SARDARI LAL versus UNION OF INDIA & ORS

SARDARI LAL

UNION OF INDIA & ORS ..

January 21, 1971

[J. C. SHAH, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER, AND A. N. RAY, JJ.]

Constitution of India, 1950, Art. 311(2) (c)-Power to dispense with i714"irY under Article cannot be delegated to the Joint Secretary under (Government of India Allocation· of Business) Ru/.,, 1961 made under Ari. 77(3) of the Cons1itution-A1t.c/e 77(2) does not prevent the cour~ from examining validity of order passed by Joint Secretary under s. 311(2) (c) in the name of the President. 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 re-tained 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 securi.y elf the State it was not expedient to hold !an inqui-ry. 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 Ar:. 77(3) of the Cons-titution. 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. Jn appeal by certificate,

HELD : On the principles enunciated by thi~ 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 civil servant of the Union. In other words he has to be satisfied presonally that in the interest of :he security of the State it is not expedient to hold an inqmrv pre<cribed hy cl. ( 2). Jn the first place the general consensus in the decisions of this Court has been 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 Pr03ident has to be satisfied himself about the exis ence of certain 'facts or state of affairs cannot be delegated by him to anyone else. Secondly even with regard ·o cl. (c) of the proviso there is specific obser-F. vation in Jayanti/a/'s case that the powers of the President under that pro-vision cannot be delegoted. Thirdly the dichotomy which has been speci-fically introduced be ween the authority mentioned in cl. (b) and t~e President mentioned in cl. ( c) of the proviso cannot be without signifi-cance. The Co"stitutio" makers apparently 'felt that matter in which the hterest of the security of the Sta·e has to be con•idered should receive persoial attention of the President or the Head of the State and he should himself be satisfied that an inquiry unde' the substantive part di cl. (2), Ar:. 311 was not -expedient for the reasons stated in cl. (c) of the proviso in the case of particular servant. [467 D-G]

The order imou~ned in the present case was therefore illegal, ultra vires, and void. If the functions or functions exercisable unde' cl. (c) of the proviso under consideration could not be dele•ated or alloca·ed to anyone else by the President, Art. 77(2) could not stand in th€1 way di the Court in the matter of examining the validity of the order. i (467 H-H 468 B]

Mori ~nm De~q etc. v. G•nera/ Ma11a~er, N.£.P. Railway, ¥q/igaon, ~-~u, [1964]5 S.C.R. 683, 731, 732 and lavanti'n/ Amr;t. Lal' Shodhan >.~"I·. N. Rana & Ors., [1964]5 S.C.R. 294, 307, 308, applied.

CIVIL APPELL/I.TE 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 1.967.

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 iintervener.

The Judgment of the Court was delivered by

Grover, J. This is an appeal by cei:tificate from common

judgment of the Delh_i High Court which disposed of 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 1 i other members of the Ddhi 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 the President, and

Whereas the President is satisfied that you are unfit to be re-tained in the public service and ought to be dismissed from service, and

Whereas the President is further satislied under sub-clause (c) of 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 hold an inquiry,

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

(B. Venkataraman) Joint Secretary to the Government of India in the Ministry of Home Affairs."

It was common ground before the High Court and has not been disputed before us that the President had no cccasion 'to deal with the case or the appellant himself and the order was made by Shri Venkataraman, Joinr 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 t11e 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 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 pro-vides 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 Con-stitution. 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 o.f 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 re-F cruitment, and conditions of service of persons appoin-ted, to public services and posts in connection with the affairs of the Uni6n or of any State :

"Provided that it shall be competent for the Presi-dent or such person as he may direct in the case of ser--G vices and posts in connection 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 posts in con-nection with the affairs of the State, to make rules re-gulating 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."

"310. (1) Except as expressly provided by this Con-A stitution, every person who is member of defence I service or of Civil service of the Union or of an all-~ I India service or holds any pos·1 connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is "· member of civil service of State or holds any civil post under State holds office during the pleasure of the G,overnor of the State.

"311. (I) No person who is member of civil service of the Union or 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.

(2) No such person as aforesaid shall be dismissed or removed lor reduced in rank except afrer an inquiry in which he has been informed of the charge against him and given reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to im.J?OSe on him any such penalty, until he has been given reasonable 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 person is dismissed or removed or reduced in rank on the ground of conduct which has led t~ his conviction on criminal chaige;_or

"(b) where the authority empowered to dismiss or . remove person or io 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 secu-rity of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, question arises whether it is reasonably practicable to h?~d such inquiry as is referred to in clause (2), the de-c1s10n thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

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. 310 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 a/ia to conditions of service without impinging upon the overriding power recognised under Art. 31,0 tead with Ari. 311. The power to dismiss 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, ho:,vever, does not mean that law cannot be made under Art. 309 or 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, Mali-gaan, Pandu. etc.(') 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 fol-lowed before the dismissal or removal or reduction in rank of civil servant can be ordered, · there are certain exceptions which have been made where it is not necessary to comply with the re-quirements of the sub~tantive 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).

