A R SINGH Vs. PRINCIPAL SECRETARY TO THE GOVERNMENT OF GUJARAT

JUDGEMENT

(1.) by this petition under Article 226 of the Constitution of India the petitioner who was Sub-Inspector of Police at Mahamdabad town in Kheda district at all the relevant times challenges the order of his dismissal passed by the Governor of Gujarat purporting to act in exercise of the powers under Clause (c) of the Second Proviso to Article 311 (2) of the Constitution of India without holding any inquiry as prescribed under the relevant Act and the Rules since the Governor was satisfied that in the interest of security of the State of Gujarat it was not expedient to hold any inquiry as enjoined by Article 311 (2) of the Constitution. The impugned order was signed by the Principal Secretary in the Home Department to the Government of Gujarat. The petitioners main grievance is that the impugned order lacks in bona fides inasmuch as it has been made on extraneous consideration for victimising the petitioner who was the leader of the Police Karmachari Mandal which and presented a charter of demands to improve the conditions of service of the members of the Police Force in Class III services for the enforcement of which an agitation was launched in April and May 1979. the said agitation ended happily as a result of compromise arrived at between the State Government and the agitators which was reduced into writing and subscribed by the then Home Minister on behalf of the State and the petitioner on behalf of the Union wherein it was inter alia agreed that no employee would be victimised for participating in the movement for enforcement of their demands and the proceedings already launched against any of them would be withdrawn. However to his surprise on 17/12/1979 in clear violation of this agreement and particularly Article 311 (2) of the Constitution and the relevant Act and the Rules in that behalf the impugned order was made by the Governor in purported exercise of his powers under Clause (c) of second proviso to Article 311 (2) of the Constitution of India. The petitioner has therefore moved this Court for appropriate writs orders and directions to quash and set aside the said order.

(2.) Broadly stated the main ground of attack against the impugned order is that the Governor has no absolute and unfettered power to impose an extreme penalty of dismissal since an order under Article 311 (2) proviso (c) is an exercise of administrative power by the Executive and consequently therefore in so far as it was made in violation of Article 311 (2) and the relevant provisions in the Bombay Police Act and the Bombay Police (Punishment and Appeal) Rules 1956 the impugned order is bad in law and void.

(3.) The State of Gujarat which is respondent No. 2 has opposed this petition by filling affidavit-in-reply of R. V. Chandramauli Secretary in the Home Department to the Government of Gujarat contending inter alia that the petition was incompetent since the petitioner was at all material time holding the post of Sub-Inspector during the pleasure of the Governor of Gujarat who was satisfied on consideration of relevant facts and circumstances that it was not expedient in the interest of the security of the State of Gujarat to hold an inquiry as envisaged under Article 311 (2) of the Constitution and that the petitioner was unfit to be retained in the civil services of the State Government and therefore he should be dismissed from the service. According to the State Government the Court cannot substitute its satisfaction in place and stead of the satis- faction of the Governor whose order made in exercise of the power under Clause (c) of the second proviso to Article 311 (2) of the Constitution is not justiciable since otherwise the Governor would be deprived of the powers and confidence which the Constitution has reposed in him