Mrinal Kanti Das Burman vs State of West Bengal

Chittatosh Mookerjee, J.—Mrinal Kanti Das Burman, the Petitioner in C.R. No. 5354 (W) of 1970, had joined as a Sub-Inspector of Calcutta Police Force in June, 1960. He was subsequently confirmed in the said post. In March, 1963, he was promoted to the rank of Inspector. In March, 1970, he was attached to the Home Guard Organisation. He had been allotted duties in the Information Room of Lalbazar Police Head Quarters. He was on leave from October 28, 1970. On November 1, 1970, the Deputy Commissioner of Police, Home Guard, Calcutta, served upon him the following order No. 1450 GAC, dated October 31, 1970:

GOVERNMENT OF WEST BENGAL HOME DEPARTMENT GENERAL ADMINISTRATION ORDER

No. 1450 GAC Calcutta, the 31st Oct. 1970

Whereas you Shri Mrinal Kanti Das Barman, Inspector, Calcutta Police, now attached to the Home Guard Organisation, 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 SECY, TO THE GOVR. OF WEST BENGAL.

The Petitioner Mrinal Kanti Das Burman has obtained the present Rule challenging the aforesaid order dismissing him from service.

Lalana Bhusan Sarkar, the Petitioner in C.R. No. 2108 (W) of 1971, originally joined as a constable in the Bengal Police Force. He was first promoted to the rank of Assistant Sub-Inspector of Police, thereafter to the rank of Sub-Inspector. He was confirmed in the said post on January 1, 1968. On June 7, 1971, he was served with order No. 173 PLS, dated June 2, 1971, issued by the Secretary, Government of West Bengal, Home Department, stating that he was unsuitable for service. The Governor was satisfied that in the interest of the security of State it wais not expedient to hold any enquiry into the charges against him under Clause (2) of Article 311 of the Constitution. Therefore, the Governor had been pleased to dismiss him from service with immediate effect. The Petitioner in C.R. No. 2108 (W) of 1971 has challenged this order.

It may be pointed out that on March 19, 1970, the President of India in exercise of the powers conferred by Article 356 of the Constitution had issued a Proclamation, inter alia, stating that he was satisfied that a situation had arisen in West Bengal in which the Government of State could not be carried on in accordance with the provisions of the Constitution of India. The President has assumed to himself, as the President of India, all functions of the Government of the State and all powers vested in or exercisable by the Governor of that State. He declared that the power of Legislature of the said State should be exercisable by or under the authority of Parliament. The President also made certain incidental and consequential provisions for giving effect to the said Proclamation. On the same date, the President issued another order directing that all 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, would subject to the superintendence, direction and control of the President of India be exercisable also by the Governor of the said State.

The learned Advocate for the Petitioners has submitted that after the aforesaid Proclamation under Article 356 of the Constitution was issued, the Governor of West Bengal as a constitutional authority was denuded of all his powers and functions including those under Article 311(2) proviso (c) of the Constitution was exercisable only by the President. According to the learned Advocate for the Petitioner, no delegation of powers under Article 311(2) proviso (c) was possible in law said, in fact, G.S.R. No. 491, dated March 19, 1970, issued by the President made no such delegation. It has been next contended that although the order for dispensing with enquiry under Clause (2) of Article 311 is made on the subjective satisfaction of the President or the Governor, as the case may be, that it is not expedient in the interest of the security of the State to hold such enquiry. The same involves an objective process. According to the learned Advocate for the Petitioner, this Court has still jurisdiction to enquire whether such administrative decision under Article 311(2) proviso (c) has been made in good faith on relevant considerations. The orders impugned in these two Rules were made without fulfilling the conditions precedent for exercise of power under Article 311(2) proviso (c). According to the Petitioners, there was no factual basis for formation of opinion by the Governor that it was not expedient in the interest of security of State to hold any enquiry under Article 311(2) of the Constitution. The Petitioner has lastly contended that, although the Governor and the President may be passing an order under the said proviso (c) dispensing with the requirements of Clause (2) of Article 311, still a dismissal order must be in consonance with the principles of natural justice and the Administration would be bound to observe the rules of fair play by giving at least an opportunity to the delinquent officer to make his representation before he is dismissed.

