Full Judgment Text
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PETITIONER:
SARDARI LAL
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT21/01/1971
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
SHAH, J.C. (CJ)
MITTER, G.K.
HEGDE, K.S.
RAY, A.N.
CITATION:
1971 AIR 1547 1971 SCR (3) 461
1970 SCC (1) 411
CITATOR INFO :
O 1974 SC2192 (152)
O 1977 SC 451 (6)
RF 1982 SC 149 (709)
O 1984 SC 684 (55)
E 1985 SC1416 (49,58)
RF 1987 SC2106 (6)
ACT:
Constitution of India, 1950, Art. 311(2)(c)-Power to
dispense with inquiry under Article cannot be delegated to
the Joint Secretary under (Government of India Allocation of
Business) Rules, 1961 made under Art. 77(3) of the
Constitution-Article 77(2) does not prevent the court from
examining validity of order passed by Joint Secretary under
s. 311(2) (c) in the name of the President.
HEADNOTE:
The appellant and 17 others were dismissed from Delhi Police
Force. The order in the case of the appellant recited that
he was unfit to be retained in Civil Service. It also
recited that the President was satisfied under Art. 311(2)
(c) of the Constitution that in the interest of the security
of the State it was not expedient to hold an inquiry. The
order was made by the Joint Secretary to the Government of
India, Ministry of Home Affairs under authority granted to
him by the Government of India (Allocation of Business)
Rules, 1961 made under Art. 77(3) of the Constitution. It
was argued on behalf of the appellants that authority could
not be exercised on behalf of the President by the Joint
Secretary. The High Court rejected this contention. In
appeal by certificate,
HELD : On the principles enunciated by this Court in earlier
decisions the functions in cl. (c) of the proviso to Art.
311(2) cannot be delegated by the President to anyone else
in the case of a civil servant of the Union. In other words
he has to be satisfied personally that in the interest of
the security of the State it is not expedient to hold an
inquiry prescribed by cl. (2). In the first place the
general consensus in the decisions of this Court has been
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that executive function of the nature entrusted by certain
articles, such as Arts. 309, 352, 356, 360 and in particular
those articles in which the President has to be satisfied
himself about the existence of certain ’facts or state of
affairs cannot be delegated by him to anyone else. Secondly
even with regard to cl. (c) of the proviso there is specific
observation in Jayantilal’s case that the powers of the
President under that provision cannot be delegated. Thirdly
the dichotomy which has been specifically introduced between
the authority mentioned in cl. (b) and the President
mentioned in cl. (c) of the proviso cannot be without
significance. The Constitution makers apparently felt that
a matter in which the interest of the security of the State
has to be considered should receive personal attention of
the President or the Head of the State and he should himself
be satisfied that an inquiry under the substantive part di
cl. (2), Art. 31 1 was not expedient for the reasons stated
in cl. (c) of the proviso in the case of a particular
servant. [467 D-G]
The order impugned in the present case was therefore
illegal, ultra vires, and void. If the functions or
functions exercisable under cl. (c) of the proviso under
consideration could not be delegated or allocated to anyone
else by the President, Art. 77(2) could not stand in the way
of the Court in the matter of examining the validity of the
order. [467 H468 B]
Moti Ram Deka etc. v. General Manager, N.E.F. Railway,
Maligaon, Pandu, [1964] 5 S.C.R. 683, 731, 732 and
Javantilal Amrit Lal Shodhan
462
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 576 of 1969.
Appeal from the judgment and order dated December 11, 1968
of the Delhi High Court in Civil Writ No. 1440 of 1967.
A. S. R. Chari, S. K. Mehta, K. L. Mehta and K. R.
Nagaraja, for the petitioner.
S. T. Desai and R. N. Sachthey, for respondents Nos. 2, 3
and
S. P. Nayar, for respondents Nos. 1, 4 and 5.
S. K. Mehta and K. L. Mehta, for the intervener.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by certificate from a common
judgment of the Delhi High Court which disposed of a batch
of 14 petitions under Art. 226 of the Constitution. The
question involved is of importance and relates to the
exercise of powers expressly conferred on the President by
clause (c) of the proviso to Art. 311(2) of the
Constitution.
On 14th April, 1967, the appellant and 17 other members of
the Delhi Police Force were dismissed from service. The
order dismissing the appellant is reproduced below
ORDER
"Whereas, you Shri Sardari Lal, Sub-Inspector, Delhi Police
No. 331/D, Police Station Kamla Market, Delhi hold your
office during the pleasure of thePresident, and
Whereas the President is satisfied that you are unfit to
be retained in the public serviceand ought to be dismissed
from service, and
Whereas the President is further satisfied under sub-clause
(c) of proviso to clause (2) of article 31 1 of the
Constitution that in the interest of the security of the
State it is not expedient to hold an inquiry,
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Now, therefore, the President is pleased to dismiss you from
service with immediate effect.
By order and in the name
of the President of India
Sd/-
(B. Venkataraman)
Joint Secretary to the Government of
India in the Ministry of Home Affairs."
