-4i

U.N.R.RAO

SMT. INDIRA GANDW

March 17, 1971

[S. M. SIK.RI, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER

AND P. JAGANMOHAN REDDY, JJ.]

Constitution of India, 1950, Arts. 74(1) and 75(3)-House t People dissolved-If Prime Minister ceases to hold office.

The House of the People was dissolved by the President of lndia on 27th December 1970.

On the question whether the respondent, whe was the Prime Minister before the dissolution, ceased to bold office thereafter,

HELD : There is nothing in the Constitution and in particular in Art. 75(3) hich renders the respondent functioning as Prime Minister contrary to the Constitution.

The Indian Constitution establishes a Parliamentary system of Government with a Cabinet. and not a Presidential form. Article 75(3) brings into existence responsible Government, that is, the Council of Ministers must enjoy the confidence of the House of the People.

In the context, it can only mean that Art. 75(3) applies when the House of the People does not stand dissolved or prorogued, for. when it is dissolved, the Council of Ministers cannot naturally enjoy the confidence of the Ho.use. Rut such dissolution of the House does not require that the Prime Minister and other ministers must resign, or cease to hold office or must be dismiised by the President, because, Art. 74(1) is mandatory and the President can not exercise his executive power withoQt the aid and advice of the Council of Ministers, with the Prime Minister at the head.

[51 B-C, D-H]

This view is also in accordance with the conventions folloved not only in the United Kingdom but in the countries following a similar system of responsible government. [52 D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 196 of 1971.

Appeal from the judgment and order dated January 21and February 5, 1971 of the Madras High Court in Writ Petition No. 63 of 1971.

The appellant appeared in person.

G N iren De, Attorney-General, R. H. Dhebar, Ram Panjwal'i,

J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the respondent.

Niren De, Attorney General, Ram Panjwani, R. H. Dhebar and S P. Nayar, for the Union of India.

ORDER

The appeal is dismissed.

No order as to costs.

We will give our reasons later.

The Judgment of the Court was delivered by

Sikri, c. J.-This appeal by certificate is directed against the judgment of the High Court of Judicature at Ma-Oras dismissing Writ Petition No. 63 of 1971 filed by U. N. R. Rao. appellant before us. In this petition the appellant had prayed that a writ of qua warranto be issued to the respondent, Smt. Indira Gandhi, and it be declared that the respondent has no constitutional autho. rity to hold the office of and to function as Prime Minister of India.

In brief, the appellant contends that under the Constitution as soon as the House of the People is dissolved under art. 85(2) of the Constitution the Council of Ministers, i.e., the Prime Minister and other Ministers, cease to hold. office. According to him this follows plainly from the wording of art. 75(3), which pro.

vidcs that "the Council of Ministers shall be collectively respon sible to the House of the People".

How can the Council of Ministers be responsible to the House of the People when it has been dissolved under art. 85(2) ?

According to him no void in the carrying out of Government will be created because the President can exercise the Executive Power of the Union either directly or through officers subordinate in accordance with the Constitution as provided in a1t. 53(1) of the Constitution.

In constitutional matters it is advisable to decide only those points which necessarily arise for determination on the facts of the case.

It seems to us that a very narrow point arises on the facts of the present case. The House of the People was dissolved by the President on 27-12-1970.

The respondent was the Prime Mir.ister before the dissolution.

Is there anything in the Constitution, and in particular in art. 75(3), which renders her carrying on as Prime Minister contrary to the Constitution ? It was said that we must interpret Art. 75(3) according to its own terms regardless of the conventions that prevail in the United Kingdom.

If the words of an article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. But it must

be remembered that we are interpreting a Constitution imd not an Act of Parliament, a Constitution which establishes a Parliamentary system of Government with a Cabinet.

In trying to understand one may well keep in mind the conventions prevaler.t at the time the Constitution was framed.

Speaking for the Court (Mukherjea, C. J.) observed in Ram Jawaya Kapur v. State of Punjab(').

"The limits within which the executive Government can function under the Indian Constituton can be ascertained without much difficulty by reference to the form

(I) [!9SSJ 2 S. C.R. 225, 236-37.

SUPRIME COURT REPOl!.18 (1971] SUPP. s.c.R.

of the executive which our Constitution has 11et up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution.

This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.

In India, as in England, the executive has to act subject to the control of the legislature; but in what wav is this control exercisable by the legislature ? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President 'but under article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made 31 formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the

State but it is virtually the Council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consistinJg, as it does, of the members of the legislature is, like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive pMt". The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them."

