1833 (3 & 4 WilhIV, c.8~) by sections. 74

and 75 of that Act. .Section 74 made it lawful "for. His Maj.lsty

by any Writing under His Sign Manual, countersigned· by the

President of the said Board of Coumissioners, to remove or

dismiss any person holding anY office, "!l'Ployment or COlllllission,

civil or military, under the said Company in India, and to vacate

any Appointment or ComnisSion·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 officer.a or .servant;:s of the Company "but

t;:hat .the said Court. shall and may. at all Times have. full Liberty

tp ramive or dismiss any .of suCh officers. or servants st 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 E

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 serv~ce, 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 Viet. ,c.106),

which vested . 1n tlte Bdtish .. Crown the. territories under the

government of East India . Company, repealed 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 ~st India· Company and G

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 llliltters connected

therewith. Three years later the Indian Civil Service so envi

saged received statutory recognition by: tlte .enactment of tlte

\Indian Civil Service Act, 1861 (24 & 25 Viet., c•54}. H

170 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

The above Acts were repealed by the Goverment of India Act

of 1915 l5 & 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 Coomissioners, the power' to make rulea for

the Indian Civil Service examination.

None of the above nor the Goverment 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. Thill 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 pro'Vided as follows ·-

96 B. 1be civil aerv1ces in IDdia. -

( l) Subject to the pEOVisiana of this Act and of rules

llllde tbenaader, every person in the civil service of

the Crown in India holds office dud,ug 1118 Majesty's .

ple•ntt, and may be employed in any manner required

by a proper authority within the sc~pe of his duty but

no person in that service may be dismissed by any

authority subordinate to that by which he was appoin

ted, 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 sel!"Vice 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 provinee, 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 thegovemor 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 recruitmel!t,

•

·-

u.0.1. v. TULSIRllM [MADON, J.j 171

their conditions of services, pay and allanocu, and

discipline and conduct. Such rules may, to such

extent and in respect of such matters as may be pres

cribed, delegate the power of making rules to the

Governo~ral in Council or to local governments,

or authorise the Indian legislsture or locsl legis

lstures to make 1sws regulsting the public services:

Provided thst every person appointed before the com

mencement 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 suchcompensation,

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 regulsted in accordance with the

rules in force at the ttme of the passlng of the

Government of India Act, 1919. Any such rules may be

varied or added to by th& Secretary of State in Coun

cil and shall hsve 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.

Nothiog in this section or in any rule thereunder

shall prejudice the rights to which any person may, or

may hsve, become entitled under the provisions in

relstion to pensions contained in the East India

Annuity Funds Act, 1874.

( 4) For the.

removal of doubts it is hereby declsred

thst 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 Coun- G

cil or by any other authority, relsting to the civil

service of the Crown in lDdia, were duly made in

accordance with the powers in thst behalf, and iu;e

confirmed, but ·any such rules or provisions may be

revoked, varied or added to by rules or lsws made

uru!E.r this section." H

172 '

SUPREMK COURT llliPORTS (1985J SUPP.2 S.C;R.

The Fundamental Rules, the Civil Service '(Classification, Control

and Appeal) Rules of i.930 and the Civil Se.rvice (Governors Pro

vinces Claiisification) Rules are i11Stances of rules made under

authority' conferred by section 96B. Section 96C provided for the

establishment of a Public Service Connnission. Sub-section (l) of

section 96U provided for a~ 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

Audito~neral' s pay, powers, duties and. conditiollS of employ

ment. Sub-section (2) of section 96D provided that, subject to

any rules lnade 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 co11Sultation

with such finance authority as wight be designated in therules

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 section 96>: rules under Part VIlA 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 conti

n~ed to be ~nder the co~trol of the Secretary of State ·in Council

who was t~ regulate by rules the classificat'ion of the civil

setvices, .the methods of recruitment, the co~ditions of services,

pay and allowances, and discipline and conduct. Such rules could

also provide for delegation of the rule-making power to the

<.,;overnor-General in Council or the local Governments or autho

rize the · rndian 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 enanct Acts regulating

the public services was derived by delegation of power made by

the Secretary of State in Council.

I•

What is really material for the purposes of the present

Appeals and Writ Petitions is that section 968 of the Government

of India Act, 191~, for the first time expressly stated tnat

every person in the civil se~vice of the Crown in India hel~

office "during His MaJesty's pleasure." This wa8:, however, made.

subjec·t to three safeguai'ds, namely -

(1) a civil servant could not be dismissed by any

authority subordinate to that by which he was

appointed;

·'

u.o.I. v. TULSlRt\M [MADON,J.J 173

(2) the· Secretary of Stai:e ·1n 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 Co\Jncil'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 considred 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 ·ser

vices in India during the intervening period between the Govern

ment

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 Govern~

ments, consisted of what wel-e known as the ~·all India setvices· ,·"

which governed a wide variety of departments. There were, in the

·first place, the Indian Civil Service and the Indian Police Ser

vice, which provided the framework of the administrative machin

ery. 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 addi

tion to the all -India services there were the central services

under the Government of-~ndia and the Provincial services in the

Provinces; and lastly the subordinate services. (See Indian

Statutory (Simon) Collllllission Report(l930), Vol.I,para· 290 ff.).

During the years following the 1919 Act it was dedded that, as a

consequence

of the decision

to effect progressive transfer of

power to Governments in India, the nwnber of all-India services

under 'the direct control of the Secretary of State should be

progress! vely reduced espedally in those fields of administra

tion that were transferred to ministerial control. It was now to

174

SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

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 Qranch

of the Indian Medical Service being retained by the Secretary of

State and the rest being converted into Provincial services,

safeguards ~ing provided to secure the rights and privileges

~uaranteed to officers recruited earlier to the all-India

services. (See Report of the Joint Select Collllllittee on. Indian

Constitutional Reform, (1934), para 277.)

The above position received legislative re~ilgnition 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 pur

suance of which it was reprinted, 'namely, the Government of India

\Reprinting) Act, 1935 (26 Geo. V & 1 Edw, Vllt,c.l). Part X of

the 1935 Act dealt with the services of the Crown in India.

Chapter II cf 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 reduc

tion in rank. Section 241 dealt with their recruitment and

conditions of service. Under that section power to make apoirit

ments

was vested in respect of central services in the Governor

General

and in respect of the Provincial

servic~s in the respect

ive Governors. In the same manner the power to regulate condi

tions of service of the ~embers 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 appointmeqts and rules with

respect to the conditions of service. Provision was also .made

for enactment of Acts by appropriate Legislatures to regulate the

conditio~ 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 111 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 Provin-'

ces to agree to have a joint Public Service Connnission or for the

Public Service COnmission of one of these Provinces to serve the

needs

the· other provinces.

U.O.I. v. TULSIRAM [MADON,J.] 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 perlions employed in civil

capacities in India. -

( 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 bolds office during Bis Majesty's

pleasure.

(2) No such person as aforesaid shall be d,ismissed

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 D

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 convic- E

tion on a criminal charge; or

(b) where an authority l""POWered 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 F

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--{;eneral, 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 SUPREME COURT REPORTS [1985) SUPP.2 s.c.R.

A period that post is abolished or he is, for reasoru

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

B 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 safe

guards were :

(1) under sub-section (2) of section 240, such a per

son could not be dismissed from service by any autho

rity subordinate to that by which he was appointed,

and

(2) under

sub-section (3) of section 240, such a per

son 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 re

duce 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.

'!he Civil Services under the Constitution

Provisions with respect to services under the Union and the

. itates 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 Servieoe Commissions for the

H Union and the State. Article 308, as originally enacted, defined

<J.U;l.-v. TULSIRAM [MADON,J.] 177

the expression "'State" occurring in Part XIV as meaning, unless A

the context otherwise required, "a State specified in Part A or B

of the First Schedule." This Article was amended by the Constitu-

tion (Seventh Amendment) Act, 1956, which was passed in order to

implement the scheme for reorganization of States. The amended

Article 308 provides, "ln this Part, unless the context otherwise

requires, the expression 'State' does not include the State of B

Janinu and Kashmir." Article 309 provides for recruitment and

conditions of service of persons serving the Union oi: 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 C

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 nstiorial interest

so to do, Parliament might by law·provide for the creation of one

or more all-India services comnon to the Union arid the States and

subject to the other provisions of Chapter I regulate the D

recruitment and conditions of service of persons appointed to any

such service; and it further provides that the lndian Administra-

tive 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

inmediately before the comnencement of the Constitution and E

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 F

passed or made before the coumencement 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

inmediately tiefore the commencement of the Con8titution continue

to apply to such services in so far as they were consistent with G

the provisions of the Constitution until amended, varied, revoked

or replaced by Acts, rules or regulations made in accordance with

the'provisfons of the Constitution.

From what has been stated above it will be seen that the

provisiotts 'llitn respect to civil services in the Gov�rmnent of

lndia Act, 1935, were taken as the .basis for Chapter I of Part

XIV of the Constitution.

178

SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

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

refer~nce to the Rajpramukh. Articles 309 and 310, as so amen

ded, read as follows :

"309.Becruitment and CODditiOllS of service of perSODB

serving the Union or a State. -

Subject to the provisions of this Constitution, Acts

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 condi

tions of service of persons appointed, to suGh

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.

u.o.r. v. TULSIRAM [MAOON,J.] 179

(2) Notwithstanding thst 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

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

speeial qualificatioIIS, provide for the payment to him

of compensation, if before the expiration of an agreed

period

thst post is abolished or .he is, for reasons

not connected with

any misconduct

O!l his part, requir

ed to vacate that post."

Article 311 as originally enacted was in the following

terms

"311. Disllissal, removal or reduction in rauk 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 thst by which he was appointed.

(2) No.such person

as aforesaid

shell 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 thst this clause shell 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 crimi?"l charge;

(b) where an authority empowered to dismiss or remove

a person or to reduee him in rank is satisfied that

for some reason, to be recorded by that author.ity in

writing it is not. reasonably practicable to ·give to

thst person an opportunity of showing cause; or

180 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

the ca·se may be; is ·satisfied truit in the interest of

the' security of the State it is not expedient to give

to that person such an opportunity.

. . , . ' -~,.

(3) If any questio~ arises .whether it is reasonably

practicabie to give to ·any person ail opportunity of

showing t:ause under clause ( 2).' the decision thereon

of the authority· eoipowered to dismis's or remove such

person or to reduce him in rank, as "the case may be,

shall be final'" · · ' ·

The words "or Rsjpr~"',in.tlauSe (c) of the ,proviso to Arti

cle 311(2) were omitted by tl:\e Constitution (Seventh' Amendment)

Act, 1956. . . .. . . ., . '

By the Constitution (Fifteenth Amendment) Act, 1~63. Clauses

(2) and (3) of Article 311 were substituted b';i: ):he following

clauses :

"(2) No.such per~on.as ·aforesaltl.snall be dismissed or

removed or reduced in railk exi:ept' after ·a,; inquiry in

which he has been informed of the charges against him

and given a reasonable. opportuni ~y of . being heard in

respect of those charges ·and where. ,it . is proposed,

after such inqUiry, to impose.on him any s11ch penalty,

until h<a has beeb. given a reasonable opportunity of

making representatiprt on. the penalty ·proposed, but

only on the basis of the evidence adduced during such

inquiry :

Provided that this clallse shal not apply -

(a) where a person is dismiss~d· or removed or reduced

in railk 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

person or· to reduce, him· in

rank is satisfied that

for some reason,'to be recorded by that authority in

writing, it is n9t reasonably practicable to hold such

inqUicy. ; or '

may be, is 'satisfied .. tliat in the interest of the

u.o.r. v. TULSIRAM [MAOON,J.] 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 dause (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 so amended reads

as follows

"311. DiBllissal, removal or reduction in rank of

persons employed in civil capacities under the llnioo.

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 a:..1y such penalty, such penalty may

be imposed on the basis of the evidence adduced during

such inquiry and it Shall net be necessary to give

such person any opportu.nity of making representation

oh the penalty proposed :

Provided

further that this clause shall

·not apply -

ta) where a person is -dismissed or rel])()ved or reauced

in rank on ·the groulld of conduCt which has led to his

conviction on a criminal charge; ~r

182

SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

(b) where the authority empowered to dismiss or remove

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

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 safe

guards 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

provis:l,on similar to clause (3) of Article 311 was also absent

from the Government of India Act, 1935. Thus, while on the one

G 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

relevart~ provisions of the Constitution, it will be now conve-

H nient to turn to the submissions made at the Bar with respect to

'·

u.o.r. v. TULSIRAM [MADON, J.) 183

the pleasure doctrine and the second proviso to Article 311(2)

and test the correctness 9£ these submissiolls.

1be Second Proviso -Iii val Snbn! ssicms

The arguments advanced on behalf of the government servants

on the pleasure doctrine and the .second proviso to Article 3ll

(2) may be sketched in broad outlined as under : B

(1)

The pleasure doctrine in England is a part of the

special prerogative of the Crown and has been inheri

ted by India from Eng.land and

·should, therefore, be

construed strictly, that is, strictly against the

Government and liberally in favour of government C

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 ser

vant 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 autho

rity 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 .SUPREME COURT .REPORTS [1985j SUPP.2 s.c.R.

(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 disciplin

ary authority to give an opportunity' to the government

servant to make a respresentation 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 ~he explanation of the government

. servant with respect tv the charges against him as

also a notice to show cause with respect to the pro

po5P.d penalty are required to be given by Article 14

and the not giving of such notices or either of them

renders the order of dismissal, removal or reduction

in rank .invalid.,

, The .submissions on ·behalf of the Union of India can be thus

S'-'irized

( l) The second provis~ must be c.ons trued according to

its terms. It is unambiguous and does not admit of

' any such interpretation as canvassed for on behalf of

the govet'Illllent servants.

(2) Where under the seco!ld 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 ahow 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 applles •,

(4) Ait~cle .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 alter1jIII partei:i rule. It thus

expressly states .what is requiced 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 Constit~tion

\l.O.l. ''· TU!SIRAM iMAOON, J.] 185

itself, there can be no question of making applicable

what has . been so exduded by seeking recourse to

Article 14.

(5) Consideration of sympathy for the gove1nment ser

vants wllo may re dismissed or removed or reduced in

rank are irrelevant .�o the construction of the second

proviso• The. doctrine of tenure at pleasure in Arti

cle 31Q and the Safeguards given to a government ser

vant under clauses (I) 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 confli�ts with private

. interest, the latter DRJSt yield to the former.

'lbe Pleasure Doctrine.

1'he conc.ePt of civil service is .not now or of recent origin.

Governments -whether monsrchial, 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 consti

t.uted 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

lllOdem notioxu; � 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 supeJCVise all the details or

administration. As it was· throughout history, so it has .been in

England and in India.

In England, all public officers a'ld. servants of the Crown

hold their appointments at t})e pleasure of ·the Crown and their

services can be terminated at· will without assigning any cause.

lly the expression "the pleasure· doc.trine" 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 Uni.ted Kingdom, Parilament 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 develvf'll"Ilt of highly organized hierarchy (a IDC'del

copied by many countries in the nineteenth century); and they are

the basis of · lllOdem European civil services. In England civil

servants Were O�iginally the !llOna!Ch 1 S personal Sel"�SDtS Slid

186 SUPREME COURT REPORTS [1985] SUPl'.2 s.c.R.

A members of the King Is household. Clive Is 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 repoft on

recruitment

to the Indian

Civil Service provided the inspiraUon

for the report of 1~54 on the organization of the permanent civil

service iri Britain which recoumended recruitment by open competi-

B tive examination, the selection of higher civil servants on the

basis of general intellectual attaimnent, and the establishment

of a Civil Service Commission to ensure proper recruitment.

