K.R. Rama Iyer vs The State

Teja Singh, C.J.—This petition under Article 228 of the Constitution of India for the issue of writs or directions against the Patiala & East Punjab States Union was made under the following circumstances:

The petitioner Shri K.R. Rama Iyer was appointed Finance Secretary to the Government of the State with effect from 7-4-1951. According to the terms of the appointment contained in the Home Department Letter No. HD/2714/0 of 9th May 1951, the tenure of the appointment was for two years and the salary to be paid to the petitioner was Rs. 3,000/- per mensem minus the -voluntary cut of Rs. 250/- and Rs. 640/11/1 pension which he had earned on account of his previous service. On 7-7-1951, Under-Secretary to the Home Department of the Government informed the petitioner that it was proposed to include in his terms of appointment another term whereby the appointment could be terminated on "one month''s notice by either side or pay in lieu thereof" and asked the petitioner to intimate if this was acceptable to him. The petitioner wrote back to the Government saying that he was unable to accept the inclusion of the proposed term. On 6th September 1951 the petitioner received a notice from the Chief Secretary to the Government informing him that his services as Finance Secretary were no longer required by the Government and that the same would stand terminated at the expiry of a period of one month from the said date. To this the petitioner''s reply was that according to the terms of the contract the Government would have to pay him salary for the unexpired part of the period of two years for which he had been appointed. On 1st October 1951, the Chief Secretary conveyed to the petitioner an order of His Highness the Rajpramukh of the same date suspending him:

with immediate effect pending an enquiry against him and ordering that he be admitted to subsistence allowance at the rate of Rs. 480/- P.M., during the period of his suspension.

The same day the Chief Secretary addressed a letter to the petitioner in which it was stated that since he had taken up the position that the Government could not terminate his services without cause, before the expiry of the stipulated period of two years, the Government on further consideration but without accepting the correctness of the petitioner''s contention; decided to cancel the notice of 6-9-1951. By means of the same letter the petitioner was asked to show cause as to why he should not be dismissed from service on the three grounds mentioned therein and be was informed that whatever representation that he had to make in respect of the charges he should do so on or before the 11th of October 1951. Apart from this, the letter referred to the decision of the Government, which had already been communicated to the petitioner, that he had been placed under suspension and that he would receive subsistence allowance at the rate of Rs. 480/- per mensem. According to the petitioner the letter in question was handed over to him by the Chief Secretary himself on the 3rd October. The correctness of this allegation was admitted by the Counsel for the respondent. Later on the enquiry against the petitioner was entrusted to Shri B.R. Tandon, Adviser to the Patiala & East Punjab States Union and the petitioner was duly informed of this fact on the 7th November. The present petition was instituted on the 22nd November.

The main contentions of the petitioner are that the order suspending him from service was illegal and without jurisdiction and in view of the position occupied by Shri B.R. Tandon and the part that he had played in the proceedings which culminated in the petitioners suspension it was wrong on the part of the Government to entrust the enquiry to him. On these allegations he prays that the following writs be issued:

(1) A writ of ''certiorari'' quashing the orders of the Government, dated 6-9-1951, 1-10-1951 and 7-11-1951,

(2) A writ of prohibition or ''mandamus'' restraining the State from dismissing the petitioner from service as Finance Secretary before the expiry of the stipulated period of two years without affording him reasonable opportunity of showing cause against such dismissal in accordance with law.

The provisions of the Indian Constitution which relate to services and the matters like recruitment, conditions of service, tenure of office and the dismissal, etc., of persons employed in civil capacities under the Union or the States are contained in Part XIV. Some of these have been elides upon by one side or the other and I think I had better refer to them at this stage. Article 309 lays down that subject to the provisions of the Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. The proviso to the Article is that in the case of services and posts in connection with the affairs of the State it shall be competent for the Governor or Rajpramukh of the State or such person as he may direct in this behalf to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision In that behalf is made by or under an Act of the appropriate Legislature and any rules so made shall have effect subject to the provisions of any such Act. Clause (1) of Article 310 in so far as it relates to persons who are members of a Civil Service of a State or who hold any civil post in a State, lays down that except as expressly provided in the Constitution every such person hold office during the pleasure of the Governor or as the case may be, the Rajpramukh of the State.