In A. Sanjeevi Naidu v.

State of Madras (') ii H was urged on behalf of the appellants in case that, "the Parliament has conferred power under Section 68(C) of the <Motor

(!)A. I. R. 1970 S. C. !102, l!06.

Vehicles Act, 1939) to a design!>ted authority. The power can be exercised only by that authority and by no one else. The authority concerned in the present case is the State Government.

The Government could not have delegated its statutory functions to any one else. The Government means the Governor aided and advised by his Ministers. Therefore the required opinion should have been formed by the Minister to whom the business had been allocated by 'the Rules'. It W36 further urged that if the functions of the Government can be discharged by any one else then 1he doctrine of ministerial responsibility, which is the very essence of the cabinet form of Government disappears; such a situation is impermissible under our Constitution."

Speaking on behalf of the Court, Hegde J., repelled the contentions in the following words :

"We think that the above submissions advanced on behalf of the appellants are without force and are based on a misconception of the principles underlying our Constitution. Under our Constitution, the Governor is essentially a constitutional head, the administration of State is run by the Council of Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with eacli and every matter that comes before the Government. In order to obviate that difficulty the Constitution has authorized the Governor under subarticle 3 of Article 166 to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the M"misters

on the advice of the Chief Minister. Apart from allocating business ampng the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business.

He can, not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But this again he can do only on the advice of the Council of Ministers.

The Cabinet is responsible to the legislature for every action taken in any of the Ministries. That is the essence of joint responsibility."

Let us now look at the relevant articles of the Con-

JI;

stitution in the context of which we must interpret art.

H 75(3) of the Constitution. Chapter I of Part V of the

"-1 SC India/71

SUPR'EldE COURT REPOR1S (1971] .mPP. S.C.ll

Constitution deal~ with the Executive. Article 52 provides that there shall be a President of India and Art. 53(1) vests the executive power of the Union in the President and provides that it shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. The last five words are important inasmuch as they control the Presidei; it's action under Article 53()).

Any exercise of the executive power not in accordance with the Constitution will be liable to be set aside. There is no doubt that the President of India is a person who has to be elected in accordance with the relevant provisions of the Constitution but even so he is bound by the provisions of ihe Constitution. Article 60 prescribes the oath or affirmation which the President has to take. It reads :

"I, A. B., do swear in the name of God/solemnlv affirm that I will faithfullv execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people o! India".

Articles 74 and 75 deals with the Council of Ministers. They read thus :

"74. (I) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions.

(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.

75. (I) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.

(2) The Ministers shall hold office during the pleasure of the President.

(3) The Council of Ministers shall be collectively responsible to the House of the People.

(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third schedule.

(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to lie a Minister.

(7) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament to determines, shall be as specified in the Second Schedule".

It will be noticed that article 74(1) is mandatory in form.

We are unable to agree with the appellant that in the context the word "shall" should be read as "may".

Article 52 is mandatory.

Jn other words 'there shall be a President of India'. So is article 74 (!).

The Constituent Assembly did not choose the Presidential system of Government.

If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive.

It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise

of his functions.

As there would be no 'Councii of Ministers' nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the countrv at least till he is impeached under Article 61.

It seems to us that we must read the word "shall" as meaning "shall' and not "may". If Article 74(1) is read in this manner the rest of the provisions dealing with the Executive must be read in harmony with.

Indeed they fall into place.

Under Article 75(!) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under art.

75(2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office.

Now comes the crucial clause three of Article 75.

The appellant urges that the House of People having been dissolved this clause cannot be complied with.

According to him it follows from the provisions. of this clause that it was. contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services.

As we have shown above, Article 74(1) is mandatory and. therefore. the President cannot nerciRe the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Article 75(3) with Article 74(!) and Article 75(2).

Article 75(3) brings into existence what is usually called "Responsible Government".

Ip other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Article 85(2)(b), Article 75(3) has full operation. But when °it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People.

Nobody has said that the Council of Ministers does not enjoy the confidence of

SUPREME COURT REPORTS

[1971] SUPP. S.C.R..

the House of Peaple when it is prorogued.

In the context, therefore, this clause must be read as meaning that Article 75(3) only applies when the House of People does not stand dissolved or prorogued.

We are not coll(:emed with the case where dissolution of the House of People takes place under Article 83(2) on the expiration of the period of five years prescribed therein, for Par liament has provided for that contingency in S. 14 of the Repr<- sentation of Peoples Act, 1951.

