Mir Abdullah Khan vs Govt. of Hyderabad

Taqi Bilgrami, J.—This application for the issue of a Writ under Art. 226 of the Constitution, is directed against the order of the Military Government, dated 7-3-1949, removing the applicant from service without pension. An appeal preferred by him was dismissed and this order was confirmed by the Military Governor on 18-6-1949. A review petition against this decision was filed by the applicant before the Chief Minister which was rejected on 17-11-1953.

The facts and circumstances, which led to the passing of the impugned orders are briefly as follows:

The applicant, Mir Abdullah Khan, entered the Revenue Service of this State on 30-7-1924, as a 2nd Talukdar. He was promoted and became First Talukdar on 1st Amardad 1339 F. (6-6-1930); eventually he was appointed as a Subedar by a Firman of H. E. H. the Nizam, dated 23-10-1947 and posted at Gulbarga. Soon after the Police Action, the applicant was suspended by an order of the Military Governor, communicated to him through the Revenue Secretary by letter No. 7, dated 4-10-1948, and an enquiry was instituted against him under the Public Servants (Departmental Enquiry) Regulation, No. 11 of 1358 F. Col. M. A. Rehman the then Chairman of the Public Service Commission of the State, was appointed the sole member of the Board of Departmental Enquiry. The applicant was charged with aiding the Razakars'' activities and diverting huge sums of Government money for that purpose; with establishing a factory for manufacture of arms and ammunition in his own house to supply Razakars with arms; with establishing border and interior centres, as they were called and with employing Arabs, Rohillas and refugees, who committed loot and rapine on a large scale in the adjacent villages.

Besides these there were other charges against him as shown in para. 9 of the counter filed by the Government, of like grave nature. Col. M. A. Rehman to whom a report containing these charges was submitted, conducted an enquiry in presence of the applicant and other officers and the statements made by these officers and the explanation of the applicant regarding these charges were recorded. Col. Rehman submitted a report in which he expressed an opinion that the applicant was all-in-all a Razakar, and appeared to have carried out all instructions received from higher authorities for helping the Razakars whole-heartedly, and had a good deal of hand in manufacture of arms and ammunitions. Regarding his character and competence he also referred to some unfavourable remarks made by the then Director-General of the Revenue, Mr. Sanidge. He recommended that the applicant may be dismissed, and one-third of the pension to which he would have been normally entitled, may be granted in view of his service of 24 years on purely compassionate grounds. The Military Government after receiving this report passed the impugned order dismissing the applicant from Service, but the recommendation regarding, pension on compassionate ground was not accepted.

The grounds on which the applicant challenges the order are as follows:

That the Military Governor''s Administration Regulation (VII of 1358 F.) dated 13-11-1948, was unconstitutional and ''ultra vires'', in that the Military Governor had no authority to promulgate it, and therefore, the other Regulations and enactments regarding trials of Government servants cannot be considered repealed by it, and the trial of the applicant conducted under the Regulation and not under the former rules and enactments was irregular and the order of dismissal void. Only the Nizam had the authority to appoint and dismiss a Subedar.

The manner in which the enquiry was conducted was contrary to all principles of natural justice as no evidence was recorded, and no chance of producing defence witnesses was given. It is said in this connection that the order of dismissal was passed on a confidential report, that the applicant was kept ignorant of the grounds on which this order proceeded; that he was given no opportunity to examine the record and that the provisions of the Regulation under which this enquiry was held were not observed.

The Military Governor had no powers to hear the appeal, and his order confirming the Military Government''s decision on a protest of the applicant, which he treated as an appeal, was wholly wrong.

The applicant on these grounds prays that the order of dismissal be set aside and the Government ordered to pay to the petitioner the arrears of his salary with increments and pension to which he would have been entitled in the normal course.

The Government contested the application, They maintained that the order having been passed before the commencement of the Constitution cannot be challenged by the issue of a Writ under Art. 226 of the Constitution and that in any case the petition should be dismissed due to delay and laches, as it was filed 4� years after the order was passed. The Military Governor, it is further stated, was vested with full authority for administration of the State, and was competent to pass the Regulation under which the enquiry was held, and that the proceedings therein were conducted fairly and in strict accordance with the above Regulation, The Government denied in their entirety the applicant''s allegations regarding the unfair nature of the enquiry, and the violation of the principles of natural justice.

It is perfectly clear and it may be stated at the outset that Art. 311 of the Indian Constitution cannot be applicable to the present case inasmuch as the enquiry was conducted, and the dismissal order was passed against the applicant before the Constitution came into force. Every statute or all provisions thereof, which creates, or declares a substantive right, or confers on Court remedial powers, should be taken to be wholly prospective unless by any express provisions, or by necessary implications arising from anything provided in the enactment, a retrospective effect is given to it. That this rule of interpretation is applicable to the Indian Constitution, as well as other statutes is a matter regarding which no doubt can be entertained. The following observations on the point from the judgment of Das J. in - Keshavan Madhava Menon Vs. The State of Bombay, are apposite.

