Syed Sadat Abdul Masud, J. - (1.) This is an appeal against the judgment and decree of P.C. Mallick, J. dated March 9, 1962, whereby the Appellant's suit for wrongful termination of his service against the Respondent was dismissed. The relevant facts of the case are stated as follows:
(2.) The Appellant, Narendra Narayan Das, was appointed a constable of permanent rank in the Calcutta Police Force under the State of West Bengal. By an order dated February 7, 1955, signed by the Home Secretary, Government of West Bengal, the said Narendra Narayan Das was dismissed from service with immediate effect. On January 17, 1956', the Appellant filed the present suit for a declaration that the said order of dismissal dated February 7, 1955, was invalid and not binding on the Plaintiff and also for full pay arid emoluments, costs, etc. The Respondent in its written statement stated that the Appellant was lawfully dismissed in the interest of the security of the State. The said suit was heard by Mallick, J. who dismissed the suit as stated above.
(3.) Mr. Acharyya, Learned Counsel for the Appellant, has argued only one point, namely, that the said order dated February 7, 1955, dismissing his client is void inasmuch as the said Narendra Narayan Das was not given any opportunity of showing cause against the order terminating his services and as such, it contravenes Article 311(2) of the Constitution. According to Mr. Acharyya, before a government servant's service is terminated an enquiry should be made to find out whether he is guilty of the charges made against him. In such an enquiry, it is the settled law that the particular government servant has a right to be heard. If during the enquiry the allegations against him are found to be, correct and in consequence, he is found guilty of the charges against him, he must be given another opportunity to show cause against the penalty proposed to be taken against him. Mr. Acharyya concedes that, his client has been dismissed under proviso (c) of Article 311(2) of the Constitution. But he contends that under the said proviso his client is only debarred from getting a reasonable opportunity to show cause against the penalty proposed to be taken against him. His client's constitutional right to represent his case before the enquiry officer is still there. He supports his arguments on two grounds. Firstly, the words used in Article 311(2), viz., "The action proposed to be taken in regard to him" could only mean the punishment that is going to be inflicted on him; secondly, the amendment caused to Article 311(5?,) and also to its proviso (c) by the Constitution (15th Amendment) Act, 1963, indicate that after the amendment the delinquent government officer would be denied his right to prove his innocence in an enquiry, if the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to do so. Thus, it is obvious, according to Mr. Acharyya, that, prior to the amendment, it was obligatory for the Government to hold an enquiry even in cases where his service was terminated under the pre -amended proviso (c) to Article 311(2) of the. Constitution. Mr. Acharyya has, therefore, argued that as his client's case took place prior to the 15th Amendment, his client is entitled to get an opportunity to prove his guilt before an enquiry officer in respect of the allegations against him. He has concluded that inasmuch as no such enquiry was made in the case of his client, the said order dated February 7, 1955, has been made in violation of the provisions of Article 311(2) of the Constitution.;