# B. C. DAS ETC v. STATE OF ASSAM & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 477
- **Court:** Supreme Court of India
- **Decided:** 1971-04-23
- **Bench:** J. M. Shelat, I. 0 Dua, V. BliARGAVA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-c-das-etc-v-state-of-assam-ors-5268
- **Pages:** 17

## Headnote

Constitution of India, Arts. 311(2) (c) and 320 (3) (2}--Governor passing order of dismissal-Order reciting Governor's satisfaction that it was
not expedient to give opportunity to show cause against action proposP.d
-Recital must be held to imply that Governor was also satisfied that il
was not expedient to hold inquiry-Article 311(2) as amended in 1963 only
clarifies what was judicially held to be implied in original article-Consu~
ltation with Public Service Commission by Governor before passing order
of dismissal not necessary-Chief Secretary's authentication of Governor's
order does not show that Governor was influenCed by Chief SecretaryMala tides not estaOlished.
The appellants were dismissed from the service of the Government of
Assam by two separate orders passed by the Governor on April 1, 1965.
The orders recited that the appellants were unfit to be retained in the
public service, that they ought to be dismissed from service and that. the
Governor was satisfied in terms of Art. 311(2) (c) of the Constitution that
it was not expedient to give them opportunity to show cause against the
action proposed to be taken in regard to them as stated above. The appellants challenged the orders of dismissal in writ petitions under Art. 226
of the Constitution which were dismissed by the High Court. In appeals
by certificate the contentions of the appellants were: (i) that the impugned
orders were not in compliance with the terms of Art. 311 (2) as amended
by the Constitution Fifteenth Amendment Act which had come into force
on October 6, 1963; (ii) that the orders were bad because they were passed
without consulting the Public Service Commission ; (iii) that the orders
were passed mala fide at.the instance of the Chief Secretary and the Finance
Minister who were annoyed with the appellants.
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HELD: (i) Per Shelat and Dua, JJ. According to the decisions of this
F
Court the expression "reasonable opportunity of showing cause against
the action proposed to be taken" in the unamended Art. 311(2) included
an opportunity to show cause against the guilt of the government servant
concerned. This opportunity to show cause against the guilt seems to correspond to the reasonable opportunity of being beard in respect of the
charges in the course of the inquiry contemplated by the amended subarticle. The amendment in 1963 was made principally to put in clearer
language the result of the judicial decisions construing s. 240(3) of the
G
Government of India Act, 1935 and unamended Art. 311(2~ of the Constitution. It could not be doubted that the Governor in the present case
was fully alive to the interest of the security of the State when he expressed his satisfaction about the inexpediency of giving an opportunity to the
appellants to show cause against their guilt as contemplated by cl. (2)
of Art. 311 and intended that this clause shall not apply to their cases.
Merely because the form of the order was expressed in the language used
in the unamended Art. 311 (2) it did not detract from its effectivelli!ss as
H
operating to exclude the applicability of the amended .cl. (2) of Art. 311
as a whole. The use of the words in conformity with the unamended
article served to convey the same intention as was contemplated by tho
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amended article and the difference in the language which seemed to be iu·
consequential did not have the effect of nullifying the impugned orders.
The words 'as gated above' in the orders did not have the effect of restricting the ambit of the show cause notice to the question of penalty which
may be imposed after the inquity into the unfitness of the appellants
to be retained in the public service. [482C-H ; 483E-G]
Khem Chand v._ Union of lildia & Ors. [1958] S.C.R. 1 Secretary of
State for India v. J.M. Lall, [1945] F.C.R. 10 and High Commissioner for
India v. J.M. Lall, LR. (1948) 75 I.A. 225, referred to.
Per Bhargava, J. (dissenting) The '"action propos

## Text

_Characters 0–39,862 of 46,106. This is a partial read: ask again with offset=39862 for what follows._

B. C. DAS ETC.
v.
STATE OF ASSAM & ORS.
April 23, 1971.
[J. M. SHELAT, I. 0 DUA AND V. BliARGAVA, JJ.]
Constitution of India, Arts. 311(2) (c) and 320 (3) (2}--Governor passing order of dismissal-Order reciting Governor's satisfaction that it was
not expedient to give opportunity to show cause against action proposP.d
-Recital must be held to imply that Governor was also satisfied that il
was not expedient to hold inquiry-Article 311(2) as amended in 1963 only
clarifies what was judicially held to be implied in original article-Consu~
ltation with Public Service Commission by Governor before passing order
of dismissal not necessary-Chief Secretary's authentication of Governor's
order does not show that Governor was influenCed by Chief SecretaryMala tides not estaOlished.
