Chunilal Das Gupta vs State of West Bengal

P.K. Banerjee, J.—The Petitioner in this rule challenges the order dated September 13, 19.71, served on the Petitioner wherein it has been stated that the Petitioner is unsuitable for retention in service and the Governor is satisfied that in the interest of the security of the State it is not expedient to hold an enquiry into the charges against the Petitioner under Clause (2) of Article 311 of the Constitution of India and, therefore, the Governor was pleased to dismiss the Petitioner from service with immediate effect.

The Petitioner was appointed as a lower division assistant under the Government of West Bengal on or about November 1, 1957, and was duly confirmed in the said post. The Petitioner was promoted to the post of upper division assistant when the impugned order was passed.

On behalf of the Respondent affidavit has been filed by Sri K. G. Bose, Special Officer and Ex-officio Special Secretary, Home Department, Government of West Bengal. It has been stated in the affidavit and the Respondent has annexed the order passed by the Governor under Article 311(2), proviso (c) of the Constitution of India stating that he was satisfied that in the interest of the security of the State it was not expedient to hold an enquiry under Article 311(2) of the Constitution of India. It has been also stated in the affidavit that the records were placed before the Governor and the Governor, on considering that, was satisfied that the continuance of the Petitioner in public service was detrimental to the public interest and, as such, passed an order under proviso (c) to Article 311(2) of the Constitution of India. It appears that after the proclamation of President''s Rule by Proclamation under Article 356 of the Constitution of India, the President assumed the powers in respect of the State of West Bengal and the powers and function of the Governor of the State vested in the President. The order impugned having been passed by the Governor of the State is a valid order.

Mr. Acharyya on behalf of the Petitioner contended, firstly, that after the Proclamation under Article 356, the order under Article 311(2), proviso (c) must be passed by the President himself and the President has no power to delegate the same to the Governor. It is argued that the Proclamation can only be amended by another proclamation but not by any order made by the President. Even if an order is made by the President under Article 311(2), proviso (c) the same is justice able. It is argued further that assuming that the Proclamation under Article 311(2) is not available, the Petitioner cannot be dismissed under Article 310 unless the principles of natural justice have been followed. It is further argued by Mr. Acharyya that as the rule under Article 309 is framed, namely, the West Bengal Services (Classification, Control and Appeal) Rules, 1971, which was promulgated under Article 309 of the Constitution of India, it is incumbent that before passing any order of dismissal the said rule must be followed. It is argued that even if under Article 311(2), proviso (c) no enquiry may be held, the Petitioner must know the charges upon which the Governor was satisfied that the order is passed in the interest of the security of the State so that the Court can go into the question whether on the said charges the Governor could be satisfied.

Mr. Advocate-General on behalf of the Respondent contended that under the -Proclamation and in view of the subsequent order passed by the President being G.S.R. 985 dated June 29, 1971, the Governor can also exercise the power under Article 311(2), proviso (c)� It is argued further by Mr. Advocate-General that if an order is made by the Governor under Article 311(2), proviso, (c) in the interest of the security of the State, the Court cannot go into the question of satisfaction of the Governor or, in other words, the matter is not justice able by the Court.

Mr. Acharyya contended that after the Proclamation under'' Article 356, the order under Article 311(2), proviso (c) must be passed by the President and that the Proclamation'' can be amended only by another proclamation and not by any order made by the President under the Proclamation or that the older contained in G.S.R. 985 is bad in law. It will appear from the proclamation made under Article 356 by the President it has been specifically provided in the proclamation itself that the President has power under Clause (c) to make the following incidental and consequential provisions which appear to me to be necessary or desirable for giving effect to the objects of this Proclamation, namely, (i) in the exercise of the functions and powers assumed to myself by virtue of Clause (a) of this Proclamation as aforesaid, it shall be lawful for me as President of India to act to such extent as I think fit through the Governor of the said State.

In exercise of that power the President on June 29, 1971, made the following order being G.S.R. No. 985 ;

ORDER New Delhi, the 29th June, 1971.

