Gursewak Singh Harnam Singh vs The State

Teja Singh, C.J.—This is a petition under Article 226 by Fsewak Singh. The Petitioner alleged that he a permanent member of the Education Service if the State. He was, suspended by the Government by their order dated 4-9-1951 and an inquiry was startgd against him on the following two charges:

That in his application dated 30-9-1947 for appointment as a lecturer in Mohindra College, Patiala he mentioned that he passed his M.A. examination in English, obtaining 317 marks, in Second division, in the year 1946, but the inquiries from the Punjab University showed that he passed his M.A. examination in English in the Third division obtaining 287 marks; and

that he made a false statement in his above- mentioned application.

The inquiry was conducted by the then Education Secretary and as a result of it the Petitioner was honourably acquitted and ordered to be reinstated. Notwithstanding this the Government not only did not reinstate him but served him with a notice on 2-4-1953 to show cause why he should not be dismissed for securing service by falsely representing himself as a second-class M. A. where as he was only third-class M.A. The Petitioner''s position is that the notice issued to him by the Government on 2-4-1953 was a

camouflage for their inaction to issue the necessary order of posting and that a second enquiry on the same facts is against the principles of natural justice and the spirit of the Constitution of India.

Accordingly he prays (i) that a writ in the nature of mandamus be issued, directing the Respondent State to issue the necessary orders of posting and '' .further restraining them from harassing the Petitioner by holding a second enquiry on the same matter already adjudicated upon; and (ii) any other order or direction that may be deemed necessary and expedient in the circumstances of the case be made.

The petition was opposed by the learned Advocate General on behalf of the State. He first of all pleaded that the petition was premature since the Government had, not passed any final orders regarding the steps to be taken against the Petitioner in connection with the inquiry held against. He further. pleaded that the Petitioner''s'' prayer that Government be restrained from harassing the Petitioner by holding a second inquiry was redundant and did not arise at all "since there is no second inquiry contemplated by the Government". As regards the prayer that orders be issued to the Government for posting the Petitioner, the Advocate General urged that the matter was entirely within the discretion of the Government and no such orders could be given by the Court.

As regards merits the learned Advocate General. admitted that the Petitioner was an employee of the State, that an inquiry was started against him under the orders of the Government and the, same was held by the Education Secretary but he, denied that the Petitioner was ordered to be re-, Instated. It was mentioned in the petition that the Petitioner had been informed by the Secretary to the then Chief Minister that orders for his reinstatement had been made by the Chief Minister and the Education Minister. As regards this the reply of the learned Advocate General was as follows:

The Petitioner may have been informed by S. Mangal Singh, Secretary to the then Chief Minister. It is, however, submitted that the final orders of the Government can only be communicated by the Secretaries to the Government. This is the intention of Article 166 of the Constitution of India. The communication, therefore, by S. Mangal Singh, who was Secretary to the Chief Minister, cannot be said to be a communication on behalf of the Government. Moreover, no final orders have so far been passed by the Government in connection with the inquiry held against the Petitioner.

So far as the notice of 2-4-1953 la concerned, the Advocate General admitted it and pleaded that it was within the power of the Government to give the notice and it had been given with a view to affording the Petitioner an opportunity of showing cause why the action proposed should not be taken.

The first question to be determined is whether any final orders were passed by the Government on the enquiry held against the Petitioner by the Education Secretary and whether the orders were that the Petitioner be reinstated. According to the Petitioner the best evidence on this point consisted of the orders made by the Chief Minister and the Education Minister on the report of the enquiry officer and he had a notice issued to the Respondent''s counsel to produce those orders in Court. On 1-7-1953 the learned Advocate General stated before me that he had no objection to producing the order but added that he would do so on the next date of hearing.

As I was of the opinion that the documents must be shown to the Petitioner''s counsel before the date of hearing, I ordered the Advocate General to show the orders to the Petitioner''s counsel in a couple of days and also to place copies thereof on the record. On the next date counsel for the State made an application objecting to the production of the said orders on the ground that the orders constituted unpublished documents relating to the affairs of the State and the Education Secretary who was the head of the Department claimed privilege in respect of them. After hearing counsel for the parties, I held that the orders did not relate to affairs of State and no privilege could be claimed in respect of them and accordingly I ordered the Advocate General to place copies of them on record.