The appellants were dismissed from the service of the Government of
Assam by two separate orders passed by the Governor on April 1, 1965.
The orders recited that the appellants were unfit to be retained in the
public service, that they ought to be dismissed from service and that. the
Governor was satisfied in terms of Art. 311(2) (c) of the Constitution that
it was not expedient to give them opportunity to show cause against the
action proposed to be taken in regard to them as stated above. The appellants challenged the orders of dismissal in writ petitions under Art. 226
of the Constitution which were dismissed by the High Court. In appeals
by certificate the contentions of the appellants were: (i) that the impugned
orders were not in compliance with the terms of Art. 311 (2) as amended
by the Constitution Fifteenth Amendment Act which had come into force
on October 6, 1963; (ii) that the orders were bad because they were passed
without consulting the Public Service Commission ; (iii) that the orders
were passed mala fide at.the instance of the Chief Secretary and the Finance
Minister who were annoyed with the appellants.
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HELD: (i) Per Shelat and Dua, JJ. According to the decisions of this
F
Court the expression "reasonable opportunity of showing cause against
the action proposed to be taken" in the unamended Art. 311(2) included
an opportunity to show cause against the guilt of the government servant
concerned. This opportunity to show cause against the guilt seems to correspond to the reasonable opportunity of being beard in respect of the
charges in the course of the inquiry contemplated by the amended subarticle. The amendment in 1963 was made principally to put in clearer
language the result of the judicial decisions construing s. 240(3) of the
G
Government of India Act, 1935 and unamended Art. 311(2~ of the Constitution. It could not be doubted that the Governor in the present case
was fully alive to the interest of the security of the State when he expressed his satisfaction about the inexpediency of giving an opportunity to the
appellants to show cause against their guilt as contemplated by cl. (2)
of Art. 311 and intended that this clause shall not apply to their cases.
Merely because the form of the order was expressed in the language used
in the unamended Art. 311 (2) it did not detract from its effectivelli!ss as
H
operating to exclude the applicability of the amended .cl. (2) of Art. 311
as a whole. The use of the words in conformity with the unamended
article served to convey the same intention as was contemplated by tho
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amended article and the difference in the language which seemed to be iu·
consequential did not have the effect of nullifying the impugned orders.
The words 'as gated above' in the orders did not have the effect of restricting the ambit of the show cause notice to the question of penalty which
may be imposed after the inquity into the unfitness of the appellants
to be retained in the public service. [482C-H ; 483E-G]
Khem Chand v._ Union of lildia & Ors. [1958] S.C.R. 1 Secretary of
State for India v. J.M. Lall, [1945] F.C.R. 10 and High Commissioner for
India v. J.M. Lall, LR. (1948) 75 I.A. 225, referred to.
Per Bhargava, J. (dissenting) The '"action proposed as stated aoove''
in the impugned orders clearly was the order in1posing the penalty of dis~
missal from service. ln the order itself preceding the recording of the
satisfaction there was no other action proposed, except the action of dismissal from service. The satisf:.:i.ctian recorded by the Governor, therefor~.
related to the third step to be taken under cl. (Z) of Art. 311 of the Constitution.
The Governor confirmed his satisfaction to the inexpediency
of giving opportunity to the appellants to show cause against the penalty
proposed.
No satisfaction \\·as recarded that it \\'as inexpedient to hold
the inquiry required by cl. (2) of Art. 3 ! l as 2.mended.
Under sub-cl. (c)
of the proviso, what was needed was a satisfaction thilt it \\:as inexpedient
to hold the inquiry.
No such satisfaction having been recorded il was
necessary that the provisions of the principal cl. (1) of Art. 311 should
have been complied \Vith before passing an order of disn1issal. The order
of dismissal was therefore void and liable to be struck down. [489C-E]
Case-law referred to.
(ii) Consultation with the Public Service Commission is not compulsory under r. 10 of the Assam Services Discipline and Appeal Rules, 1964
and regulation 6 of the Assam Public Service Commission (Limitation of
Functions) Regulations 1951.
The consultation with the Commission is
not prescribed either by the Rules or by the Regulations. The consultation
is only under Art. 320 (3) (c) of the Constitution.
So far as that consultation is concerned this Court has held that it is not mandatory. Nonconsultation with the Public Service Commission could not therefore be
held to vitiate the orders impugned.
[492C-493D]
State of U.P. v. Ma11bodha11 Lal Srivastava, [1958] S.C.R. 533
and
State of Bombay v. D. A. Korgao11kar, C.A. No. 289/1968 dt.
6-5-1960,
relied on.
