I.D.DUA - (1.) WE have read the judgment prepared by our learned brother Bhargava: WE are in complete agreement with him so far as decision on points Nos. (2) and (3) is concerned, but with respect we are unable to agree with him on point No. (1).
(2.) IT is unnecessary to repeat the relevant facts which have been set out by our learned brother in his judgment. The impugned order dated 1/04/1965, 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. and 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 satisfied under sub-clause (c) 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 that 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 at Art. 311 (2) as it existed before its amendment by the Fifteenth Amendment Act, 1963, which had come into force on 6/10/1963. The amended Art. 311 (2) has been reproduced in the judgment of my learned brother. It is, however, desirable to reproduce both the amended and unamended article 311 (2) so as to understand if any substantial or material change in the legal position was intended by the amendment: JUDGEMENT_168_2_1971Html1.htm The unamended sub-article except the proviso was a reproduction of section 240 (3) of the Government of India Act, 1935. The proviso to S. 240 (3) had only two clauses corresponding to cls. (a) and (b) of the unamended Art. 311 (2). A bench of five Judges of this Court in Khem Chand v. The Union of India, 1958 SCR 1080= ( AIR 1958 SC 300) 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. Lall, 1945 FCR 103 and to the decision of the Privy Council on appeal in High Commr. for India v. I. M. Lall, 75 Ind App 225 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 accepted 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 learned 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 rouse against the action proposed to be taken 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 as a reasonable one, it is quite obviously necessary that the government servant should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all 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 heard in respect of the charges in the course of the 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 P.K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above" , intended to convey his satisfaction that, in the interest of the security of the State it was 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 an 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 cause notice about the inexpendiency 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 Article 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 the 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 on 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 language the result of the judicial decisions construing S. 240 (3) of the Government of India Act. 1935, and unamended Article 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 goverment servant concerned of showing cause against the action proposed to be taken in regard to him. This expression was construed in terms refer to the stage when, after such quiry as may be necessary, and after the punishing authority, being satisfied of the guilt of the delinquent government servant, provisionally proposed the action to be taken against him. But in answer to this show cause notice the government servant was held entitled also to show cause against his guilt on the merits. Even though in the earlier inquiry, if any, the government servant had been given an opportunity of showing cause against his guilt, the second opportunity provided by the statute was held to be mandatory. The Privy Council in I. M. Lall's case, 75 Ind App 225 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. 1958 SCR 1080 = ( AIR 1958 SC 300) after quoting a passage from the judgment 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 against 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 fight to make representation against the proposed punishment are all parts of his "statutory right" and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant." It cannot 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 P. K. Hore in the one case, and to B. C. Das in the other, 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 does not in our view detract from its effectiveness as 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 serves to convey same intention as is contemplated the amended article and the difference in the language which scents to be inconsequential does not have the effect of nullifying the impugned order.
(3.) NO doubt Art. 311 (2) is intended to afford a sense of security to government servants covered by sub-art. (1) and the safeguards provided by sub-art. (2) are mandatory. But cl. (c) of the proviso to this sub-article which is designed to safeguard the larger interest of the security of the State cannot be ignored or 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 unsubstantial 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 finally settled when the impugned order was made. NO inquiry of any kind as contemplated 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 as 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 under standable 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 penalty, 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 fight 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 dismissed, but in the circumstances without costs.;