As in the cases mentioned in the proviso, the p~edure laid do~n i!' clause (2) has no.t ~o be follow .. ed and the ?nl protection which JS conferred on cwli servant cannot be ava1 of by him, ·F we ,must look at them care.fully. dichotomy hay en introduc-ed m clause (b) and (c) with regard to the authority or the func-tionary who has to be satisfied about the matters stated therein. In clause (b), it is only the authority empowered to dismiss or re-. move per~n 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 Artcile shall be final. But in clause (c) it is the President or the Governor alone, as the case: may ~. who h~s ~o be satisfied that in the inte-~est ~ the secunty of die State 1t 1s not expedient to hold such inquiry.

Now ~he argument on behalf of the appellant has proceeded II ?n these hn~s. Art. 53(1) vests the Executive power of the Union rn the President but Art. 77 deals only with executive action of

(I) (1964) 5 S.CR. 68) 11 pp. 731 .t: 732).

16-L807 Sup Cl/7t

the Government of India. There are several Articles under which the President is required to be satistied 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 ques-tion 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 report from the Governor of State or otherwise, is satisfied that situation has arisen in which the goverrunent of the State cannot be carried on in accordance wich the provisions of the Con-stitution, he may make 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 situa-tion has arisen whereby t!he financial stability or credit of India or of any part of the territory thereof is threatened, he may by Proclamation make declaration to that effect." The enumera-tion of the aforesaid Ariicles is merely illustrative and no~ exhau-stive. In such cases, it ls the President who has to be personally satisfied on the material placed before him about the various mat-, ters 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 con-fined to .:xecutive ai:tion of the Government of_ India. . Apart from the Articles mentioned above, there are several other Articles which may also be considered in thjs connection. Ii would be best to refer to the observations in (2) Jayantilal Amrit Lal Shod-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 dur• ing an emergency; to declare failure of the Constitutional machinery in States under Art. 356; to declare finan-cial ei;nergency under Ait. 360; to make rules regarding the recruitment and .:onditions of service of persons ap' pointed to posts and services in connection with the affairs of the Union under Art. 309-to enumerate few out of the various powers-arc not powers of the Union Goverrunent; 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 snch 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 limited content, proceeds upon an obvious fallacy. Those powers cain-not be delegated under Art. 258(1) because they are not

the powers of th!,\ Union, and not because of therr spe-cial character. There is vast array of other powers exercisable by the President-to mention only few-ap-pointment of Judg_es: Arts. 124 & 217, appointment of Committees of Official Languages Act; Art. 344, appointment of Commissions to investigatle conditions of backward classes; Art. 340, appointment of Special Officer for Scheduled Castes and Tribes: Art. 338, ex-ercise of his pleasure to terminate employment : Art. 310, declarl!_tion that in the interest of the security of the State it is not expedient to give to public servant sought to be dismissed an opportunity contemplated by Art. 311 (2)-these are executive powers of the Presi-c dent 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 good deal of substance in the argument rais~d 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 Presi-dent' to any one else in the case of 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 consansus has been that executive functions of the nature entrusted by the Articles, some of whi~h have been mentioned before and in par-ticular those Articles in which the President has to be satisfied himself about the existence of certain fact or state of affairs can-not be delegated by him to any one else. Secondly even with re-gard to clause (c) of the proviso, there is spec.ific observatio!I in the passage extracted above from the case of Jayantilal Amrit Lal 1: Shodhan that the powers of the Preside.nt under that provision cannot be delegated. Thirdly, the dichotomy which has been specifically introduced between tt.e authority mentioned in clause (b) and the President mentioned in clause (c) of the proviso can-not be without significance. The Constitution makers apparently felt that 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. 311 was not expedient for the reasons stated in clause (c) of the proviso in the case of particular servant.

We are not impressed with the reasoning of the High Court ll with reference to Art. 77(2). If the function or the power exer-cisable under clause (c) of the proviso under consideration could not be delegated or allocated to any one else by the President. Art.

77(2) will not stand in the way of the Court in the matter of examin-ing the validity of the order.

For all the above reasons this appea1 is allowed and the judg-ment of the High Court is set aside. The impugned order by which the appellant wa.s dismissed from service shall stand quashed on the ground that it was illegal,_ ultra vires and void. The appel-!ant shall be entitled to costs in this court and the High Court.

The impugned order by and void. The appel-B

Appeal allowed.