(iii) There was no charge that the Governor had any extraneous reasons for passing the Qfrlers of dismissal. There was nothing on record to
sho\\· that either the Chief Secretary or the Finance Minister took any part
in the proceediugs wntcll led to the orders of dismissal, or that they ad·
vised the Governor. The orders \vere no doubt authenticated by the Chief
Secretary in the name of the Governor, but that did not mean that the
Governor was in any way influenced by any advice tendered to him by the
Chief Secretary. In the circumstances. the plea of mala fide must be rejected. [493E-F]
The appeals had accordingly to be dismissed:
OVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1644
and 1645 of 1967.
Appeals from the judgment and order dated Julv 26, i 967 <;>f
the Assam and Nagaland High C\,urt in Civil Rule Nos. 192 and
208 of 1966.
B. c. DAS v. ASSAM (Dua,J.)
479
Debabrata Mukherjee, D. N. Mukherjee and S. K. Nandy,
A
for the appellants (in lioth the appeals).
M. C. Chagla and iNi:lunit Lal, for the respondents (in both
the appeals).
The Judgment of J. M. SHELAT and I, D. DUA, J.J. was delivered by DUA, J. V. BHARGAVA, J., gave a dissenting Opinion.
Dua, J .-We have read the judgment prep8'red by our
learned brother Bhargava, We are in complete agreement with
him so far as decision on points Nos. (2) & (3) is concerned, but
with respect we a-re unable to agree with him on point No. (!).
It is unnecessary to repeat the relevant facts which have been
set out by our learned brother in his judgment. The impugned
order dated April l, 1965, in the case of appellant P. K. Hore may
however, be again reproduced :
"The Governor is satisfied that Shri P. K. Hore,
Superintendent, P.W.D.F.C. & I Wing against whom
more charges have been received is unfit to be retained in
the public service and that he ought to be dismissed from
service.
The Governor is further sMisfied under sub-clause
kl of the proviso to clause (2) of Article 311 of the
Constitution that in the interest of the security of the
State, it is not expedient to give the said Shri P. K. Hore
an opportunity to show cause against the action proposed to be taken in regard to him as stated above.
Accordingly, the Governor hereby dismisses the
said P. K. Hore, from service with immediate effect."
On the same day an identical order was made with respect
to the dismissal of the appellant B. C. Das except thait in the order
against him there is no mention of more charges having been
received against him.
It appears that when the Governor made these two orders
his attention was not invited to the amended Art. 311(2) which
was in force on that date. The impugned orders were accordingly
made in terms of Art. 311 (2) as it existed before its amendment
by the Fifteenth Amendment Act, 1963, which had come into
force on October 6. 1963.
The amended Art. 3ll(2) has been
reproduced in the judgment of my learned brother, it is, l.owcver,
desirable to reproduce both the amended and unamended article
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311(2) so as to understand if any substantial or material change
in the legal position was intended by the amendment :
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Unamended
Prior to 6· 10-63
(2) No such person as aforesaid shall be dismissed or removed
or reduced in rank until he has
been given a reasonable opportunity of .'showing cause against the
action proposed to be taken in
regard to him :
Provided that this
clause shall not apply-
{a) Where a person is dismissed
or removed or reduceJ in
rank on the ground of conduct which has led to his
conviction
on a criminal
charge; or
(b) where an authority empowered to dismiss or remove
a person or to reduce
him
in rank is satisfied that for
some reason, to be recorded
by that authority in writing,
it is not reasonably practicable to give to that person
an opportunity of showing
cause; or
(c) where the President or Go·
vernor, as the ;case may be,
is satisfied that in the interest
of the security of the State it
is not expedient to give that
person such an opportunity.
Amended
After 6· 10-63
(2) No such person as aforesaid
shall be dismis!:ed or removed or
reduced in rank except after an
inquiry in which he has been infor·
med of the charges against him and
given a rea~onable opportunity of
being heard in respect of those char·
ges and where it is proposed, after
such inquiry, to impose on him an.Y
such penalty, until he has been
given a repsonable opportunity of
making representation on the penal·
ty proposed, but only on the ba'iis
of the evidence adduced during such
inquiry.
Provided that this
clause shall not apply-
(a) where a person is dismissed
or removed or reduced in
rank on the ground of con·
duct which has led to his
conviction on a criminal
charge; or
(b) where the authority empowered to dismiss or remove a
person or to reduce him in
rank is satisfied that for some
reason, to be recordod by that
authority in Writing, it is not
reasonably practicable to hold
such inquiry : or
(c) where the President or uovernor. 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 unamended sub-article except the proviso was a reproduction
of s. 240(3) of the Government of India Act, 1935. The proviso
to s. 240(3) had only two clauses corresponding to els. (a) & (b)
of the unamended Art. 311(2). A bench of five Judges of this
Court in Khem Chand v. The Union of India and Others (')
(0 (19ss1 s.c.R. 1oso.