Thus, the first point in these two Rules is whether the Governor of West Bengal had any authority to pass the impugned orders of dismissal. In this connection we have to consider the effect of the Proclamation under Article 356 of the Constitution issued by the President of India (vide G.S.R. No. 490, dated March 19, 1970) and also the scope of the Presidential Order No. G.S.R. No. 491 dated March 19, 1970. '' The G.S.R. No. 490 dated March 19, 1970, was, inter alia, in the following terms:

Whereas, I, V.V. Giri, President of India, have received a report from the Governor of the State of West Bengal and after considering the report and other information received by me, I am satisfied that a situation has arisen in which the Government of that State cannot be carried on in accordance with the provisions of the Constitution of India (hereinafter referred to as ''the Constitution'')

It is true that under Clause (a) the President proclaimed that he was assuming to himself all functions of the Government of the State of West Bengal and all powers vested in or exercisable by the Governor of that State, but at the same time, by prescribing under Clause (c)(i) that it would be lawful for him as the President of India to act to such extent as he might think fit through the Governor of the said State, the President of India reserved to himself powers to make incidental and consequential provisions necessary for giving effect to the objects of the said Proclamation. The provisions of the Constitution in relation to that State which were suspended under Clause (c)(ii) did not include Article 153 of the Constitution providing that there shall be a Governor for each State. Therefore, even after the Proclamation under Article 356, the office of the Governor of West Bengal had continued to subsist. But the powers vested in or exercisable by the Governor were assumed by the President and during the Proclamation the Governor was to exercise only such functions and powers which the President might think fit to confer upon the Governor. In other words, such powers and functions were exercisable by the Governor not directly under the Constitution but to the extent the President of India might think fit to vest upon him.

The President of India had issued Order No. G.S.R. No. 491 dated March 19, 1970, in pursuance of the provisions of Sub-clause (i) of Clause (c) of his aforesaid Proclamation dated March 19, 1970. We are unable to accept the contention of Mr. Chatterjee, the learned Advocate for the Petitioners, that the Order No. G.S.R. 491 was in any way contradictory to or in variance with the Proclamation under Article 356 dated March 19, 1970. We are of the view that it was not necessary for the President to issue another Proclamation under Article 356 for the purpose of conferring powers and functions upon the Governor. The President under Clause (c)(i) proclaimed that it would be lawful for him to act to such extent as he might think fit through the Governor of West Bengal. In pursuance thereof, the President had issued G.S.R. No. 491 directing that all functions of the Governor of the State of West Bengal and all the powers vested in or exercisable by the Governor of the State under the Constitution or under any law in force in that State, which had been assumed by the President of India, by virtue of Clause (a) of the said Proclamation, subject to the superintendence, direction and control of the President of India, would be exercisable also by the Governor of the said State.

During the period the aforesaid Proclamation remained in force, the Governor of West Bengal discharged his functions and exercised his powers with two basic differences. In the first place, the Governor''s functions and powers were subject to the superintendence, direction and control of the President. Secondly, these functions and powers were exercisable also by the President of India. The President under Clause (a) of the Proclamation dated March 19, 1970, having assumed all the powers and functions of the Governor, the Governor during the emergency was to act as his delegate. Accordingly, the Governor was placed in a subordinate position under the President. In the circumstances, we reject the extreme contention on behalf of the Petitioners that during the aforesaid emergency the Governor ceased to be a constitutional authority and he was deprived of all his powers and functions including those under Article 311(2) proviso (c). We have already pointed out that such argument would be completely untenable in view of Clause (c)(i) of the Proclamation dated March 19, 1970 and also the Presidential Order No. G.S.R. 491 bearing the same date issued in pursuance of Clause (c)(i) of the Proclamation.

It is true that the G.S.R. 491 did not restore the full constitutional position of the Governor. During the period of Proclamation the extent of the powers and functions of the Governor were to be determined by the President and the former exercised the delegated authority of the latter. We find nothing in the Constitution forbidding delegation of powers and functions by the President in favour of the Governor. Article 356(1)(c) confers power upon the President to make incidental and consequential provisions for giving effect to the objects of a Proclamation under Article 356. Therefore, in the instant case, the Governor of West Bengal was competent to arrive at the satisfaction whether in the interest of the security of the State it would not be expedient to hold any enquiry under Article 311(2) against the Petitioners of these two Rules.

