SUPREME COURT of INDIA Page 1 of 122 PETITIONER: UNION of INDIA and ANOTHER
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http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 122 PETITIONER: UNION OF INDIA AND ANOTHER Vs. RESPONDENT: TULSIRAM PATEL AND OTHERS DATE OF JUDGMENT11/07/1985 BENCH: MADON, D.P. BENCH: MADON, D.P. CHANDRACHUD, Y.V. ((CJ) TULZAPURKAR, V.D. PATHAK, R.S. THAKKAR, M.P. (J) CITATION: 1985 AIR 1416 1985 SCR Supl. (2) 131 1985 SCC (3) 398 1985 SCALE (2)133 CITATOR INFO : RF 1986 SC 335 (1,2,3,4,6) RF 1986 SC 555 (4,5,6,7,8,9,15,16) R 1986 SC 617 (3,7) R 1986 SC1173 (13,13A,14,21,22,24) RF 1986 SC1272 (79) R 1986 SC1571 (99,105) E&D 1987 SC 593 (25) R 1987 SC1137 (3,5) F 1987 SC1919 (9) F 1987 SC2106 (8) R 1988 SC 285 (1) R 1988 SC2245 (11) F 1989 SC 662 (8,9,10) R 1989 SC1185 (29) R 1990 SC 987 (10) R 1990 SC1480 (110) R 1991 SC 101 (14,19,31,32,35,40,41,62,67,68 RF 1991 SC 385 (4) RF 1992 SC 1 (133) ACT: Constitution of India Articles 14,21,309,310,311. Central Civil Services (Classification Control & Appeal) Rules 1965 Rules 19, 22,23, 25, 27(2),29, 29A. Central Industrial Security Force Rules 1969 Rules 37,42, 42A, 47(2) and 49. Railway Servants (Discipline & Appeal) Rules 1968, Rules 14, 17, 20, 22(2), 25, 25A. Doctrine of Pleasure-Scope of in Art.311 - Whether an exception to Art.310(1). Laws made under Art.309 whether to be subject to Art.310(1) and 311 and Part III. Art. 311(2) second proviso - Principle of natural justice whether excluded Mala fide action of disciplinary authority - Whether can be assailed - Conduct of government servant must justify dismissal or removal or reduction in rank - Condition precedent to applicability of the provision - Approach of the disciplinary authority - The situations when it is not reasonably practicable to hold inquiry - What are - Reasons to be recorded in writing for not holding the inquiry - Communication of reasons to the aggrieved http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 122 government servant - Necessity of - Remedies available to the aggrieved government servant. 'Security of State'- What is - How affected - When not expedient to hold inquiry in interest of 'security of state'-subjective satisfaction of President or Governor - What is. Though pre-decisional hearing excluded post decisional departmental hearing available - Judicial review open on grounds of mala fides or non-application of mind. 132 Government Servant convicted for causing grevious head injury - Punishment of compulsory retirement- Whether proper and justified. Railway employees - Participating in all-India strike - En masse dismissal of participants - Whether proper and justified. Members of CISF - Creating riotous situation - Break down of discipline in the force - Members becoming security risk - Dismissal - Whether proper and justified. Member of State Police Force - Creating violent public disorder - Inciting others members to do so - Dismissal whether proper and justified. Natural Justice - Principles of Natural Justice - What are - Origin of principle - 'audi alteram partem' - When can be excluded - Post decisional hearing whether sufficient compliance of the rule. Statutory Interpretation - Provision of Constitution whether mandatory or directory - 'expressum facit cessare tacitum' - maxim - external aids to interpretation - use of - mandatory constitutional prohibition strict construction of -whether necessary. WORDS AND PHRASES - MEANING OF 'Acts of the appropriate legislature' - Art. 309. 'Except as expressly provided by this Constitution' - Art. 310(1). 'Not expedient' - 'Security of State' - 'Reasonably practicable' - 'This clause shall not apply' - Art. 311(2). ADMINISTRATIVE LAW Subordinate legislation - Executive instructions whether have force of statutory rule. HEADNOTE: Article 311 of the Constitution confers certain safeguards upon persons employed in civil capacities under the Union of India or a State. The first safeguard (which is given by clause (1) of Article 311) is that such person cannot be dismissed or removed by an authority subordinate to that by which he was appointed. The second safeguard (which is given by clause (2) of 133 Article 311 is that he cannot be dismissed removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second safeguard is, however, not available when a person is dismissed, removed or reduced in rank in any of the three cases set out in clauses (a) to (c) mentioned in the second proviso to Article 311(2). Under clause (a), such person can be dismissed, removed or reduced in rank without any inquiry on the ground of conduct which has