B. C:. DAS r. ASSAM (Dua, J.)
speaking through Das, C. J., after referring to the divergent views
expressed by Spens, C. J. of the Federal Court for himself and
Zafarulla Khan, J., on the one hand, and by Varadachariar, J.,
on the other in Secretary of State for India v. I. M. Lal/(') and
to the decision of the Privy Council on appeal in High Commissioner for India v. /. M. Lall(') explained the Privy Council
decision and clarified the meaning scope and ambit of the unamended Art. 311(2) in these words:
"In our Judgment neither of the two views can be
a<:cepted as a completely correct exposition of the
intendment of the provisions of s. 240(3) of the Government of India Act, 1935, now embodied in Art. 311(2) of
the Constitution.
Indeed the learned Solicitor-General
does not contend that this provision is confined to guaranteeing to the government servant an opportunity to be
given to him only at the later stage of showing cause
against the punishment proposed to be imposed on him.
We think that the lea.rned Solicitor-General is entirely
right in not pressing for such a limited construction of
the provisions under consideration. It is true that the
provision does not, in terms, refer to different stages at
which opportunity is to be given to the officer concerned. All that it says is that the government servant
must be given a reasonable opportunity of showing
cause against the action proposed to be taAcen in regard
to him. He must not only be given an opportunity but
such opportunity must be a reasonable one. In order that
the opportunity to show cause against the proposed
action may be regarded a.s a resonable one, it is quite
obviously necessary that the government servant should
have the opportumty, to say, if that be his case, that he
has not been guilty of any misconduct to merit any
punishment at a.JI and also that the particular punishment proposed to be given is much more drastic and
severe 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."
According to this decision the expression "reasonable opportunity of showing cause against the action proposed to be taken"
included an opportunity to show cause against the guilt of the
government servant concerned. This opportunity to show cause
against the guilt seems to correspond to the reasonable opportunity of being hea.rd in respect of the charges in the course of the
(I) [194S) F.C.R. 103.
31-1 SC Indiaf71
(2) L.R. [1948 75 I.A. 22S.
01
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inquiry contemplated by the amended sub-article. The question,
therefore, arises if in the present case the Governor when expressing his satisfaction under sub-clause (c) of the proviso to cl. <2)
of Art. 311 of the Constitution in the impugned order, by using
the words "it is not expedient to give the said Shri P. K. Hore
an opportunity to show cause against the action proposed to be
taken in rega£d to him as stated above", intended to convey his
satisfaction that in the interest of the security of the State it \Vas
not expedient to give an opportunity to P. K. Hore to show
cause only against the penalty proposed to be imposed, and
that the Governor's satisfaction did not extend to the inexpediency of giving P. K. Hore ain opportunity of showing cause
against his unfitness to be retained in service as well.
In our
opinion the impugned order cannot reasonably be construed to
be restricted to the narrow meaning suggested on behalf of the
appellant. The words "as stated above" on which great reliance
was placed by the learned counsel do not have the effect of restricting the ambit of the show cause notice to the question of
penalty which may be imposed after the inquiry into P. K. Hore's
unfitness to be retained in the public service.
The show ca.use
notice about the inexpediency of which the Governor was satisfied seems to us to extend also to the question of such unfitness
of P. K. Hore. To accept the suggestion made by the appellant's
learned counsel would impute to the Governor an intention to
make what seems to be a meaningless order. It may be recalled
that the amended Art. 311 (2) does not speak of any show cause
notice. The language of this sub-article refers to an inquiry in
which the delinquent government servant is to be informed of
1he charges against him and given a reasonable opportunity of
being heard in respect of those charges and where after such
inquiry it is proposed to impose on him a penalty he is again
to be given a reasonable opportunity of making representation
-0n the penalty proposed. The second stage does not speak of
notice to show cause against the action proposed to be taken.
The amendment in 1963 was made principally to put in clearer
langnage the result of the judicial decision construing s. 240(3)
of the Government of India Act, 1935, and unamended Art.
311(2) of the Constitution. As already noticed, under s. 240(3)
of the Act of 1935 and the unamended Art. 311(2) provision was
made of giving a reasonable opportunity to the government servant concerned of showing cau~ against the action proposed
to be taken in regard to him.
This expression was construed
in terms to refer to the stage when, after such inquiry as ma)"
be necessary, and aftirr the punishing authority, being satisfieii
of the gnilt of the delinquent government servant, provisionally
proposed the action to be taken against him.