Art. 811 reads as follows:

(1) No person who is member of a Civil Service of the Union or an all India service or a Civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed;

(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.

The proviso to Clause (2) exempts certain persons from the operation of clause: with such persons we are not concerned in the present case. It is provided in Article 313 that; "Until other provision is made in this behalf under this Constitution all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an All-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.

Article 315 deals with Public Service Commissions for the Union and a Public Service Commission for each State. It is laid down in Clause (3) of Article 320 that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted among others on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters and it shall be the duty of a Public Service Commission to advise on any matter so referred to them. The following is the proviso to Clause (3):

provided that the President... and the Governor or Rajpramukh, as the case may be as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.

So far as the order of suspension is concerned the petitioner maintains that it amounts to reduction in rank within the meaning of Clause (2) of Article 311 of the Constitution and it was not within the jurisdiction of the Government to make it without giving him a reasonable opportunity of showing cause. He further maintains that the matter being one of disciplinary nature it was incumbent upon the Government to consult the State Public Service Commission and since this was not done the order contravened the provisions of Article 320 and is illegal. As regards the second objection there appears to be no force in it whatsoever. The Patiala & East Punjab States Union Public Service Commission came in existence by virtue of Ordinance No. VI (6) of 2006 published in the Patiala & East Punjab States Union Government Gazette, dated 7-1-2006/9-4-1949. It was laid down in Section 8 of the said Ordinance that:

The Rajpramukh may, as respects services and posts in connection with the affairs of the Union, make regulations specifying the matters on which, either generally, or in any particular class of cases or in any particular circumstances it shall not be necessary for the Commission to be consulted.

The regulations made in pursuance of the said section and contained in Notification No. 6, dated 26th April 1949, were published in the Government Gazette of 3rd July 1949. Regulation 5 enumerated the matters in which it was not necessary to consult the Commission and they included an order suspending a person for not more than one year. The new regulations made under Article 320 were issued by means of a Notification No. 506, dated 3-11-1951. In view of the fact that the order suspending the petitioner was made on 1-10-1951, by virtue of Article 313 quoted above it was governed by the old regulations and since his suspension was not for a year or more the Government were not bound to consult the Public Service Commission. Apart from this it may be mentioned that had the case been governed by the new regulations even then it would not have been necessary to consult the Commission. The relevant regulation is regulation No. 4 according to which it is not necessary to consult the Commission before an order is passed in any disciplinary case other than an order withholding of an increment or promotion, reduction to a lower post or time-scale, or to a lower state in a time-scale, recovery from pay of the whole or part of any pecuniary loss cause to government by negligence or breach of orders, removal from service or dismissal.

Now as regards the first objection. The position of the respondent''s Counsel is that neither Article 311 of the Constitution has any application in the present case nor can a suspension pending enquiry be regarded reduction in rank, and he maintains that action against the petitioner has been taken under Appendix III of the Patiala Service Regulations. The relevant paragraphs of the Appendix are 1, 2 and 3. Paragraph 1 is to the effect that when a Head of the Office has reason to suspect that a State servant under his control has rendered himself liable to punishment whether on the grounds of inefficiency negligence, breach of discipline, dishonesty, or corruption, he should hold a preliminary enquiry whenever he deems it necessary to do so to make out a ''prima facie'' case but if the offence is of a simple nature and so obvious that the ''prima facie'' case is already established, it will be at his discretion to dispense with a preliminary enquiry. The paragraph also lays down that the preliminary enquiry should be held secretly, if possible, but if secrecy is impossible the State servant should ordinarily be transferred before the enquiry is started. Paragraph 2 reads as follows:

If the head of the office is satisfied that a ''prima facie'' case has been established or that there are reasonable grounds to believe that the offence has been committed it will be for him to determine whether the criminal prosecution shall be started or whether the formal enquiry shall be made department ally. If the preliminary enquiry has made out a strong ''prima facie'' case which if proved renders the State servant liable to criminal prosecution the Legal Remembrancer.......should be consulted and if they are of opinion that the case would be successful a criminal prosecution should be started rather than a departmental enquiry.