B.C. Mitra and A.K. Sinha JJ. in Gokulananda Roy v. Tarapada Mukherjee and Ors. (1972) 76 C.W.N. 411 upheld the powers of the Governor during the period of Proclamation to appoint at Commission of Enquiry in exercise of powers conferred by Section 3 of the Commission of Enquiry Act, 1952. B. C. Mitra J, who delivered the judgment of the Division Bench dealt with the scope of the aforesaid G.S.R. Nos. 490 and 491 dated March 19, 1970 and in para. 18 of his judgment observed that in exercise of the powers assumed by the President of India under Clause (c)(i) of the Proclamation he could delegate all the functions of the Government of the State and all the powers vested in or exercisable by the Governor of the State, to the latter, subject to the superintendence, direction and control by him. The Governor had exercised the powers delegated to him by the said notification. We respectfully agree with the above decision of the Division Bench in Gokulananda Roy v. Tarapada Mukherjee (1972) 76 C.W.N. 411.

In the result, we reject the argument that during the period of the aforesaid Proclamation, the power under Sub-clause (c) of Clause (2) to Article 311 was exercisable only by the President.

The next point for consideration in the two Rules is whether or not the impugned orders are subject to judicial review.

Article 310(1) of the Constitution lays down that except as provided by the Constitution, tenure of office of persons serving the Union and State shall be during the pleasure of the President and the Governor respectively. But this ''pleasure dectrine'' is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. See Union of India (UOI) Vs. Col. J.N. Sinha and Another, , S.R. Das C.J. in Khem Chand Vs. The Union of India (UOI )and Others, stated Clauses (1) and (2) of Article 311 have to be read as qualifications or provisos to Article 310(1). Article 311(2) provides the manner in which a ''person holding a civil post shall be given reasonable opportunity of being heard'' before he is dismissed, removed or reduced in rank. The proviso to Clause (2) of Article 311 engrafts three exceptions. In other words, the provisions of Clause (2) do not apply to three classes of cases covered by provisos (a), (b) and (c). In these three classes a Government servant may be dismissed, removed or reduced in rank without any enquiry, Le. without informing him of the charges against him or giving him a reasonable opportunity of being heard or of making any representation on the penalty proposed. The above provisos expressly abrogate the principles of natural justice embodied in Article 311(2). Therefore, we find no substance in the argument that the State is bound to observe the principles of natural justice even in cases where proviso (c) to Article 311(2) is invoked. When the President or the Governor, as the case may be, is satisfied that it would not be expedient to hold any enquiry under Article 311(2) in the interest of the security of State, he may dismiss a Government servant without giving him any opportunity of hearing.

But proviso (c) does not fully revive the ''pleasure doctrine''. The President or the Governor must fulfil the conditions precedent for invoking power to dismiss without enquiry. Further, it is no longer possible to contend that the said proviso (c) has personally entrusted the Head of the Union Executive and Head of the State Executive with these extra-ordinary powers. A Bench consisting of seven Judges of the Supreme Court in Samsher Singh Vs. State of Punjab and Another, have held that B.K. Sardari Lal Vs. Union of India (UOI) and Others, was wrongly decided. A.N. Roy C.J. in para. 30 of his judgment in Shamsher Singh''s case observed:

In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers, he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Articles 77(3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) Proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77(3) nor Article 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) provide that the President under Article 77(3) and the Governor under Article 166(3) shall make rules for the more convenient transactions of the business of the Government and the allocation of business among the Ministers of the said business. The rules of business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the rules of business made under these two Articles, viz. Article 77(3) in the case of the President and Article 166(3) in the case of Governor of the State is the decision of the President or the Governor respectively.

A.N. Ray C.J. in paras. 54, 55 and 56 of his judgment referred to the provisions of the Constitution which expressly require by the Governor to exercise his power and discretion. Thereafter, the learned Chief Justice concluded that

the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vest in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is'' to exercise the executive functions personally.