But in answet
to this show cause notice. the government servant was held
entitled also to show cause against his guilt on the merits. Even
B. c. DAS v. ASSAM (Dua, J.)
thou~h in the earlier inquiry, if any, the government servant had
been given an opportunity of showingi cause against his guilt,
the second opportunity provided by the statute was held to be
mandatory. The Privy Council in /. M. Lall's case(') saw "no
difficulty in the statutory opportunity being reasonably afforded
at more than one stage".
The Privy Council, however, dealt
with s. 240(3) of the Act of 1935 and the earlier statutory rule
on the subject.
This Court in Khem Chand's
case(')
after
quoting a passage from the judgruent of the Privy Council said:
"Therefore, in a case where there is no rule like
r. 55 the necessity of an enquiry was implicit in s. 240(3)
and is so in Art. 311(2) itself. Further their Lordships
say that an enquiry under r. 55 "would not exhaust his
statutory right and he would still be entitled to make a
representation aigainst the punishment proposed as the
result of the findings of the enquiry". This clearly proceeds on the basis that the right to defend himself in the
enquiry and the right to make representation against
the proposed punishment are all parts of his "statutory
right" and are implicit in the rea6onable opportunity
provided by the statute itself for the protection of the
government servant."
It cannot be aoubted that the Governor in the present case
was fully alive to the interest of the security of the State when
he expressed his satisfaction about the inexpediency of giving
an opportunity to P. K. Hore in the one case, and to B. C. Das
in the other, to show cause aga.inst their guilt as contemplated
by cl. (2) of Art. 311 and intended that this clause shall not
apply to their cases. Merely because the form of the order was
expressed in the. language used in the unamended Art. 311(2),
it does not in ow; view detract from its effectiveness as opera.ting
to exclude the applicability of the amended cl. (2) of Art. 311
as a whole.
The use of the words in conformity with the
unamended article serves to convey the same intention as is
contemplated by the amended a.rticle and the difference in the
language which seems to be inconsequential does not have the
effect of nullifying the impugned order.
No doubt Art. 311 (2) is intended to afford a sense of security
to government servants covered by sub-art. (I) "and the safeguards provided by sub-art. (2) are maindatory.
But cl. (c) of
the proviso to ibis sub-article which is desigied to safeguard the
larger interest of the security of the State cannot be ignored or
(I) L.R. [1948) 751.A. 225.
(2) [1958]S.c.R: 1080.
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considered less important when construing sub-art. (2).
The
interest of the security of the State should not be allowed to
suffer by invalidating the Governor's order on unsubst111ntial or
hyper-technical grounds which do not have the effect of defeating the essential purpose of the constitutional safeguard of individual government servant.
It is nobody's case before us that
inquiry into the charges against the two appellants as contemplated by the amended Art. 311(2) had already been held and
the question of imposition of penalty alone remained to be finaUy
settled when the impugned order was made. No inquiry of any
kind as contempla-ted by Art. 311 (2) was, according to the
common case of the parties, held against the appellants when
the Governor made the impugned orders under proviso (c) to
this sub-article.
In these circumstances the impugned orders
when they speak of the "action proposed to be taken" must be
construed a•s intended to refer to the action including inquiry
into the truth of the charges against them and the proposed
penalty to be imposed after such inquiry. The fact that cl. (c)
of the proviso to the amended sub-article only speaks of the inquiry and not of imposition of penalty is understandable because
in the absence of inquiry the question of penalty cannot arise. It
also serves to indicate that the Governor could not have intended
by the impugned order to exclude only representation against
imposition of pena.Jty, leaving untouched the inquiry and the
right of the government servant to the opportunity of hearing
with respect to the charges. Once it is borne in mind that the
Governor's attention was, for some reason or the other, drawn
only to the unamended Art. 311 and not to the amended article,
and it is further kept in view that the amendment of Art. 311
in 1963, as already explained, was only designed to clarify and
give effect to the judicial decisions interpreting the unamended
article, the reason for the form and the language used in the
impugned orders becomes clear and there can be no difficulty
in understanding their true meaning.
Reading the impugned
orders in the light of what has just been stated, they quite clearly
exclude the applicability of sub-art. (2) of Art. 311 in both cases.
These appeals accordingly fail and are dimissed, but in the
circumstances without costs.
Bhargava, J.-These two appeals by certificate are directed
against a common judgment of the High Court of Assam 111nd
Nagaland ciismissing two writ petitions filed by the two appellants.
For purposes of dealing with the case, it is enough to give facts
in respect of one of the appellants, as the facts in the case of the
other appellant are very similar, and the points arising are
common. In Civil Appeal No. 1645 of 1967, the appellant is
P. K. Hore who joined service in the Secretariait of the Assam
B. c. DAS v. ASSAM (Bhargava, J.)
Government on !st November, 1946 in the post of a Lower Division Assistant.