463
It was common ground before the High Court and has not been
disputed before us that the President had no occasion to
deal .with the case of the appellant himself and the order
was made by Shri Venkataraman, Joint Secretary to the
Government of India in the Ministry of Home Affairs. It was
claimed by him that he was competent to make the order by
virtue of the authority which he derived under the
Government of India (Allocation of Business) Rules, 1961
made under Art. 77(3) of the Constitution. Before the High
Court, the controversy was confined to the narrow point
whether the function which is to be performed by the
President under clause (c) of the proviso to Art. 311(2)
could be performed by the authority to whom such function
had been allocated under the aforesaid Rules. The High
Court negatived the contention raised on behalf of the
appellant that such a function could not have been delegated
by the President to any other authority. The High Court
also relied on the provisions of Art. 77(2) which provides
for the authentication of orders made in the name of the
President.
Under Art. 53(1) the Executive power of the Union shall be
vested in the President and shall be exercised by him either
directly or through officers subordinate to him in
accordance with the Constitution. Art. 77(1) lays down that
all executive action of the Government of India shall be
expressed to be taken in the name of the President. Clause
(3) of that Article enables the President to make rules for
the more convenient transaction of the business of the
Government of India. Chapter I of Part XIV contains inter
alia the three main provision relating to the Services.
Articles 309, 310 and 311 may be set out to the extent
necessary.
" 309. Subject to the provisions of this Constitution, Acts
of the appropriate Legislature may regulate the recruitment,
and conditions of service of persons appointed, to public
services and posts in connection with the affairs of the
Union or of any State :
"Provided that it shall be competent for the President or
such person as he may direct in the case of services and
posts in connection with the affairs of the Union, and for
the Governor of a State or such person as he may direct in
the case of services and posts in connection with the
affairs of the State, to make rules regulating the
recruitment and the conditions of service, of persons
appointed, to such services and posts until provision in
that behalf is made by or under an Act of the appropriate
Legislature under this article, and any rules so made shall
have effect subject to the provisions of any such Act."
464
"310. (1) Except as expressly provided by this Con-
stitution, every person who is a member of a defence service
or of a civil service, of the Union or of an all India
service or holds any posit connected with
defence or any civil post under the Union,
holds office during the pleasure of the
President, and every person who is a member of
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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.
(2).............................."
"31 1. (1) No person who is a member of a civil service of
the Union or an all-India service or a civil service of a
State or holds a civil post under the Union or a State shall
be dismissed or removed by an authority subordinate to that
by which he was appointed.
(2) No such person as aforesaid shall be dismissed or
removed or reduced in rank except after an inquiry in which
he has been informed of the charge 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
reasonable opportunity of making representation on the
penalty proposed. but only on the basis of the evidence
adduced during such inquiry
(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 case may
be, is satisfied that in the interest of the
security of the State it is not expedient to
hold such inquiry.
(3) If, in respect of any such person as aforesaid, a
question arises whether it is reasonably practicable to hold
such inquiry as is referred to in clause (2), the decision
thereon of the authority empowered to dismiss or remove such
person or to reduce him in rank shall be final."
465
These Articles have come up for consideration before this
Court in several cases and in connection with diverse
points’ The view that has been taken with regard to their
true content, scope and inter connection and the nature of
the power exercisable under them is that while Art. 3 1 0
provides for the tenure at the pleasure of the President or
the Governor, Art. 309 enables the Legislature or the
Executive as the case may be to make any law or rule in
regard inter alia to conditions of service without impinging
upon the overriding power recognised under Art. 310 read
with Art. 3 1 1. The power to dismiss a public servant at
pleasure is outside the scope of Articles 53 and 154 of the
Constitution and cannot be delegated by the President or the
Governor, to a subordinate officer and can be exercised by
him only in the manner prescribed, by the Constitution.
This, however, does not mean that a law cannot be made under
Art. 309 or a rule cannot be framed under the proviso to the
said Article prescribing the procedure by whcih and the
authority by whom the said pleasure can be exercised. Moti
Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaon,
Pandu, _etc.(1) Art. 311 contains the main safeguards for
civil servants in the matter of dismissal or removal or
reduction in rank-while the procedure provided in clause (2)
must be followed before the dismissal or removal or
reduction in rank of a civil servant can be ordered, there
are certain exceptions which have been made where it is not
necessary to comply with the requirements of the substantive
part of clause (2) of Art. 311. These exceptions are
contained in the three clauses-(a), (b) and (c) of the
proviso to clause (2).
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As in the cases mentioned in the proviso, the procedure laid
down in clause (2) has not to be followed and the only
protection which is conferred on a civil servant cannot be
availed of by him, we must look at them carefully. A
dichotomy has been introduced in clause (b) and, (c) with
regard to the authority or the functionary who has to be
satisfied about the matters stated therein. In clause (b),
it is only the authority empowered to dismiss or remove a
person or to reduce him in rank who has to be satisfied that
it is not reasonably practicable to hold the inquiry
provided by clause (2) and his decision in terms of clause
(3) of the Article shall be final. But in clause (c) it is.
the President or the Governor alone, as the case may be, who
has to be satisfied that in the interest of the security of
the State it is not expedient to hold such inquiry.