In .the United Kingdom, until about the middle of No~r·

1981, the Civil Service Department, which was set up in r!l68 with

the Prime Minister, as Minister for the Civil Service; tis its

C 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 remunera

tion, 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 l>y,

D members of the armed forces; with certain exceptions, superannu-' ·

ation and injury payments, compensation for loss of employipent or

loss or diminution of emolwnentS 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

E or conditions of service of members of public bodies ( exuudl.ng

judicial bodies), or the mDDbers, pay or conditions of s1'rvice of

staff employed by such bodies or by the holders of ceTtairi non

judicial · offices; and the appointment or employment ._and the

remuneration, conditions of service, personal expen.Ses · or

allowances of judges and judicial staff (See Halsbury's L&ws of

F ~lljlland, Fourth Edition, Volume 8, para 1162J•

The Permanent Secretary to the Civil Service Department was

the Head of the Home Civil Service and gave advice to the Prim"e

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 Aricle 310(1). Unlike in the. United

H Kingdom in India it is not subject to any law made by Parliament

U.Q.I. v. TULSIRAl1 [MADON,J.] 187

but i•· subject only to what is expressly provided by t:he

Constituti<in.

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 Dictio

nary, and "terms of holding; title; authority" according to the

Oxford English Dictionary. It, ther_efore, means the period for

which an incl.Ullbent of office holds it. It is for ttJ.s reason

that the statement of law relating to the pleasure doctrine in

England' is given in Halsbury's Laws of England, Fourth Edition,

Voltlne 8, Para 1106, under the heading "Tenure of office".

., The first time that a st<ftute relating to the government of

India provided that civil servants hold office during His

Majes.ty'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 D

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 ina.rginal note to

section 240 of the Government of India Act, 1935, however, was

"Tenup' 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 E

serving the Union or a State". Thus, it is the tenure of govern-

ment 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 govern- F

mant 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 anachro-

nism 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 G

policy, ·aru1 it was in public interest and for public good that

the· tight . 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 Cons

titutional sense by the Crown in England and by the President or

the Governor of a State in India.· It is not possible to accept H

the arguments advanced on behalf of the government servants for

188 SUPREME COURT.REPORTS [1985] SUPP.2 s.c.R.

A all tile authoritative judicial dicta ar.e to the contrary. As

pointed out by Lord Hobhouse in Shenton v. Smith, L.R.[1895j A•C.

229 J .c., the pleasure doctrine is founded upon the principle

i:hat 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

B public service. In � v. The �. L.R. [1896) Q.B.D. 116;

s.c. [1895-90] 73 L•T.K. 695 and sub .-iiie � v. Begem in

[i895-99 J All t:.l{. 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

C Herschell observed (pages 119-120) :

"lt seems to me that it is the public interest which

has led to the term which I have menti.oned being

imported into contracts for employment in the·service

of the Crown. The cases citect shew that, such employ

Ulellt being for the good of the public, it is essential

D for the public good that it should be capable of being

detenained at the pleasure of the Crown, except in

certain exceptional cases where it bas been deemed to

. be more for the public good that some restrictioos

should be imposed on the ix-r of the Crow to dismiss

it's s�rvants. •

E (Emphasis supplied)

In the same case Kay, L.J., said (page 120)

"It seems to me that the continued employment of a

civil servant might in many cases be •as deterimental

F to the interests of the State as the continued employ

ment 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

Es her, M.R., being the third judge), though in substance the

same, are �iven in very different language and the passages ex

tracted above do not appear in that report. The report of the

case in the All England Law Reports Reprint series is with �ery

minor variations the same as 'the report in-the Times Law Reports

series but somewhat abrid�ed. This is bec'1use the All England

Law Keports Keprint series is a revised and annotated rt:print of

a selection from the Law Times J\eporb tor tile years lti43 to

•

u.u.I. v. TULSIRAM [MADON,J. J 189

1935. The

report from which the above extracts are given is the A

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 wt.ere by regul-B

ations a civil service is established prescribing · qualifications

for its members ~ :..i tposing 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 'lbe States of Uttar c

Pradesh & Ors. v. Babu Ram Upadhya,. [1961] 2 s.c.R. 679, 696 and

Hoti· Kam Deka etc. v. General llanager, N.E.r. Railways; llaligaon,

Pandu etc., [1964] 5 s.c.R.683,734-5. This Court has also accept-

ed the.·principle that ·society has an interest in· the due

discharge of their duties by government servants. In Bosban Lal

Tandon V• Union of llldiB., (1968] l S.C.R• 185, Ramaswami, J., D

speaking for the Court said (at page 195) : ,

. "It is true that the origin of Government service is·

contractual. There is ~n offer and acceptance in

every case •. But once appointed to· his post· or. office

the Govermnent servant acquires· a status and his

rights and obligations are no loger de.termined 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 ~t:. servant. is 1111re ooe. of· status. that of

contract. 'lbe Ball-mark of .status is the attaclmient

to a legal relatiooahf p 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 Statu

tory rules .which may .. be unilaterally .altered by the

Government without the·consent of the employee. It is

true that Article 311 imposes constitutional .restric

tions upon the power of removal .granted. to the Presi

dent and the Governor uner Article 310. But it is

obvious that. the relationsh~p between the Government

and its servant is not like an ordinary contract of

serVice between a maste:t" · and servant. .The legal

relationship is something entirely different, some-

thing in the nature of status. It is much more than a

190 SUPREME COURT REPORTS [1985] SUPP:2 s.c.R.

purely contractual relationship voluntarily entered

into .between the parties. 'nle duties of status are

fixed by the law and in the enforcement of these

duties society bas an interest. In the language of

· jurisprudence status is a condition of membership of a

group

which powers and duties are exclusively

determined by law and not by agreement between the

parties concerend."

(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 Wel

fare State such as ours, such policies and statutes are intended

to bring a1bout socio-economic 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, therE?fore ; vi tally 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 goc•d 111JSt, therefore, in their turn bring to the discharge

of their duties a sence of responsibility. The efficiency of

public ad•dnistration does not depend only .upon the top echelons

of these "ervices. It depends as 1D.1ch upon all the other members

of such services, even on those in the 11Xlst subordinate posts.

For installce, railways do not run because of the members of the

Railway !bard 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 c:lerks and those holding hundred other similar posts.

Similarly, it is not the administrative heads who alone can set

to the pro>per functioning of the post and telegraphs service. For

a service to run efficiently there 1111st, therefore, be a collect

ive sens" of responsibility. But for a government servant to

discharge his duties faithfully and conscientiously, ~e nrust

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 1111ch in public

interest and for public good that government servants who are

inefficient, dishonest or corrupt or have become a security risk

U.Q.I. v. TUISIRAM [MADON, J.] 191

should not continue

in service and that the protection afforded A

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 reievant clause is properly applied and the

disciplinary inquiry dis"pensed with, the concerned govermnent B

servant cannot be heard to complain that he is deprived of his

livdihood. The livelihood of an individual is a matter of great

concern to him and his family but hi.a livelihood is a matter of

his_private :i.nterest 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 C

latter. 1hese 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 the Constitutonal set up of our Republic but·

because public policy requires, public interest needs and public;

good demands that there should be such.a doctrine. D

It is thus clear that the pleasure doctrine embodied . in

Article 310 (1), the protection afforded to civil servants by

clauses (1) ana (2) of Article 311 and the withdrawal of the pro

tection 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. E

The Scope of the Pleasure Doctrine.

,, ··.·-,..,

While under section 96B(l) 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 F

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

untrammelled or free of all fetters, but operates "Except as G

expressly provided by this (',onstitution." The constitutional res

trictions on the exercise of pleasure under. Article 310(1) other

than those contained in Article 311 will be considered later but

what

is innnediately relevant is the group of Articles consisting

of Articles

309, 310 .and 311. These three Articl"s are interlink-

ed and form an integrated whole .. There is an organic and thematic H

192 SUPREME COURT REPORTS [1985] SUPP.2 S.C.R.

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 Cons

titution. 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 connec

tion 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 capaci

ties 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 goverrnnent 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".

Wi.th reference to the words ''conditions of service" occur

ring 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 Py or under

Acts relating to those forces, the Judicial Connnittee of the

Privy Council held in North-vest 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 ~ntitled to terminate the

service of an employee, whether such provisions were constitu

tional or statutory.

In State of Madhya Pradesh & Ors. v. Sbardul Singll, [1970]

3 S.C.K. 302, 305-6, this Court held that tl)e expression "condi

tions of service" means all those conditions which regulate the

holding o.f 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

personll 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

•

u.o.I; v. TULSIRAll [MADON, J. J 193

made by the appropriate Legislature or a rule by the appropriate A

executiveuruler

Article

309 prescribing the procedure and the

authority by whom disciplinary action can be taken againat 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 bei;:ig performed partly by the Treaaury and B

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 appoin-

ted under or specified in Acts made under Article ·309 or rules C

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 Conatitution,

it would be void· Thus,. as held in lloti llam Deka 's case (supra), D

if any such Act or rule trespasses upon the rights guaranteed to

goverruneni: servants by Article 311, it would be void. Similarly,

such Acts and rules _cannot abridge or restri,ct 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. 'lhe State of B1bar &

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 F

G.K.Gbose awl another v. E.X • .Joseph, [1963] Supp. l 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

portion of Rule 4A which prohibited participation.in any demona-

tration as being violative of Sub-Clauses (a) and (b) of clause G

(1) of

Article 19. Further, the application of . article

309 is

exclUded by certain provisions of the Conatitution itself which

empower authorities other than those specified in Article 309 to

make appointments or to make rules relating to the conditiona of

service of certain classes of public service, such as, Article

146(1) with respect- to the officers and servants of the Supreme

_H_

194 SUPREME COURT REPORTS (1985] SU~P.2 s.c.R.

A Court, Article 148(5) with respect to persons serving in the

Indian Audit and Accounts Department, Article 229 with respect to

the offic.ers and servants of the High Court, and Article 324(5)

with rnspect of Election Commissioners and Regional

Connnissianers.

B Whkh would be the appropriate Legislature to enact laws or

-the apprllpriate authority to frame rules would depend upon the

provisior.s of the Constitution with respect to legislative compe

tence and the division of legislative powers. Thus, for instance,

under Entry 70 in List I of the Seventh Shedule to the Constl.tu

tion, Union Public Services, all-India Services and Union Pulic

Service Conunission are subjects which fall within the exclusive

C legislat:lve field of Parliament, while under· Entry 41 in List II

of the Seventh Schedule to the Constitution, State Public

Services aod State Public Service Conmission fall within the

exclusive legislative field of the State Legislatures. The rules

framed by the Presi.dent or the Governor of a St.ate must also,

therefore, conform to these legislative powers. It is, however,

not nece,ssary that the Act of a.'1 appropriate Legislature should

D .

specifically deal with a particular service. It is sufficient if

it is

au Act as contemplated by Article 309 by which provision is

made regulating the recruitment and conditions in a service (see

llam Pal Cbaturvedi v. State of Rajastban and others.), [1970] 2

s.c.R. 0•59,564.

E 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. Thl.s was so stated in the judgment of Lord

Blackburn in the Court of Session (the supreme civil court of

F Scotland) in the case of Mulveniia v. The lldlliralty., [1926] s.c.

(i.e. Sessions Cases) 842. ·Relying heavily upon this decision,

the Judicial Committee of the Privy Council in High Conmissioner

for India and High Comnissioner for Pakistan v. I.K. Lall., L.R.

[1947-48J 75 I.A. 225, 243-4, though it held that Lall's dismiss

al was contrary to section 240(3) of the Government of India Act,

G 1935, negatived his calim for arrears of pay. In The State of

Bibar ,,. Abdul Majid, [1954j s.c.R. 786, a Constitution Bench of

this Court pointed out that the attention of the Judicial

.Conmittee 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

H against the Crown for recovery of arrears of Salary did not

u.o.r. v. TULSIRAM [MADON, J.] 195

prevail in India as it had been negatived by the provisions of

statutory law in India. It may be mentioned that in its subse

quent decision in Chelliah Kodeeswaran V• Al:toruey-General of

Ceylon in appeal from the Supreme Court' for Ceylon, the Judicial

Colllllittee held that Lord Blackburn's reasoning in Mulveona '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 W<:!-S a current of aut_ho

rity for a hundred years before 1926 (that being the year in

which Mulvenoa'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 deb~ 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 I.all's

case, this part of the judgment is that case must be 'regardej as

given per incuriam.

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 secton 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 omi.tted 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 phraseo

logy as in section 240 of the 1935 Act. Under it also the hold-

. ing 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 be.half

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 ma.de "in the Consti

tution 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 SUPREME COURT REPORTS [1985] SUPP.2 S.C;R.

with respect to the Chief Election Commissioner, and Article

324(5) with respect to the Election Commissioners and Regional

Conmissioners.

Clauses (1) and (2) of Article 311 impooe 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 respecct to reduction in ran.1< of a civl.l 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

Parabottia Lal lllingra 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 excep

tion. 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 Legis

lature 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 con

flict with Article 310(1) and must be held to be unconstitu

tional. Clauses (l) and (2) of Article 311 expressly restrict

the manner in which a Government servant can be dismissed, re

moved 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 (l) and (2) of

Article 311 are two : (l) with respect to the authority empowered

to dismiss or remove a government servant provided for in clause

(l) of Article 311; and (2) with respect to the procedure for

dismissal, removal or reduction in rank of a government servant

provided for in c1Ause(2). The second proviso 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.

U.O.I. v. TUU>IRAM [MADON, J.] 197

These

are matters which are left to be dealt with by

Acts and A

rules made under Article 309. There are two classes of penal-

ties in servi.ce jurisprudence, usmely, minor penalties and major

penalties. Amongst mi.nor 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 B

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 c

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 ullllecessary to decide this point D

because Article 311(2) expressly gives protection as against the

penalty of reduction in rank .also.

&ercise of Pleasure

A question which arises in this coIU1ection is whether the E

pleasure of the President or the Governor under Article 310(1) is

to be exercised by the Preside~t or the Governor personally or it

can be exercised by a delegate or some other authority empowered

under

the Constitution or by an

Act o.r Rules made undet" Article

309. This question came up for consideration before a Constitu-

tion Bench of this Court in llahu Baa Upadhya 's caae. The majority

of the Court (speaking through Subba Rao, J., as he then was) F

stated (at page 701) the conclusions it had reached in the form

of seveo propositions. These propositions are :

(1) In India every person who is a member of a oublic

service described in Article 310 of the Constitution

holds office during the pleasure of the President or G

the Governor, as the case may be, subject to the

express provisions therein.

( 2) The power to dismiss a pOblic 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 H

manner

prescribed by the Constitution.

198

SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

(3) This tenure is subject to the limitations or

qualificatiens mentioned in Article 311 of the

Constitution.

(4) The Parliament or the Legislatures of States can

not make a law abrogating or modifying this tenure so

as to impinge upon the overriding power conferred u~n

the President or the Goovernor under 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 confet;red there

under· would likewise be efficacious within the said

limits; ·

The question came t

0 be reconsidered by a larger Bench of Seven

Judges

in Moti

Rall Ileka's case. While referring to the judgment

the majority in Babu

Ram Upadbya 's case the Court observed as

follows (ai 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

oi:' the executive·, as the case may be, to make any law

ol: r:ule in ·regard inter alia, to conditions of service

.wi:thout impinging upon theoverriding power recognised

under Article 310• Ill other words, in exercising the

pmier conferred by Article 309, the extent of the

· plli1tsure recognised by Article 310 cannot be affected,

oi ... im.Paireci.. In fact, while stating the conclusions

u.0.1. v. TULSIRAM [MADON, J.] 199

in· the form of propositions, the said judgment has A

observed that the Parliament or the Legislature can

make a law regulating the conditions of service with-

out 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 ser,ant at plesure is outside the B

scope of Article 154 and, therefore, cannot be delega-

ted by the Governor to a subordinate officer and can

be exercised by him only in the manner·prescribed by

the Corultitution. In the context, it would be clear

that this latter observation is not intended to lay

down that a law cannot be made under Arcicle 309 or a C

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 specitied as (3),(4),(5) & (6). The only D

point made is that whatever is done under Article 309

must·be subeject to the pleaaure prescribed by Article

310."