On 9th December, 1950, he was confirmed in
that post.
On !st July, 1957, he was confirmed as an Upper
Division Assistant, and on further promotion, on 9th December,
1963, he was confirmed as a. Superintendent in the Secretariat
with the approval of the State public Service Commission.
In
the year 1964-65, he was elected as Vice-President of the Assam
Secretariat Services' Association. This wa~ at a time when, in
the year 1964, the report of the Pay Committee appointed by the
Government was puhlished.
The employees of the Secretariat
were dissatisfied with the recommendations of the Pay Committee
a.nd there was an agitation against it in respect of the service
conditions.
As a result, the Association took a decision for a
pen-down strike.
There was also some agitation alleging that
the Pay Committee had shown undue favour to the brother of
the Finance Minister of the State Government, viz., Fakhruddin
Ali Ahmed.
Consequently, between 16th and 19th November,
1964, there was a debate in the Legislative Assembly regarding
the report where the Finance Minister had to give an explanation on this charge.
There was the further a·llegation that the
appellant P. K. Hore had taken special interest in ensuring that
undesirable persons did not enter Assam from Pakistan which
was resented by the then Chief Secretary of the Government. As
a result of the a·gitation by the Association, of which P. K. Hore
was the Vice-President, he was suspended on 12th March, 1965.
The other appellant, B. C. Das, was suspended a few days la!er.
In fact, including the latter, 32 other employees were placed under
suspension. On I 8th March, I 965, inquiry proceedings were
drawn up against P. K. Hore and some others to show cause why
disciplinary action should not be taken against them for insubordination. P. K. Hore was asked to submit his explanation within
five days from the date of receipt of the communication.
On
26th March, 1965, he a·pplied for extension of time which request
was accepted and time was. extended up to 2nd April, 1965.
Before he could submit his explanation, however, on 31st March,
1965, P. K. Hore, B. C. Das and three others were placed under
detention by" the District Magistrate under Rule 30(1) of the
Defence of India Rules. Therea.fter, in the case of P. K. Hore,
the following order was passed on !st April, 1965 :-
"The Governor is satisfied that Shri P. K. Hore,
Superintendent, P.W.D.F.C. & I. Wing against whom
mote charges have been received is unfit to be retained
in the public service and that he ought to be dismissed
from service.
The Governor is further satisfied under sub-dause
<Cl of the p~oviso to claiUse (2) of Article 311 of the
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Constitution that in the interest of the security of the
State, it is not expedient to give the said Shri P. K. Hore
an opportunity to show cause against the action propo·
sed to be taken in regard to him as stated above.
Accordingly, the Governor hereby dismisses the
said P. K. Hore from service with immediate effect."
On these facts, this order, as well as the similar order passed
in the case of B. C. Das, were challenged in the High Coutt of
Assam and .Nagaland in petitions under Art. 226 of the Consti·
tution on the following three grounds which have also been urged
in these appeals :-
(!) The order of dismissal from service has been passed in
violation of Art. 311(2) of the Constitution, as the order of the
Governor did not satisfy the requirements of sub-clause (c) of
the proviso to clause (2) of Art. 311;
(2) The order has been passed without consultation with
the State Public Service Commission which was compulsory under
rule IO of the Assam Services Discipline and Appeal Rules,
1964 (hereinafter referred to as "the Rules"), and regulation 6
of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 (hereinafter referred to as "the Regu·
lations"),
(3) The order of dismissal has been passed ma/a fide.
The
High Court rejected all these grounds and dismissed both the
writ petitions and, consequently, the appellants have come up
to this Court in these a.ppeals.
Qause (2) of Art. 311 of the Constitution, as it stands after
amendment by the Constitution (Fifteenth Amendment) Act,
1963 reads as follows :-
"311. (2) No such person as aforesaid shall be dis·
missed or removed or reduced in rank except after an
inquiry in which he h36 been informed of the charges
against him and given a reasonable opportunity of being
heard in respect of those charges and where it is proposed,
after such inquiry, to impose on him any such penalty,
until he has been given a reaoonable opportunity of
making representation on the penalty proposed, but only
on the basis of the evidence adduced during such
inquiry :