On our interpretation other articles of the Constitution ab<> have full play; e.g. Article 77(3) which contemplates allocation of business among Ministers, and Article 78 which prescribes certafa duties of Prime Minister.

We are grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly.

We need 11ot burden this judgment with them.

But on the whole we receive assurance from the learned authors and .the speeches that the view wr have taken is the right one, and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government.

In the result the appeal fails and is dismisst:d, but there will be no order as to costs in this Court.

V.P.S.

Appeal dismissed.

4i

U.N.R.RAO

G. K. MITTER

K. S. HEGDE

A. N. GROVER

P. JAGANMOHAN REDDY, JJ.

Constitution of India

Arts. 74(1) and 75(3)

Art. 75(3)

Article 75(3)

Art. 75(3)

Art. 74(1)

art. 85(2)

art. 75(3)

art. 85(2)

art. 75(3)

Art. 75(3)

article 53(1)

article 75

Section 68(C)

Vehicles Act, 1939

article 3

Article 166

Article 52

Art. 53(1)

Article 53()

Article 60

Articles 74 and 75

Second Schedule

article 74(1)

Article 52

article 74

Article 61

Article 74(1)

Article 75(!)

art.

75(2)

Article 75

Article 74(1)

Article 75(3)

Article 74(!)

Article 75(2)

Article 75(3)

Article 85(2)(b)

Article 75(3)

Article 75(3)

Article 83(2)

S. 14

Peoples Act, 1951

Article 77(3)

Article 78


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 Secretary- Mala 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.

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

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

480 SUPRBMll COURT REPORTS

(1971] SUPP.S.C.R

A 311(2) so as to understand if any substantial or material change in the legal position was intended by the amendment :

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 reaonable 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.

SUPRBME COUl<T REPORTS [1971] SUPP. s.c.R.

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.)

thouh 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.

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

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 allegation 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 agitation 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 applied 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 poviso to claiUse (2) of Article 311 of the

481i

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

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

, ..

SUPRllMI! COURT REPOJtTS [1971] SUPP. s.c.R.

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 dimlssal 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

(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.

4.90

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:

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. Hore.

In view of the decision on the first point raised in these appeals, it is not necessary to dea.l with the other two points.

However, since they were argued in detail by both parties, I may indicate that, in my opinion, there is no force in either of them.

So far as non-<:ompliance with rule 10 of the Rules and regulation 6 of the Regulations is concerned, I arn unable te accept the submission put forward by counsel for the appellanis that the rule or the regulation lays down any requirement that the Public Service Commission must be consulted before a government servant is dismissed. Rule 10 is as follows :-

"Sptciai procedure in certain cases.-Notwithstanding anything contained in Rule 9-

(i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminaJ charge; or

(ii) were •he Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reason ably practicable to follow the procedure prescribed in the said rule; or

(I) [1969) Vol. I Pt. VI Assam Law Reports 192.

(iii) where the Governor is sa.tisfied that in the interest of the security of the State, it is not expedient to follow such procedure.- the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit : Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary."

The main part of this rule only enumerates cases where orders can be passed without consulting the Public Service Commission.

It is only the proviso that mentions consultation; but it does not make it compulsory for the Commission to be consulted.

All it says is that the Commission shall be consulted in any case in which such consultation is necessa, ry.

This clea!'ly envisages that the necessity for consultation must be found in some other provision.

This rule itself does not lay down that in all cases, other than those mentioned in the principal clause or in rule 9, consultation with the Public Service Commission is made mandatory. Similarly, regulation 6 only enumerates cases where it is not necessary to consult the Commissioa. It is true that consultation with the Commission, in cases where the Governor himself passes an original order imposing the penalty of dismissal on a government servant, is not dispensed with. This regulation has obviously been made by the Governor in exercise of his power under the proviso to Art. 320(3) of the Constitution.

It is the principal clause of Art. 320(3) which lays down when the Public Service Commission shall be consul

ted.

Sub.clause (c) of clause (3) of Art. 320 is the relevant provision under which consultation with the Public Service Commission is required on all disciplinary ma.tiers affecting a person serving under the Government of a State.

The regula tions, as indicated above, do not dispense with this requirement of Art. 320(3)(c) in cases where the Governor is himielf the original dismissing authority. The argument of learned counsel that regulation 6 itself la.ys down by implication that there must be consultation with the Public Service Commission in such cases cannot, therefore, be accepted.