While we are on this point we may es 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 E

Governor, as the case may be, if satisfied, makes an order under

clause (c) of What ·ts now the second proviso to Article 311(2)

that in the interest of the security of the State it is not expe-

dient 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 F

this view was COl)8idered by a sevP.n Judge Bench of this Court in

Shmeber SiDgb & Anr. V• State of Punjab, [1975] l S.C.R. 814, It

was categorically stated in that case(at page 835) that the

majority view in llahu Baa llpadhya's case was no longer. goods law

after the decision in Motl -Dalla 's csse. Referring to these

two cases the Court observed (at pages 834-5)) : G

"This Court in State of Uttar Pradesh & Ors. v. Babu

llaa 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 H

net capable of being delegated to officers subordinate

200 · SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

to him. The effect of the judgment in Babu Bam

Upadhya's case(supra) was that the Governor couid 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 plesure by any officer with the

re.sult that statutory rules governl.ng 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.

Iri 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 Constitu

tion. 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 Consti

tution. 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 disciplin

ary action, without affecting the poliers of the Presi

dent or ~he Governor under Article ~10 of the Consti

tution 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 lloti llalll lleka's case (supra}

and this Court restated that proposition No. 2 must

be read along with the subsequent propositions speci

fied ;iS propositions No. 3,4,5 and 6. The ruling in

Moti Ilam Deka' s case (supra) is that a law can be

framed ·prescribing the procedure by which and the

u.o.I. v. TULSIR/IM [MADON, J · 1 201

audiority by' whom. the said pleasure can be exercised.

lbe pleasure of the President or the Governor to

di w;;f ss can therefore not only be delegated but is

also subject to Article 311. The true position as laid

down in Motl Ram lleka's case (supra) is that Article~

310 and 311 nrust no doubt be read together but once

the true scope and effect of Article 311 is determined

the scope of Article 310(1) nrust be limited .in the

s&nse that in regard to cases falling under Article

311(2) the pleasure mentioned in Article 310(2) 1111St

be exercised in ·accordance with the requireuents of

Article 311.

lbe majority view in Babu Ram Upadhya' s case (supra)

is no longer good law after the declSiou in lloti Ram

Deka's case (supra). The theory that only the Presi

dent 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 o' 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 aercised by such

office>"s OD whom the President: or the Governor confers.

or delegates pcllff!r•"

(Emphasis supplied)

The Court then stated its conclusion as follows (at F

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 G

at the head in the case of State in all matters which

vest in the executive ·whether those functions are

executive or legislati_ve in character. Neither the

President nor the GoVernor is to exercise the

executive functions personally."

The position, therefore, is that the pleasure of the Presi-H

dent or the Governor -is not required. to be exercised-by either of

202 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A them personally, and that is indeed obvious from the language of

Art.icle 311. Under clause (1), of that Article a govermnent

servant cannot be dismissed or removed by an authoriy 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

B President or the Gnvernor 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 ~ismiss, remove or reduce in rank a goverrnnent

servant in a case where such authority i~ satisfied that for some

reason, to be recorded by that authority in writing, it is not

C reasoP.ably 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

di&ini.ss or remove or reduce in rank a 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

U 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 t.he second proviso to Article 311(2), the inquiry to be

dispenced with not en the personal satisfaction of the President

E or the GOvernor but on his satisfaction arrived at with the aid

and on the advice of the Council of Ministers.

The &!cood Proviso to Article 311(2)

Clause (2) of Article 311 gives a constitutional mandate to

F 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 reason

able opportunity of being heard in respect of thos~ charges. To

G 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(l) of Article 311, however, remains intact and

H continues to be available to the government servant. The second

u.o.r. v. TULSIRAM LMAOON, J. J 203

proviso to Article 311(2) becomes applicable in the three cases

mentioned in clauses (a) to (c)· of thst proviso. These cases are

(a) where a person is dismissed or removed or reduced

in rank on the ground of conduct which hss led to his

conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove

person or to reduce him in rank is satisfied thst

for

some reason, to be recorded by thst 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 thst proviso were much debated at the

Bar. In Hira Lal Hattan Lal etc. v. State of U.P. · & Anr., [1973]

Z S.C.R.SOZ 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 whst does thst provision say1 If the provi-

sion is unambiguous and if from thst 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 legilsature intention is not

clear. Ordinarily a proviso to a section is intended

to take out a part of the main section for speci8.l

treatment. It is not expected to enlarge the scope

of the main section. · But cases have arisen in which

this Court has held thst despite the fact thst a ~ro

-vison is called proviSo, it is really a separate pro

vision and the so called proviso hss substantially

altered the main $ection."

In Comnissiooer of Inccme Tax, lladras v. Madurai Mills Co.

Ltd., [1973] 3 s.c.R. 662, this Court said (at page 669) :

204 SUPREME COIJRT REPORTS [1985] SUPP.2 s.c.R.

"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 keywords in the second proviso. are "this clause shall not

apply". By "this clause" is meant clause(2). As clnuse(2)

C 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 meanJ,ng which they bear. The

resultant effect of these words is that when a s~tuation eavisag-

D ed in any of the three clauses of the proviso arises and that

clause becomes applicable, the safegusrd 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

matter of public policy as the pleasure doctrine and the safe

gusrds 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 11USt be saisfied" 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 dismi.ssal, removal or

F 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

G 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, hwever, 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

H conduct is sueh as to deserve a punishment different from those

mentioned above, the second proviso cannot come into play at all,

U.Q.I. v. TULSIRAM [MADON, J.] 205

because Article 311 (2) is itself confined only to these three

penalties. Therefore, before denying a government servant his A

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 disnmissal, removal or reduction

in rank. Once that conclusion is reached and the condition speci-

fied in the relevant clause of the second proviso is satisfied, B

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 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) c

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

this

Part of the case were coDJnOn 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, D

leaving

aside to be separately dealt with the other arguments

pertaining only to a particular clause of the second proviso.

'Die Enent of Denial of Opportunicy uoder the Second Proviso

It was submitted on behalf of the government servants that E

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 liecause 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 F

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

dism!ssal, r~val 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

Cballappan'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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

case may not be identical. Thus, it was argued that the charge

sheet or at least a notice informing the govermuent servant of

.the charges against him and calling for his explanation thereto

was always feasible. I.t 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 govermnent servant because even if he were sentenced to

imprisonment, the charge-sheet or notice with respect to the

proposed penalty cim 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 ps.sted there. Similar arguments as in case of clause

(b) were advanced with respect to clause (c). It was submitted

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 (l) the language of Article 311(2) and the

implications flowing therefrOIIi, (2) the principle of natural

justice including the audi alteram partem rule comprehended in

Article 14, and (3) the lariguage certain rules mode either'under

Acts referable to the Article 309 or made under the proviso to

that Aiticle. We will consider the contentions with respect to

each of these basis separately.

So far as Article 311(2) was c.oncerned, it was said that the

language of tbe 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

•

U.O.I. v. TULSIRAM [MADON, J.) 207

the disciplinary authoirty 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 orginally enacted and the legislative history of that

clause wholly rule out .the giving of any opportunity. While cons

truing Rule 55 of the Civil Services (Classification, Control and

Appeal)

Rules and the phrase

"a reasonable opportunity of showing

cause against the acfon proposed to be taken in regard to him"

occurring in sub-section (3) of section 240 of the Govermnent of

India Act, 1935, the Judicial Committee of the Privy Council in

Lall 'a case stated as follows (at page 242-3) :

"... sub-s. 3 of s. 240. was not· intended to be, and

wss not, a repr-0duction of pile 55, which was left

unaffected as an administrative rule. ·Rule 55 is con

cerned 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 def ending

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-sec

tion 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 opportu

nity 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 that

stage, if duly carried out, but that would not exhaust

bis statutory right, and he would still be entitled to

represent .ag8illst the punishment proposed as the

result of the findings of the inquiry. On this v.iew

of the proper cOnstruction of .sub-s.3 of s.240, it is

208 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A 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."

B The very phrase "a reasonable opportunity of stowing 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 Cons

tituton (Fifteenth Amendment) Act, 1963. Approving the construc-

C tion placed by the Judicial Committee upon this phrase, this

Court in Khan Chand v. 'lbe 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 reason

able 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 opportu

nity 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 punish

men.t at all and also that the particular punishment

proposed

to be given is much more drastic and servere

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

' r

u.o.r .. v. TULSIRAM [!:ADON, J.] 209

to put forward his defence. If the purpose of this

provision is to give the government servant an oppor

tunity 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 him

self or any 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

lllt<rit any punish

ment, it is re.asonable that he should also have an

opportunity to contend that the charges proved against

him do not necessarily require the particular punish

ment proposed to be meted out to him. He may say for

instance, that althoii.gh 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-examin-

ing the witnesses produced against him and by e.x.amin-i"

ing himself or any other witnesses in support of his

defence ; and filially

why the proposed punishment should not be inflicted on

him, which

he can only do if the competent

auth~rity, G

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 SUPREME COURT REPORTS [1985] SUPP•2 S.C.R.

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

constituional safeguard."

While

the Judicial

Coomittee 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 InJia Act, 1935, to shoW cause against the

proposed penalty, this Court in Kbem a.an.I'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

incorp<lrated· these provisions in Article 311(2) so as to convert

the protection afforded to governinent servants into a constitu

tional 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 .provi

ded 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 defending himself against those

charges, and (2) a reasonable opportunity of making representa

tion· 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 'lbea. Cland's case. This amendment, therefore, was

merely declaratory, but in a way it was also clarificstory

·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. 1be University of Kerala & Ors. [1969 J 1 s.c.R. 317,

326.,

there prevailed an erroneous imppression in certain

quarters, evidently influenced by the provisions of the unamended

Article 311(2) that every disciplinary proceeding llll.lSt consist of

two. inquiries, one before issuing a show cause notice to be followed by another inquiry thereafter~ · This amendment, there-

. fore, made it expressly clear that the inquiry to be held against

u.o.i. v. TULSIRAM [MADON, J. J 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 resonable. 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 cliuse, therefore, showed thst 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 assllllling for the sake of

argument that because Article 311(2), as substituted by the Cons

titution (Fifteenth Amendment) Act, spoke of "a reasonable oppol:

tunity 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 claus.e (2) (now the second proviso to that clause) namely,

"Provided

further that this

clause aball aot 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 keywords

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, whic.h further amended the

substituted clause (2) of Article 3il with effect from 1st

January 19.77. has made any change 1n the law?" The ameodments

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 govern

ment servant any opportunity of making representation on the

proposed penalty. lloes this affect· the opertion 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

SUFREME COURT REPORTS [1985] SUFP.2 s.c.a.

the second proviso. It souid be borne in mind that the showcause

notice at the punislnnent stage was originally there as a result

of the interpretation placed by the Judicial Committee in La.l's

case and by this Court in Kbem 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

Kliem Cband's c&se. The words

which

originally found a place in clause

(2), "a reasonable oppor

tunity 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 govern

ment 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 opportu

nity to make a representation against the proposed penalty. After

the Constitution (Fifteenth Amendment) Act this second opportu

nity 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• 1be University of

!Cerala & 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 follo

wed 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 Calpaoies 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 oppor

tunity to show cause against the proposed punishment is neces

sary". Since a right to such opportunity does not exist in law,

H it follows that the only right which the government servant had

to make a respresentation on the proposed penalty was to be found

u.0.1. v. TULSIRAM [MADON, J. J 213

in clause (2) of Article 311 prior to its amendment by the Cons

titution (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·govermnent servant can

claim this right.

As for the argument that in a case under clause (a) of the

second proyiso a government servant could be worngly 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 organizations, there is in govern

ment service an extremely active grapevi11e, 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, ~ave 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 proPQrtion 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

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 keywords 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 SUPREME . COURT IIBPORTS [1985] SUPP.2 s.c.R.

the second proviso some kind of inquiry or opportunity by a

process of inference or implication. The maxim "expressum faclt

cessare tacitum" ("when there is express mention of certain

things, then anything not mentioned is excluded") applies to the

case. A<i 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 no.t

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·

D Parliament."

Here, however, the attempt is not merely to do something contrary

to the intention of "Parliament",. that is, in our case, the Cons

tituent Assembli, but to do something contrary to an express

prohibition contained in the Constitution. The conclusion which

flows from the express language of the second proviso is·inevit

able 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 polfcy and in public interest

and for public good just as the pleasure doctrine and the safe

guards for a government servant provided in clause (1) and (2) of

F 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

G public good that where his offence is such that he should not be

permi ited to continue to hold the sa.., 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

H rank, both public interest and · public good demand that such

u.o.r. v. TULSIRAM [MADON, J.] 215

penalty should forthwith·arul.swnmarily 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 swnmarily 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 p&id at public expense, and that . neither public

interst would be benefited nor public good served by placing such

govenunent 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 govern

ment servant, this Court must not forget that the object underly

ing the second proviso is public policy, · public interest and

public good and the Court must, therefore, repel the· temptation

to be carr.ied away by feelings of coomiseration and sympathy for

those government servants who have been dismissed, removed or

re_duced in rank by applying the second p_roviso. Sympathy and

coomiseration cannot be allowed to out weigh c0nsiderations of.

public policy, concern for public interest, regard for public

good·and the premptory dictate of a· Constitutional ptohibition.

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 Aiticle 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.1X, 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 Articie 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

~n secion 240 of the Government of India Act, 1935, but were new

provisions conciously 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

•

2I6

SUPREME COURT REPORTS ll985] SUPP.2 s.c.R.

and they, therfore, were not likely to introduce into our Consti -

tution 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 se~ond 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 Seco1ld 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 Consti.tution and particularly the second pro

viso to Article 311(2).

The principles of natural justice are not the creation of

Article 14. Article 14 is not their begetter but their Consti

tutional 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.

U.Q.I. v. TULSIRAM [ll'JXJN, J.] 217

ln 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 9l5) states :

"Tb.is expression, 'natural law' ,or jus naturale, was

largely used in the philosophical speculations of

the Roman jurists of the Antonine age, and was inten

ded to denote a system of rules and principles for the

guidance of human conduct which, independently of

enacted law or of the systems peculiar to any one

people, might be discovered by the rational intelli

gence 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 tl.mes, 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 befng as yet undefaced by dishonesty, false

hood, or indulgenc~ of the baser passions. In ethics

it consists in practical universal judgments which·

man himself elicits. These express necessary and obli

gatory 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

through tout 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, tortued, 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 pe 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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

admiringly of legal system 'of the Achaemenid dynasty (the First

Persian Empire) in which "a royal colllllandment" was "written among

the laws of the Persians and the Medes, that ·it be not altered."

Man saw citie• 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 eunuchs - 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 lal" of nature or "the natural law" where the lion and the

lamb lie down together and the tiger frisks with the antelope.