Paragraph 3 says:

If the preliminary enquiry; has made out a ''prima facie'' case, which if proved, would render the State servant liable to criminal prosecution or to dismissal or discharge "from State service or there are reasonable grounds for believing that the person concerned has committed the offence he should be placed at once under suspension.

Mr. Atma Ram, learned Counsel for the petitioner, relied upon the observations made by Bose, J., In AIR 1949 118 (Nagpur) , which were to the effect that when a person is suspended he is reduced in rank within the meaning of Sub-section 3 of Section 240. No doubt the words of Sub-section (3) of Section 240 are similar to those of Clause (2) of Article 311 of the Constitution and the interpretation of the phrase ''reduced in rank'' as given in the above mentioned case is entitled to great weight but the nature of that case being quite different from that of the present petition, I am inclined to think that the said observations do not help the petitioner. The other point of difference between the present case and the Nagpur case is that we do not know whether any rules of service had been made by the Governor of the Province which were applicable in the case of the person whose suspension was before the learned Judges of Nagpur, and if there were any rules, whether they made a provision for suspension pending the inquiry as do the Patiala Service Regulations. So we are left now with the Patiala Service Regulations and the question is whether the order suspending the petitioner was properly made under paragraph 3 of Appendix III to those Regulations. The words of paragraph 3, which I have reproduced above how that if the Head of the Office holds a preliminary inquiry as laid down in paragraph 1 and that preliminary inquiry makes out a ''prima facie'' case which if proved would render the State servant liable to criminal prosecution or to dismissal or discharge from the State service or there are reasons or grounds for believing that the person concerned has committed the offence, it is the duty of the Head of the Office to place him under suspension at once. This means that the holding of a preliminary inquiry is a condition precedent. As a written statement put in on behalf of the respondent was not clear on the point, I examined Shri V. Iswaran, Chief Secretary to the Government of the State, who is said to be the Head at the Office within the meaning of paragraphs 1 and 2 of Appendix III to the P.S.R., and who is alleged to have taken action under paragraph 1. When asked whether he did hold any preliminary inquiry against the petitioner before the order suspending him was made Shri Isvaran gave the following answer:

I considered all the material that was available to me and came to the conclusion that a departmental inquiry was necessary.

On being asked further, whether he considered that this was a case in which no preliminary inquiry was necessary and consequently he exercised the discretion given to a Head of Office by paragraph 1 and dispensed with the preliminary inquiry, his answer was that if by preliminary Inquiry it was meant that witnesses had to be examined, he did not hold such inquiry, because the matter was so simple that by going through the record of the file of the petitioner he came to the conclusion that a case for a formal inquiry was there but if on the other hand a preliminary inquiry meant the examination of the material on the record he did hold such an inquiry as he went through all the papers. In the course of the cross-examination by the petitioner''s Counsel Shri V. Isvaran explained what the material and ''all the papers'' examined by him meant and stated that the records that he examined consisted of a letter from the States Ministry addressed to the Chief Minister regarding the improper conduct of the petitioner in fixing his own pay. In view of the fact that Shri V. Isvaran did not produce the letter of the States Ministry in Court and claimed a privilege for it on the ground that it constituted an unpublished record relating to the affairs of the State, I am not in a position to say that it contained, but this much is clear that notwithstanding the terms "material" and "all the letters'' used by Shri Isvaran it was on the strength of only the letter of the States Ministry that he formed the opinion that there was a ''prima facie'' case for holding a departmental enquiry against the petitioner. As I read paragraph 1, I have no doubt that the action taken by Shri V. Isvaran was covered by the said paragraph but I cannot accept the contention that this was done as a result of a preliminary inquiry, because the examination of the letter did not in'' my opinion constitute the enquiry contemplated by the paragraphs. The term enquiry is not defined anywhere and I am not prepared to say that it necessarily means the examination of witnesses, but the perusal of paragraph 1 leaves no doubt in my mind that it does mean consideration of some evidence, may be documentary. In any case, when the only material before an officer is a solitary letter, even if it be assumed that the letter is fairly detailed and contains a thorough discussion of the case, action taken on the basis or in. pursuance of that letter cannot be regarded as an action taken on an enquiry. The dictionary meaning of "enquire" or "inquire" is to ask a question to seek for truth or information by putting questions, to search, to investigate and to examine and an "enquiry" or "inquiry" means search for truth, information or knowledge, examination into facts or principles and investigation. So when paragraph 1 lays down that there should be preliminary enquiry and that it should be held secretly the intention of the farmers of the regulations was that unless the Head of the Office considers that the offence alleged to have been committed by the State servant concerned is of a simple nature and so obvious that the ''prima facie'' case was already established he should examine some evidence, oral or documentary or both and personally come to the conclusion that there was a ''prima facie'' case for formal enquiry. When this is not done and the Head of the Office merely proceeds on a communication received from some other officer his action is tantamount to the acceptance of the result of an enquiry conducted by that officer but the enquiry referred to in paragraph 1 is the one held and made by the Head of Office himself. In my judgment, therefore, no preliminary enquiry was held by Shri Isvaran, the Head of the Office in the present case and consequently the order suspending the petitioner was not covered by paragraph 3.