G.S.R. 985--The following Order made by the President is published for general information:

In pursuance of Sub-clause (1) of Clause (c) of the Proclamation issued by me on this the 29th day of June, 1971, under Article 356 of the Constitution of India, I hereby direct that all the functions of the Government of the State of West Bengal and all the powers vested in or exercisable by the Governor of that State under the Constitution or under any law in force in that State, which have been assumed by the President by virtue of Clause (a) of the said Proclamation, shall, subject to the superintendence, direction and control of the President, be exercisable also by the Governor of the said State.

V.V. Giri, President From the said order it will appear that the President ordained that all the powers and functions of the Government of West Bengal and all the powers vested in or exercisable by the Governor of that State under the Constitution or under any law in force in that State shall be exercisable also by the Governor of the said State subject to the superintendence, direction and control of the President. Therefore, all the powers may be exercised by the Governor. The President also can exercise the power. Therefore, all the executive powers and functions of the State of West Bengal can be exercised either by the President or by the Governor in the matter of administration of a State under the President''s Rule.

Mr. Acharyya contended that the Proclamation being G.S.R. 984 cannot be varied or modified by a subsequent order as in this case by order being G.S.R. 985. It appears from Article 356 of the Constitution and Clause (c)(i) of the Proclamation that the President has a power to act to such extent through the Governor of the said State. Therefore, when with the issuance of the order being G.S.R. 985 the President made it clear that the power vested in the President can be exercisable by the Governor also there, is no bar for the Governor to exercise all powers vested in the Constitution on the Governor. It has been held by me. in the case decided in Re Monish Biswas v. State Unreported that the Governor in the State under the President''s Rule can also exercise the power given to the Governor under the Constitution by virtue of order made under the Proclamation for exercising the powers under the provision being Clause (c)(i) of the Proclamation. I have also held in Jyotirmoy Bose Vs. Union of India (UOI) and Others, that the Governor under a President''s Rule can appoint Advisors and that will not amount to sub-delegation of delegated power. In the decision in Union of India v. Durgagati Bhattacharya (1971) 76 C.W.N. 67 it has been held that under the President''s Rule the Governor can'' pass the order of promotion of a Government servant. The President can also pass the same order or, in the other words, if the President passes the order of promotion in respect of the Government servant that will prevail, but there is no bar to the Governor for passing the order though the said order may be subject to the superintendence, control and supervision of the President. Anil Kumar Sen J. has also held that�

In the President''s Rule the Governor has the power to pass the order in a matter of appointment of commission of enquiry.

