- (1.) THIS petition under Art. 226 of the Constitution of India seeks to quash an order dated 5 September 1966, passed by the President of India terminating the petitioner's service. The impugned order runs as follows: "In pursuance of Cl. (1) of Art. 310 of the Constitution, the President is pleased to direct that the services of Khairat Hussain, millwright 'C' T. No. 515/MM; Ordnance Factory, Kanpur, a civilian in Defence Services, shall stand terminated with immediate effect."
(2.) FOR the petitioner this order was challenged on the ground that the pleasure of the President of India under Cl. (1) of Art. 311 of the Constitution is subject to the rules that have been framed in virtue of Art. 309 of the Constitution. I have repelled this submission in Muhammad Akhtar v. Union of India [1967 - II L.L.J. 767]. In the next place it was submitted that Art. 310 has been held in the decision mentioned above to be subject to Art. 311, Under Art. 311(2) the services of a permanent employee, which the petitioner was, could not be terminated without affording him a reasonable opportunity of showing cause in respect of the charges and the penalty proposed to be inflicted upon him. The exception to the rule is given in the proviso thereof. Clause (c) of the proviso states that where the President or the Governor, as the case may be, is satisfied that in the interest of security it is not expedient to hold such an enquiry, then Cl. (2) of Art. 311 will not apply. The learned counsel urged that in the present case there was nothing to indicate that Cl. (c) of the proviso was attracted. The impugned order did not recite that the President was satisfied that in the interest of security of the State it was not expedient to hold an enquiry under Art. 311(2). The counter-affidavit filed on behalf of the respondents also does not make any such assertion. There is no averment that the President of India was satisfied as to Cl. (c) of the proviso. In this situation Art. 311(2) is clearly attracted. Admittedly no enquiry as contemplated by that provision was held. The impugned order thus violates Art. 311(2) of the Constitution. The satisfaction of the President under Cl. (c) of the proviso is to his subjective opinion. It is not a justiciable issue - vide Muhammad Akhtar case [1967 - II L.L.J. 767] cited above. When power is conferred exercisable to the subjective opinion of an authority, such satisfaction of that authority constitutes a condition precedent to the exercise of the power. It is true that the Constitution does not require that such satisfaction should be recited in the order itself. The order would not be invalid merely on the ground that the requisite satisfaction is not stated therein, but when the order is challenged on the ground that there was no such satisfaction (as was done in the present case by ground 4), it is incumbent upon the authority passing the order to prove that the requisite satisfaction was achieved - see Swadeshi Cotton Mills Company, Ltd. v. Industrial Tribunal, Uttar Pradesh [1961 - II L.L.J. 419]. It was obligatory on the respondents to have clarified the point in their counter affidavit. Unfortunately there is no assertion at all that the President was satisfied in terms of Cl. (c) to the proviso. HELD: The petition, therefore, succeeds and is allowed. The impugned order dated 5 September, 1966 is set aside. The parties will bear their own costs.;