led to his conviction on a criminal charge. Under clause (b), any of the three penalties can be imposed where the authority empowered to impose any of the penalties is satisfied that http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 122 for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry. Under clause (c), any of the aforesaid penalties can be imposed where the President, or the Governor of a State, 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. All the Government servants in the above Appeals and Writ Petitions had been either dismissed or removed from service without holding any inquiry. They had not been informed of the charges against them nor given any opportunity of being heard in respect of those charges. The penalty of dismissal or removal, as the case may be, had been imposed upon them under one or the other of the three clauses of the second proviso to Article 311(2) or under similar provisions in rules made under the proviso to Article 309 or in rules made under an Act referable to Article 309, for instance, Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Rule 14 of the Railway Servants (Discipline and Appeal) Rules 1968, and Rule 37 of the Central Industrial Security Force Rules, 1969, or under such a rule read with one of the clauses of the second proviso to Article 311(2). The affected government servants assailed the aforesaid order in writ petitions under Article 226 in different High Courts, and some of these writ petitions were allowed on the basis of this Court's decision in Divisional Personal Officer, Southern Railway & Anr. v. T.R. Challappan [1976] 1 S.C.R. 783, and a few were dismissed. Appeals by Special Leave against those judgments were filed, and in three such appeals it was noticed by a three Judge Bench of this Court that there was a conflict between 134 Challappan's Case and another three Judge Bench in M. Gopala Krishna Naidu v. State of Madhya Pradesh [1968] 1 S.C.R. 355 and directed that the papers in the three appeals be placed before the Hon'ble Chief Justice for reference to a larger Bench. These appeals were thus referred to the Constitution Bench and all other similar Appeals and Writ Petitions were also placed before the Constitution Bench for disposal. The arguments advanced on behalf of the government servants on the pleasure doctrine and the second proviso to Article 311 (2) were : 1. The pleasure doctrine in England is a part of the special prerogative of the Crown and had been inherited by India from England and should, therefore, be construed strictly against the Government and liberally in favour of government servants. 2. The second proviso which withdraws from government servants the safeguards provided by clause (2) of Article 311 must be also similarly construed, otherwise great hardship would result to government servants as they could be arbitrarily thrown out of employment, and they and their dependents would be left without any means of subsistence. 3. There are several stages before a government servant can be dismissed or removed or reduced in rank namely, serving upon him of a show-cause notice or a charge-sheet, giving him inspection of documents, examination of witnesses, arguments and imposition of penalty. An inquiry starts only after a show cause notice is issued and served. A show cause notice is thus preparatory to the holding of an inquiry and even if the entire inquiry is dispensed with, the giving of a show cause notice and taking of the explanation of the government servant with respect thereto are not excluded. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 122 4. It is not obligatory upon the disciplinary authority to dispense with the whole of the inquiry. Depending upon the circumstances of the case, the disciplinary authority can dispense with only a part of the inquiry. 5. Imposition of penalty is not a part of the inquiry and once an inquiry is dispensed with, whether in whole or in part, it is obligatory upon the disciplinary authority to give an opportunity to the government servant to make a representation with respect to the penalty proposed to be imposed upon him. 135 6. Article 311 is subject to Article 14. Principles of natural justice and the audi alteram partem rule are part of Article 14, and therefore, a show cause notice asking for the explanation of the government servant with respect to the charges against him as also a notice to show cause with respect to the proposed penalty are required to be given by Article 14 and not giving such notices or either of them renders the order of dismissal, removal or reduction in rank invalid.