Regulation 6 not having exempted consultation with the Public Service Commission in such cases, all that can be held is that the consultation required by Art. 320(3)(c) continues to be in force and applicable. Counsel also drew attention to illustration (4) in regulation 6 which is as follows :-

"It is proposed to dismiss a State Service Officer or to reduce his pension. The Commission must be consulted before an order is passed by the Governor."

This illustration again merely indicates the correct legal position that the Commission must be consulted as required by Art. 320(3)(c). The illustration by itself cannot be read as a statutory rule laying down that there must be consultation with the Commission. The illustration is to the main provisions of regulation 6 which only Jay down cases in which consultaAion with the Commission is dispensed with and this illustration has been put down as one of the examples where the consultation has not been dispensed with.

The consultation, therefore, 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 already held that it is not mandatory and that this Article does not confer any rights on a public servant, so that the absence of consullailion or any irregularity in consultation does not afford him a cause of action in a court of law, vide State of U. P. v. Manbodhan Lal Srivastava.(') That decision was further affinned in the State of Bombay v. D. A. Korgaonkar.(~ Non-consultation with the Public Service Commission cannot, therefore, be held to vitiate the orders impugned.

The third ground of ma/a {ides has, on the face of it, no force at all, because it is based on allegations that the Chief Secreta.ry and the Finance Minister were annoyed with the appellants. But there was no charge that the Governor had any extraneous reasons for passing the orders of dismissal.

There is nothing on the record also to show that either the Chief Secretary or the Fin&nce Minister took any part in the proceedings which led to the orders of dismissal, or that they advised the Governor. The orders are, no doubt, authenticated by the Chief Secretary in the name of the Governor; but that does 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 also be rejected.

As a result, the appea.ls are allowed with cost and the orders of dismissal in both the cases are quashed as having been passed in violation of Art. 311 (2) of the Constitution.

ORDER

In accordance with the majority judgment, the appea.ls fail and are dismissed but in the circumstances of the case without costs.

G.C.

(1) [1958] S. C. R. 533.

(2) Civil Appeal No. 289 of 1958 decided on 6th May, 1960.

B. C. DAS ETC

STATE OF ASSAM & ORS

M. SHELAT

I. 0 DUA

Constitution of India

Arts. 311(2)

Article 311(2)

Art. 311(2)

Art. 226

Art. 311

Art. 311(2)

s. 240(3)

Government of India Act, 1935

Art. 311

Art. 311

Art. 311

[1945] F.C.R. 10

Art. 311

Art. 3

Art. 311

Art. 320

Article 311

Art. 311(2)

Art. 311

Fifteenth Amendment Act, 1963

Art. 3

article

480

s. 240(3)

Government of India Act, 1935

s. 240(3)

Art. 311(2)

Art. 311(2)

s. 240(3)

Government of India Act, 1935

Art. 311(2)

Art. 311

Art. 311

s. 240(3)

Government of India Act, 1935

Art. 311(2)

s. 240(3)

Art. 311(2)

s. 240(3)

s. 240(3)

Art. 311(2)

Art. 311

Art. 311(2)

Art. 311

Art. 311

Art. 311(2)

Art. 311

Art. 311

Art. 311

Art. 311

Article 311

Art. 226

Art. 311(2)

Art. 311

Art. 311

Art. 311

Art. 311

Art. 311

Art. 311

Art. 311

Art. 311

Art. 311(2)

Art. 311

Art. 311(2)

Art. 320(3)

Art. 320(3)

Art. 320

Art. 320(3)(c)

Art. 320(3)(c)

Art. 320(3)(c)

Art. 320(3)(c)

Art. 311


STATE OF U. P.

RAHMATULLAH

April 23, 1971

[S. M. SIKRI, C. J., P. JAGANMOHAN REDDY AND I. D. DUA, JJ.J

Foreigners Act (31 of 1946), s. 14-Prosecution under-No detennillation by Central Govern1nent of accused's nationality under Citizenship Act, 1955, before prosecution- Legality of prosecution.

The respondent was a citizen of India at the commencement of the Constituti9n in 1950. He entered India on April 1, 1955, with a Pakistani passport dated Mar.ch 15, 1955, and overstayed in India beyond the permitted period.

He was arrested in 1963 and was charged with an offence under s. 14 of the Foreigners Act, and convicted. While the criminal prJ ceedings were pending, the Central Government, under s. 9(2) of the Citizenship Act, 1955, read with r. 30 of Citizenship Rules, 1956, determin ed on November 5, 1964, that the respondent had acquired citizen5hip of Pakistan after January 26, 1950, and before March 15, 1955. The High Court set aside the conviction.