Most, H not all, jurists are agreed that "reason" and "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 theo.ry propunded

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 WB;S discoverable by the u·se of reason. The ancient Romans

were not given to philosophical speculati.ons or creative

orignality in Art. They preferred to borrow these from the

. Greeks.. The Romans were a hard-headed, pract1cal race of

conquerors, administrat.ors and legis.lators. ROman jurists, there-·

fore, used the concept of natural law, that is jus naturale (or

ius naturale as the Romans wrote it because Roman alphabet had no

u.o.r. .v. TULSIRAM [MADON, J.] 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 if!. 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 con8onance 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. Becau5e of the theory of its identity with justice and

reason, the terin u jus gentium" came ~t times to be used ·for .

aequitas, that ,is, equity as understood by the Romans, which was

the bas.is 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 approxi

mation of human laws to Christian principles. As Europe emerged .

from the Dark Ages in about . the ninth century, Christianity

became substitued for reason as the supreme force· in the uni

verse, 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 discordan

tium. canonum." consider the law of nature· as pal:-t of the law of

God. According to St. Thomas Aquinas (1226-74), na·tural law was

derived from the law of God which was supreme and such of it as

was intelligible to men was revealed through Church law as the

incorporaiion of divine wisdom. Thus, according to this Theory,

natural law Was that part of divine law which revealed itself in

natural rea$on, and man as a reasonable being applied this. part

of divine law to human affairs. This theory, though it up.held

220 SUPREME COURT HEPORTS [1985] SUPP.2 s.c.R.

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 MonarcW.a" 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 we.re, therefore, according to them, the true

interpretation. Braction, in the thitteenth 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

c0uld 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

caae

[161UJ 8

Co. Hep. 113b,ll8, said by way of obiter, "when an

Act of Parliament is against cori:unon right or reason, or repug

nant, 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. Pick.in sub nomine Pickin v.

British Hallways 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 th.is purpose between a

public Act and a private Act. Refferring 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 Parliainent could be disregard

ed 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 S1.\Ch , idea has become

obsolete."

u.o.i. v. TULSIRAM [MADON, J.] 221

Rejecting the above argument, the House of Lords unani.Inously held

that the function of the court was to consider and apply the

enactments of Parliament, and accordingly, in the course of liti

gation, 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 fradulently

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, brir.ging about a conflict with Parliament.

As a result of the infusion of new ideas during the

Renaissance and the Reformation, the intellectual a~thority 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

oodem public international law.---

Reason as the theoretical basis for nstu~al law, however,

once

again suffered a reversal at the hand of David

Hume. Accord

ing to Hume, only knowledge obtained by mathematical reasoning

was certain; knowledge obtained from other sciences being only

probable. liis theory of justice was that it served both an

ethical <wd a sociological function. He contended that public

utility was the sole nrigin of legal justice and the sole founda

tion 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 lew but

distinguished equity or the general system of morality, the legal

order, and law, as a body of precepts. Accordi!)g to him, the

authority of civil law modified the rules of ~tural justice

·according_ to the particular convenience of each community.

Black.stone, 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 ts bindin;; 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 SUPREME COURT REPORTS . ll985] SUPP.2 s.c.R.

A In the nineteenth and twentieth centuries there was a reac-

tion against natural law as the basis of law. The French Revolu

tion 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

B conduce

to the general benefit. The spirit

of scientific inquiry

which pre-dominated the nirteteenth and twentieth centu~ies 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

C natural law.

Apart from providing the subject-matter for philosophical

dissertations and speculative theories on the origin and attri

butes of natural law, ~he concept of natural law has made invalu

able contribution to the development of positive law. It helped

D to transform the rigidity .of the jus civile.of the Romans into a

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 fo~late ideas derives from th~ concept of natural law

into detailed rules. England, the idea of natural law and natural

E 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 supre

macy

which took place between the. judges and Parliament in the

seventeenth' century. The concept of natural law and. natural

F 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 Conven

tions, Covenants and Declarations. Above all, it has enriched

positive law by. introudcing into it the principles of natural

G justice, di vested of all their philosophical, metaphysical and

theological trappings and disassociated from their identifica-

• tion with,.or supposed deriation from, natural law.

Natural justice has .been variously 4efined by different

judges. A few instances will suffice. In .Drew v. Drew and

H Leburo (1855] 2 Macq. l,8, Lord Craworth defined it as "universal

justice". .In Ja.es Dunbar Smith v. lier Majesty '!he Queen

•

U.O.I. v. TULSIRAM [MADON, J.J 223

[1877-78] 3

App. Cas. 614,623

J.C., Sir Robert P.Collier, speak

ing for the Judicial Connnittee of the Privy Council, used the

phrase "the requirements of substantial Justice", while in Arthur

John Spacmlnnan V• The Plumstead District Board of Works L.R.

[1884~85] 10 App.Gas. 229,240, Earl of Selbome, L.C., preferred

the phrase "the substantial requirements of justice". In Vionet B

arul another v. Barrett arul 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

arul another v. Smethwick Local Board of Health L.R. [1890] 24

Q.li.D. 71<,716, Lord Esher, M.R., instead of using the definition C

given earlier by him in Vionet arul another v. Barret and another

chose· to define natural justice as "fundamental justice". In

Ridge v. Ba1dvi.n and others L.R. [1963] l. Q.B. 539,578, Harman,

L.J., in the Court of Appeal equated natural justice with "fair

play of action", a phrase favoured by llhagwati, .J., in Maneka

Gandhi v. Union of lodia [1978] 2 s.c.R. 621,676. In re. H.K.(An D

Infant) L.k. [1967 j 2 Q.B.617,630, Lord Parker, C.J., preferred

to describe natural justice as "a duty to act fairly". In

Fairmount Investments Ltd. v. Secretary of State for the

EnvirOillllellt [1976] l w.1.R. 1255,1265-66, Lord kussell of

Killowen somewhat picturesquely described natural justice as "a

fair crack of the whip". While Geoffrey Lane L.J., in Regina v. E

Secretary of State for Home Affairs, Ex parte Hcsenball [ 19 77 ] l

W.L.R. 766,784, preferred the homely phrase "comm0n fairness".

As some juc!ges, for instance, Ormond, L.J., in Lewis v.

Hefter and others [1978] l W.L.R. 1061°,1076, have foundthe 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 F

reproduce a passage, full of robust cotmnon sense and biting

Irony, from the judgment · of Maugham, J •• , in Maclean v. the

Workers Union L.R. [1929 j l Ch. 602,624. That passage is as

follows :

"Eminent

judges have at times used the

phr~Se '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 ?. thief with the .. stolen goods, might be

' 224

SUPl\EME COURT KEPORTS [1985] SUPP.2 s.c.R.

punished by summary execution without any form of

trial. Again every student has heard or compurgation

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

B 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

c ' differs widely in countries usually described as , civilized."

In the Supreme Court of Ireland, Black.J., in William Green

v. lsidore J, Blake and others [1948] I.R. 242, after referring

tc the above passage from the judgment of Maugham, J., proceeded

IJ 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 regad as essential

in contra-distinction from the many extra pracautions,

helpful to justice, but not indispensable ~o 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 precuations,

yet we would hardly say that they disregard the

essentials of justice."

Megarry, J., also found it necessary to sound a note of warning ~i

G in Hounslow London Borough Council v. Twickenlvna Garden Develop-

ments Ltd, L.R. [1971] Ch. 233, wherein he said (at page 259) :

"'1be principles of natural justice are of wide appli -

cation and great importance, but they 111JSt be confined

within proper limits and not allowed to run wild."

(Emphasis supplied)

u.o.r. v. TULSIRAM [MADON, J • l 225

Some judges have been faced witt) the contention as Maugham, A

L.J., was in ErriDgton 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 conten-

tions Lord Reid said in Ridge v. llalchir:l.n and otheJ;s L.R. [1964]

A.C, 40, on appeal from L.R. [1963] l Q.B. 539, (at page 64-65) :

"In modern times opinions have sometimes been ex

pressed 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 C

negligence is equally insusceptible of exact difin1-

tion, but what a reasoable man ·-1.d regard as fair

procedure in particular · cirCWEtances and what be

would regard as neg1geoce in particular cirCU11Stances

are equally capable of serv:ill{; as tests in law, and

natural justice as it bas been interpreted in t.be D

courts in much more definite than that. It appars 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 •:>ply the principle." E

(Emphasis supplied)

How then have the principles of natural justice been inter

preted in the courts and within what limits are they to be con

fined? Over the years by a process of judicial intepretation two

rules have been evolved as representing the principles of

natural justice in judicial process, including therein quasi-F

judicial and~admiriistrative processes. They cQnstitute 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 "n~ debet

esse judex in propria caliSa" asStated in 12 Co. Rep. 114, that G

is, "no man shall be a judge in his own cause". COke used the

form "aliouis ~ debt ~ judex in propria causa quia ~

potest ease judex ~ ~ (Co. Litt. 14la), 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 aC:tor et judex", that is, "no one can be. at once

suito~ judge" Ts also at times us~d. The second rule -and H

226

SUPREME COURT REPORTS [1985) SUPP.2 s.c.R.

that is the rule with which are concerned in these Appeals and

Writ Petitions -is "aud~ alteram partem". that is, "hear the

other side". At times and particularly in continental countries

the form "audietur et altera ~ is used, meaning very Dnlch the

samething. A corollary has been deduced from the above two rules

and particularly the audi alteram partem rule, namely, "'qui

alliquid statuerit parte inaudita 31.tera, aequum licet dixerit,

baud 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

llosveil's case) [1606] 6 Co. Rep. 48b,52a, or, in other words, as

it is now expressed, "justice should not cnly 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 recogniz

ed 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 ih Buganda" by E.S.

Haydo, p.333). The requirement of hellring 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' ~o 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 without a full hearing. In fact, the

corollary drawn in Bo.....U '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 p~overb and ~ongs of African tribesmen, fOr instance, of

the Lozi tribe in Barotseland refer to this rule (see "The

Judicia Process Among the Barotse of Northern Rhodesia" by Max

Gluckman, p.102.)

The two rules "_nemo judex in~ sua" and "audi alteram

u.o.r. v. TULSIRAM [MADON, J.] 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 invetion of the printing press, from

1290 to 1535,

that is, from the time of Edward 11 to Henry VllI. 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 ~'oreign 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 maay countries and different systems of law.

They have now received international recognition by

being

enshrined in Article 10 of the Universal Declaration of Hunian

Rights adopted and proclaimed by the General Assembly of the

United Nations by Resolution 217A (Ill) 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 ques

tion 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. l!qualicy before law. -The State shall not deny

to any person equality before the law or the equal

protection of the laws within the territory 6f India."

228 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

Article 14 thus contains an express Constitutional injunction

against the State as defined in Article 12 prohibiting the State

from denying to any person(l) 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 Constitu

tions. One instance is section 40(1) of the Constitution of Eire

of 1937, which 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 af the Most Holy Trinity, from Whom is

all authority and to Whom, as our final end, all ac

tions 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 dif feren-

1 ces of capacity, physical and moral, and of social

functions."

Anothe< instance is Article 3(1) of the Constitution of the

Federal Republic of Germany of 1948 which states '

"All persons shail be equal before the law." Yet another

instance.is section 1. of the FOurteenth Amendment to the Consti

tution 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 citi

zens 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."

•

u.0.1. v. TULSIRAM [MADON, J.] 229

Constitution of some other countries also have similar provisions A

but as these Constitutions have suffered political vicissitudes,

it is unnecessary to refer to them. Provisions similar to

Article 14 are to be f ouild in Internatio!\al Charters and Conven

tions. Thus, Article 7 of the UniVersal Declaration Hwnan

Rights of 1948, provides as folllows

"All are equal before the law and are entitled without

any diat.riminatioil to equal protection of the law

•• ii. '

Articie 14 is divided into two parts' in lu Re The spedai c

Courts Bill, 1978 [1979] 2 s.c.R. 476, Chandrachud, C.J., des

cribe the two parts of Article i4 as follows (at page 534) :

;,The first part of attitle 14, which was adopted from

the Irish Constitution, is a declaration of equality

of the civil tights of all persons within the territo~ D

ries of India:• It enshrines a basic principle· of

republicanism• The second part, which is a cotoilary

of the first iifid is based on the last clause of the·

first section of the Fourteenth Amendinent of the

American Constitution enjoins that equal protection

shall be secured to ail suth per·son.s in the enjoyment E

of their rights and liberties without discriminati6n

of favoilrtfoni, it is a pledge bf the protection. of

equal laws, tM.t is i laws tha·t operht;e alike~ on a1i.

persons ltiidet iike cit'cumstances:1"

Article i4 contains a: guarantee of equality before the iaw

to all persons and a protection to them against discrimination by F

any

law.

Sub-clause (a) of clause (3) of Article i3 defines law

as follows

.-;'lawi .:includes any Otdinance; otder"J bye....:faw,. tule;

regulation,. rtotification, custom of usage having in

the territory of india the force of' law". G

What Article 14 forbids is disctiniination by iaw, that is; treat

ing persons similarly circumstanced differentiy ·or treating those

not similarly clrcumstanced in the sa:me: way or; as has been

pithily put, treating equals as unequals and unequals as eq1ials'

Article i4 prohibits hostile clasS~ifiC:ation . by" law and is·

directed against discriminatory .class legislation. The pr'oposi-H

td.oris deducible ftom dec_isions of this court on this point have

SU!'Rtl•lli COURT REPORTS [1985] SUPP.2 s.c.R.

A been i:;et :)ut::. .i.n tt1e for.m of thirteen propositions in the judgment

of ChBndcaclmd, C .J., i.r:> In Re The Special Courts Bill, 1978. The

f Lrst of. these propositions which describes the nature of the two

parts of Art,icle 14 has been extracted earlier. We are not

concerned in these Appeals and Writ Petition!:) with the other

propositions set out in that judgment. In early days, this Court

was concerned with discriminatory and hostile class legislation

H .and it was· to this aspect of Article 14 that its attention was

di~~cted. As fresh thinking began to take place on the scope an

d:hJit of A~ti'cle 14, new d~mensiuns to this guarantee of equality

betore the· law and of the equal protection of the laws emerged

and wer'2 recognized by this Court. It was realized that to treat

one person. differently from another when there was no rational

basis for

1 doing so would be a~bit~·ary and tl)us dicnninatory.

C Arbitrariness can take many forms _and shapes but:, whatever form or

shape it takes, it is none the less discrimihation. 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

D and would violate the guarantee given by Article 14.

In State of Andhra Pradesh and another v. Nalla Raja Keddy

and others [1967] 3 S.C.R. 28, Subba Rao, C.J., speaking for the

Court, said (at page 46)

E "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 arbitrari

.ness can be waved in all directions indiscriminately."

F While considering Article 14 and Article 16, Bhagwati, J.,

E.p. Boyappa 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 Artkle 16 is a

G _species, Article 16 gives effect to the doctrine of

equality in all matters r~lating 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 equalising principle? It is a founding

U.Q.I, v. TULSIRAM [MADON, J.] 231

faith, to use the words cf Bose, J., 'a way of life',

and it must not be subjected to a narrow pedantic or

lexicographic approach. We caru<0t countenance any

attempt to truncate its all-embracing scope and mean

ing, for to do so would be to violate its activist"

magnitude. l!quality is a dynamic coocept with many Jl

aspects and dillensions and it cannot be 'cribbed,

cabined and confined' within traditional and doctrin-

aire limits. From a positivistic point of view,

equality is qntitbetic to arbitrariness. In fact

equality and arbitrariness are sworn ..._1es; one C

belongs to the rule of law in a republic while the

other, to the whim and caprice of an absolute moarch.

Where an act is arbitrary it: is implicit in it that it

is unequal both according to political logic and coos

titutional law and is therefore violative of Article

14, and if it effects any .natter relating to public D

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 DllBt be based on vslent

relevant principles applicable alike to. all similarly

situate and it nust not be guided by any extraneous or E

irrelevant considerations because that 1'0Uld 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 cutside the area of

permissible considerations, it would amount of mala

fide exercise of power and that is hit by Articles 14 F

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 i.n Royappa's case in these weirds (at page 673-74) :

"Now,the question immediately arises as to what is the

requireuient of Article 14 : what is the content and

reach of the great equalising principle enuntiated in

this article? There can '.le no doubt that it is . a H

founding faith of the Constitution. It is indeed the

pilar on which rests securely the foundation of our

232

SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

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 dl.mensions 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

Tamll Nadu & Another namely, that 'from a positivistic

'point of view, equality is antithetic to arbitrari

ness. 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

implicipt 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 ensures fairness and

equality of treat11ent. The principle of reasonable

oeas,

which

legally as well as philOSOphically, is a

~tisl el.ellent of equality or non-arbitrariness

pervades Article 14 like a brooding oumipresence

' . . . . . . . .

