- (1.) We have read the judgment prepared by our learned brother Bhargava. We are in complete agreement with him so far as decisions 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 April 1, 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."
(3.) It appears that when the Governor made these two orders his attention was not invited to the amended Article 311(2) which was in force on that date. The impugned orders were accordingly made in terms of Article 311(2) as it existed before its amendment by the Fifteenth Amendment Act, 1963, which had come into force on October 6, 1963. The amended Article 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 : Unamended Amended Prior to 6-10-63 After 6-10-63 (2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him; (2) No such person as aforesaid, shall be dismissed or removed or reduced in rank except after an inquiry in which he has informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a 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 - Provided that this clause shall not apply - (a)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (a)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or (b) where an authority empowered to dismiss or remove a person or to 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 Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give that person such an opportunity. (c) where the President or Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. The unamended sub-article except the proviso was a reproduction of Section 240(3) of the Government of India Act, 1935. The proviso to Section 240(3) had only two causes corresponding to clauses (a) and (b) of the unamended Article 311(2). A bench of five Judges of this Court in Khem Chand v. The Union of India and others, 1958 SCR 1080speaking through Das, C.J., after referring to the divergent views expressed by Spens, C.J., of the Federal Court for himself and Zafarllah 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 103and to the decision of the Privy Council on appeal in High Commissioner for India v. I.M. Lall, LR, 1948 75 IndApp 225explained the Privy Council decision and clarified the meaning, scope and ambit of the unamended Article 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 Section 240(3) of the Government of India Act, 1935, now embodied in Article 311(2) of the Constitution. Indeed the learned Solicitor-General does not contend that the 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 cause 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, 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 clause (2) of Article 311 of the Constitution in the impugned order, by using the words "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", 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 by 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 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 inexpediency 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 constructing Section 240(3) of the Government of India Act, 1935, and unamended Article 311(2) of the Constitution. As already noticed, under Section 240(3) of the Act of 1935 and the unamended Article 311(2) provision was made of giving a reasonable opportunity to the government servant concerned of showing cause against the action proposed to be taken in regard to him. This expression was concerned in terms to refer to the stage when, after such inquiry 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 the 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 High Commissioner for India v. I.M. Lall, LR, 1948 75 IndApp 225case , saw "no difficulty in the statutory" opportunity being reasonably afforded at more than one stage". The Privy Council, however, dealt with Section 240(3) of the Act of 1935 and the earlier statutory Rule on the subject. This Court in Khem Chand v. The Union of India and others, 1958 SCR 1080case , after quoting a passage from the judgment of the Privy Council said : "Therefore, in a case where there is no Rule like Rule 55 the necessity of an inquiry was implicit in Section 240(3) and is so in Article 311(2) itself. Further their Lordships say that an enquiry under Rule 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 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.";