The aforesaid judgments, in my view, make it clear that the Governor of a State under the President''s Rule can exercise all functions of the State and all powers vested in or exercisable by the Governor of the State can still be exercised by him subject only to superintendence, control or direction of the President. Mr. Acharyya further argued that this power given under Article 311(2) cannot be delegated as held by the Supreme Court in B.K. Sardari Lal Vs. Union of India (UOI) and Others, . If it is held, Mr. Acharyya argued, that the Governor can pass the order in a President''s Rule that will mean that the order passed under Article 311(2), proviso (c) by the Governor is a power of the President exercised by delegate the Governor. The Supreme Court held that this cannot be done. The Supreme Court in Bk. Sardari Lal. v. Union of India held that the power given under Article 311(2), proviso (c) cannot be delegated. In the said case, Sardari Lal was dismissed under Article 311(2), proviso (c). There was in fact no satisfaction of the President of India but the order was passed by a Secretary of the Union of India. The Respondent Union of India contented that under the rules of business the Secretary has a power to do the same. The Supreme Court held that the satisfaction must be of the President himself and not of any Secretary of the Department. We are concerned in this case whether the Governor or the President of India has the power under Article 311(2), proviso (c) under the President''s Rule. There is no dispute that the Governor had passed the order. Mr. Advocate-General contended that in view of G.S.R. 985, on June 29, 1971, the Governor is competent to pass the order impugned. Mr. Acharyya, however, contended that G.S.R. 985 is nothing but a modification of the Proclamation itself. In my^ opinion, that is not the correct way to read the order G.S.R. No. 985. The order does not vary the Proclamation. In making an order in terms of G.S.R. 985, the President is only exercising the powers bestowed on him under the Proclamation being G.S.R. 984. The next contention of Mr. Acharyya is that- the impugned order under Article 311(2), proviso (c) under the Constitution of India is justice able. The President''s order was struck down in the Privy Purse case, H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another, . Mr. Acharyya referred to paras. 94 and 95 of the said case in support of his contention. In my opinion, there is no doubt that if the power is exercised by the President contrary to the Constitution the Courts have power to set it at naught. The Supreme Court in the Privy Purse case held by a blanket order made by the President in respect of the Privy Purse case sought to abolish the institution itself and the order, therefore, was contrary to the constitutional provision and cannot be sustained. If it is found that the President assumed power where there is none in the Constitution, it will amount to assumption of jurisdiction contrary to the provision of the Constitution and can be said to be invalid. If in the present case it is found that the Governor or for that matter the President has no power to terminate the appointment of a Government servant in the way it was done,'' then certainly the Government servant can agitate in the Court that the power has been exercised which was not to be supported by any provision of the Constitution, but that is not the argument here. Here the said order as passed cannot be maintained as the satisfaction of the Governor in respect of the security of the State is condition precedent for the exercise of powers and the Court could go into the question of satisfaction of the Governor before the order can be upheld. Mr. Acharyya argued that the order is illegal and unconstitutional order, inasmuch as, there is no charge at all against the Petitioner and there is nothing by which either the President or the Governor can be satisfied that the interest of the security of the State is involved so that the protection given to the Government servant under Article 311(2) can be taken away. In my opinion, the satisfaction o� the President or the Governor under Article 311(2), proviso (c) is not justice able at all. The view is supported by the case B.C. Dass etc. Vs. State of Assam and Others, . In that case the Supreme Court upheld the termination of service of a Government servant under the order passed under Article 311(2), proviso (c). In paras. 4 and 5 of the judgment it has been stated as follows:

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 Clause (2) of Article 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 un-amended Article 311(2), it does not in our view detract from its effectiveness as operating to exclude the applicability of the amended Clause (2) of Article 311 as a whole. The use of the words in conformity with the un-amended Article serves to convey the same intention as is contemplated by the amended Article and the difference in the language which seems to be inconsequential does not have the effect of nullifying the impugned order.

No doubt Article 311(2) is intended to afford a sense of security to Government servants covered by sub-Article (1) and the safeguards provided by sub-Art. (2) are mandatory. But Clause (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 Article 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 Article 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 Clause (c) of the proviso to the amended sub-Article only speaks of the inquiry and not of imposition of penalty is understandable 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 un-amended Article 311 and not to the amended Article, and it is further kept in view that the amendment of Article 311 in 1963, as already explained, was only designed to clarify and give effect to the judicial decisions interpreting the un-amended 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 light of what has just been stated, they quite clearly exclude the applicability of Sub-article (2) of Article 311 in both cases.

By the majority decision rendered by Dua J. the Supreme Court held that Clause (c) of the proviso to Article 311(2) is designed to safeguard the larger interest of the security of the State and 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. Bhargava J. who was in minority did not dispute the power under Clause (c) of the proviso to Article 311(2) and agreed with the majority that in the interest of the national security of the State the President or the Governor, as the case may be, can pass the order but in the facts of the case it appears, his Lordship Bhargava J. observed, that the Governor did not comply with the amended provision of Article 311(2) and that there was in fact no satisfaction so recorded in regard to the inexpediency to hold an enquiry.