Provided that this clause shall not apply-
(a) where a person is dismissed or removed or
reduced in rank on the ground of conduct
B. c. DAS v. ASSAM (Bhargava, J.)
which has led to his conviction on a criminal
charge; or
(b) where the authority empowered to dismiss or
remove a person or to reduce him in rank is
satisfied that for some reason, to be recorded
by that authority in writing, it is not reasonably
practicable to hold such inquiry ; or
(c) where the President or the Governor, as the
ca1;e may be, is satisfied that in the interest of
the security of the State it is not expedient to
hold such inquiry:"
Under this provision, if an order of dismissal or removal or reduction in rank is to be passed in respect of any Government servant,
three steps have to be taken. The first step is to direct that an
inquiry be held against him; the second is tha.t, in that inquiry
he has to be informed of the charges against him and given a
reasonable opportunity of being heard in respect of those charges;
and, finally, a.fter such inquiry, the third step to be taken is that,
if it is proposed to impose on him any penalty of dismissal,
removal or reduction in rank, he has to be given a reasonable
opportunity of making a representation on the penalty proposed,
·but only on the ba6is of the evidence adduced during such inquiry.
Under the three sub-clauses of the proviso, this principal clause
ceases to apply altogetner In case the conditions laid down in
those sub-clauses are satisfied. Sub-clause (c), which is relevant
in this case, la.ys down that, 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 the inquiry under the
principal clause, that clause shall not apply. In order, therefore,
to enable the Governor to pass an order of dismissal without
holding an inquiry, without informing the government servant
of the charges against him and without giving him an opportunity
of being heard in respect of those charges, and without giving
him a resona ble opportunity of making a representation against
the penalty proposed, the Governor must be satisfied that, in the
interest of the security of the State, the holding of such an inquiry
is not expedient.
In the present case, in the impugned order
dated !st April, 1965, the satisfaction of the Governor was recorded in the following words :-
·
"It is not expedient to give the said Shri P. K. Hore
an opportunity to show cause against the action proposed to be taken in regard to him as stated above."
There was no mention of any inquiry and the Govel'llor did not
record any satisfaction that it was not expedient to hold the inquiry envisaged by the principal clause (2) of Art: 311. It is specially to be noted that, in the first paragraph of the order, the
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Governor's satisfaction is recorded on two points. One is that the
Governor is satisfied that P. K. Hore, against whom more charges
had been received, is unfit to be retained in the public service,
and the second is that be ought to be dismissed from service.
Obviously, this paragraph envisaged that the Governor bad
already formed an opinion that the penalty of dismissal from
service should be awarded to P, K. Hore. Having arrived at that
opinion, it was expressed in so many words in the first paragraph
of the order and, then, in the second paragraph, the Governor's
satisfaction is recorded to the effect that it is not expedient to
give P. K. Hore a.n opportunity to show cause against the action
proposed as stated above. The "action proposed as stated above"
in the order clearly is the order imposing the penalty of dismissal
from service. In the order itself preceding the recording of this
satisfaction, there is no other oction proposed, except the action
of di~mlssal from service. The satisfaction recorded by the Governor, therefore, related to the third step to be taken under
clause (2) of Art. 311 as enumerated above. The Governor confined hi~ satisfaction to the inexpediency of giving an opportunity
to P. K. Hore to show cause a.gains! the penalty proposed. No
satisfaction is recorded that it is inexpedient to hold the inquiry
required by clause (2) of Art. 311. Under sub-clause (c) of the
proviso, what was needed was a satisfaction that it was inexpedient to hold the inquiry. No such satisfoction having been re·
corded, it was necessary that the provisions of the principal clause
(2) of Art. 311 should have been complied with before passing
an order of dismissal.
Mr. Chagla appearing on behalf of the respondent, however,
relied on the fact that the satisfaction of the Governor was recorded in the language in which the provision in Art. 311 (2) stood
prior to its amendment by the Constitution (Fifteenth Amen.dment) Act, 1963, and which was as follows: -
"311. (2) No such person as aforesaid shall be dismissed of removed or reduced in rank until he has been
given a reasonable opportunity of showing ca.use against
the action proposed to be taken in regard to him :
Provided that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led
to his conviction on a criminaJ charge;
{b) where an authority empowered to dismiss or
remove a person or to reduce him in rank is satisfied
that 1br some reason, to be recorded by that authority
in writing, it is not reasonably practicable to give to that
person an opportunity of showing cause; or
B. c. DAS v. ASSAM (Bhargava, J.)
(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 give to that
person such an opportunity."
Under the unamended clause (2) of Art. 311, l>'hat was required
to be done was that a reMonable opportunity of showing cause
against the action proposed to be taken in regard to him had
to be given to the government servant, and, under the proviso,
the Governor's S&tisfaction required was that in the interest of
the security of the' State it was not expedient to give that person
iuch an opportunity.
The satisfaction under the unamended
provision, therefore, that the Governor had to arrive at wa-s that
it was not expedient to give the government servant an opportunity of showing cause against the action proposed to be taken
in regard to him.