On appeal to this Court,

HELD: (1) The respondent was not a 'foreigner' within the meaning of the Foreigners Act before its amendment in 1957.

[500 G-H]

(2) Having been a citizen of India at the commencement of the Constitution and not being a foreigner under the Foreigners Act at the date of his entry, till the Central Government determined the question of the respondent having acquired Pakistan nationality and thereby lost Indian nationality, he could not be treated as a foreigner and no penal act!on could be taken against him. [497 G; SOl A-BJ ·

(3) The order of the Central Government dated November 5, 1964 determining that the respondent was a Pakistani was final, but the deter ruination by the Central Government c, ould not have the effect of retro:5pectively rendering his stay in India before that date a penal offence. It \Vas not as if he was given any directions after November S, 1964, which were disobeyed by him entailing his prosecution.

[501 C-E]

CRIMINAL APPELLATE JURISDICflON: Criminal Appeal No. 167 of 1968.

Appeal from the judgment and order dated January 18, 1968 of the Allahabad High Court in Criminal Revision No. 1482 of 1966.

0. P. Rana, for the appellant.

Bashir Ahmed and S. Shaukat Hussain, for the respondent.

H The Judgment of the Court was delivered by

Dua, J.-The State of U.P. has appealed to this Court on certificate of fitness granted by the Allahabad High C<Jurt from

u. P. STATE •• RAll:llATULLAH (Dua, J.)

that court's order dated January 18, 1968, 8':quitting the respondent of an offence punishable under s. 14 of the Foreigners Act (Act No. 31 of 1946).

This appeal was originally heard by us on January 11 & 14, 1971. when it was considered desirable to send for the original records of the case from the courts below and also to call for. the file relating to the inquiry held by the Central Government under s. 9(2) of the Citizenship Act (Act No. 57 of 1955) into the question of the acquisition of citizen ship of Pakistan by the respondent.

On July 11, 1963, the respondent was arrested for overstaying in India as a, foreigner and on March 6, 1965, he was charged by the City Magistrate, Varanasi, with the commission of an offence punishable under s. 14 of the Foreigners Act (Act No. 31 of 1946). The charge reads :

"I, D. S. Sha-rma, City Magistrate, Varanasi, hereby charge you Rahmatullah as follows :~

That you being a Pakistani Citizen entered into India on 1-4·55 on Pakistani Passport No. 283772 da.ted

15-3-55 and Indian visa No. 16326 Category C dated 22-3-55 and got your extension to stay in India up to 25-5-56 after which date you are overstaying in India illegally without any passport and visa :

and thereby committed an offence punishable u/s 14 of Foreigners Act within my congnizance,

and hereby I direct you to be tried on the said .charge by me."

According to the prosecution case against the respondent as put in the Trial Court, he was a Pakistani nationa, l and had on April I, 1955, entered India on a Pakistani passport dated March 15, 1955, and an Indian Visa dated March 22, 1955, obtained by him as a Pakistani national, but even after the expiry of the permitted period he was overstaying in India without a valid passport or visa.. The original visa, it is not disputed, expired on June 21, 1955, but it was extended thrice, the last extension being valid only up to May 25, 1956. Thereafter the respondent went underground and has since been residing in India illegally. He was treated after severaJ years and was arrested on July 11, 1963.

The respondent pleaded in defence that though e hd etered

India on a Pakistani passport he was not a Pak1stam nat10nal.

On the contrary he claimed to be an Indian citizen and therefore rightfully Jiving in India. According to him he h&d .been .om in India of Indian,.parents in 1932 and was an Indian c11Izen under the Constitution.

49~

496 SlJPREMI! COURT RBPORTS [1971] SUPP. s.c.a.

A During 'tho pendency of the present criminal proceedin~ an inquiry was made by the Central Government under s. 9.(2) of the Citizenship Act read with r. 30 of the Citizenship Rulet,- 1956, and by means of an order dated November 5, 1964, it was determined th111t the respondent had acquired citizenship of Pakistan after January 26, 1950, and before March 15, 1955.

B March 15, 1955 was apparently fixed because on that da.te the respondent had secured his Pakistani passport. In that inquiry the respondent was given full opportunity of adducing proof in support of his plea. The respondent WlllS informed of the determination of the Central Government on March 29, 1965 in the Trial Court. c

The City Magistrate, Varanasi, trying the case came to the conclusion that the respondent had voluntarily gone to Pakistan and had stayed there for 8 or 9 months. The fact that he had obtained a Pakistani passport was in the opinion of tha.t court an indication of his intention to have gone to that country with the object of becoming a Pakistani national.

