STATE OF MADHYA PRADESH & ORS. versus SHARDUL SINGH

STATE OF MADHYA PRADESH & ORS.

SHARDUL SINGH

December 2, 1969 (J. C. SHAH AND K. S. HEGDE, JJ.]

Constitution of India, Art. 311(1)-J/ the Authority e1npowered to .di.Hniss .'fhou/d itself iuitiate or conduct the enquiry-Article 309, proviso, ---·'Conditions of service", meG-ning of.

The Superintendent of Police jnitiatcd departmental inquiry against the respondent, who was Sub-Inspector, with respect to certain charges, found him guilty, and forwarded the !report to the Inspector-General of Police, who was the authority competent to dismiss him for necessary action. The Inspector-General sent copy of the report to 'the respondent, 1.:alled upon him to show cause against the proposed punishment of dis-n1issal, considered his explanation, and passed an order dismissing him. The procedure followed was in accordance with Regulations 228 and 229 -of th~ Ce'i1tral Provinces and Bcrar Police Regulations framed under s. 241 of the Government of India Act, 1935, corresponding to Art. 309 of the Constitution.

On the question whether the Regulations were ultra vires because, undel' Art. 311, the authority empowered to dismiss (in this case the Jnspector~Gcneral) must have himself initiated or conducted the inquiry preceding the -dismissal, · HELD : Under the proviso to Art. 309. power is conferred on the Prcsi<lcnt of India and the Governor of State to make rules lregulatitlg the condition-$ of service of persons appointed to the civil service of the Union or, the State; as the c~e may be, until provision in thaf behalf is nlade by, an Act of the appropriate Legislature. 'Conditions of service' means all those conditions which regulate the holding of post by person Tight from the time of his appointment till his retirement and even heyond, in matters like pension etc., and includes rules relating to the disn1issal of an officer. Article 311 ( 1) confers an additional right on the •:ivil ·servant, namely, that no person holding civil post shall be dismissed ur renioved by an authority subordinate to that by which he was appoint-.. .-d. But for that Article rules could have been framed even in respect to these matters under Art. 309. Article 311(1) however, does not, in terms, provide that the '\'elevant disciplinary iriquiry ~hould also be initiat-1.!<l or conducted by the authority mentioned in the Article. Therefore, rules could be framed under Art. 309 with respect to condition'S of service other than those in Art. 311(1) and hence, the Regulations were not ;i11ra vires the Constitution. [306 B-E]

Pradvat Kunzar Bose v. The Hon'hle the Chief Justice of CG·lcutta lligh c,;,,,1, [19551 2 S.C.R. 1331 and P. Bal•kotaiah v. Union of India. [1958/ S.C.R. !052. followed.

;\lorrh w·c.H f"rontier Pro\·inC<' V. Suraj Nar(lin"Anand, (1948) L.R. 75 IA. -143. applied.

Appeal from the judgment and order dated November 4, 1965 of the Madhya Pradesh High Court in Misc. Petition No. 646 of 1964.

I. N. Shroff, for the appellants.

A. K. Sen, M. M. Kshatriya and G. S. Chatterjee, for the respondent.

The Judgment of the Court was delivered by

Hegdc J. Scope of Art. 311(1) of the Constitution comes up for consideration in this appeal by certificate. The High Court of Madhya Pradesh has opined that the power of dismissal and removal referred to in Art. 311 ( 1) implies that the authorities mentioned in that Article must alone initiate and conduct the dis-ciplinary proceeding culminating in the dismissal or removal of " delinquent officer.

The respondent herein was Sub-Inspector of Police in the State of Madhya Pradesh. departmental enquiry was initiated against him on the basis of certain charges, by the Superintendent of Police, Surguja, on June 24, 1962. After holding the enquir; as prescribed by the Central Provinces and Bihar Police Regula-tions, the Superintendent of Police submitted his report to tl1I! Inspector-General of Police, Madhya Pradesh through Deputy Inspector-General of Police, Raipur. On the basis of the enquiry held by him, the Superintendent of Police concluded that the respondent was guilty of the charges levelled against him. He recommended his dismissal. After receiving the report of the Superintendent of Police, the Inspector General sent copy of the same to the respondent and called upon him to show cause why...he should not be dismissed from service. The respond~nt submitted his explanation. After considering the same, the Inspector General of Police dismissed the respondent from service on November 30, 1963. The respondent's appeal to the Govern-ment against the order dismissing him was rejected. Thereafter the respondent moved the High Court under Art. 226 of the Con-stitution to quash the order dismissing him by issuing writ of l'ertiorari. The dismissal order was challenged on various grounds. The High Court rejected all but one of them. It came to the conclusion that the Superintendent of Police, Surguja was not competent to initiate or conduct the enquiry held against the res-pondent as he had been appointed by the Inspector-General of Police. It was of the view that the enquiry in the case was with-out the authority of Jaw and against the mandate of Art. 311 (1). II It accordingly allowed the writ petition and quashed the impugned order. · The Superintendent of Police, Surguja initiated arid co11-ducted the enquiry against the respondent on the basis of Regula-tions 228 and 229 of the Central Provinces and Bihar Polic.e Rcgu-

lations. These Regulations are evidently framed on the basis of s. 241 of the Government of India Act, 1935,,a provision which permitted the· State Governments to make rules regulating the recruitment and conditions of service of persons appointed to State service. Regulation 228 says :

"In every case of dismissal, reduction in rank, grade or pay, or withholding of increment for period in excess of one year, a· formal proceeding must be record-ed, by the District ·Superintendent in the prescribed form, setting forth :-

(a) the charge;

(b) the evidence on which the charge is based;

( c) the defence of the accused;

(d) the statements of his witnesses (if any) ..