Now the argument on behalf of the appellant has proceeded on
these lines. Art. 53(1) vests the Executive power of the
Union in the President but Art. 77 deals only with executive
action of
(1) [1964] 5 S.C.R. 683 at pp. 731 & 732).
466
the Government of India. There are several Articles under
which the President is required to be satisfied before an
action is taken. Clause (c) of the proviso to clause (2) of
Art. 311 is one, of Such provisions. The other provision
which also deals with the question of satisfaction about the
security of India being threatened etc. is the one contained
in Art. 352 which relates to Proclamation of emergency.
Art. 356 says that if the President on receipt of a report
from the Governor of a State or otherwise, is satisfied that
a situation has arisen in which the government of the State
cannot be carried on in accordance with the provisions; of
the Constitution, he may make a Proclamation as provided in
the Article. Art. 360 which contains provisions relating to
financial emergency also employs the language "if the
President is satisfied that a situation has arisen whereby
the financial stability or credit of India or of any part of
the territory thereof is threatened, he may by a
Proclamation make a declaration to that effect." The
enumeration of the aforesaid Articles is merely illustrative
and not exhaustive. In such cases, it is the President who
has to be personally satisfied on the material placed before
him about the various matters on which action has to be
taken. Such functions may pertain to the executive power of
the Union which is vested in him under Art. 53(1) but these
cannot fall within Art. 77(1) which is confined to executive
action of the Government of India. Apart from the Articles
mentioned above, there are several other Articles which may
also be considered in this connection. It would be
han v. F. N. Rana and Others(2).
"The power to promulgate Ordinances under Art. 123; to
suspend the ’provisions of Arts. 268 to 279 during an
emergency; to declare failure of the Constitutional
machinery in States under Art. 356; to declare a financial
emergency under Art. 360; to make rules regarding the
recruitment and conditions of service of persons appointed
to posts and services in connection with the affairs of the
Union under Art. 309-to enumerate a few out of the various
powers-are not powers of the Union Government; these are
powers vested in the President by the Constitution and are
incapable of being delegated or entrusted to any other body
or authority under Art. 258(1). The plea that the very
nature of these powers is such that they could not be
intended to be entrusted under Art. 258(1) to the, State or
officer of the State, and, therefore, that clause must have
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a limited content, proceeds upon an obvious fallacy. Those
powers cannot be delegated under Art. 258(1) because they
are not
(2) 1964] 5 S.C.R. 294 at pp. 307 to 308.
the powers of the Union, and not because of their special
character. There is a vast array of other powers
exercisable by the President-to mention only a few-ap-
pointment of Judges: Arts. 124 & 217, appointment of
Committees of Official Languages Act; Art. 344, appointment
of Commissions to investigate conditions of backward
classes; Art. 340, appointment of Special Officer for
Scheduled Castes and Tribes : Art. 338, exercise of his
pleasure to terminate employment: Art. 310, declaration that
in the interest of the security of the State it is not
expedient to give to a public servant sought to be dismissed
an opportunity contemplated by Art. 311(2)-these are
executive powers of the President and may not be delegated
or entrusted to another body or officer because they do not
fall within Art. 258."
It seems to us that there is a good deal of substance in the
argument raised on behalf of the appellant. On the
principles which have been enunciated by this Court, the
function in clause (c) of the proviso to Art. 311(2) cannot
be delegated by the President to any one else in the case of
a civil servant of the Union. In other words he has to be
satisfied personally that in the interest of the security of
the State, it is not expedient to hold the inquiry
prescribed by clause (2). In the first place, the general
consensus has been that executive functions of the nature
entrusted by the Articles, some of which have been mentioned
before and in particular those Articles in which the
President has to be satisfied himself about the existence of
certain fact or state of affairs cannot be delegated by him
to any one else. Secondly even with regard to clause (c) of
the proviso, there is a specific. observation in the passage
extracted above from the case of Jayantilal Amrit Lal
Shodhan that the powers of the President under that
provision cannot be delegated. Thirdly, the dichotomy which
has been specifically introduced between the authority
mentioned in clause (b) and the President mentioned in
clause (c) of the proviso cannot be without significance.
The Constitution makers apparently felt that a matter in
which the interest of the security of the State had to be
considered should receive the personal attention of the
President or the head of the State and he should be himself
satisfied that an inquiry under the substantive part of
clause (2) of Art. 3 1 1 was not expedient for the reasons
stated in clause (c) of the proviso in the case of a
particular servant.
We are not impressed with the reasoning of the High Court
with reference to Art. 77(2). If the function or the power
exercisable under clause (c) of the proviso under
consideration could not be delegated or allocated to any one
else by the President. Art.
468
77(2) will not stand in the way of the Court in the matter
of examining the validity of the order.
For all the above reasons this appeal is allowed and the
judgment of the High Court is set aside. The impugned order
by which the appellant was dismissed from service shall
stand quashed on the ground that it was illegal, ultra vires
and void. The appellant shall be entitled to costs in this
court and the High Court.
G.C. Appeal
allowed.
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469