(Emphasis supplied)

In the course of his judgment in the same case Bhagwati, J.,

further sdd (at pages 676-7)

"Now, if this be the test of applicability of the

doctrine of natural justice, there ""'" be Jio distinc

tion between a quasi-judiCisl function. and an adminis

trative function for this purpose.Th.e aim of both

administratl.ve inquiry as well as quasi-judicial

, inquiry is to arrive at a just decisia·n 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 llllst lOglcally apply to

both. On what principle can disti.nction be made

between one and

the other?

Can it be said that the

requirement of 'fair play in action' in any the iess

in an administrative inquiry than in a quasi-judicial

one? Sometimes an unjust decision fo administrative

inquiry may have far 100re serious consequences than

u.o.I. "' TULSIRAM [MADON, J. j 233

a deeision iil a quasi ~judicial inquiry an.I hence the

rules of natural jUstice DiUBt apply equally in ati

ildministrat.ive iliquiry which entails cl.vii COllll8'

quences."

(Emphasis supplied)

In Ajay llasia etc. v. Khalid Mujib Sehtawrdi and otliers

ete• [l98lj :i s.c.a. 79, the same learned Judge, speaking for th<!

Court·, said (at pages lOO-lOl) :

"The true scope and ambit of Article l4 has been. the C

subject matter of numerous deeisions 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 inuSt not be confused with the doctrine of

classification. Unfortunately, in the early stages of

the evolution of. our constitutional law, Article 14 D

came to be identified with the doctrine of classifica-

tion because the view taken was that that · Article

forbids discrimination and there would be no discrimi~

nation where the classification.making the differentia

fulfils two conditions, ruanely, (i) that the classi,-

fication . is founded on an intelligible differentia E

which distinguishes persons or things that are grouped

together from others left out of the group, and (ii)

that that differentia has a rational relation to the

object sought to be achieved by the impugned legis-

lative or executive action."

The principles of natural justice ha"t/e thus come to be F

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 subjett"'matter of

that Article. Shortly put, the syllogism runs thus viOlatiou of a

rule of natural justice results in arbitrariness which is the

same as discrimination; where discrimination is the resillt of G

state action, it is a violation of Article 14: therefore, a

violation of a principle of natural justice by a State action is

a violati.on of Artiele 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 H

tribunal, authority or body men, not coming within the ,de,l':initioII

234 SUPREME C~URT REPORTS [1985] SUPP.2 s.c.R.

A 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 amplitutle means that a person against whom

B an order to.his prejudice may. be passed should be informed of the

allegations and charges against him, be given an opportunity of

submittin& 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 exami-

C ned 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

D ~rule in a quasi-judicial or administrative inquiry. If we

IOOl<'at clause (2) of Article 311 in the light of what is stated

above, it will be apparent that that clause is merely an express

statement

of the audi alteram partem rule which is implicitly

made part of the guarnatee contained in Article 14 as a result of

the interpretation placed upon that Article by recent decisions

E 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 U-Qiaod 's case in the

passsages from the jucigment extracted above. Tllough 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

G him but, as pointed out ear lier, in the case of Suresh Koshy

George v. 'lbe University of Kerala and others, such an opportu

nity is not the requirement of the principles of natural

justice and as held in Associated Cement r""P"nfes Ll:d. v. T. c.

Sbrivaatava and others neither the ordinary law of the land nor

industrial law requires such an opportunity to be given. The

U.Q.I. v. TULSIRAM [MADON, J.J 235

opportunity of showing cause against the pro_posed penalty was

only the result of the interpretation placed by the Judicial

Colll!llittee 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 Kbein Chand 's C'.ase. If, therefore, an inquiry held

against a goverrunent servant under clause (2) of Article 311 is

unfair or biased or has been conducted 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 recour&e to Article 14. for the purpose of

invalidating it.

Though the two rules of natural justiGe, namely, nemojudex

in causa sua em audi alteram. ?art, have now a definitP. meaning

and connota'tiOn in law and their contP.nt and implications are

1<ell understood and firmly established they 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 a

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] l 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):

. B

236 ,SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

"The question whether the requirements of natural

justice hsye been met by the procedure adopted in a

given case .must depend to a great extent on the facts

. and circtmlStances o.t the case in point, the constitu

tion of the Tribunal and the rules under which it

functions • "

M ter 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 cons

titution of the rribunal or body of persons appointed

1 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 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 th~t 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 intc the concerned

provision the principles of natur.il justice. Whether

the exercise of a power conf P-rred should be made in

acordance with any of the principles of natural

U,Q,I. v. TUISIRAM [MADON, J.J 237

jusLic~ or not depends upon . the express words of the

provision cot!.ferring 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 judgllient 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 peop!e,

nurtured by Binapani, Kraipak, Mohinder Singh Gill,

Maneka Gandhi· etc. etc. They are now con.,iqered .so

fundamental as to be 'i01plicit in the · concept of

ordered liberty' and, therefore, implicit in every

decision making function, call it judicial, qU11si

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 liOrds of statute or by

necessacy. intendmpnt. Where the conflict is bet>.een

the public interest and the private interest, ·the

presumption must necessarily be weak and may. there.

fore, be readily displaced.•

(Zmphasis supplied.)

Not only, thefefore, can the principles of natural justice G

be modified but in exceptional cases they can even be excluded.

There are well-defined exceptions to the nano judex in causa sua

rule as also to the audi alteram Fartem rule.· The· n;;;oo judex in

~ s·ua rule iE Subject to"the doct~ine of necessity and yield$

to it as pointed out by this Court in J.!i>bapatra & Co. and

auother v. State of. Orissa and another [1985] 1 s.c.R. 322,334~5.

So far as the audi alteram partem rul~ is concerned, both in· li

England and in India, it is well established that where a right

to a prior notice and ci.n opportunity to be heard before an ord~r

is passed would obstruct :the taking of prompt action, such a

238 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

right can be excluded. This right can also be excluded where the

na~ure of the action to be taken, its object and purpo&e and the

scheme of the relevant statutory provisions warrant its exclu

sion; nor can the audi alteram partem rule be invoked if

importing it would havethe effectofparalysing the administrative

process or · where the need for promptitute or the urgency of

taking action so demands, as pointed out in Maneka Gandhi's case

at pagB 681. If legislation and the necessities of a situation

can exclude the principles of natural justice 'including the audi

alteram_ partem rule, ~ fortiorari so can a provision of the

Constitution, for a Constitutional pro~ision 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

keywords "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 provison 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~ b1Jt 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 remembe~ed that a government

servant is not wholly without any opportunity. Rules made under

the proviso to Article 309 or under Acts referable to that Arti

cle generally provide for a right of appeal excep_t 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 functionar,ies, there can be no

U.Q.I. V• TULSIRAM [MADON, J.] 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 opportu

nity to show in an appeal filed by him that the charges made

against him are not true. 1his 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 •econd

proviso to Article 311(2) excludes any right of 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

Hustom Cavasjee Cooper v. Union of Ind:la [l970j 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.LGopalan v. 'Die State of Madras [1950] s.c.K. 88. In

Gopalan's case it was held by the majority that the law of pre

ventive detention did not have to satisfy th.e 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 dcwn the

. minimum rules of procedure which even Parliament c.ould nbt abro

gate or overlook. Fazal Ali, J., in lds dissenting judgment,

however, took the view that . prevent! ve detention was a direct

violation of a sub-clause (d) Of clause (l) 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

clauee (5) of Article 19. In R.C.Cooper's case the majority view

. in Gopalan's case was overruled. In Sambbu Hath sarlrar v. 'Die

State of West Beugal & Ors. [1974] l s.C.R. l, after referring to

both these cases,this Court observed (at page 24)

··in Jl.C.Cooper v. 1loion of l:ndia the aforesaid premise

of the majority in Gopa1an was disapproved and there

fore 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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

fundamental rights guaranteed in the different provi

sions of the Constitution adopted in this case held

the major premise of_ the majority in Gopalan to be

incorrect."

In llardhan Saha and another v. The State of West Beogal and

others [1975] l 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 Kbudiram Das v. 1be

State of West Beogal 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

Fundaiiielltal 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 vio

lation 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 Ill 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

politi•

cal), Freedom (not only of thought, expression,

belief, faith and worship, but also of association,

movement, vocation or occupation as well as of acqui

sition and possession of reasonable property), of

Equality (of status and of opportunity, which imply

absence of unreasonatle or unfair discrimination bet

ween individuals, groups and classes), and of Frater

nity(assuring dignity of the individual and the unity

of the nation), which our Constitution visualises.

Isolation of various aspects of humau 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

·-

cr.o.r. v. TULSIRAM [MADON, J.] 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 Ill of the Constitution.

Where howeve'r, an Article in the Constitution expressly exc_ludes

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 3lA(l) 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

3lli, 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,

Hegulation or provision is inconsistent with or takes away or

abridges any of the rights conferred by any provisions of Part

lll. Article 31C provides that ""Notwithstanding anything contain

ed in Article 13, no law giving effect to the policy of the

otate 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 • • • ".

Can 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 3lA(l)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 wouid 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· pers9n 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 Constitution4

The majority view in Gopalan's case was buried in

k.C.Coo

per' s case; its burial service was read in Sambhu Nath Sarkar v.

The State of West BeDgal and others, llardhan Saha and another v.

242 SUPREME COURT REPORTS [1985] SUPP.2 S.C.R.

The State of West Beogal and others and Kbudiram Das v. The

State of West Beogal & Others. and its funeral oration was deli

vered in Maoeka 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 llouoslow London Borough

Council v. Tickenham 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

magnificient 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, career

ing 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 substantialy the same language or with

Certain variations. Such variations at times confer or have been

interpreted to confer an opportunity of hearing to a goverrunent

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 (herinafter

referred to in short as the "Railway Servants Rules"), Rule 19 of

tne 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 corisiderations would 'apply when such an Act Ot'

rule liberalizes the exclusionary effect of the second proviso.

U.O.I. v. TULSIRAM [MADON, J.J 243

It is not possible to accept this submission. The opening

words of Article 109 make that Article expressly _"Subject to the

provisions of this Constitulion". Rules macle under the proviso to

Art.icle 309 or under Acts referable to that. Article must, there

fore, be made subject to the provisions of the Constitution if

they are to be valid. Article 31U(l) which embodies the pleasure

doctrine is a provision contained in the Constitution. There

fore, rules made under the proviso to Article 309 or. under Acts

referable to that Article are subject to Article 310(1). lly the

opening words of Article 310(1) the pleasure doctrine contained

therein operates "Except as expressly provided by this Constitu

tion". 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 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 judgm.ent

in Moti Ram Deka 's case at page 734, namely, that rules under

Article 309 are subject to the pleasure doctrinu and the pleasure

doctrine is itself subject to the two limitations imposed thereon

by ~rtii:le 311. Thus, as pointed ont in that case, any rule which

contravenes

clause (1) or clause

(2.) of' Article 311 would be

invalid. Where: howeve-r 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(l) of

A:rticle 311. For an Act or a rule to provide that in a case where

the second proviso applies any of the safeeuards excluded by that

proviso will be available to a goverrnnent servant would amount to

:.;uch Act or rule impinging upon 'the pleasure of the President or

Governor, as the case~may be, and would be void as being uncons

titutional. 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 parti

cular statutory provision while the other would render it uncons

titutional and void, the one which saves and pr~serves its cons

titutionality 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

statritory 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 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A On behalf of the government servants support for the above

contention raised by them was sought to be derived from Cballa

ppan '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 observa

tions in M. Gopala Krishna Naidu's case, because it was by reason

Ii of the conflict between those observations and what was held in

Challappan's case that these matters have all come to be decided

by this Constitution Bench. M.Gopala Krishna Maidu's case was not

directly a case under the second proviso to Article 311((2). In

that case the appe+lant, who was an overseer ~n the Public Works

Department of the Central Provinces and lierar Goverment, was

C suspended from

service in 1947 and prosecute4 under section 161

of the Indian Penal Code.

Ultimately, on orders from the High

Court, the prosecution was dropped. The appellan~ was also

exonerated in a departmental inquiry held against him. There

after the Goverrumnent by an order held that the charges against

the APpellant had not been proved beyond. reasonable doubt and the

D 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 taving

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

E pension only, but that he should not be a1lowed any pay beyond what he had actually received or what was allo~ed 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. '!be

court held that rule 54 of the Fundamental Rules contemplated a

F duty to act in accordance with the basic. concept of justice and

fair play, and the authority, therefore had to afford a reason

able opportunity to the appellant to show cause why clauses (3)

and (5f 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

G (at page, 358-59) :

"It is true that the order under F .K.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

ti it is a consequential order does

1 not determine the

question whether the government liervant has to be

u.o.r. V• TULSIRAM [MADON, J.] 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

casue. In such a case, the authority no doubt would

have before him the entire record including the expla

nation 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 Funda

mental 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 Arti

cle 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 prac

ticable to hold such an inquiry and (c) where the

President or the Governor as the case may be is satis

fied 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 hc:ive before him any explanation by

the government servant. lbe 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."

Cballapan's case.decided three appeals against a common

judgment of the High Court of Rajasthan allowing the writ peti

tions filed by three railway servants. Challappan, the respondent

246 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

h 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

5l(a) of the Kerala Police Act. Instead of sentencing him, the

sub-magistrate, Palghat, released him on probation under section

3 of the Probation of Offenders Act, 1958. Thereafter he was

ti removed from service by the disciplinary authority of the Depart

ment, without holding any inquiry, on the basis of his conviction

in the said criminal case. The order of rem.oval 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

c his writ petition.

So far as the other two railway employees were

concerned, one was convicted under section 3 of the Railway Pro

perty (Unlawful Possession) Act, 1966, and the other under

section 42U of the Indian Penal Code. Both of them were released

on probation and were similarly removed from railway service.

u The Railway Servants Rules have been made by the President

in exercise of the powers conferred by the proviso to Article

309. Kule 6 specifies the penalties which can be imposed upon a

railway servant. These penalties are divided into minor penalties

and major penalties. Major perialties include removal from service

which is not to be a disqualification for future employment under

the Government or railway administration and dismissal from ser-

E vice which is ordinarily to be a disqualification for future

employment under the Government or railway administration. Under

sub-rule (1) of Kule 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 (i), any of the penalties specified in Rule 6 may be

F 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 penal

ties while Rule 11 prescribes the procedure for imposing minor

penalties. Originally, sub-rule (5) of Rule 10 requied that a

notice be given to a railway servant informing him of the penalty

G 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) Kules, 1978, to bring

sub-rule (5) in conformity with, clause (2) of Article 311 as

H amended by the Constitution (Forty-second Amendment) Act, 1976.

It may be mentioned that on the respective dates of the orders·

U.Q.I. v. TULSIRAM [MADON, J.] 247

impugned in Cballappan's case the original sub-rule (5) of Rule

lU formed part of the Railway Servants Rules and clallse (2) of

Article 311 in force was that clallse as amended by the Constitu

tion (Fifteenth Amendment) Act, 1963. This However, does not metke

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 13 : -

(i) where any penalty is imposed on a railway servant

on the grollnd of conduct which has led to his convic

tion 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 expe

dient to hold an inquiry in the manner provided in

these rules ;

the disciplinary authodty 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

word "Commission"

Goomission."

2 of the Railway Servants Rules defines the

as meaning the "Union Public Service

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

SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

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 impo

sing any of the penalties specified in Rule 6 or en

' hancing 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-com

pliance has resulted in the violation of any provi

sions of the Constitution of India or in the failure

of justice;

• (b) whether the firidings of the disciplinary autho

l, ·rity 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

,(11) remitting the case to the authority which imposed

·,

.ar enhanced the penalty or to any other authority with

' such directions as.it may deem fit in the circumstan

ces of the case.