The argument that the determination in regard to the respondent's citizenship was made by the Central Government after the commencement of the present proceedings was considered by the Trial Court to be irrelevant because the determination by the Central Government was immune from challenge and whether it was made before or after the framing of the charge was immaterial. The respondent was held to be a Pakistani national and as it was not denied that he had entered India on a Pakistani passport and also that on the expiry of the period for which he had been permitted to stay in India including the extended period, he had stayed on in this country without obtaining valid permit, he was convicted of an offence under s. 14 of the Foreigners Act. He was sentenced to rigorous imprisonment for 18 months 111nd to pay a fine of Rs. 200 /- and in default of payment of fine to rigorous imprisonment for a further period of three months.

The Sessions Judge dismissed the respondent's appeal holding that the charge had been framed against him several months after the determination by the Central Government tha~ he was a Pakistani national.

According to that court the order of the Central Government was dated November 5, 1964, and it was communicated by the Sahayak Sachiv, U. P. to the Senior Superintendent of Police, Varanasi, on December 28, 1964.

On revision the High Court disagreed with the view of the courts below. According to the High Court the respondent was not a foreigner when he entered India though he had obtained

u. p, STATE v. RAHMATULLAH (Dua, J.) 497

a Pakistani passport. mwing not entered as a foreigner the respondent's case was held to be outside paira-7 of the Foreigners Order, 1948, made under s. 3 of the Foreigners Act. The High Court held the respondent to be a foreigner when he was prosecuted for an offence under s. 14 of the Foreigners Act. But in its opinion that fact could not aittract para-7 of the Foreigners, Order, 1948 made under s. 3 of the Foreigners Act. On this reasoning the respondent's conviction was Set aside and .he was acquitted.

In this Court, to begin with, it was argued on behalf of the State that s. 2(a.) of the Foreigners Act defines a "foreigner" to mean a person who is .not a citizen of India. If, therefore, the respondent is not a citizen of India, then being a foreigner his prosecution and conviction under s. 14 of the Foreigners Act was unassailable, contended Shri Rana. The order of the High Court acquitting the respondent was, therefore, contruy to law, he added. This submission is misconceived, The deftnition of. the word "foreigner" relied upon by the counsel was substituted for the earlier one by the Foreigners Law (Amendment Act 11 of 1957) with effect from January 19, 1957.

Quite clearly the new definition is of no assistance in determining the status ol the respondent at the time of his entry into India in 1955. The word "foreigner" according to the definition as in force in 1955 meant, a person who (i) is not a natural-born British subject 118 defined in sub-sections (1) and (2) of section 1 of the British-Nationality and Sta.tus of Aliens Act, 1914, or (ii) has not been granted a certificate of naturalization as a British subject under any Jaw for the time being in force in India, or (iii) is not a citizen of India. The Citizenship Act, 1955, having been published in the Gazette of India. on December 30, 1955, was also not in forcp at the time when the respondent entered India. We may, therefore, turn to the Constitution to see if the respondent was a citizen of India at the time of the commencement of the Constitution.

Gause (a) of Article 5 clearly covers the case of the respondent who was born in the territory of Indiiii and had his domicile in this territory at the commencement of the Constitution. Being a citizen of India at the commencement dr the Constitution in 1950,

unless he lost his citizenship under some Ia w between the commencement of the Constitution and his entry into India in 1955, the respondent would continue to be an Indian citizen till such entry. Even on behalf of the appeUant no serioUs a.ttempt was made to show that the respondent had l'ost his' Indian citizenship in any other manner except on the basis of his having obtained a Pakistani passport and on the basis of the determination of the question of his citizenship by the Central Government on November 5, 1964. Indeed after some faint argument the appellant's learned counsel based his case exclusively on the determination

32-1 s. c. India/71

SUPRBMB COURT REPORTS

(197!] SUPP. S.C.

by the Central Government, and in our opinion on the existing record rightly so. According to his submission the determina.tion made by the Central Government under s. 9(2) of the Citizenship Act is final and since the respondent has been held to have acquired citizenship of Pakistan before March 15, 1955, his entry into India after that dte and his subsequent continued stay in this country after the expiry of the extended period on May 22, 1955, would amount to an offence punishable under s. 14 of the Foreigners Act.

As will presently be shown the real question which arises for our decision lies in a short compass and the relevant facts essential for the decision are no longer in dispute.