Before discussing the effect of these orders upon the point which is now before me I may mention that the learned Advocate General argued that the orders of the Chief Minister and the Education Minister could not be used in evidence in the case for other reasons, viz., one, that they constituted merely an advice given by the Ministers to the Rajpramukh and, two, that they were not properly authenticated as rcquhed by Article 166 of the Constitution. I have no hesitation in holding that both the contentions are wholly devoid of force. It is true that it is the privilege and the right of the Ministers, including the Chief Minister, to tender their advice to the Rajpramukh in certain matters upon which the latter alone can make the final orders, but a large number of cases are disposed of by the Ministers in charge of their respective departments and though the orders made by thorn are described as those of the Rajpramukh the Rajpramukh need not and, in fact, does not know anything about them.

Cases that must of necessity go to the Rajpramukh for his approval are enumerated in Rule 34 of the Rules of Business framed by the Rajpramukh under Clauses (2) and (3) of Article 166 read with Article 238, and the present case is not one of them. The Advocate General relied upon Clause (7) of Rule 34. but that relates to proposals for dismissing, removing or compulsorily retiring off any officer belonging to class I and class II Service. In my opinion, this clause could apply only in that case if the Minister had made a proposal .for the dismissal or removal or compulsory retirement of the Petitioner, and since there was no proposal of this kind there was no necessity to, submit the case to the Rajpramukh. This means that the matter was within the competence of the Education Minister to decide without referring it to the Rajpramukh and the words of his order leave no doubt that he decided it finally. The perusal of the Chief Minister''s order dated 9-2-53-shows that the case was first submitted to him. He went into all the papers", including the report of the enquiry officer, and summed, up his findings, in the following words:

From the evidence on the file it would be wrong: to conclude that S. Gursewak Singh had any guilty" intention in making the alleged misstatement. Had this been a deliberate misstatement of fact, it would have called for serious action but as it is it would be betraying the ends of justice if any punishment ''is given to this case when the motive had not been proved,'' His final orders were:

I, therefore, agree with the findings of the Enquiry Officer and disagree with the conclusions drawn by the Chief Secretary and direct that S. Gursewak Singh be reinstated with immediate effect. He should be given the pay to which he would have been entitled had he has been suspended and the period of absence from duty should be treated as period spent on duty for all purposes.

The concluding part of his order reads as follows:

As has been observed by the Enquiry Officer it would not be proper to retain S. Gursewak Singh in the Education'' Department as it has been established that he is only a third class M. A. He should, therefore, be transferred to a different cadre of service carrying equivalent pay.

After this the case was placed before the Education Minister who was in charge of the Department, and he passed the following order on 2-3-1953:

He is re-instated. He may, however, be transferred to some other department. He will not be retained in the Education Department. It will be the responsibility of the Home Department to absorb him.

The note appearing on the copy of the said order shows that it was communicated to the Chief Secretary vide endorsement No. 648-DM/A dated 5-3-1953. As regards the objection that the order was not valid because it was not expressed to be taken in the name of the Governor as required by Clause (1) of Article 166, I have held in several cases including - ''H.S. Bedi v. Govt. of Pepsu'' AIR 1953 Pepsu 196 (A), that the. provisions of the Article are directory and not mandatory and if the order is made by a competent authority it cannot be treated as invalid merely because it is not couched in the proper form.

As regards the effect of the order of the Education Minister, the learned Advocate-General has not been able to convince me that it did not dispose of the case finally, or that it cannot be enforced. He argued that according to the Constitution Ministers merely acted as advisers to the Rajpramukh. Technically speaking, this is no doubt correct, but as I have already mentioned, all cases do not and need not go to the Rajpramukh and every Minister is competent to administer his department and give appropriate orders except in those cases which according to the Rules of Business must be submitted to the Rajpramukh. It is the essence of all democratic Constitutions of the kind we have in this country that even in matters which must be submitted to the Head of the State for his approval the latter is bound to follow the advice given to him by his Ministers but in the present case in which the Minister was not bound even to submit the case to the Rajpramukh the orders made by him were final and must be enforced.