'.:.

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 se~ving under him ·ar 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 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 other

wise, 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 : -

U.Q.l. v. TULSIRAM (MAOON, J.] 249

"Provided that -

.x x x x x x

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 inay 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 autho

rity mentioned in item (v) xxxxx in that list of authorities set

out above. In the case of other authorities, the power.-of

revison 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 RB.ilway Servan.ts

Rules when any new material or evidence which could not be pro

duced 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

pri;sent Rule 25.

In Cba1Ja.ppan'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 proba

tion did not amount to imposition of penalty as contemplated by

Rule 14 of the Railway Servants Rules. Reversing that view th:!.s

Court held that the word "penalty" in clause (i) of Rule 14 of

the Railway Servants Rules does not ref er to a sentence awarded

by the ·Court to the accused on his conviction but it merely

indicates the nature of the penalty imposable 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 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A "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. Never

theless 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 circunstances not having been complied with by the

disciplinary authority, the order of removal from

service of the delinquent employee was rightly

quashed."

C The Court pointed out that clause (i) of Rule 14 merely sought to

incorporate the principle embodied in clause (a) 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

D 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

E 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

(nvw 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

F 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 orde·r of dismissal, removal or reduction in

G rank the moment and einployee 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) :

•

u.o.I. v. TULSIRAM [MADON, J. I 251

"The word 'consider' has been used in contradiction ta

the ward 'determine'. The rule-making authority deli

berately 'used the word 'consider' and not 'determine

because the ward 'determine' has a much wider scape.

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 determilled only if the

delinquent employee is heard and is given a chance to

satisfy the authority regarding the fiOal. orders that

may be pa8sed 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 -.1.d

be a suD.ary inquiry to be held by tbe disciplinary

authority after bearing 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 ta dec.ide whether in the

facts and circumstances of a particular case what

penalty, if at all should be imposed an the delinquent

employee. It is obvious that in COORidering this

.matter the disciplinary authority will have to take

into account the entire conduct of the delinquent

employee, the gravity of the misconduct coomf.tted by

him, the 1-ct which his misconduct islikely to have

on the admfni stration and other extewating circum

stances or redeeming the features if any present in

the, case and so an and so forth. It may be t.hat 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 ta meet the exigen

cies of service. It is possible that the delinquent

employee ""'Y be fouod guilty of same 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 ta lay dawn any hard and fast rules as to

252

SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

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 illustra

tive and not exhaustive. In other words, the position

is that the couviction of the delinquent employee

would be taken as sufficient proof of miscooduct and

then the authority will have to embark upon a s.-ry

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 of fence is too trivial or of a tech

nical nature it may refuse to impose any penalty in

spite 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 repentence he may be dealt

·with as lightly as possible •. This appears to us to be

~the scope and ambit of this provision. We must, how

ever, 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 convic

~ted of serious offences to insist on reinstatement.

The statutory provision referred to above merey

' imports a rule of natural justice in enjoining that

' before taking final action in the matter the delin

quent employee should be heard and the circUIStsDces

of the case may be objectively considered. This is in

keeping with the sense of justice and fair-play. The

· disciplinary authority bas the Ulldoubted ix-r after

, hearing the delinquent employee and considering the

· circ111Stances of the case to inflict any major penalty

on the deinquent employee without any further depart

mental 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 administra

, tion 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 consider the matter

where no provision like rule 14 exists, because in

•

iJ,Q,I. v. TULSIRAM [MADON, J. J 253

such cases the Govermnent 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 wrods, the argment 1188

that to cases where proviso (a) to Article 311(2)

applies a deparmental inquiry is cmpletely dispeased

wil:h and the disciplinary authority can on the

doctrine. of pleasure l:enllinate the services of the

. delioqueot employee. We "'-ver, refrain fi:m

expression. any opinion on this aspect of the 111.tter

because the cases of all the l:htee respoodeats before

us are cases which clearly fall within rule 14 of the

Kules of 1968 where· 1:hey have been ~ . fnim

service without complying wil:h the lsst part of rule

14 of the Rules .of 1908 as indicated above. In none

of the cases has the disciplinary authority either

considered the circumstances or heard the delinquent

employees

·.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 autho

rity has proceeded to pass the ·order of removal from

service straightaway on the basis of .the conviction of

the delinquent eployees by the criminal courts."

(llmphasis 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 considera

tions which have been set out in the judgment as being the consi

derations to be taken into account by the disciplinary authority

be:fore imposing a penalty upon a delinquentgovernment 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 dependingupon

the facts and circumstances of the case. In order to arrive ata

decision as to which penalty should be imposed, the' disciplinary.

authority will have to take into consideration the various

factors set out in Cballappan's case. It is, however, not

possible to agree with approach adopted in Challappan's case in

considering Rule 14 <lf the Railway Servants Rules in isolation

c D

G H

254 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

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 theyare subject to Article

310(1). Equally, they cannot restrict the safeguards provided by

clauses (1) and (2) of Article 311 as such a restriction would

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

opei;ation of the

second proviso to that clause. The only cases in which .a govern

ment servant can be dismissed, removed or reduced in raDk .. 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 peµalties can be imposed

would be unconstitutional. Service rules may reproduce the

provisions of the second proviso authorizing the disciplinary

authority to dispense with the inqiry 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

ClMt.llappan

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 Cballappan's case the Court

felt that the addition of the words "the disciplinary authority

may consider the circunstances of the case and make such orders

u.0.1. v. TULSIRAM [MADON, J.j 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 ~rom this it does not follow that when

acting uoder 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 woµld render this part of Kule 14 unconstitutional as restric

ting the full exclusionary operation of the second proviso. The

word "consider", however, does not bear the meaning placed upon

it in r.tialiappan 's case. The word "consider" is used in Rule 14

as a transitive verb. ~e meaning of the word "consider" as s,o

used is given in the Oxford English lJictionary as "To contemplate

mentally, fix the mind upon; to think over, meditate or reflect

on, bestow attentive thought upon, given heed to, i:ake 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 defini-·

tion are giv;en the synonjms of the word "consider", these syno

nyms being ·:contemplate, s_tudy, weigh, revolve, excogitate".

While explaining the exact different shades of meaning in 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

some·Nhat 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 circum

stances 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 affo,-ded to the

deliquent government servant. Undoubtedly, the disciplinary

authority must have regard to all the facts and circumstances of

the case as set out tn Qsa..Uapan 's case. As pointed out

• G

256 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

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 repro

ducing the second proviso in whole or in part and whether the language used is identical with that used in the second

proviso qr 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 Cballappan's case is, therefore not corre~t

with respect to the interpretation placed by it upon Rule 14 of

the Railway, Servants Rules and particularly upon the word

"consider" occuring in the last part of that rule and in inter

preting Rule 14 by itself and not in conjunctJ.ou with the second

proviso to Article 311(2). Before parting with Cballappan's case,

we may, also point out that 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 the1 in the next group of appeals in which the same

question was raised, namely, the three Civil Appeals meq.tioned

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 begining.

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 govern

ment servant. These penalties are divided ihto minor penalties

and major penalties. Clauses (i) to (iv) of that rule specify

what the minor penalties are while clauses (v) t~ (viii) specify

what the major penalties are. The major penalties include compul

sory retirement, removal from service which is not to be a dis

qualification for future employment under the Government and

dismissal

from service

which is ordinarily to be a disqualifica

tion for future employment under the Governmdnt. Rules 14 and 15

u.0.1. v. TULSIRAM [MADON, J.] 257

prescribe the procedure to be followed where· a major penalty i.s A

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 B

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 C

"19. Special procedure in certain cases"

Notwithstanding anything contained in rule 14 to rule

l~ D

(i) where any penalty is imposed on Government servant

on the ground of conduct which has led to his convic

tion 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 E

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 expe

dient to hold.any inquiry in the manner provided in F

these rules , ~

the disciplinary authority may consider the circum

stances 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 mean

ing "The Union Public Service Commission". Under Rule 22, no

appeal is lies against any order made by the President or orders

258 SUPREME COURT REPORTS [1985] SUPP.2 $.C.R.

A of certain nature specified in that rule. Subject to the provi

sions of Rule 22, Rule 23 provides 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 impos

ing any

of the penalties specified in rule 11 or en

hancing 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 provi

sions 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

ed 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 applica

tion for revision is to be dealt with in the same manner as if it

were an appeal under the Civil Services Rulesr Rule 29-A confers

G upon the President a power of review similar to Rule 25-A of the

Railway Servants Rules.

It will be notl.ced that the language of Rule 19 of the Civil

Services l<ules is identical with that of Rule 14 of the Railwa}

u.0.1. v. TULSlRAM [MADON, J.] 259

Servants Rules and the interpretation of Rule · 19 of the Civil A

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

Goverrunent in pursuance of the power conferred by section 22(1) B

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 Goverrunent

the power to make rules for carrying out the purposes of that

Act. Sub-section (2) of Section 22 ~ alia provides as

follows: C

"(2) In particular, and without prejudice to the gene

rality of the foregoing powers, such rules may provide

for -

(a) regulating the classes, ranks, grades, pay and D

remuneration of supervisory officers and members of

the Force and their conditions of service in the

Force;

x x x x x

(g) regulating the punishments and prescribiflll autho-E

rities to whom appeals shall be preferred from orders

of punishment or remission of fines or other punish

ments, and the procedure to be followed for the dispo-

sal 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 c.onstitution 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 G

Force") for the better protection and security of Industrial

undertakings owned by the Goverrunent. 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 apppointed by the Central Government as a supervisory

officer of the Force". Section 4 provides for the appointment of H

supervisory officers and their powers and is in the following

terms :

260

SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

"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-<;eneral, 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, reaoval,etc .. , of members of the Force.

Subject to the provisions of Article 311 of the Cons

. titution and to such rules as the Central Government

may make under this Act, any spervisory officer may -

l·(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."

"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 provis.ions 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) ln disposing of an appeal,the prescribed aurhority

'shall follow such procedure as may be prescribed.

u.0.1. v. TULSIRAM [MADON, J.] 261

( 3) The Central Government may call for and examine A

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 orc\er imposing an enhanced penalty

under sub-section(2) or sub-section(3) shall be made

unless a reasonable opportuiiity 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 C

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 re

duction 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 D

31 are the major penalties and which are minor penalties b.ut 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 specifi.es what E

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 punishments. Rule 3 7 of the

CIS Rules ·is as

follows :

"3 7 • 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 con

viction on a crimi,nal 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 pres-

cribed in the said rules : H

262 SUP!lliME COURT REPORTS [1985] )UPP.2 s.c.R.

the disciplinary authority may consider the circum

stances of the casi.:: dnd pass such orders thereon as it

deems fit.

A member of the force who has been convicted to rigo

rous imprisorunent on a criminal cha·rge shall be dis

missed from service. In such cases, no evidence need

be given to proved the ct1arge. Only a notice shall be

given to the party charged proposing the pwiishment of

dismissal for his having been convicted to rigorous

impr isorunent and asking him to explain as to why the

propuse<l punishment of dismissal should not be

imposed".

.l\ule 42 provides for a right of appeal in the case of an order

imposing any of tile penalties specified in Rule 31. Rule 42-1.

prescribes the period of limitation for filing an appeal. The

appellate authority, howeve.r, has the power to condone the delay

in filing an appeal H it is satisfied that the appellant had

sufficient cause for not submitting the appeal in time. Sub-

D rule(2) of Rule 4( provides as follows :

"4 7 • Consideration of appeals -

x x x

(2) In the case of an appeal against an order imposing

any of the penalties specified in rule Jl, the appel

late authority shall consider -

(a) whether the procedure prescribed in these rules

has been complied with, and if not, whether such

non-c..)'~.,pliance has resulted in violation of any provi

si~ns of the Constitution or in failure of justice;

(b) whether the findings are Justified; and

or in.adequate; and µass orders;

(i) setting aside, reduction, confirming or enhancing

tile penalty;.

(i1_J remitting Lile case to the authority which imposed

the penalty; or to any other authority with such

u.o. l. v. TULS1:1Nt [ilAiJIJN, J.] 26J

direction as it nv:ty Jer~m tit in ti·H~ ci.rcu.:nst~nces

oi tt1e case :

x x x

k.ul~~ 41.J prr.:v1aes fo:r; suo motu revision. It inter alia en.ables

th~ tevi.sing authority to' take further evidence and provides that

cnt provisions of Kule 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 as placed by us on the word

""consider"" occurring in Rule 14 of the Railway Servants Rules and

Kule 19 of the Civil Services Rules must, therefore, be placed

upon the word ""consider" ia 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

1!::1. It is clumsily worded and makes little sense. 1'o provide

that a member of· the CIS Force who has been convicted to rlgorous

imprisonment on a criminal charge "shall be Jism.issed from

service" and at th~ same time to provide that "only a 01.otice

shall be i;i ven co the party charged proposing the punishment of

dismiss11l for his having been convicted to rigorous imprisonment

and asking him t<.) exp la tn as to why the proposed ptmishJ.::ent 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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A A conspectus of the above service rules and the CISF Act

shows that a govermnent 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

B 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

c service rules referred to aboved 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 int" 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 Ser-

D vants 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 rul.,s. 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

E 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 i~ 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

F too severe or is excessive. He can also show that he is not in

fact the gover ,nt 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

G situation prevailing -t 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

U.O.I. v. TULSIRAM [MADON, J.] 265

was wrongly dispensed with and it was reasonably practl.cable to A

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 inqu~·ry

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 B

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 c

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 D

authority. The satisfaction of the President or the Governor

cannot

be challenged in appeal or revi_sion but the government

servant can in appeal or 'revision ask for an inquiry

~o 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 iL1quiry • Of course, no such right E

would

be available to a government servant where-the order impos-

ing 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 instruc- F

tions issued by the Government of India were referred to and

relied upon on behalf of the government servants. It is unneces-

sary 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 G

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, execu-

tive instructions can do so even much less. H

•

26b SUPREME COURT REPORTS [1985J SUPP.2 s.c.R.

A <bission to Mention the Belevant Clause of the Second Pro-

viso or the Relevant Service Rule in the Impugned Orders

Some of the orders impugned before us refer only to one 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 appli

ed. The question is whether the omission to mention the particu

lar clause of the second proviso or the relevant service rule

makes any difference.

As pointed out earlier, the source of authority of a parti

cular 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

D 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 Cballappan's Case was not drawn

to this settled position in law and hence the error committed by

E 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 sourca of power

exists, the exercise of such power is referable only tu that

source and not some other aource under which were that power

exercised, the exercise of such power would be Invalid and with-

F :>ut jurisdiction. Similarly, if a source of power exists by

reading together two provisions, whether statutory or constitu

tional, 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

G contains the source of power will not invalidate an order where

the source of such

power exists.

(See Dr. Ram Manobar Lohia v.

State of Bihar and others [1966] 1 s.c.R. 709,721 and 'lbe Muni

cipal Corporation of the City of Abmedabad ·v. Ben Hirsben 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

H service rule will not, therefore, have the effect of invalidating

u.o.I. v. TULSIRAM [MADON, J.] 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

Q:aallappan '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 dismissal

or removal from.service or reduction in rank he nn.ist 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 pro

viso. The disciplinary authority must, however, bear in mind

that a conviction on a criminal charge does not automatically

entail dismJssal, removal or reduction in rank of ·the concerned

government servant. Having decided which of these three penal

ties 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 r..ot

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 iri fact_ the person convicted, it

will strike down the impugned order and order him to be reinsta

ted in service. Where the court finds that the penalty imposed

by the impugned order ls 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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

particular government service the court will also strike down the

impugned order. Thus, in Shaokar 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 die!llissal 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.