Before proceeding further I may mention that one of the grounds on which the petitioner challenges the order of his suspension was that it was mala fide. What the basis of this allegation was is not clear from the petition nor has the petitioner given any facts from which the Court can draw any inference of bad faith. The petitioner''s learned Counsel argued that the letters exchanged between his client and the Chief Secretary and the various orders that the Government made in respect of the petitioner from time to time reveal that Government had made up their mind to dispense with the petitioner''s services at the very outset and when they discovered that the petitioner was quite particular about his rights and they could not get rid of him easily, they resorted to the method of a departmental enquiry against him and placed him under suspension. In my opinion even assuming that these allegations are correct no presumption of ''mala fides'' on the part of the Government could be raised because it may be that they honestly and genuinely believed that the retention of the petitioner in the service of the State was not in the best interests of the administration and when they found that no other method would succeed with him they ultimately decided to proceed according to the regulations. It need not be stated that ''mala fides'' cannot be assumed but they must be proved and since the petition is entirely silent about the facts which can go to establish it, the allegation of ''mala fides'' deserves no consideration.

I now pass on to the order of the Government whereby Mr. B.R. Tandon was entrusted with the departmental enquiry against the petitioner. The legality and propriety of this order is questioned by the petitioner on the following grounds:

That Mr. B.R. Tandon does not occupy the position of Head of office of the petitioner as contemplated by Appendix III of P.S.R. and consequently he is not competent to hold the enquiry.

That Mr. B.R. Tandon in his capacity as adviser to the Government had been taking active part in the case against the petitioner, that is to say, in the matter of placing the petitioner under suspension and the framing of charges against him and the petitioner apprehends that he will not do justice to him; and

That the petitioner wishes to examine Mr. Tandon as a witness on his behalf and for this reason he is not a fit person to hold the enquiry.

There is no substance in the first ground and it was within the power of the Government to appoint any officer they liked to conduct the departmental enquiry. Mr. Atma Ram referred to Regulation 1 to Appendix III but that merely relates to a preliminary enquiry. Then since the preliminary enquiry can only be held by the Head of the Office it would be highly improper to entrust even the final enquiry to the same officer.

As regards the second ground the petitioner has placed on record his affidavit setting out the allegations on the strength of which he contends that Mr. B.R. Tandon had been taking active part in the proceedings against him. These allegations in the petitioner''s own words are as follows:

On 1-10-1951 at about 10-15, Mr. B.R. Tandon... told me that as I had placed the Government in a difficult position by claiming compensation for premature termination of my appointment, the Government had decided to get rid of me by serving a charge-sheet on me and the Government might even place me under suspension unless I unconditionally withdrew my claim for compensation, Mr. B. R. Tandon allowed me an hour within which I was expected to leave with Government my letter accepting the one month''s notice as valid and withdrawing my claim to compensation.

