# U.Q.l v. TULSIRAM

- **Citation:** [1985] Supp. 2 S.C.R. 131
- **Court:** Supreme Court of India
- **Decided:** 1985-07-11
- **Case number:** Civil Appeal Nos. 6814 of 1981
- **Bench:** Y.v. CHANDRACHUD, CJ.' v.D. TUIZAPURKAR, R.S. Pathak, D.P. Madon, M.P. Thakkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/u-q-l-v-tulsiram-9167
- **Pages:** 171

## Headnote

Constitution of India Articles 14,21,309,310,311.
131
Central Civil Services (Classification Control & Appeal)
A
B
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 exception 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 justicewhetμer. 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
B
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).
i.
'Not
expedient'
'Security of State' ' -
'Reasonably
F
practtcable' - 'This clause shall not apply' - Art. 311(2).
G
H
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, Mowever, 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

## Text

_Characters 0–39,878 of 413,089. This is a partial read: ask again with offset=39878 for what follows._

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)
A
B
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 exception 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 justicewhetμer. 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
B
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).
i.
'Not
expedient'
'Security of State' ' -
'Reasonably
F
practtcable' - 'This clause shall not apply' - Art. 311(2).
G
H
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, Mowever, 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 without 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
A
B
c
D
E
F
G
H
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.
A
B
c
D
E
F
G
HELD : (Per Chmdracbad,CJ. V.D. Tulzapurbr, R.S. Pathak &
H
D.P. lladao J.J. - K.P. Dvdrkar ,J. dissenting)
A
B
c
D
F
G
H
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 efficiency 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]
I
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
f
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)
I
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
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
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~
I
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
A
B
c
D
E
F
G
A
B
c
D
E
F
G
H
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 maudatory 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 cOlllllOnsense 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 .!.!!_ 7 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 8 inaudita
altera,
adguum licet
dixerit, ɗ
aeqUllll 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
11181Y 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' 11111 others [1978) l w.1.a. 1061, 1076,
!loc:l"D v. 1be worlleQ 1miGD 1.R. (1929) 1 Ch. 602,624, Willia
A
B
c
D
E
F
G
H
\
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.
B
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 quasijudicial 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
E
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
BJ
•
G
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
~
H
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 •
1
·•
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
A
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 Fundamental 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
E
11. The principles of natural justice must be' confined withF
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
A
B
c
D
E
F
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 unconstitutional 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]
H
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 statutory 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 authority 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
A
B
c
D
E
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]
7. 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
A
B
c
D
E
F
G
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 constitutionality. [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 interpretation 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
A
B
c
D
E
F
G
H
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.