1'he 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 situa

tion may be minimal inquiry or at least an opportunity to show

cause against the proposed penaltyis 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 t~t a government servant should be heard before imposing

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 can

not 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 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 situa

tion 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.

U.O.I. v. TULSIRAM [MADON, J.] 269

Further, the exigencies of a situation may require that prompt A

action should be taken and suspending the government servant

callllot 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 B

to step up the tempo of their activities or agitation. It is true

that when prompt action is taken in order to prevent this happen-

ing, there is an element of deterrence in it but that is an un

avoidable 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, c

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 "impracti

cable". According to the Oxford English llictionary "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 pf 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 reasona~ly prac

ticable to hold the inquiry, but some instances by way of illus

tration may, however, be given. It would not be reasonably

practicable to hold an inquiry where the governme~~ servant,

particularly through or together with his associates, so

terrorizes, threatens or_ intimidate witnes~es 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 SUPREME COURT Rll~ORTS [1985] SUPP.2 s.c.R.

togethe.r with or through other thretens, intimidates and terrori

ze,; the officer who is the disciplinary authority or member of

It.is family so that he is afraid to hold the inquiry or direct it

to be held. It woulct also not be reasonably practicable to hold

the inqutry where an atmosphere of violence or of general

indiscipline and insubordination prevails, and it is imaterial

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 disciplin

ary 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 concertled 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 Claubey 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 Cheif 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 submit

ted 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 him

self, resulting in

th" same person being the main accusor, the

e.hief witness and als~ the judge of the matter.

U.O.I. v. TULSIRAM [MADON, J.j 271

It was subn!itted 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 adminis~rative 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 hold

ing of an inquiry not reasonably practicable sould exist before

the disciplinary inquiry is initiated· against a government

servant. Such a situation can also come into existence subse

quently during he course of an inquiry, for instance, after the

service of a charge-sheet upon the 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

~ ~ 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 necessay for the valid application of

clause (b) of the second proviso is that the disciplinary autho

rity 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 obliga

tion 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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

/, It is obvious that the recording in writing of the reason

for dispensing with the inquiry must preceed 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 B 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 disciplin-

e ary 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, ~ 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 vehmently co~tended that if reasons are not recorded

in the final order, they must be coonnunicated 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

coonnunciate the reasons would invalidate the

E order. This contention too cannot be accepted. The constitu

tional requirement in clause (b) is that the reason for dispen

sing with the inquiry sould be recorded in writing. There is no

obligation to conmrunicate the reason to the government servant.

As clause (3) of Article 311 makes the decision of the discipli

nary authority on this point final, the question cannot be

agitated in a departmental ·appeal, revision or review. The

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 perfor

mance 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 dispens

ing with the inquiry because such

communication would eliminate

the possibility of an allegation being ma<le that the reasons have

been subsequently

fabricated. It would also enable the govern

ment servant to approach the High Court under Article 226 or, in

u.0.1. v,. TULSIRAM .[MADON, J.] 273

a fit case, this Court under Article 32. If the reasons are not A

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 B

explanation

for the non-production of the written reasons.

It was next submitted that though

cla\Ule (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 c

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 contra-o

diction 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 E

reduced

in rank by applying to his case clause ( b) or an analo-

gous 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 F

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, G

is not continuing in service and if.reduced in rank, is continu-

ing in service with such reduced rank, no prejudice could be

caused to the Government or the Department if the

hearing of .ln

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 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

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 will inter

fere 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

ex&nine 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 j.t come to the conclusion that it was not reason

ably· practicable to hold the inquiry. If the court finds that

the reasons are irrelevant, then the recording of its satisfac

tion 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 relvancy 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 autho

rity and. consider what in the then prevaling situation a reason

able man acting in a reasonable way would have done. The matter

will have to be judged in the light of the then prevailing situa

tion and'not as if the disciplinary authority was deciding the

questioh ·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 decUne 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 incosistent 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

U.O.I. v: TULSIRAM [MADON, J.J 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 c.lause (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

inqiry, 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 t~e inquiry. While clause

(b) expressly requires that the reason for dispensing with the

inquiry should be record~d in writing, clause (c) does not so

require it, either expressly or impliedly'.

The expressiona "law and order", "public order" and

"security of the State" have been used in different Acts. Situa

tions which affect "public order" are graver than those which

affect "law and order" and situationa which affect "security of

the State" are graver than those which affect "public order".

Thus, of these situationa these which affect "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 SUPREME COURT REPORTS [1985] SUPP.2 $.C.R.

stands very much on the same footing as a military or a para

military 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 Consitution.

Prior to the Constitution

(Fiftieth Amendment) Act, 1984, Article 33 provided as follows :

"33. e.-r to Parliament to modify the rights con..

ferred 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 ma1ntervure of

disclpllue 8llDDg them."

By the Constitution (Fiftieth Amendment) Act, 1984, this Article

was substituted. By the substitued 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. PcNer to Parlfl!ll!'Ot to lllOdtiy the rights confer

red 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 main

tenance of public order; or

tion established by the State for purposes of intelli

gence or counter intelligence; or

u.o.r. v. TULSIRAM [MADON, J.] 277

(d) persons employed in, or in connection with, the

telecommunication systems set up for the purposes of

any Force, bureau or organisatiion referred to in

clauses (a) to (c),

be restricted or abrogated so as to ensure the proper

cliscl'Brge of t:heir duties and the maintenance of

discipliDe amoog them. -

Thus, the discharge <>f their duties by the members of these

Forces and the maintenance of discipline amongst them is consi

dered 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 ~ 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 circUlllStances,

unadvisable impolitic." .The same dictionary defines "expedient"

as meaning inter alia "advantageous; fit, proper, or suitable to

the circUlllStanees-----Of the ~se." Webster's Third New

International Dictionary also defines the term "expedient" as

meaning inter alis "characterzied by suitability, practicality,

and efficiency '""iii achieving a particular end : fit, proper, or

advantageous under the circUlllStances." It must be borne in mind

that the satisfaction required by clause (c) is of the Constitu

tional 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

Q:ivernor acting with the ai.d and advice of his Council of

278 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

Ministers with the Chief Minister as the Head. Whenever, there

fore, 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 dis

closure of' the Source of such 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

D (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

clal!Se (b) of the second proviso, clause (3)

of Article 311 makes the decision of the disciplinary authority

E that it was not reasonably .practicable to hold the inquiry final.

There is no such clause in Article 311 with respect to the satis

faction 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 ~he President or the

F Governor; and so far as tl)e 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 situa

tion, it is not for the Court to decide whether it was expedient

or inexpedient in the circumstances of the case to dispense with

G the inquiry. The satisfaction reached by the ·President or

Governor under clause (c) is subjective satisfaction and, there

fore, would not be a fit matter for judicial review. Relying

upon the observations of Bhagwati, J., in State of Bajastban and

others e.tC.etc. v. Union of India eta.etc., [1978] l S.C.R. l,

82, it was submitted that the power of judicial review is not

H excluded where the satisfaction of the President or the Governor

....

U.Q.I. v. WLSIRAM [MADON, J.] 279

has been reached mala fide or is based on wholly extraneous or

irrele,vant grounds because in such a C'1ose, 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

j;owicil 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 an.y 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 ill

the interest of the security of the State and .not !:he actual

conduct of a government servant which would be the subject-matter

of the inquiry. This submis.sion 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 int~rest 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 Presi

dent or the Governor is concerned, this submission is negatived

by the express provisions of the Constitution. Article 7~(2) of

the Constitution provides :

"(2) The question whether any, and if so what, advice

was tendered by Ministers to the President 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

suhnitted 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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 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 extrane

ous and irrelevant grounds so that such satisfaction would in law

amount to no satisfaction at au. It was further submitted that

if the Government does not voluntarily disclose such materials it

B can be compelled by the Court to do so. Whether this should be

done

or not would depend upon whether the docunents in question

fall within the calss of privileged

docunents and whether in

respect of them privilege has been properly claimed or not. It is

unnecessary to examine this question any fUllther because in the

caaes under clause (c) before us though at first privilege was

claimed, at the hearing privilege was waived and the materials as

C also the advice given by the Ministers to the Governor of Madhya

Pradesh who had passed the impugned orders in those caaes were

disclosed.

'!he Nature of the av.uenge to the Jmpugµed 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 a.aJ.lappan' s case and

the application of principles of natural justice. The cotent1.ons

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 dJ.stinguish the case of one Petitioner from

the other. Apart from contesting the legal validity of the im

pugned 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 ~

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.

u.o.I. v. TlllaSIRAM [MADON, J.J 281

Such a bare averment cannot amo\Dlt to a plea of mala £idea and A

rec1uires to be ignored. In this uosatisfactory state of affairs

so far as facts are concerned, the only course whieh 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

ha" been properly applied or not. If this Court finds that such

provision has not been-properly applied, the Appellant or the B

Petitioner, as the case may be, iii entitled to succeed. If,

however, we find that it has been properly applied, the Appeal or

Petition would be llible 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 alao not the function c

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 reaaons 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 D

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 ~econd proviso to Article 311(2). E

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 Baj Kunar

Jairath was at the relevant time the Regional Audit Officer, F

M.E.s., Jabalpur. On July 27,1976, the Respondent went to Raj

Kunar'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

Kl.lllllr on the head with an iron rod. Raj Kumar fell down, his

head bleeding. The Respondent was tried and convicted under G

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 releaaed

him on his executing a bond of good behaviour for a period of one

y,ear.

The Respondet's appeal against his conviction was dismiss- H

by the Sessions

Judge, Jab!llpur. The Controller ~aeral of

282 SUPREME COURT REPORTS [1985) SUPP.2 s.c.R.

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 :

''WllEREAS Shri T.R. Patel, Pt. Auditor (Accmmt ·

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

19ti) of the Central Civil Services (Classifica

tion,. Control and Appeal) Rules, 1965, the undersigned

hereby

direct that the said

Shri T.R. Patel, Pt. Audi

tor,(Account

No.8295888) shall be compulsorily

reti~ed

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 Constitu

tion. Relying upon Qiallappsn' a Case the High Court held that no

opportunity had been afforded to the Respondent 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 discip

linary 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 "'811apan

s case is not correct and it ~~s, there

fore, 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

U.Q.I. v. TULSIRAM [MADON, J.] 283

compulsory

retirement and, therefore, clause (a) of Article

311(2) did not apply. The argument cannot be accepted. The

compulsory

retiremen~ of the Respondent was not by reason oi his

reaching the age of superannuation or under other rules which

provide for compulsorily retiring a go .ernment servant on his

completing the qualifying period of service. The order of com- B

pulsory 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 ruiW

we.11 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 c

attracted. (See State of U.P. v. Shyam Lal Shanaa, [1972] 1

$.C.R. 184,189 and the cases referred to therein).

The second ground upon which the High Court rested its deci-

, sion is equally unsustainable. The circumstances which were

taken into consideration by the disciplinary authority hc.ve been o

sufficiently set out in the order of. compulsory retirement, they

b"ing that the Repondent '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 undesir-

able.. The mention of section 332 of the Indian Penal Code in the E

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 conse

quence 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 off ice of his superior officer and

had hit him on the head with an iron rod. It was fortunate that F

the skull of R£.j 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 G

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

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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A This Appeal, therefore, requires to be allowed and the writ

petition filed by the Respondent in the Madhya Pradesh High Court

deserves

to be dismissed.

CISF Matters

Civil Appeal No. 3484 of 1982 -Union of India and others v.

Sada Nand Jha nd 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 Cballappan'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

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 impug

ned

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 llelhi· 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

tu 9 of the supplementary Return filed by

Shri Madan Gopal, the Depurty Inspector~neral, CISF Unit of

Bokaro Steel Plant, Bokaro, pursuant to the leave granted by this

Court. These paragraphs . read as follows :

u.o.r. V• TULSIRAM [MADON, J. J 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 agitat,ton and the violent

activity reached a very serious proportion in the

last week of June, 1979 with the result that Army 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, Eihar 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 Govern

ment had also deployed 9 Magistrates to assist the

Arniy authorities as also the CR.PF for restoring the

nonual conditions at the Bokaro Steel Plant. A copy

of the ordl".'t' is enclosed herewith and marked as

Annexure AF'!J-II,

4. On 24.6.1979, on seeing the arrival of the Army,

the agitators started making preparations for armed

resistence 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 allow

ed 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 Arrey. 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 SUPREME COURT 1'.ilPORTS [1985] SUPP.2 s.c.R.

the agitators. The said violent exchage 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 comnission of offences, about800 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 uptill 1. 7 .1979, 65 rifles along with

large quantity of amunitions, 11 molotov cocktails, 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 commis

sion of offences .is annexed herewith and marked as

Annexure (AFD-llI).

8� Notwithstanding the arrest of the said about 800

employees, as aforesaid, atmosphere at the Bokaro

Steel Plant continued to be vitiated due to terror ar.d

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 situa

tion by its continued presence. The Army was with

drawn from the Bokaro Steel Plant only on or about

2.7.1979, however it may not be out of place to men�

tion here that although the Army was withdrawn in the

P.arly 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

u.o.I. v. TULSIRAM [MADON, J.] 287

Bihar Military Police took charge of anooury from arm:r

and continued to perform some of armed duties of CISF

as CISF Unit was not in a position to function nor

mally for a considerable time. Even the State autho

rity 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

distrubed 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 wa8 reasonably

believed

that any inquiry in accrodance with the

pro

visions 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~efeating, subversive or would result

in consequent detriment to public interest. It was in

these circumstances that the concerned authoFities

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

~bove statmements made by Shri

Madan Gopal in. the Supplementary Return for these statements are

supported by documents which have been annexed to the Supplement

ary Return. The facts set out in the above paragraphs of the

Supplementary Return are eloquent and speak for themselV..s. 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

SUPl@lE COURT REPORTS [1985) SUPP:2 s.c.a.

and raising slogans ~uch as 'INQULAB ZINDABAD'. 'VARDI

VARDI VARDI BHAI BHAI LARKE I.ENGE PAI PAI' 'JO llAllSE

TAKRAYEGE CHOOR CHOOR HO JAYEGA' and 'PUNJAB KI JEET

HAMAR! HAI AAB CISF Kl BARI HAI', participating in the

gherao of Supervisory Officers, participating in

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 provi

sions 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 Super

visory 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 un

authorisedly and indulging in various acts of extreme indiscip

line and mis-conduct, as aforesaid;

And whereas I am satisfied that in the facts and

circum

stances, 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 f~cts and circumstan

ces 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 clasue

(b) of the second proviso to clause (2) of Article 311 of the

u.o.r. v. TULSIRAM [MADON, J.] 289

Constitution, 1 hereby order that 7205199 Security Guard Sada A

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~neral of the CIS Force may on a request in that

behalf from the Managing Director of an Industrial undertaking in

pubHc sector, showing the necessity thereof, depute such number

of supervisory officers and members of the ClS Force as the

Inspector~neraJ. may consider necessary for the protection and

security of that industrial '\lndertaking and any installation

attached thereto. '!'h~,purpose of ·constituting the CIS force is

set out in the State!lli!fie'of Objects' and Reasons to the Bill which

when enacted becaJ!hO the ClSF Ai:t. The said Statement of Objects

and Reasons is published in the Gazette of India Extraordinary

dated August 2, 1966, Part II, Secction 2, at page 435, and is as

follows :

"At present security.arrangements at, important indust

rial undertakings in the public sector are handled by

the Watch and Ward staff of the Organization concer

ned. The Watch and Ward staff is generally engaged in

guarding the entrances or the perimeter of the indust-

rial undertaking and in preventing entries of unautho-E

rised persons. Unplanned recruitment, insdequate

supervision, training and discipline have made the

existing 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, organis-F

ed 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." G

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 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 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 precaut1ons with

a view

cOllllllitting a cognizable offecne relating to the

B property belonging to any industrial undertaking or other instal

lations. 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 belong

ings of any person whom he has reason to believe to have cOllllllit

ted any such offence as is referred to in section 11. From what

is stated above, it is obvious that in a Force entrusted with

c such large responsibility, maintenance of discipline is most

essential and, this is made clear by section 18(1)of the CISF Act

which pr~vides as follows :

, "18. Penalties for oeglect of duty, etc.