It will appear further in a case, Jagdish Dajiba Vs. The Accountant-General of Bombay and Others, , while dealing with the power of the Governor under Article 311(2) proviso (c), the Bombay High Court held as follows:

It was next urged that the order should be considered as contravening Article 311(2) of the Constitution in view of the fact that there was no material from which the President could be satisfied that it was not expedient to give to the Petitioner an opportunity of showing cause against his proposed dismissal. In other words,'' this means that satisfaction of the President in terms of Article 311(2), proviso (c), should be made a justice able issue before the Court, and the satisfaction of the President should be proved as an objective fact before this Court upholds the impugned order. It is not necessary to spend many words for rejecting such contention. Article 311 provides that no person in the services mentioned therein shall be dismissed until he has been given a reasonable opportunity of showing cause unless "the President is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity." It is obvious that what the above provision of the Constitution requires is satisfaction of the President about the expediency of not giving an opportunity to the employee concerned in the interest of the security of the State. To make such matter a justice able issue would mean that the Court should be also satisfied about such expediency and then only the order of the President passed under the powers given by the Constitution should be upheld by the Court. This would amount to substituting satisfaction of the Court in place of the satisfaction of the President. It is possible that what may satisfy the President may not satisfy the Court. What may be found expedient by the President may not be so found by the Court. If Courts were to demand proof of such satisfaction and the evidence of material on which the satisfaction was reached, the Courts would be virtually depriving the President of the powers and confidence which the Constitution in its wisdom has reposed in President.

The said decision was also followed by the Calcutta High Court in a case Narendra N. Das Vs. State of West Bengal, . Mr. -Justice P. C. Mullick''s decision was reversed by the Appeal Court but the relevant portion regarding the satisfaction of the Governor was not varied by the Appeal Court. The view of the Bombay High Court was accepted by several decisions of the High Court of Andhra Pradesh: Mohammad Azam v. State of Hyderabad AIR 1958 A.P. 619 (621, 622); B. Eswaraiah v. State of Andhra (now Andhra Pradesh) AIR 1958 A.P. 288 (291) and Mohamed Hyder Vs. State of Andhra Pradesh, . I respectfully agree with those views. The last point argued by Mr. Acharyya is that the Rule has been framed under Article 309 by which the dismissal can only'' be made following the procedure laid down in the West Bengal Services (Classification, Control and Appeal) Rules, 1971. The order of dismissal having been passed without following that procedure, the order is bad or, in other words, Mr. Acharyya''s argument is that the dismissal of the Petitioner without any reference to Rule 8 of the said Rules is ultra vires. In my opinion, the rule framed under Article 309 of the Constitution cannot abridge the power of the President or the Governor under Article 311(2), proviso (c). In fact Rule 10 has made it quite clear that the said power of the Governor under Article 311(2), proviso (c) has not been touched at all. Assuming, as Mr. Acharyya argued, that the rule framed must be given effect to in spite of Article 311(2), proviso (c), it must be held to be ultra vires being contrary to the power given to the President or the Governor under the Constitution, but in my opinion, there is no such abridgement of the power of the President or the Governor at all. If the disciplinary proceeding is taken for dismissal or removal, the disciplinary authority will have to follow the rules laid down under the West Bengal Service (Classification, Control and Appeal) Rules, 1971, but under Rule 10 it has been made clear that in respect of the matter, so far as the national security of the State is concerned, the power is vested in the Governor. In my opinion, Mr. Acharyya''s contention is that in view of the power given under Rule 8 the power of the President must be deemed to be restricted because of the framing of rule under Article 309. From the Article 309 it will be clear that any rule framed under Article 309 will be subject to the provision of the Constitution, that is, in the present case, subject to the provision of Article 311(2), proviso (c), if there is any rule which contravenes that provision of the Constitution, namely, amongst others, Article 311(2), proviso (c), the rule shall be void ab initio. It is made clear under Article 310 that the pleasure of the Governor will be subject to the limitation under Article 310(2) or Article 311(1) &: (2). The absolute pleasure of the President in respect of the Government servant has been curtailed under Article 311(2) or subject to any rule that may be framed under Article 309. Any rule framed under Article 309 cannot limit the power under Article 311(2), proviso (c) of the Constitution of India.

