Holding

The second proviso to Article 311(2) completely excludes the application of clause (2) when any of the three conditions is satisfied, and no opportunity of hearing is required; Article 14 cannot be used to reintroduce such opportunity.

Summary

This Constitution Bench judgment interprets the second proviso to Article 311(2) of the Constitution of India, which allows dismissal, removal, or reduction in rank of a civil servant without an inquiry in three exceptional circumstances: conviction on a criminal charge, when it is not reasonably practicable to hold an inquiry, and when the President or Governor is satisfied that it is not expedient in the interest of the security of the State. The Court held that the second proviso completely excludes the application of clause (2) of Article 311, including any opportunity of hearing, and that Article 14 cannot be invoked to reintroduce such opportunity. The Court overruled the earlier decision in Divisional Personnel Officer v. T.R. Challappan, which had required a hearing on the quantum of punishment. The appeals by the Union of India were allowed, and the writ petitions of the dismissed employees were dismissed. The Court also clarified the scope of the pleasure doctrine under Article 310(1) and the remedies available to aggrieved civil servants, including departmental appeals and judicial review.

Issues considered

Whether the second proviso to Article 311(2) completely excludes the inquiry and any opportunity of hearing when any of its three clauses applies.
Whether Article 14 and the principles of natural justice can be invoked to require a hearing despite the exclusion in the second proviso.
What is the scope of the pleasure doctrine under Article 310(1) and its relationship with Article 311?
Whether the decision in Divisional Personnel Officer v. T.R. Challappan was correctly decided.
What are the conditions for the application of clauses (a), (b), and (c) of the second proviso?

Legislation cited

Central Civil Services (Classification, Control & Appeal) Rules, 1965s. 19, s. 22, s. 23, s. 25, s. 27(2), s. 29, s. 29A
Central Industrial Security Force Rules, 1969s. 37, s. 42, s. 42A, s. 47(2), s. 49
Constitution of Indias. 14, s. 21, s. 309, s. 310, s. 311
Government of India Act, 1935s. 240
Indian Penal Code, 1860s. 332
Industrial Disputes Act, 1947s. 22, s. 24, s. 26
Probation of Offenders Act, 1958s. 4
Railway Servants (Discipline & Appeal) Rules, 1968s. 14, s. 17, s. 20, s. 22(2), s. 25, s. 25A

Subjects

Pleasure DoctrineArticle 311Natural JusticeSecond ProvisoDismissalRemovalReduction in RankSecurity of StateReasonable PracticabilityConstitutional LawService Law

Judgment

131

UNION OF INDIA AND ANOTHER A
. v.
TULSIRAM PATEL AND OTHERS

JULY 11, 1985

[Y.v. CHANDRACHUD,CJ.' v.D. TUIZAPURKAR, R.S. PATHAK, B
D.P. MADON AND M.P. THAKKAR, JJ. J

Constitution of India Articles 14,21,309,310,311.

Central Civil Services (Classification Control & Appeal)
Rules 1965 Rules 19, 22,23, 25, 27(2),29, 29A. C

Central Industrial Security Force Rules 1969 Rules 37 ,42,
42A, 47(2) and 49.

Railway Servants (Discipline & Appeal) Rules 1968, Rules
· 14, 17, 20, 22(2), 25, 25A. D

Doctrine of Pleasure-Scope of in Art.311 - Whether an excep-
tion to Art.310(1) .

. ,. . Laws made under Art.309 whether to be subject>"to Ar,t.310(1)
· .fJ.ind 311 and Part III.
·~ E
Art. 311(2) second proviso - Principle of natural justice-
whetµer. excluded- Mala fide action of disciplinary authority
Whetti~r.'r~an. be assailed - . Conduct of government servant must
justify \disinissal or removal or reduction in rank - Condition
precedent. t<f applicability of the provision - Approach of the
disciplinaty''"authority - The situations when it is not reasonably F
practicable to·.'ll6ld. inquiry - What are - Reasons to be recorded
in writing for riot holding the inquiry - Communication of reasons
to the aggrieved -.g<?ye~ent servant - Necessity of - Remedies
available to the aggrieved governmeilt servant.

'Security of State;.•. ~ What is - How affected - When not G
expedient to hold inqUiry in· interest of 'security of state' -
subjective satisfaction -of-P~esident or Governor - What is.

Though pre-decisional ·hearing excluded post decisional
departmental hearing available·. - Judicial review open on grounds
of mala f ides or non-application of mind. H
132 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A Government servant convicted for causing grevious head
injury - Punishment of complusory retirement- Whether proper and
justified.