' >

(1) Without prejudice to the provisions contained in

Sec ti on e, 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 Dis

affection) Act, 1922, applies to. supervisory officers and memhers

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, i947, nor the Factories Act, 1948, nor

any corresponding

State Act applies to the member of the CIS

Force.

The facts s~t 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

hwiger strike, dharna,

u.o.r. v. TULSIR&'! [MADON, J. J 291

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 ~he staff. There were

acts of insubordination and deliberate neglect and wilful vio

lation 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 holdirig of an inquiry was reaaonably

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 f llled in. Here was a case very much like a case

under section 149 of the Indian Penal Code. The acts alleged D

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 possi-

ble in a si.tuation such as this to particularize the acts of each E

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 F

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 G

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. Thell SuppleJnentary Returns 'bears out these reasons. We

have, therefore, no hesitation in.accepting what is stated in the

292 SUl'Rl'ME . COURT REPORTS [1985] 5UPP.2 s.c.R.

impugned orders. In our opinion; clause (b) of Rule 37 of the

A 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

B allowed

and these appellants were re.instated. 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

C 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.

Both these Appeals,

therefore, require to be allowed.

~y 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 annd trans-

E ferred t,, this Court, relate to railway servants who were either

dismissed or removed from service by applying to their cases

either caluse (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 incidents which

took place

in all-India strikes of railway employees. Many of

these employees belonged to the all-India loco-running staff.

Ille 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 -Hom.bay, Lakhs commute daily by train for

U.O.I. V• TULSIRAM [MADON, J.j 293

this purpose. The railway trains also carry those going to attend

the funeral or obsequiel ceremonies of near and d~ar 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

lloti Ram Deka's case (at pages 795-6) about the railway

administration and employment in railaway service:

" ••• einployement 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 Baihray to paralyse COll!lOOlli -

cations 8lld movement of essential supplies leading to

diBorder and confusion. 1be Railway service has there-

fore a special responsibility in the smooth function

ing of our body politic •••• •

As pointed out. in Kamesbwar Prasad and others v. 1be State

of l!ihar and 8DOther (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 any railway service. The term ,;strike" is defined in

clause (q) of section 2 of the said Act. The said clause (q) is

as follows

"'strike' means a cessation of work by a body of

persons employed in any industry acting in combination

294 SUPREME COURT REPORTS (1985] SUPP;2 S.C.R.

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 on 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 cOlllilenced or declared in contravention of section 22.

Under section 26(1) any workman who connnences, continues or

otherwise acts in furtherance of a strike which is illegal under

the said Act, comnits an offence punishable with imprisonment for

C 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

add public interest and the good and interest of the nation.

It ·was contended that the conduct charged .againat 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

conmitted

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; contri

buted to the bringing about of this situation.

u.o.I. v. TULSIRAM [MADON, J.] 295

In the context of an all-India strike where a very large

nwnber 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 affect

ed, prompt and innnediate action was called for to bring the

situation to normal. In these circwnstances, 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 matters therefore .require to be

dismissed.

'Die Madhya Pradeab Police Forcea 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, Matlhya Pradesh by

applying clause ·(c) of the second proviso to Article 311(2) to

them. All the orders are in the same tenns 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 cons t. no. 602, 2nd Bn. SAF the alleged charges

to be told, enquiry to .be conducted, or opportunity to

show cause is to be provid~ as per provisions of

clause (2) of the above article,

And, as Governor of M.P. is satisfied .that the con

duct, which appears from his actions or omissions, is

such that it is sufficient ground for his .dismissal/

termination,

As such, t.he ,Governor of M. P. on the ground of powers

vested. to him under article 311(2) C read with article

29.6 SUPREME COURT REPORTS [1985) sUPP:2 s.c.a.

310 of the Constitution dismisses/terminstes Shri

Karan singh Const. no. 602, 2nd B.n. SAP, 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 clauae (c) of the

second proviso the Governor of a State acts on his subjective

C 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 a.nd 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

D these two Forces, were arrested. These persons were remanded

into judicial custody. On January 20, i 981, 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 situa-

E tion 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

Ptadesh who accepted it and issued the impugned orders. On

F further scrutiny some nsmes 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

act! ve propaganda against-the Government, visiting Jabalpur and

other places in the State of Madhya Ptadesh, holding secret meet

ings, distributing leaflets, and inciting the constabulary in

G 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

H going at midnight to the Magistrate's house to apply for bail for

u.o.r. v. TULSIRAM (J:IADON, J. J 297

the ·accused. The police are the guardians of law and order. A

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). B

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 • D

judgment and

order appealed against are reversed and

set aside and the.writ petition filed by the Respon-

dent in the High Court is hereby dismissed.

(2) Writ

Petitions Nos. 1953, 7393, 1392 and 2022 of

1981 are hereby dismissed. E

(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 judg-

ments and orders appealed against are reversed and set aside and the writ petitions filed by the Respondents F

in the High Courts are hereby dismissed. We· direct

the appellate authority under the Central Industrial

Security Force Rules, 1969, to dispose of as expe

ditiously 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 G

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 a.a.J.appan'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 H

298

SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

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

above matters. C (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-<>riented decision of

D 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 ·' 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

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

F 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 t:b the

other point of view.

G 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 date:! July 6, 1985

forwarding the first instalment of 142 pages he says :

"...... I regret to state that the .draft judgment

H could not be sent to vou earlier. The reason was that

u.0.1. v.· TULSIRAM [THAKKAR, J,] 299

as we did not have a meeting to discuss th$,s matter, I

did not know what would be the view of my other

Brothers on the large number of points which fall to

be. ~etermined in these cases, except partly in the

case of two of my Brothers with whom by chance _I got

en opportunity to discuss certain broad aspects ..... "•

[f 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 dissent

ing 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 afres~. 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, adoptirtg the only

course open to me in undertaking the present

exercisee

'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', it is neither a

good nor a sufficient ground to overrule 'Challappan'. After all

what does 'Chaliappan' do? It does no more than enjoin in the

context'of Rule 14(1) (a) and therefore, as a logical corollary,

also in the cont~xt 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

inquirye 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

aide But while the 'will' is very much there,

not the 'time', to elaborate the reasons to buttress 'ChallappB.n'

and to counter the criticism levelled against the thesis

D E

300 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

propounded therein. Or to expound my point of view in regard to

A 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 overrul

ing 'Challappsn' and unable to concur with the consequential

orders being passed

in that context. I am also unable to asso-

B ciate myself with the exposition of law in regard to the true

meaning and content of the 'pleasure doctrine' and its implica

tions 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 Constitu-

C tion of India and the orders proposed to be passed therein.

In the result:

Following the law laid down in 'Challappan' the undermen-

D tioned 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

F Following the law laid down in 'Challappan', the Writ Peti-

tions and allied appeals and the companion matters hereafter

mentioned are allowed and the impugned orders against the Peti

tioners 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 •

. Aehinita Biswas etc. v. Union of India & Ors. etc. and

other allied Transferred cases and matters arising out

of Railway Service matters.

U.Q.l. V• TULSIRAM [THAKKAR, J.) 301

III

The same orders dismissing the Writ Petitions coupled wi.th

the same directions as per the majority judgJnent in :

Writ

Petition No. 1953 of

1981,7393,1392, 2202 of l98l

and Other allied M.P. Police Force matters under B

Article 3ll (2) (c).

N.V.K.

Reference cases

Description

Analysis of Union of India v. Tulsiram Patel | Article 311(2) and Doctrine of Pleasure

Doctrine of Pleasure vs. Natural Justice: A Deep Dive into Union of India v. Tulsiram Patel

The landmark Supreme Court judgment in Union of India and Another v. Tulsiram Patel and Others remains a cornerstone of Indian service and administrative law, authoritatively clarifying the scope of the Doctrine of Pleasure and the exceptions to Article 311(2) of the Constitution. This pivotal case, extensively covered and analyzed on CaseOn, settled the contentious legal question of whether a government servant can be dismissed or removed without an inquiry under specific constitutional exceptions, and how these exceptions interact with the principles of natural justice enshrined in Article 14.

Factual Background: A Nation in Turmoil

This case was not a single dispute but a consolidation of numerous appeals and writ petitions from across the country. The petitioners were all government servants who had been dismissed, removed, or reduced in rank without a formal disciplinary inquiry. The circumstances varied widely:

Tulsiram Patel: A permanent auditor convicted of assaulting his superior officer with an iron rod. He was compulsorily retired without an inquiry based on his criminal conviction.
CISF Personnel: Members of the Central Industrial Security Force (CISF) were dismissed en masse after a violent agitation, mutiny, and armed confrontation with the Army at the Bokaro Steel Plant, making an inquiry “not reasonably practicable.”
Railway Employees: Participants in illegal all-India strikes that paralyzed the nation’s transport system were dismissed or removed on the grounds that holding individual inquiries was not reasonably practicable given the scale of the disruption.
Madhya Pradesh Police: Police personnel who rioted to demand the release of their arrested colleagues were dismissed in the “interest of the security of the State.”

In all these cases, the government invoked one of the three clauses of the second proviso to Article 311(2), dispensing with the standard requirement of holding a disciplinary hearing. The affected employees challenged these actions, arguing that the denial of a hearing was a violation of the principles of natural justice.

Legal Framework: The Constitutional Tug-of-War

The case revolved around the intricate and often conflicting relationship between three key constitutional articles.

The Core Issue: Can Natural Justice Be Constitutionally Excluded?

The central legal question before the Constitution Bench was: When the second proviso to Article 311(2) is invoked, is the requirement for a disciplinary inquiry completely removed, or is some form of minimal hearing (like a show-cause notice regarding the proposed penalty) still necessary under the principles of natural justice guaranteed by Article 14?

Governing Principles: The Rules of the Game

The Supreme Court's analysis was rooted in the interpretation of constitutional provisions and fundamental legal principles.

The Constitutional Bedrock: Articles 310, 311, and 14

Article 310 (Doctrine of Pleasure): This article states that all government servants hold office during the “pleasure” of the President or the Governor. This doctrine, inherited from English law, is based on public policy to ensure the efficiency and integrity of the civil services.
Article 311 (Safeguards): This article acts as a crucial check on the Doctrine of Pleasure. Article 311(2) provides a procedural safeguard, stating that no civil servant shall be dismissed, removed, or reduced in rank except after an inquiry where they are informed of the charges and given a reasonable opportunity of being heard.
The Second Proviso to Article 311(2): This proviso carves out three specific exceptions to the safeguard in Article 311(2):
(a) Where a person is dismissed on the ground of conduct which has led to his conviction on a criminal charge.
(b) Where the authority is satisfied that it is not reasonably practicable to hold such inquiry.
(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.
Article 14 (Right to Equality): This article guarantees equality before the law and embodies the principles of natural justice, including audi alteram partem (the right to be heard).

The Supreme Court's Analysis: Deconstructing Tulsiram Patel

The Court undertook a meticulous, first-principles analysis of the constitutional scheme, leading to a definitive clarification of the law.

Primacy of Constitutional Text: "This Clause Shall Not Apply"

The Court held that the opening words of the second proviso—"Provided further that this clause shall not apply"—were of paramount importance. The phrase "this clause" refers to the entirety of Article 311(2). Therefore, when any of the three conditions in the proviso is met, the entire procedural safeguard of an inquiry, including the right to be heard, is completely and constitutionally taken away. The Court emphasized that this language was plain, unambiguous, and mandatory, leaving no room for judicial interpretation to introduce a minimal hearing.

Article 14 vs. Article 311(2) Proviso: The Clash of Titans

The most significant part of the ruling was its handling of the conflict between the general principles of natural justice in Article 14 and the specific exclusion in the Article 311(2) proviso. The Court reasoned that:

The principles of natural justice are not absolute and can be excluded by a specific provision of the Constitution itself.
While Article 14 is the guardian of fairness, it cannot be used to reintroduce a right that another specific, co-equal constitutional provision has expressly excluded.
To hold otherwise would be to render the second proviso to Article 311(2) meaningless and frustrate the intent of the Constitution-makers. The Court applied the maxim Expressum facit cessare tacitum (what is expressed makes what is silent cease), concluding that the express exclusion of an inquiry cannot be negated by an implied inclusion through Article 14.

Overturning Precedent: The Rejection of the Challappan Ruling

The Court expressly overruled its earlier decision in Divisional Personnel Officer v. T.R. Challappan. The Challappan case had held that even under the proviso, an employee should be given a hearing on the quantum of punishment. The Tulsiram Patel bench declared this interpretation erroneous, stating that it unconstitutionally restricted the full exclusionary force of the proviso and was based on an isolated reading of service rules rather than the supreme mandate of the Constitution.

Understanding the intricate balance between administrative exigency and employee rights in landmark cases like Tulsiram Patel can be time-consuming. This is where tools like CaseOn.in's 2-minute audio briefs become invaluable for legal professionals, offering quick and precise summaries of complex rulings to aid in their analysis and save precious time.

Dissecting the Proviso's Clauses

The Court clarified the scope of each clause:

Clause (a) - Criminal Conviction: The penalty is not automatic. The disciplinary authority must apply its mind to the conduct that led to the conviction and decide, ex parte, on an appropriate penalty.
Clause (b) - Not Reasonably Practicable: This is an objective test based on the assessment of a reasonable person in the given situation. The authority must record its reasons in writing, and this decision is subject to judicial review on grounds of mala fides or if it is based on irrelevant grounds.
Clause (c) - Security of the State: This is based on the subjective satisfaction of the President or Governor. This satisfaction is not open to judicial review on its merits (expediency), but the action can be challenged on grounds of mala fides.

Avenues for Redress: Remedies Still Available

Crucially, the Court affirmed that an employee is not left without a remedy. They retain the right to a departmental appeal or review. In such an appeal, they can challenge the penalty's severity and, in cases under clause (b), argue that an inquiry has now become practicable. The remedy of judicial review, though limited, is also available to challenge the order on grounds of it being mala fide or the invocation of the proviso being a fraud on power.

The Final Verdict: Conclusion of the Case

The Supreme Court allowed the appeals filed by the Union of India and dismissed the petitions of the employees. It held that the second proviso to Article 311(2) is a complete and constitutionally valid exception to the rules of natural justice. When its conditions are satisfied, the disciplinary authority is empowered to impose a penalty without holding any inquiry. The dismissals and removals of the various government servants were, therefore, upheld as constitutionally valid.

Summarizing the Judgment of Union of India v. Tulsiram Patel

In essence, the Tulsiram Patel judgment established that public policy, enshrined in the Doctrine of Pleasure and the exceptions in Article 311(2), can in specific and grave circumstances, override an individual's right to a pre-decisional hearing. It affirmed the supremacy of the constitutional text and delineated the limited but important avenues for appeal and judicial review that remain available to the aggrieved employee.

Why Tulsiram Patel is a Landmark Judgment for Lawyers and Students

This judgment is essential reading for anyone studying or practicing constitutional and administrative law. It provides an authoritative masterclass on:

The dynamic interplay between Articles 14, 310, and 311.
The principle that a specific constitutional provision can override a general one.
The nature and scope of the Doctrine of Pleasure in modern India.
The high threshold required to dispense with a disciplinary inquiry in service matters.
The limited but crucial scope of judicial review in cases involving subjective satisfaction and administrative exigency.

Disclaimer

The information provided in this article is for informational purposes only and does not constitute legal advice. For specific legal issues, please consult with a qualified legal professional.

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