Mr. Acharyya contended that Article 310 only applies in a matter coming under Article 311(2), proviso (c), but even if Article 310 applies, the principle of natural justice must be followed. Mr. Acharyya contended that if there is no rule in respect of relationship of master and servant and no procedure has been laid down, the natural justice enjoins that the Respondent must give the Petitioner opportunity of showing cause and he contended that even when there is no such rule the principle of natural justice must be followed. In support of his contention Mr. Acharyya referred to Jyoti Prokash Mitter v. The Hon''ble Mr. Justice H.K. Bose, Chief Justice of the High Court, Jyoti Prokash Mitter Vs. Hon''ble Mr. Justice Himansu Kumar Bose, Chief Justice, High Court, Calcutta and Another, . In my opinion, this case has no relevancy with the matter before me. It has been held by the Supreme Court that in the relationship of master and servant, even if there is no rule, the principle of natural justice must be followed. In the present case, Article 311(2), proviso (c) specifically gives the power to the President or the Governor, as the case may be, to terminate an appointment or dismissal without giving any opportunity or the enquiry contained in Article 311(2) on his being satisfied that in the interest of the security of the State such enquiry is not expedient. If the Governor is satisfied that the security of the State is involved he can pass the order under proviso (c) to Article 311(2) and as I have already held that such satisfaction is not justice able in the Court of law. In my opinion, therefore, the point urged by Mr. Acharyya has no substance. It must be stated here that in Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., it has been pointed out by the Supreme Court that Article 311(2) is not controlled by any rule framed under Article 309. Otherwise if it is found that Article 311(2) is controlled by rule framed under Article 309 it will mean that subordinate legislation can be made restricting the power given under the Constitution either to the President or to the Governor. In my opinion, that will, be absurd proposition. Mr. Acharyya lastly contended that the order as communicated to the Petitioner and the order in annEx. A is at variance. The order in annEx. A is in the following terms:

Government of West Bengal I. and W. Department Order No. 089/S/IW. Calcutta, the 13th September, 1971 Whereas you Shri Chunilal Das Gupta, Assistant of the Irrigation Directorate, I. and W. Department, hold your office during the pleasure of the Governor;

And whereas the Governor is satisfied -that you are entirely unsuitable for retention in service;

And whereas the Governor is satisfied that in the interest of the security of the State it is not expedient to hold an enquiry into the charges against you under Clause (2) of Article 311 of the Constitution of India ;

Now, therefore, the Governor is pleased to dismiss you from service with immediate - effect.

By order of the Governor Sd/- R. Ganguli, 13.9.1971 Secretary to the Govt, of West Bengal Now when the Petitioner moved this Court challenging the order of satisfaction of the Governor, an affidavit has been filed giving the order of the Governor passed by him on September 12, 1971. It will be found from the said order that the Governor was satisfied that Sri Chunilal Das Gupta''s continuance in public service is detrimental to the public interest and secondly the Governor was also satisfied under Article 311(2), proviso (c) of the Constitution of India that in, the interest of the security of the State it is not expedient to hold an enquiry. The order as contained in annEx. A to the petition is a communication of the order passed by the Governor. In view of the fact that there is an existence of the satisfaction of the Governor regarding the relevant matter coming under Article 311(2), proviso (c), the Court will not invalidate the Governor''s order on un-substantial or hyper-technical ground as has been held by the Supreme Court in Bhagaban Chandra Das v. State of Assam and Ors. (Supra). In my view, it is clear in both the orders passed by the Governor on September 12, 1971, and the formal order dated September 13, 1971, duly authenticated by the Secretary of the Department cannot be said that the Governor was not satisfied in respect of the matters of Article 311(2), proviso (c) or that satisfaction is non-existent.

In the circumstances stated above the Rule stands discharged. All interim order is vacated.

There will be no order as to costs.