This is the language u&ed in the order
impugned. The words used in the Article, before the amendment,
were interpreted by this Court in Khem Chand v. The
Union
of India and Others.(') Summarising the position,
the
Court
held :-
"The resonable opportunity envisaged 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 bMed;
(b) an opportunity to defend himself by cross-examining the wi\nesses produced against him and by examining himself or any other witnesses in support of his
defence; and fi'lally
(c) an opportunity to make his representation as to
why the proposed punishment should not be inflicted on
him, which he can only do if the competent authority,
after the-enquiry is over and after applying his mind to
the gravity or otherwise of the charges proved against
the government servant tentatively proposes to inflict one
of the three punishments and communicates the same to
the government servant."
This interpretation was reiterated by the Court in Hukum Chand
Malhotra v. Union of India.(') It was urged by. Mr. Chagla
that, in interpreting the order of the Governor dated !st April,
1965, it should be held that, in stating that it is not expedient
(I)[ 1958) S. C. R. I 080.
(2) [1959] Suypl. S. C.R. 892.
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to give P. K. Hore an opportunity to show cause against the action
proposed to be ta.ken in regard to him, he must have used these
words in the sense in which they were used in the Constitution
prior to its amendment and in the light of the interpretation
placed on those words by this Court in the -two decisions cited
above.
For two reasons, this submission made by Mr. Chagla
appears to be unacceptable. The first reason is that it is too much
to hold that the Governor, while passing an order under the
amended Art. 311 (2), would be consciously thinking of and
basing his order on the language which was used earlier in the
unamended .Article and on the interpretation placed on that unamended article by this Court. In fact, in the counter-affida.vit
filed on behalf of the State, the assertion made by the Chief
Secretary again is "that the Governor of Assam wa.s satisfied
on the basis of materials before him that in the interest of security
of the State, it was not expedient to give the petitioner to show
cause agafost the order of dismissal." He, thus, reiterates that
the Governor's satisfaction was confined to the inexpediency of
permitting the petitioner to show cause against the proposed
order of dismissal which was the proposed penalty. This statement in the affidavit gains importa!Ilce when reference is made
to a subsequent paragraph in it in which the Chief Secretary
puts forward his submissions. It is in the submissions that the
Chief Secretary says that the Governor was satisfied tha.t it was
not expedient to hold the inquiry. If, in fact, the Governor was
so satisfied, there is no reason why the Chief Secretary should
not have stated it on oath in the earlier paragraph, instead of
merely making a submission of his in a subsequent paragraph.
The second reason is that in the order, when recording his satisfaction, the Governor has stated that it is not expedient to give·
P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above. The last
three words "as stated above" have greM significance. As has·
been mentioned earlier, the only action proposed to be taken,
which was stated earlier in that order, was the action of dismissal
from service. Obviously, therefore, the langua.ge used can bear
no other interpretation except that the Governor, in recording
the satisfaction, confined it to the inexpediency of giving an
opportunity to P. K. Hore to show cause against dismissal from
service which would be an opportunity to show cause against the
penalty proposed only. No satisfaction was recorded with regard'
to the inexpediency of holding an inquiry.
It was argued that this interpretation, which is being placed
on the order of the Governor, is too strict and technical, and it
should be h.eld that, in fact, the Governor intended to recoro
his satisfaction on the question of inexpediency of holding theinquiry as required by the amended Art. 311(2). It has to be:
----
B. c. DAS v. ASSAM (Bhargava, J.)
remembered that the satisfaction of the Governor under sub·
clause (c) of the proviso has the effect of depriving a government
servant of a very valuable right of having an opportunity to
prove his innocence 116 well as opportunity to make a representa·
tion against the penalty proposed to be inflicted on him.
The
effect of such satisfaction is that the government servant is dis·
missed without even being told of the charges against him. When
such serious consequences follow, it is necessary that the precondition laid down by sub-<:lause (c) of the proviso to Art. 311
(2) is strictly satisfied so as to justify deprivation of the valuable
right of the government servant mentioned above. I do not think,
therefore, that it would be enough merely to infer the intention
of the Governor and, thereupon, take a.way the right.
There
ha0ving been no proper compliance with the requirements of sub·
clause (c) of the proviso to Art. 311(2), the order of dismissal
passed against P. K. Hore is void and must be struck down.
It may be mentioned that the same High Court in a later case
of Zatia v. The State of Assam and Others(') has arrived at the
same decis'ion, though on a different reasoning which does not
appear to be sound. This decision applies equally to the case
of B. C. Da~. as, in his case also, the order passed by the
Governor for his dismissal is exactly similar and was made in
exactly similar circumstances as in the case of P. K.