Again, the learned Chief Justice in para. 88 of his judgment held that appointments as well as removal of members of subordinate judicial service is an executive action of the Governor to exercise on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution.

Appointments and removals of persons are made by the President and the Governor as the constitutional head of the executive on the aid and advice of the Council of Ministers. That is why any action by any servant of the Union or the State in regard to the appointment or dismissal is brought against the Union or the State and not against the President or the Governor. In view of the decision of the Supreme Court in Shamsher Singh v. State of Punjab and Anr. (Supra) we are bound to hold that Article 311(2) proviso (c) does not require the personal satisfaction of the President or the Governor, but the satisfaction of the President or the Governor in the Constitutional sense under Article 311(2) proviso (c) like any other executive business may be allocated by the Rules of Business and in such case the decision of any Minister of Officer under the Rules of Business framed under Article 166(3) would be the decision of the Governor (see para. 30).

In the above view, an order under Article 311(2) proviso (c) should be considered as an exercise of administrative power by the executive and the exercise of such power is subject to judicial review in the same manner as other discretionary orders are scrutinised by Courts. See Barium Chemicals v. Company Law Board AIR 1957 S.C. 295, Rohtas Industries Vs. S.D. Agarwal and Others, , M.A. Rasheed and Others Vs. The State of Kerala, . The power of the Executive under Article 311(2) proviso (c) is a discretionary one and the satisfaction contemplated therein is a subjective one, but one aspect of the rule of law is that exercise of governmental authority directly affecting individual interest must rest on legitimate foundation. (See Halsbury''s Laws of Eng land, 4th ed., vol. I, para. 2). Since the Governor can dispense with the requirements of Article 311(2) only on being satisfied that it would not be expedient in the interest of the security of the State to hold such enquiry, the Court has the power to see whether there has been compliance with the conditions for exercise of such executive powers. Naturally, the Court does not examine the sufficiency of the grounds on which the executive discretion has been exercised. In the first place, the Courts may enquire whether in fact there has been a decision by the President or the Governor or their delegated authority, if any, in terms of Article 311(2) proviso (c). Secondly, the exercise of discretionary powers must satisfy certain implied conditions--(a) good faith of executive authority; (b) exercise of power for the purpose for which it is granted ; (c) consideration of relevant matter ; lastly, (d) executive authority must act fairly. (See Halsbury''s Laws of England, 3rd ed. vol. I, paras. 20, 27, 61, 62). In this connection Mr. Chatterjee, learned Advocate for the Petitioners, had placed strong reliance upon the observations of A.N. Ray C.J., in M.A. Rashed and Ors. v. The State of Kerala (Supra). The learned Chief Justice held in para. 7 of his judgment:

Where powers are conferred on public authorities to exercise the same when ''they are satisfied'' or when ''it appears to them'' or when ''in their opinion'' a certain state of affairs exist; or when powers enable public authorities to take ''such action as they think fit'' in relation to a subject-matter, the Court will not readily defer to the conclusiveness of an executive authority''s opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.

The learned Chief Justice in para. 9 of the same judgment further observed:

Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The Courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the Courts'' own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The Courts will find out whether conditions proceeding to the formation of the opinion have a factual basis.

Incidentally, above para. 9 is in accord with the propositions enunciated in paras. 22 and 62 of Halsbury''s Laws of England (4th ed., vol. I).

The above statements of law is binding upon us. Therefore, we are unable to give any countenance to the argument on behalf of the Respondents that the exercise of power under Article 311 (2) proviso (c) is not at all justiciable. It is true that the satisfaction contemplated under the said provision being a subjective one, the Courts of Law cannot substitute its view for those of the executive as to whether or not it would be expedient in the interest of the security of the State to dispense with the enquiry under Article 311(2). But the Court is entitled to enquire whether conditions precedent to the formation of such satisfaction have any factual basis. Secondly, whether the executive had acted in good faith. Thirdly, whether the existence of the relevant materials upon which the validity of exercise of executive power is predicated are present.

Mr. Chatterjee, learned Advocate for the Petitioners, rightly submitted that the expression ''security of the State'' has acquired a definite meaning by judicial interpretation. In this connection he relied upon the decisions of the Supreme Court in Romesh Thappar Vs. The State of Madras, and in State of Bihar v. Shailabala Devi 1959 S.C.A. 152.