When the respondent entered India on April I, 1955, he was in possession of a Pakistani passport and a vis~ to which no objection was taken by the Indian authorities. He did not enter India clandestinely, and he is not being tried for having entered India in violation of any law. Indeed his visa was admittedly extended by the appropriate authority up to May 22, 1965. As he was clearly

~ citizen of India at the commencement of the Constitution and the question arose whether he had lost Indian citizenship thereafter, the Central Government had to determine under s. 9 of the Citizenship Act the question of the acquisition of Pakistan nationality by the respondent.

This Court in Government of Andhra Pradesh v. Syed Mohd. Khan(') after referring to its earlier decision in Izhar Ahmad Khan v. Union of India(') made the following observation :

"Indeed, it is clear that in the course of the judgement, this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a. foreign country has to be tried by the Central Government and it is only after the Centrn! Government has decided the point that the State Government can deal with the person as a foreigner. It mai be that if a passport from a foreign Government is obtained by citizen and the case falls under the impugned Rule, the conclusion may follow that he has "acquired the citizenship of the foreign co•mtry"; but that conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question. Therefore, there is no doubt tha.t in all cases where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State

('.) [1962] Supp. 3 S. C. R. 288.

(2) [1962] Supp. 3 S. C.R. 235.

u. p, STATE v. RAHMATULLAH (Dua, J.) 499 ' and have lost in consequence the citizenship of this country, it is essential that that question should be first con sidered by the Central Government.

In dea.Iing with the question, the Central Government would undoub tedly be entitled to give effect to the impugned R. 3 in Sch. III and deal with the matter in accordance with the other relevant Rules framed under the Act. The decision of the Central Government about the status of the person is the basis on which any further action can be taken aga.inst him."

In that case an a.rgument was raised on the authority of ]zhar Ahmad Khan's case(') that as soon as a person acuqired a passport from a foreign Government his citizenship of India antomatically came to an end, but it was repelled.

fu Shuja,.[Jd-Din v. The Union of India and Another(') this -pondent there was born in India in 1924 and had lived in this ·<:ountry all along till about the end of 1954. At the end of 1954 or the beginning of 1955 he went to Pakistan from where he retur

ed •on Januacy 20, 1955 on a pai; sport granted by the Pakistan Government which had a visa endorsed on it by the Indian autho .rities permitting him to stay in this country upto April 1955 . . He applied to the Central Government for extension of the time callowed by the visa., but there was no material to show what orders, if any, were made on it. The respondent having stayed in :this. country beyond the time specified in the visa, on September 3,

1957 he was served with an order under s. 3(2)(c) of the Foreigners Act, requiring him to leave India. On his failure to comply .with this order he was prosecuted under s. 14 of the Foreigners Act.

His defence was that he wai> an Indian national.

The Magistrate trying him rejected his defence and convicted him holding that he had disowned Indian nationality by obtaining a Pakista.n passport and that by refusing to .extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner under s. 8 of the Foreigners Act and that such a decision was final. He wa.s convicted by the Trial Court and the conviction was upheld by the Sessions Judge. The High Court in revision set aside his conviction. On appeal this Court held that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own thM the respondent, an Indian national, had disowned his nationality and acquired Pakistan nationaJity for under s. 9(2) of the Citizenship Act that decision could only be made by the prescribed authority.

The respondent in that case, accoraing to this Court, had become an Indian citizen under Art. 5(a) of the Contitntion W~Fn it

(1) [1962] Supp. 3 s. C. R. 235

(2J [1962] IS. C.R. 737.

600 [1971) SUPP. s.c.R,.

A caine into force aind there being no determination by the Central Government that he had lost his nationality thereafter, the order of the High Court acquitting him was upheld.

In Shuja-Ud-Din v. The Union of India and Another (') thi~ Court speaking through Gajendragadkar, J. as he then wais. said:

"It is now well settled that the question as to whether a person who was a citizen of this country on January 26, 1950, has lost his citizenship thereafter, has to be determined under the provisions of section 9 of the Citizenship Act, 1955 (No. LVII of 1955). There is ailso no doubt that this question has to be decided by the Central .Government as provided by Rule 30 of the Rules framed .under the Citizenship Act in 1956. The validity of section 9 as well as of Rule 30 has been upheld by this Court in the case of lzhar Ahmad Khan and Ors. v. Union of .India and Ors. It has also been held by this Court in The State of Madhya Pradesh v.