Every statute is ''prima facie'' prospective, unless it is expressly or by necessary implications made to have retrospective operation There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution.

Regarding the provisions which deal merely with procedural matters on the other hand, the rule is that retrospective effect should be attributed to them, unless it is expressly, or by necessary implication taken away, or if such interpretation is textually inadmissible, see in this regard -- AIR 1927 242 (Privy Council)

Article 311 confers a substantive right on the members of service of the Union or All India Service or service of the State, i.e., that they cannot be reduced in rank, or removed from the service, except under certain specified circumstances, and only by the authorities mentioned, and on conditions laid down in that article, and as such it can have no retrospective effect. In Chap. III of the Constitution arc given and defined the rights of every citizen, in Art. 311 the rights of a particular class. In the case cited above, Keshavan Madhava Menon Vs. The State of Bombay, their Lordships of the Supreme Court, have held, that the rights conferred by Chap. Ill of the Constitution being of substantive nature, the provisions in that chapter can be operative only from the dale of the commencement of the Constitution. The same principle will be applicable to Art. 311. As held in -- ''Oswald Hugh Pedro v. State of Hyderabad'', AIR 1953 Hyd 98 (C) Art. 311 of the Constitution has no application in the case of an order of reversion against a Government servant passed before the commencement of the Constitution.

Sri Jalil Ahmed, the advocate of the applicant, in view of these rulings did not press this point, but he argued that Art. 226 does not confer any substantive right; its provisions deal with a matter which may be considered procedural, and therefore, a writ application under that article will lie, even in respect of the order passed prior to the coming into force of the Constitution. He relies on the following ruling in support of this contention: The Calcutta Pinjrapole Society Vs. S. Banerjee, Member, Board of Revenue and Secretary Dept. of Land and Land Revenue, Govt. of West Bengal, -- ''Harendranath Sharma v. State of Madh-B'', AIR 1950 MP 46 (E) and - K.S. Rashid and Son Vs. The Income Tax Investigation Commission etc., . The Supreme Court case docs not deal with this question at all, and is not relevant. It seems to us that ''Art. 226 is of a remedial nature; it docs not relate to procedure, but confers on the High Court powers to interfere in certain cases. A similar view expressed by a Full Bench of Nagpur High Court is in -- Rajaram Dadu v. The State'', AIR 1961 Nag 443 (FB) (C), and later on by the Division Bench of the same High Court in -- ''Tribhuwannath Pandey v. Govt. of the Union of India'', AIR 1953 Nag 138 (H).

The rulings relied upon by the learned advocate of the applicant do not proceed on the ground that this article is procedural. The view taken therein and also in two other cases of Calcutta High Court in -- Hurdeodas Agarwala Vs. The State of W.B. and Others, and -- Rajendra Kumar Ruia and Another Vs. Govt. of West Bengal and Another, ) is that if an order or an Act is ''ultra vires'' it furnishes a recurring cause of action to the party aggrieved, and he can have recourse to Art. 226 of the Constitution, even though such order was passed before the commencement of the Constitution. It is, however, unnecessary to discuss the point in detail, firstly because the power to issue a Writ ''certiorari'' was exercised by this Court, even before the Constitution came into force as in -- ''Raja Pratapgir v. Sarkar Ali'', 35 Deccan LR 153 (K), and secondly because we think that no case has been made out by the applicant even if the wider powers conferred under Art. 226 of the Constitution are exercised.

The Writs under the above article can only be issued in very grave cases, cases in which the Court, tribunal or officers whose act or order is impugned have acted either without, or in excess of jurisdiction, or have refused to exercise jurisdiction clearly vested in them; and in cases in which they have acted in flagrant disregard of, or contrary to the principles of natural justice. If any irregularity in procedure is relied upon it must be shown that it affects the jurisdiction or results in manifest and grave injustice. Wide as these powers are they do not enable the Court to constitute itself a Court of appeal, and examine the correctness of the decision or act challenged. That the powers conferred by Art. 226 can only be invoked under the circumstances set out above and exercised within those limits, has been emphasised by the Supreme Court in -- Parry and Co. Ltd. Vs. Commercial Employees'' Association, Madras, , and again in -- Veerappa Pillai Vs. Raman and Raman Ltd. and Others, and -- Ebrahim Aboobakar and Another Vs. Custodian General of Evacuee Property, ), and in many decisions by this Court which it is unnecessary to cite.

We shall now proceed to examine the applicant''s arguments in this light, and see if there is any legitimate cause to justify the questioning of the impugned order.

The first ground on which the order is as sailed is that General Choudhury, the Military Governor had no powers, or authority, to pass the Regulation under which the enquiry was made, because the Firman dated 19-9-1948 does not expressly confer such an authority and the assent of the Nizam was not obtained. In our opinion, the Firman dated 19-9-1948, invested General Choudhury with full administrative authority in Hyderabad. It said :

Whereas the General Officer Commanding in Chief Southern Army has appointed Major General J. N. Chaudhury, O. B. E., to be Military Governor for the Hyderabad State and WHEREAS all authority for the administration of the State now vests in him I hereby enjoin all the subjects of the State to may out such orders as he may deem tit to issue from time to time. I appeal to all officers of the State administration and subjects of the State to render faithful and unflinching obedience to Military Governor and conduct themselves in a manner calculated to bring about the speedy restoration of law and order in the State.