The question that arose in Romesh Thappar Vs. The State of Madras, was that whether the Madras Maintenance of Public Order Act, 1949 (XXIII of 1949), in so far as it purported by Section 9(1-A) to authorise the Provincial Government for the purpose of securing the public safety and the maintenance of public safety and the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the province of Madras or any part thereof of any document or class of documents, was a law relating to any matter which had undermined the security of or tended to overthrow the State. The Supreme Court was of the view that the security of the State must be restricted to those aggravated forms of prejudicial activities which were calculated to endanger security of the State. Therefore, mere incitement to violent crimes or public disorder did not come within the scope of the expression ''security of the State''.

The Respondents in support of their contention had relied upon the decision of Mudholkar and Badkas JJ. in Jagdish Dajiba Vs. The Accountant-General of Bombay and Others, upholding an order of the President under Article 311(2) proviso (c) (as the same stood at the relevant time). The very basis of the decision in Jagdish Dajiba v. Accountant-General of Bombay Supra (289, para. 26) was that Article 311(2) proviso (c) required personal satisfaction of the President himself about the expediency of not giving any opportunity to the employee concerned in the interest of the security of the State. Thus, Badkas J. observed:

The Constitution in its wisdom has reposed confidence in and invested powers in relation to services on the President who is the highest dignitary of our State and in whom the executive Government vests. The Constitution trusts that the President will always act with full justice to all and in the interest of the State of which he is a caretaker. The integrity and responsibility to carry on the executive Government are the only checks by which the Constitution is satisfied.

But the Supreme Court in Shamsher Singh''s case (Supra) has now held that under the rules of business and the allocation among the Ministers all indicate that the decision of any Minister or Officer under the Rules of Business is the decision of the President or the Governor respectively. Further, in Jagdish Dajiba v. Accountant-General of Bombay (Supra) the learned Judge did not consider the extent of judicial review of the administrative action. The executive authorities'' opinion as to the extent of a matter of law or fact upon which the validity of the exercise of power depends is not conclusive. The Courts have jurisdiction to enquire into the existence of the conditions precedent for exercise of such administrative action. In case of administrative decision be made on subjective satisfaction the Courts can enquire whether any reasonable man could have come to the decision in question and whether the conditions precedent to the formation of the decision has any factual basis.

Chandra Reddy C.J. and Narasimhan J, in Mohamed Hyder Vs. State of Andhra Pradesh, approved the observations at para. 26 of the judgment of Badkas, J. in Jagdish Dajiba v. Accountant-General of Bombay (Supra). We have already stated why we are unable to apply the Division Bench decision of the Bombay High Court at Nagpur in Jagdish Dajiba v. Accountant-General of Bombay to the facts of the present case.

P.C. Mallick J, in Narendra N. Das Vs. State of West Bengal, held that the satisfaction contemplated in Article 311(2) proviso (c) was not the personal satisfaction of the Governor. The satisfaction contemplated was the satisfaction of the Governor as the constitutional head. The security of the State was the most essential executive act of the State and as such, the matter was a responsibility not of the Governor but that of the Government. Deprivation of an opportunity to a Government servant to show cause against any disciplinary action to be taken against him is clearly an act of the State in relation to the security of the State. Such an act could not but be the responsibility of the Government and not the personal responsibility of the Governor. Thus the above part of the judgment of P.C. Mallick J. seems to be in accord with the law laid down by the Supreme Court in Shamsher Singh''s case (Supra). But Mallick J. in para. 9 of his judgment with approval had quoted from the decision of Badkas J. in Jagdish Dajiba v. Accountant-General of Bombay (Supra). Mallick J. had also referred to the decision of the Andhra Pradesh High Court in Mohammed Hyder v. State of Andhra Pradesh (Supra). Apparently, before Mallick J. there was no argument similar to those advanced before us. Therefore, Mallick J. did not have any occasion to deal with the extent of the judicial review of subjective decisions made by the administrative authorities.