The counsel for the respondent has placed on record an affidavit of Mr. B.R. Tandon in which he denies that he ever told the petitioner that he had placed the Government in a difficult position by claiming compensation etc. or that the Government had decided to get rid of him by serving a charge-sheet on him. According to Mr. B.R. Tandon what happened was that the petitioner saw him in his office on the 1st of October 1951 at about 10-15 A.M. and wanted to know whether it had been possible for him (Mr. B.R. Tandon to persuade the Government to accede to his request for being retained as Finance Secretary until a successor was found and Mr. Tandon suggested to him that having regard to the status held by him in the service of the Government of India as also the Union he should think over the advisability of accepting one month''s notice served upon him by the Government and withdraw his claim to compensation and thus possibly avoid the strain and worry of an inquiry contemplated against him. It was also stated in Mr. Tandon''s affidavit that he told the petitioner that it was possible that Government might place him under suspension and that he could take an hour or two if he would act upon his suggestion mentioned above. As regards the decision of the Government to hold an enquiry into the conduct of the petitioner Mr. Tandon stated in his affidavit that it was an independent decision of the Government and was brought to his notice on 1-10-1951 when the Chief Secretary showed him the letter that was proposed to be addressed to the petitioner in order that as an Adviser to the Government Mr. Tandon should satisfy himself as to the propriety of the decision. Mr. Tandon''s affidavit contains a solemn declaration on his part that he entertained no prejudice against the petitioner which could in any way influence the findings in respect of the charge-sheet drawn up by the Government against the petitioner and that the findings in the case would be given after consideration of the weight of all the evidence that may be produced by or against the petitioner. Taking into consideration the fact that the petitioner has nothing to say against Mr. Tandon personally and in view of the responsible position that Mr. Tandon is holding I accept his version of what transpired between him and the petitioner in preference to that of the latter and my opinion is that the petitioner has not been able to make out that Mr. Tandon will not be able to hold the enquiry impartially or that the Government acted improperly in entrusting the enquiry to him. In addition it was entirely for the Government to decide to whom the enquiry should be entrusted and the petitioner''s counsel could not point out any provision of law under which such an order could be quashed or interfered with by the High Court. All that the learned counsel argued was that when the officer appointed to conduct the enquiry happens to be one, who either because of his previous conduct or because of his relations with the State servant, against whom the enquiry is to be conducted, cannot be expected to perform his duty properly, the result of the enquiry is a more or less foregone conclusion and consequently it amounts to the denial of an opportunity of showing cause against the action proposed to be taken. But he has not been able to convince me that this is a case of that kind.

As regards the third ground it is no doubt alleged by the petitioner that he would examine Mr. Tandon as witness but he has not taken the trouble of explaining what actually are the points that he would prove by his evidence and whether they have any relevancy to the charges on which the enquiry is to be held. Moreover it must be remembered that the scope of a departmental enquiry which Mr. Tandon is to hold is quite different from that of a criminal enquiry or trial and as at present advised I am inclined to think that if there Is any fact particularly within the knowledge of Mr. Tandon and it goes in favour of the petitioner Mr. Tandon can be requested and even expected to make use of it. Accordingly I hold that there was nothing wrong or improper with the order of the Government appointing Mr. B.R. Tandon to hold the enquiry against the petitioner.