( e) the finding of the District Superintendent, with the reasons on which it is based;

(f) the District Superintendent's . final order or re-commendation, as the case may be."

Regulation 229 prescribes that in cases where the District Superintendent is not empowered to pass final order, he should forward ,his proposals for the dismissal.. removal or compulsory retirement of an officer of and above the rank of Sub-Inspector to the proper authority through the District Magistrate, except in cases where an officer is not serving in district. ·

There is no dispute that the Superintendent of Police had com-plied with the requirements of Regs. 228 and 229. The question for consideration is whether the power conferred on the Superin-tendent of Police under Regs. 228 and 229 is ultra vires Art. 311(1).

. Art. 31 1 ( l) provides that no person who is member of Civil Service of the Union or of an All India Service or Civil Service of State or holds civil post under the Union or State shall be dismissed or removed by an authority subordinate to that by which he was appointed. This Article does not in terms require that the authority empowered under that provision to dismiss or remove an official, should itself initiate or conduct the enquiry preceding the dismissal or removal of the officer or even that that enquiry should be done at its instance. The only right guaranteed to civil servant under that provision is !hat he shall not be dismissed or removed by an authority subordinate to that by which he was appointed. But it is said on behalf of the respon-dent that that guarantee includes within itself the guarantee that the relevant 'disciplinary enquiry should be initiated and con-

ducted by the authorities mentioned in the Article. The High Court has accepted this contention. We have now to see whether the view taken by the High Court is correct.

Art. 310(1) of the Constitution declares that every peNm

who is member of civil service of State or holds any civil Jll)'t in State holds office during the pleasure of the Governor of State. But the pleasure doctrine embodied therein is subjec·t to the other provisions in the Constitution. Two other Articles in ihe Constitution which cut down the width of the pow_er given unc!cr Art. 310( I) are Arts. 309 an<l 311. Art. 309 provides that subject to the provisions of the Constitution, Acts of the appro-priate Legisi'!tture may regulate the recruitment. and conditions of service of persons appoimed, to public services and posts in connection with the affairs of the Union or of any State. Provi:;o to that Article says :

"Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in conection with the affairs of the Union, and for the Governor of State or such person as he may direct in the case of services and po>ts in connec-tion with the affairs of the State to make rules regulat-ing the recruitment. and the conditions. of service of persons appointed, to such services and posts until pro-vision 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."

One of the powers conferred undir this proviso is to make rules regulating the conditions of service of persons appointed to civil services of the Union or the State as the case may be. The expression "conditi.ons of service" is an expression of wide import. As pointed by this Court in Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court ('), the dismissal of an official is matter :which falls within "conditions of service" of public servants. The Judicial Committee of the Privy Council in North West Frontier Province v. Suraj Narain Anand ([2]), took the view that right of dismissal is condition of service within the' meaning of the words under s. 243 of the Government of llidia Act, 1935.

Lord Thankerton speaking for the Board observed therein :

"apart from consideration whether the context indi-cates special significance to the expression 'conditions of service' their Lordshios are unable irt the absence of any such special significance, to regard provisions

which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether these provisions are contractual or statutory; they are there-fore of opinion that the natural meaning of the expres-sion would include such provisions."

In P. Balakotaiah v. The Union of lr.dia and Ors.(') this Court proceeded on the basis that rule providing for the termination of the s·~rvicc of railway official can be made in exercise of the powers conferred on the Government by ss. 241 (2), 247 and 263(3) of the Government of India Act, 1935.

The expression 'conditions of service' means all those condi-tions which regulate the holding of post by person right from the time of his appointment till his retirement and even beyond it in matters like pension etc ..

But for the incorporation of Art. 311 in the Constitution even in r~spect of matters· provided therein, rules could have been framed under Art. 309. The provisions in Art. 311 confer addi-tional rights 011' the civil servants. Hence we are unable to agree with the High Court that the guarantee given under Art. 311 ( 1) includes within itself furth~r guarantee that th.e disciplinary proceedings resulting in dismissal or removal of civil servant ;hould also be initiated and conducted by the authorities mentioned in that Article.

In the result this appeal is allowed, the judgment of the High Court is set aside and the writ petition dismissed .. In the circum-stances of the case we make no order as to costs.

Appeal allowed.