P.K. Banerjee J. in Chunilal Das Gupta v. State of West Bengal C.R. 1681 (W) of 1971 disposed of on February 2, 1972 had upheld the power of the Governor to pass order under Article 311(2) proviso (c). In our view, the learned Judge correctly held that even after the Proclamation under Article 356 such an order could be issued in the name of the Governor. Banerjee J. had quoted in extenso from the judgment of the Supreme Court in B.C. Dass etc. Vs. State of Assam and Others, . We shall hereinafter deal with the said judgment. Banerjee J. had also referred to the judgment of Bombay High Court in Jagdish Dajiba v. Accountant-General of Bombay (Supra), the decision of Mallick J. in Narendra N. Das v. State of West Bengal (Supra) and the decision of Andhra Pradesh High Court in the above two eases already cited. Again it does not appear from the judgment of Banerjee J. that the order under Article 311(2) proviso (c) was challenged on the grounds taken before us. We have already observed that the main foundation of the decision in Jagdish Dajiba''s case (Supra) and of the subsequent decision which followed the same was that Article 311(2) proviso (c) required the personal satisfaction of the President or the Governor as the case might be. Further, these decisions did not deal with the ambit of judicial examination of discretionary administrative orders. While the Court cannot certainly consider the expediency of not holding an enquiry under Article 311 in the interest of security, the Court can certainly see whether the Administrative authority had arrived at its Satisfaction by taking into account relevant consideration etc.

We may now proceed to consider the facts and circumstances of the present case. The Petitioner in C.R. No. 5354 (W) of 1970 has given details of his service career. The Respondents have not disputed that he was given charge of a Police Station when he was still a Sub-Inspector. He has earned a large number of monetary rewards and recommendations. He was posted in a number of important branches of Police service. There was no charge or allegation ever levelled against him. As late of February 1970, he has been recommended for the award of Police Medal in appreciation of his honesty, initiative and resourcefulness and devotion to his duty. He has alleged in para. 30 of his writ application that it was not possible for the Governor of West Bengal to go through the entire record of the Petitioner Mrinal Kanti Das Burman and his file was not placed before him. He stated in para. 31 of his writ petition that

the order of dismissal was passed solely on false report and information supplied by the interested persons inimically disposed towards him and bearing malice against him and without any investigation or consideration or application of mind the authorities to any such report or information mechanically issued the same.

He has claimed in para. 34 of his writ petition that the order of dismissal was illegal, mala fide and passed arbitrarily without jurisdiction. The ground No. 2 of para. 37 of the writ petition in C.R. No. 5354 (W) of 1970 is that the impugned order was passed without the authority applying his mind. The ground No. 3 is that the power has been exercised for the purpose wholly extraneous to the purpose for which it is vested in the authority. A number of other grounds have been taken regarding non-application of mind by the Governor. The ground of mala fide has been also taken.

The petition in C.R. No. 5354 (W) of 1970 called upon the Respondents to produce before this Court the relevant records and papers to show that there was any material at all whatsoever for the purpose of arriving at the alleged satisfaction and also to establish that the fact that any satisfaction at all arrived at by the appropriate authority.

On November 26, 1971, K.G. Basu, Special Officer and Ex-officio Special Secretary, Home Department, Government of West Bengal, affirmed an affidavit-in-opposition on behalf of Respondents Nos. 1, 3, 4, 5 and 6. He did not deny the details of the service career of the Petitioner in G.R. No. 5354 (W) of 1970. But in para. 14 of his affidavit-in opposition he claimed that efficiency and ability of a Police Officer are to be judged not only by the result of judicial proceedings but also on various other factors. The said deponent in para. 24 of his affidavit-in-opposition stated that the Governor of West Bengal had taken the decision concerned. The Governor personally dealt with the case of the Petitioner. The Governor himself was satisfied that in the interest of the security of the State it was not expedient to hold any enquiry in the case of the Petitioner. The said deponent in paras. 25 and 26 of his affidavit-in-opposition, inter alia, claimed that the order of dismissal by the Governor himself was in the interest of security of the State after he was satisfied. The Governor had passed the order of dismissal after perusing all relevant papers and after having satisfied that in the interest of the security of the State it was not expedient to hold any enquiry under Clause (2) of Article 311 of the Constitution. He was fully satisfied that the said case was a fit one for taking action. The annex. ''A'' to the said affidavit-in-opposition, affirmed by Sri K.G. Basu is a copy of an order of the Governor of West Bengal, dated October 24, 1970, that he was satisfied in the interest of the security of the State it was not expedient to hold any enquiry under Clause (2) of Article 311 of the Constitution into the conduct of charges against the Petitioner and two others. Therefore, he dismissed them from service with immediate effect. The note of the Chief Secretary and the report of the C.P. (presumably the Commissioner of Police) which were allegedly perused by the Governor have not been disclosed.

