Narendra Narayan Das vs The State of West Bengal

Masud, J.—This is an appeal against the judgment and decree of P.C. Mallick, J. dated March 9, 1962, whereby the Appellant''s suit for wrongful termination of his service against the Respondent was dismissed. The relevant facts of the case are stated as follows:

The Appellant, Narendra Narayan Das, was appointed a constable of permanent rank in the Calcutta Police Force under the State of West Bengal. By an order dated February 7, 1955, signed by the Home Secretary, Government of West Bengal, the said Narendra Narayan Das was dismissed from service with immediate effect. On January 17, 1956'', the Appellant filed the present suit for a declaration that the said order of dismissal dated February 7, 1955, was invalid and not binding on the Plaintiff and also for full pay arid emoluments, costs, etc. The Respondent in its written statement stated that the Appellant was lawfully dismissed in the interest of the security of the State. The said suit was heard by Mallick, J. who dismissed the suit as stated above.

Mr. Acharyya, Learned Counsel for the Appellant, has argued only one point, namely, that the said order dated February 7, 1955, dismissing his client is void inasmuch as the said Narendra Narayan Das was not given any opportunity of showing cause against the order terminating his services and as such, it contravenes Article 311(2) of the Constitution. According to Mr. Acharyya, before a government servant''s service is terminated an enquiry should be made to find out whether he is guilty of the charges made against him. In such an enquiry, it is the settled law that the particular government servant has a right to be heard. If during the enquiry the allegations against him are found to be, correct and in consequence, he is found guilty of the charges against him, he must be given another opportunity to show cause against the penalty proposed to be taken against him. Mr. Acharyya concedes that, his client has been dismissed under proviso (c) of Article 311(2) of the Constitution. But he contends that under the said proviso his client is only debarred from getting a reasonable opportunity to show cause against the penalty proposed to be taken against him. His client''s constitutional right to represent his case before the enquiry officer is still there. He supports his arguments on two grounds. Firstly, the words used in Article 311(2), viz., "The action proposed to be taken in regard to him" could only mean the punishment that is going to be inflicted on him; secondly, the amendment caused to Article 311(5?,) and also to its proviso (c) by the Constitution (15th Amendment) Act, 1963, indicate that after the amendment the delinquent government officer would be denied his right to prove his innocence in an enquiry, if the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to do so. Thus, it is obvious, according to Mr. Acharyya, that, prior to the amendment, it was obligatory for the Government to hold an enquiry even in cases where his service was terminated under the pre-amended proviso (c) to Article 311(2) of the. Constitution. Mr. Acharyya has, therefore, argued that as his client''s case took place prior to the 15th Amendment, his client is entitled to get an opportunity to prove his guilt before an enquiry officer in respect of the allegations against him. He has concluded that inasmuch as no such enquiry was made in the case of his client, the said order dated February 7, 1955, has been made in violation of the provisions of Article 311(2) of the Constitution.

Mr. Acharyya''s contention may now be examined. Article 311(2) of the Constitution as it stood in 1955 when the said order of dismissal was made read as follows:

311(1)...

(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:

Provided that this clause shall not apply to:

(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

(b) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) Where the President or Governor, as the case may be, is satisfied that in the interest of the security of the state it is not expedient to give to that person such an opportunity.

The impugned order dated February 7, 1955, reads as follows:

whereas, you, Shri Naren Das, constable of the Calcutta Police, 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 further that in the interest of the security of the State, it is not expedient to give you any opportunity of showing cause against the order terminating your services,

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

By order of the Governor

R.K. Mitra,

Secy. to the Govt. of West Bengal, Home Department.

The words used in the said order clearly show that proviso (c) to Article 311(2) of the Constitution has been made applicable to the instant case. Both Mr. Acharyya and the learned standing counsel have argued on the basis that proviso (c) has been applied. But the controversy arises as to its legal effect. Mr. Acharyya urges that proviso (c) only debars his client from getting an opportunity to show cause against the penalty proposed to be imposed on his client whereas the learned Standing Counsel wants us to hold that under this proviso the delinquent officer is also not entitled to get even the opportunity of showing cause against the charges brought against him. In our opinion, on a proper construction of proviso (c) Mr. Acharyya''s contentions cannot be accepted on the following grounds:

(a) The Words used in proviso (c), viz., ''such an opportunity'' refer to ''a reasonable opportunity of showing cause against the action proposed to be taken in regard to him'' as set out in Clause 311(2). Thus, the normal right to get a reasonable opportunity of showing cause against the action proposed to be taken in regard to a delinquent officer is denied to a person about whom the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity. The word ''action'' according to Shorter Oxford English Dictionary means ''the taking of legal process to establish a claim or obtain remedy'', legal process''; ''the right to raise such process''; ''the legal process or suit''. According to the plain and ordinary meaning the word ''action'' cannot be understood as penalty or punishment proposed to be taken against the delinquent officer. The word ''action'' involves various steps or stages which are required to be taken recourse to, if a government servant is to be dismissed or removed or reduced in rank. It is now well-settled that in such a case the steps to be taken are two-fold : firstly, the delinquent government servant must be given an opportunity of meeting the charges against him in an enquiry against him before an Enquiry Officer and secondly if, on enquiry, he is found to be guilty he must be allowed to show cause against the penalty proposed to be imposed on him; or, in other words, the word ''action'' contemplates or covers both the enquiry stage and the punishment stage. Accordingly if a government employee is dismissed under the circumstances mentioned in proviso (c) he would be denied the right of showing cause at both the stages.

(b) Before the amendment in 1963, neither Article 311(2) nor its proviso (c) has mentioned the word ''enquiry''. The word which was common to the proviso and the said clause was the word ''opportunity''. Now the opportunity constitutionally available to a delinquent person under the said Article may take shape either in a proceeding before an Enquiry Officer or in the form of a notice asking the government servant to show cause against the penalty proposed to be awarded. Both at the initial stage, i.e., proceedings before the Enquiry Officer and at the ultimate stage, i.e., stage where penalty is to be determined, the delinquent government servant has the normal right to get himself heard. But such normal right is not available where the proviso (c) is made applicable. This legal position remained so even before the said amendment.

(c) The three provisos to Article 311 (2) of the Constitution provide three exceptional cases where the delinquent officer is deprived of getting the two-fold opportunity implicit in the said clause. Proviso (a) debars such opportunity because the officer has already got an opportunity to prove his innocence in a Court of law. Proviso (b) also deprives a person of getting any opportunity if the authority puts on record that it is not reasonably practicable to give such a person an opportunity. Both under proviso (a) and proviso (b) there is no question of the delinquent officer getting an opportunity of proving his innocence before an Enquiry Officer. By the same process of reasoning, proviso (c) also cannot contemplate the officer''s right to get an opportunity to be heard before an Enquiry Officer. It is difficult to hold that provisos (a) and (b) do not contemplate an enquiry stage whereas proviso (c) would necessitate an enquiry before an Enquiry Officer.

It is true that there has been substantial amendment to Article 311(2) and its provisos under the Constitution (15th Amendment) Act, 1963. But such amendment cannot be of any assistance to the Appellant. We are concerned in the instant case with the said Article prior to the amendment and therefore, the words substituted by the amendment are not of much relevance. But even assuming that the amended words might throw light on the construction of the words in Article 311(2) and its provisos prior to the amendment, we do not think that the difference in the words used in the said clause would materially affect our conclusion. Article 311(2) after the amendment reads as follows:

No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such enquiry to impose on him any such penalty until he has been given a reasonable opportunity of making representation on the penalty proposed but only on the basis of the evidence adduced during such enquiry:

Provided that this clause shall not apply

(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to hold such enquiry; or

(c) Where the President or Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry....

The substantial amendment clause in Article 311(2) and its provisos have been made as a result of various judicial decisions and the principles underlying those decisions have been incorporated in the said Article by way of amendment. Both prior to the amendment and after the amendment the delinquent officer was entitled to take advantage of appearing before an Enquiry Officer in cases where he was sought to be dismissed or removed or reduced in rank. If as a result of the enquiry the guilt of the officer is proved, then another opportunity was given to the officer for making representation as to the penalty proposed. The second opportunity does not arise unless the officer is found guilty by the Enquiry Officer. Under the said proviso (c), as a result of the amendment if the delinquent officer is denied the advantage of appearing before the Enquiry Officer he is automatically deprived of the second opportunity also. Proviso (c) as amended has substituted the word ''to hold such enquiry'' in place of ''to give to that person such an opportunity'' and it does not necessarily follow that because the word ''enquiry'' is mentioned in place of ''opportunity'', the said proviso (c) before the amendment provided for an opportunity before the Enquiry Officer. As stated earlier, ''opportunity'' may be afforded in two ways - (i) by allowing the officer to appear before the Enquiry Officer to prove his innocence and (ii) by making representation on the penalty proposed to be taken against him if the Enquiry Officer finds him guilty. Proviso (c) both before the amendment and after the amendment has withdrawn the right of the delinquent officer to represent his case before the Enquiry Officer.

A short point has been raised by Mr. Acharyya that the order dated February 7, 1955, is not a valid order inasmuch as it not properly authenticated. But Mr. Acharyya has frankly confessed that in view of the various decisions of the Supreme Court, he would not argue the point before us. No other point having been raised and no case having been cited, for the reasons stated above, the appeal is dismissed and there will be no order as to costs.

Mitter, J.

I agree.