The learned Advocate-General was not able to cite a single authority in support of his contention that this was not the case. The fact that the order was not communicated to the Petitioner by a competent authority in the form provided by the Constitution is immaterial and cannot affect the legality of the order which was otherwise final. This aspect of the matter was also discussed by me in - ''Bedi''s case (A)'' in which I quoted certain observations made by Dass J. in - Dattatreya Moreshwar Pangarkar Vs. The State of Bombay and Others, Some of those observations may be reproduced with advantage here:

It is at this stage that learned Counsel for the Petitioner passed on to Article 166 of the Constitution and contends that all executive action of the Government of a State must be expressed and authenticated in the manner therein provided. The learned Attorney-General points out that there is a distinction between the taking of an executive decision and giving formal expression to the decision so taken. Usually executive decision is taken on the office files by way of no tings or endorsements made by the appropriate Minister or officer. If every executive decision has to be given a formal expression the whole governmental machinery, he con tends, will be brought to a standstill .... The learned Attorney-General then falls back upon the plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the decision itself illegal, for the provisions of that Article, like their counterpart in the Government of India Act, are merely directory and not mandatory as held in - ''J. K. Gas Plant Manufacturing Co. (Rampur) Ltd. v. Emperor'' AIR 1947 PC 38 (C)., In my opinion this contention of the learned Attorney-General must prevail. It is well-settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.

The next question is whether any relief should be granted to the Petitioner. The Petitioner''s prayer that the Government should be ordered to post him back to the appointment that he held at the time he was suspended cannot be granted and there are two reasons for this. One is that both the Chief Minister and the Education Minister though directed the reinstatement of the Petitioner also held that he was not fit to be retained in the Education department and he should be given some other suitable job in some other department. The second is that whether a person should be given one job or the other is a matter which is entirely in the discretion of the Government. Different, however, is the case with regard to the other prayer made by the Petitioner that the State should be Restrained from harassing the Petitioner by holding a second enquiry on the same matter which had already been adjudicated upon.

It is true that it is mentioned in the written statement of the State and the Advocate-General also made a categorical statement on this point that Government do not contemplate to start a fresh enquiry against the Petitioner but the notice of 2-4-1953 that they have issued to the Petitioner leaves no doubt that they want to reopen the whole affair and in spite of the fact that the Chief Minister and the Education Minister have exonerated him and ordered that he should be reinstated they have issued a notice to him to show cause why he should not be dismissed, for exactly the same act as was the subject-matter of the previous enquiry. The words of the notice are:

I am directed to ask you please to show cause why you should not be dismissed from service for securing service by falsely representing that you were second Class M. A. whereas you were only a third-class M.A.

No doubt there is some difference in the phraseology of the notice and the charge on which the previous enquiry was held but they both relate to the same incident and even though Government do not hold a fresh inquiry if they take any action on the notice now issued to the Petitioner they would in effect be setting aside the orders of the Chief Minister and the Education Minister by which they exonerated the Petitioner of the charge and further directed that he be reinstated. In view of my finding that the orders made by the Chief Minister and the Education Minister disposed of the previous enquiry finally, I hold that this is not within the powers of the Government to do. I need not point out that when a matter has been finally disposed of by a competent authority it cannot be reopened by his successor except under the express provisions of law. This principle applies to all judicial cases, civil as well as criminal, regardless of the fact whether the matter is decided in favour of one party or the other. There are well-known statutory provisions bearing on the point to which it is not necessary to refer here.

It is true that no express provision exists regarding executive matters such as departmental enquiries, but equity and justice demand that they should also be governed by similar principle. Otherwise if enquiries that are finally disposed of by one authority are liable to be reopened by a successor of that authority this will not only result into injustice but into chaotic conditions and no one would be sure of his rights. The learned Advocate-General argued that the present Government which has succeeded the previous Government have powers of reviewing the decisions taken by the latter Government. He has not been able to support his contention by any authority and I am not prepared to accept as it appears to me to be opposed to all principles of equity and fair play.

In addition to the prayers expressly mentioned in the petition learned Counsel for the Petitioner submitted that a writ of mandamus be issued to the State directing them to implement'' the orders made by the Chief Minister and the Education Minister. The learned Advocate-General ''opposed this prayer. He contended that before a writ of mandamus could be granted the Petitioner had to allege and to prove that it was the duty of the Government to implement the orders in question, and further that he had approached the Government for the appropriate relief and they had refused to grant the same to him, but the petition was altogether silent on these points. This contention in my opinion is well-founded and the Petitioner has not made out any case for issue of a writ of mandamus.

The result is that I allow the petition to the extent that I issue a direction to the Respondent State to cancel the notice dated 2-4-1953 that they have given to the Petitioner and not to take any further proceedings in connection therewith. Since the petition has succeeded only partly I leave the parties to bear their own costs.