The Petitioner in C.R. No. 2108 (W) of 1971 had also claimed that he had served with merit in the Bengal Police, subsequently known as the West Bengal Police. He also averred that the impugned order had been made without application of mind and without consideration of relevant materials. The grounds taken in C.R. No. 2108 (W) of 1971 is almost identical with those taken in C.R. No. 5354 (W) of 1970 to which I have already referred.

M.M. Kushari, Secretary, Home Department, Government of West Bengal, in his affidavit-in-opposition, dated January 24, 1971, claimed that the Governor of West Bengal himself being satisfied had passed the impugned order. A copy of the order of the Governor of West Bengal dated May 21, 1971, stated that on perusal of record, the Governor was satisfied that Lalana Bhusan Sarkar should be dismissed from service with immediate effect. The Governor was also satisfied that in the interest of the security of the State it was not expedient to hold any enquiry under Article 311(2) of the Constitution. But, neither the said order nor the affidavit, affirmed by M.M. Kushari, contained the particulars of records on which the Governor might have formed his satisfaction in terms of Article 311(2) proviso (c).

At the hearing of these Rules we enquired from the learned Advocate-General, who appeared on behalf of the Respondents as to whether the State proposed to claim any privilege regarding the production of the original records relating to the passing of the aforesaid orders under Article 311(2) proviso (c) against the Petitioners of these two Rules. The learned Advocate-General submitted that the Government did not propose to claim any privilege. At the same time, the Respondents signified their unwillingness to bring on the said records and any further materials relating to the passing of the impugned orders. The learned Advocate-General submitted that he, however, had no objection to show the relevant files to us provided the same were hot disclosed to the Petitioners. We declined to peruse the files behind the back of the Petitioners as it would be a flagrant disregard of judicial principles to decide these two Rules on the basis of our personal knowledge about the contents of these files without affording any opportunity to the Petitioners to meet the allegations that might be contained in the files.

Therefore, we proceed on the basis that the Respondents have not produced any material in this Court to establish that the Governor of West Bengal had formed his satisfaction in these two cases upon consideration of relevant materials. The Governor can dispense with the enquiry under Article 311(2) only when he is satisfied that it would not be expedient in the interest of the security of the State. There is nothing before us to indicate that there was any material before the Governor or at any event the materials before the Governor pertained to the security of the State.

In the instant case, as already stated, we have nothing before us to show that the Governor had acted on considerations which are relevant to security of the State. We do not know whether in fact there, were materials, before the Governor indicating that the Petitioners undermined the security of the State or were trying to overthrow it. In Mrinal Kanti Das Burman''s case not even the notes of the Chief Secretary or the Commissioner of Police are before us. In Lalana Bhusan Sarkar''s case the Governor did not even state in his order that there was any note or preliminary report concerning the Petitioner. Therefore, there has not been a satisfactory return by the Respondents and we are bound to make these Rules absolute. It is true that the onus of proof is upon the Petitioners to prove that the impugned orders were invalid. In these cases they have alleged that there was non-application of mind by the authority who passed the impugned order. The Respondents, in spite of opportunities afforded to them, did not satisfy us that the materials at all existed showing that the Governor had satisfied himself that it would not be expedient in the interest of security of the State to hold enquiries against the Petitioners in terms of Article 311(2) of the Constitution.

In the above view, we make these Rules absolute ; let writs of certiorari issue quashing the impugned orders of dismissal; let writs of mandamus also issue commanding the Respondents to forbear from giving effect or any further effect to the said impugned orders of dismissal. Orders passed in these Rules, however, will be without prejudice to the rights of the Respondents to proceed afresh against the Petitioners in accordance with law.

S.K. Bhattacharyya J.

I agree.