That he possessed full authority to pass such Regulations as are in question here, has been recognised by their Lordships of the Supreme Court in the case of - Habeeb Mohammad Vs. The State of Hyderabad, as will appear from the following extract, from the concluding portion of the judgment of Mahajan C. J., who delivered the judgment of the Court at p. 61:

Further it was argued that the Special Judge had no jurisdiction because H. E. H. the Nizam had not given his assent to the law as contained in Ordinance X of 1359 F. In our opinion, there is no substance in this contention, because the Nizam under a Firman had delegated all his powers of administration including power of legislation to the Military Governor and that being so, no further reference to the Nizam was necessary, and the Military Governor was entitled to issue the Ordinance in question.

A Division Bench of this High Court recently in -- ''Sarwarlal v. State of Hyderabad'', AIR 1954 Hyd 227 (P) referring to this very Firman (see pp. 229-230) held that in exercise of the authority conferred by it, the Military Governor was vested with the powers to pass the Abolition of Jagir Regulation of 15-8-1949. No other reason appears, or was shown, for considering the Military Governor''s Administration Regulation of 1948 invalid and we think that Art. 13 of the Constitution cannot be given retrospective operation on the principles enunciated in ''Keshavan Madhava Menon''s case (A)'' referred to in an earlier part of this judgment. We overrule this contention.

The next question we have to decide is whether the enquiry was held fairly and in accordance with the Regulations or whether the Board in making the enquiries, or the Government and the Military Governor in passing the order, acted in excess of jurisdiction or contrary to the principles of natural justice. It was pointed out that the depositions of witnesses were not recorded, and proceedings do not indicate that any regular trial was held in the presence of the applicant. The Regulation, however, does not prescribe that full statement of witnesses should be separately recorded; on the other hand in R. 5(2) it is expressly laid down that the Board shall not be bound to summon or examine witnesses. The contention of the applicant''s counsel, therefore, that omission to do this vitiated the enquiry is not tenable. By looking at the record of enquiry conducted by Col. Rehman who was appointed the sole member of the Board, it appears that he made enquiries from the other officers in the presence of the applicant, asked the applicant''s explanation, and recorded the answers. The mode of conducting the enquiry prescribed by Rule 5, was as follows:

(1) The Board shall examine the evidence against the public servant whose case is referred to it, shall record his statement, if any, and shall examine the evidence, if any, produced by him in his defence.

(1-A) The board shall hold the enquiry in the absence of the public servant if he does not appear before it in spite of a notice having been issued to him.

(2) The Board shall not be bound to summon or examine any witness, if in its opinion the production or examination of any such witness is sought to cause delay or vexation.

(3) Save with permission of the Board, no pleader or advocate shall be allowed to appear in an enquiry held under this Regulation.

(4) It shall not be necessary for the Board to record at length the evidence of a witness or to frame a charge.

(5) The past record and general reputation of a public servant shall be relevant evidence in the inquiry against him.

(6) The Board shall after completing the enquiry submit a report with its recommendation to the Military Government.

Col. Rehman did examine the officers in the presence of the applicant. It was not necessary to record verbatim, the full depositions of the witnesses and we are satisfied that ample opportunity was afforded to the applicant, to explain and defend himself against the charges brought. It is not true that the enquiry was held and report made confidentially, in the sense that the applicant was not given an opportunity to know on what grounds his conduct was questioned, or that he was deprived of an opportunity to defend his case, as alleged in the application. From our perusal of the record of enquiry we find that the applicant did not express any wish to produce defence witnesses. In our opinion in conducting this enquiry the Regulations were not infringed and the Board did not exceed the jurisdiction, or act contrary to the principles of natural justice.

Whether the evidence was sufficient to justify an order of dismissal or not is not a question which we can consider in a Writ application. According to R. 6 of the Regulation as it stood alter its amendment by Regulation No. 32 of 1358 F., the Military Government on receipt of the report could pass the order of dismissal and the Military Governor possessed full authority to hear and dismiss the appeal preferred by the applicant under the R. 6(A) as amended by the above mentioned Regulation.

In our judgment neither the Government nor the Military Governor exceeded their respective jurisdiction. Shri Jalil Ahmed for the applicant says that in view of the amending Regulation of which he was not aware, when he filed the application, does not wish to press the objection that the Military Government had no power to order the dismissal and the Military Governor to hear the appeal.

We have given full and careful consideration to all the grounds urged, and points raised on behalf of the applicant and find that none of them can be deemed to be sufficient to justify the issue of a Writ against the order impugned.

In the result, the Writ application fails and is hereby dismissed with costs of the opposite party which we estimate at Rs. 50/-.