Peer Mohd, and Anr. (CrL Appeal No. 12 of 1961 decided on Sept. 28, 1962) that this question has to be determined .by the Central Government before a person who was a citizen of India on January 26, 1950, could be deported on the ground that he has lost his citizenship rights thereaifter under s. 9 of the Citizenship Act.

Unless the Central Government decides this question, such a person cannot be treated as a foreigner and cannot be deported from the territories of India."

In Abdul Sattar Haji Ibrahim Patel v. The State of Gujarat(~.

Gajendragadk.ar, C. J., speaking for a bench of five Judges ap proved the decisions in the cases of lzhar Ahmed Khan(') and Syed Mohd. Khan('), it being emphasized that the decision of the Government of India is a condition precedent to the prosecution by the State of any person on the basis that he has lost his citizenship of India and has acquired that of a foreign country.

That an inquiry under s. 9 of the Citizenship Act can only be held by the Central Government was again re-affirmed by this Court in Mohd. Ayub Khan v. Commissioner of Police, Madras (').

In view of these decisitms it seems to us to be obvious that till the Central Government determined the question of the respondent having acquired Pakistan nationality and had thereby

(I) C. A. No. 294 of 1962 decided on Oct. 30, 1962.

(2) Cr. A. No. 153 of 1961 de.cided on Feb. 17, 1964.

(]} [19621 l!upp. 3 S. <:;. R 730.

(4) [1962) Supp. 3 S. C. R. 288.

(5) [196S] 2 S. C. R. 884.

U. p, STATE v. RAHMATULLAH (Dua, J.) 501.

lost Indian nationality, he could not be treated as a foreigner . A and no penal action could be taken against him on the basis of his status as ai foreigner, being national of Pakistan. It is not the appellant's case before us that f!.l)Y directions under the law governing foreigners were given to the respondent after Novem ber 5, 1964, which were disobeyed entailing his prosecution, and indeed it is admitted that he was not even informed of the decision of the Central Government till Mairch 29, 1965.

It is also noteworthy that at the time when the Central Government deter mined his nationality he was being tried in this country by the criminal court after having been arrested aind bailed out, and he was not free to leave this country for proceeding to Pakistan.

In the background of these facts it appears to us that the wide charge as framed against him was misconceived and he could not be convicted of overstaying in this country at least till he was duly found to be a Pakistani national and to have ceased to be an India.n citizen. The order of the Central Government is clearly final, and it has remained unchallenged by the respondent even after he was informed of this order on March 29, 1965. We have seen the proceedings of the Central Government and we firid that the respondent had been given full opportunity of putting forth his case. The binding nature of tha.t order was not, and indeed it could not be, questioned before us.

The determination by the Central Government in this case could not have the effect of ret rospectively rendering a penal offence an act which was not so at the time of its commif1Sion. The respondent even though held to be a Pa-kistani, and therefore a foreigner, before the charge was framed against him is entitled to the protection of our laws.

As a result of the foregoing discussion, the High Court was in our opinion right in setting aside the respondent's conviction on the charge framed. It will of course be open to the Central Government to take such suitable action against the respondent under the Foreigners Act or under any other provision of the law which may be applicable to him, for the purpose of either deporting him or otherwise dealing with him as is thought fit.

This appeal, however, must fail.

V.P.S.

Appeal ilismissed.

STATE OF U. P

RAHMATULLAH

S. M. SIKRI

P. JAGANMOHAN REDDY

I. D. DUA, JJ

Foreigners Act

s. 14

Citizenship Act, 1955

s. 14

Foreigners Act

s. 9(2)

Citizenship Act, 1955

Citizenship Rules, 1956

Foreigners Act

Foreigners Act

s. 14

Foreigners Act

s. 9(2)

Citizenship Act

s. 14

Foreigners Act

s 14

Foreigners Act

s. 9

Citizenship Act

s. 14

Foreigners Act

s. 3

Foreigners Act

s. 14

Foreigners Act

s. 3

Foreigners Act

s. 2(a.)

Foreigners Act

s. 14

Foreigners Act

section 1

Aliens Act, 1914

Citizenship Act, 1955

Article 5

s. 9(2)

Citizenship Act

s. 14

Foreigners Act

s. 9

Citizenship Act

s. 3(2)(c)

Foreigners Act

s. 14

Foreigners Act

s. 8

Foreigners Act

s. 9(2)

Citizenship Act

Art. 5(a)

section 9

Citizenship Act, 1955

Citizenship Act

section 9

s. 9

Citizenship Act

s. 9

Citizenship Act

Foreigners Act