The last question to be determined is what relief, if any, should be granted to the petitioner. The first relief claimed by the petitioner, as is mentioned in the earlier part of this order, is that a writ) of ''certiorari'' be issued quashing the orders of the Government of 6-9-51, 1-10-51 and 7-11-1951. No order of 6-9-51 has been exhibited in the case. Evidently what the petitioner describes as the order of 6th September, 1951 is the letter of the date (No. H. D./5615/C) addressed to him by the Chief Secretary which was to the effect that the Government did not require the petitioner''s services as Finance Secretary and would, therefore, terminate his services at the expiry of a month of the date of the letter. This letter was, however, cancelled by the subsequent letter of the Chief Secretary of 1st October, 1951, which the petitioner admits was delivered to him on the 3rd October. Accordingly there is no scope for quashing the notice contained in the letter of 6th September 1951. As regards the alleged order of 7-11-1951 the petitioner has made the same mistake as in the case of the previous order, and what he meant was the order by which Mr. B.R. Tandon was entrusted with his enquiry and which was referred to in the Chief Secretary''s letter of the 7th November, 1951. Since I have held that this order was legal and no flaw can be found with it there can be no question of quashing it. This leaves us with the order of 1-10-1951 by which the petitioner was placed under suspension. My finding in respect of this order being that it was not covered by paragraph 3 of Appendix III of the Patiala Service Regulations, under which it is alleged to have been made, it was urged by the petitioner''s counsel that it is liable to be quashed by a writ of ''certiorari''. Now a writ of ''certiorari'' can only be issued to a Judge or other officer of an inferior Court and since the order was made by the Government in exercise of the executive authority which the law vests in it, in my opinion it is not competent for this Court to grant the relief prayed for. This is how the nature of a writ of ''certiorari'' is described in Halsbury''s Laws of England, Volume IX at page 838 (Edition 1933):

The writ of ''certiorari'' issues out of a superior Court and is directed to the Judge or other officer of an inferior Court of record. It requires that the record of the proceedings in some cause or matter depending before such inferior Court shall be transmitted into the superior Court to be there dealt with, in order to ensure that the applicant for the writ may have the more sure and speedy justice. It may be had in either civil or criminal proceedings. The object of the writ particularly in civil proceedings, is to give relief from some inconvenience or error supposed, in the particular case, to arise from a matter being disposed of before an inferior Court less capable than the High Court of rendering complete and effectual justice.

Mr. Atma Ram learned counsel for the petitioner did not cite a single authority in support of his contention that High Court is competent to issue a writ of ''certiorari'' to a Government. He invited my attention to a recent decision of the Supreme Court '' Rashid Ahmed Vs. The Municipal Board, Kairana, . The question in that case was whether the Supreme Court could not grant a writ of the nature of prerogative writ of ''mandamus'' or ''certiorari'' when the petitioner had another adequate remedy by way of an appeal open to him and the learned Judges held that though the existence of an adequate legal remedy is be taken into consideration in the matter of granting prerogative writs, the powers given to the Supreme Court under Art. 32 are much wider and are not confined to issuing prerogative writs only. In view of the fact that Art. 32 deals only with the powers of the Supreme Court and Art. 226 which empowers High Courts to issue writs etc. being somewhat narrower in scope the above case cannot help the petitioner. As regards the last writ prayed for by the petitioner that the Government be restrained from dismissing him before the stipulated period of two years without affording, him reasonable opportunity of showing cause against such dismissal in accordance with law, cannot be granted either. I agree with the petitioner''s counsel that the provisions of Art. 311 are mandatory and before dismissing the petitioner or removing him from service during the (time for which he was appointed it is incumbent upon the Government to give him a reasonable opportunity of showing cause against the action that the Government proposes to take. I am also in agreement with the learned counsel that according to the rules the only way in which the opportunity can be given is to frame a charge and hold a regular enquiry but this is the procedure that the Government has now adopted. From what I have said above it is clear that the petitioner has been informed of the charges against him and the matter is now being enquired into by Mr. B.R. Tandon. I have no reason to think, and in fact this is not even alleged by the petitioner, that Mr. Tandon is not following the usual procedure for an enquiry. In the circumstances I fail to understand how and what kind of writ I can issue regarding the enquiry. So far as "the duty of the Government in respect of holding the enquiry is concerned, and as regards the necessity of giving the petitioner every opportunity to show cause why he should not be dismissed or removed, there is no difference between him and the Government and no case has been made out for issue of a writ by this Court. The result is that the petition fails and is dismissed. In view of the fact that one of the important orders passed by the Government against the petitioner was not legal and consequently it cannot be said that his petition was frivolous I direct that parties shall bear their own costs.