Railway employees - Participating in all-India strike - En
masse dismissal of participants - Whether proper and justified.
B
Members of CISF - Creating riotous situation - Break down
of discipline in the force - Members becoming security
risk - Dismissal - Whether proper and justified.

Member of State Police Force - Creating violent public
disorder ~ Inciting others members to do so - Dismissal wl1ether
C proper and justified.

Natural Justice - Principles of Natural Justice - What: are
- Origin of principle - .'audi alteram partem' - When can be
excluded - Post decisional hearing whether sufficient compliance
of the rule.

D Statutory Interpretation Provision of Constitution
·whether mandatory or directory 'expressum facit cessare
tacitum' - maxim - external aids to interpretation - use of -
mandatory constitutional prohibition · strict construction of
"""'Whether necessary.

E WORDS AND PHRASES - MEANING OF

'~ts of the appropriate legislature' - Art. 309. 'Except
as expressly provided by this Constitution' - Art. 310(1).
i.
'Not expedient' 'Security of State' ' - 'Reasonably
F practtcable' - 'This clause shall not apply' - Art. 311(2).

ADMINISTRATIVE LAW

Subordinate legislation - Executive instructions whether
have forC~ of statutory rule.
G
Article 311 of the Constitution confers certain safeguards
upon persons employed in civil capacities under the Union of
India or. a State. The f_irst safeguard (which is given by clause
(l) of Article 311) is that such person cannot be dismissed or
removed by an authority subordinate to that by which he was
H appointed. The second safeguard (which is given by clause (2) of
U.Q.l, v. TULSIRAM 133

Article 311 is that he cannot be diomianed reoioved or reduced in
A
rank except after an·l.nquiry in which he has been informed of the
charges against him a."ld· given a reasonable opportunity of being
heard in respect of tho•e charges. 'rhe second safeguard is, Mow-
ever, not available when a person in dismissed, removed or
reduced in rank in any of the three c.eses set out in clauses (a.)
to (c) mentioned in the second proviso to Article 311(2). Under
B
clause (a), such person can be dismissed, removed or reduced in
. rank without any inquiry on the ground of conduct which has led
to his convictiOn on a criminal charge. Under cla11Be (b), any of
the three penalties can be imposed where the authority empowered
to impose any of the penalties is satisfied that for some reason,
to be recorded by that authority in writing, it is not reasonably
_practicable to hold such inquiry. tinder clauae ·( c) , any of the c
aforesaid penalties can be imposed wher•> the Preside.nt, or the
Governor of a State, as the case may b•i, is satisfied that in the
interest of the &ccurity of the State it is not expedient to hold
such inquiry.
D
All the Government servants in the above Appeals and Writ
Petitions had been either dismissed or removed from service with-
out holding any inquiry.' They had not been informed of the
charges against them nor given any opportunity of being heard in
respect of those charges. The penalty of difll!lisll'11 or removal,
as the case may be, had been imposed upon them under one or. the
other of. the three clauses of the second proviso to Article
311(2) or under. silrJ.lar provisions in rules '""de under the E
proviso to Article 309 or in rules made under an A!;t referable to
Article 309, for instance, Rule 19 of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965. Rule 14 of the
Railway Servants (Discipl.tne and Appeal) !Jules 1968, and Rule 37
of the Central Industrial Security Force &ules, 1969, or under
such a rule read with one of the clauses of the secoru:! proviso to F
Article 311(2).

The affected government servants u.lailed the aiorasaid
order in writ petitions under Article 226 in different High
Courts, and some of these writ petitions were allowed on the
basis of this Court's decision in Divisional llol::SODal. Officer, G
Southern ll8illray & .Anr. v. T.1.. a.a11appan [1976] l s.c.&. 783,
and a few were diBlllissed.

Appeals by Special Leave agiinst those judgments were
filed, and in three •uch appeals it was noticed by a three Judge
Bench of this Court that there . was a conflict between H
134 SUPREME COURT REPORTS [1985] SUPP.2 s.c:.a.

A a.al.lappan's Case and another three Judge Bench in H.Gofiala
Krishna llaidn v. state of lllldhya Pradeah [1968] l s.c.a. 355 and
directed that the papers in the three appeals be placed before
the Hon 'ble Chief Justice for reference to a lsrger Bench. These
appeals were thus referred to the Constitution Bench and all
other similar Appeals and Writ Petitions were also plsced before
B the Constitution Bench for disposal.

The arguments advanced on behalf of the government servants
on the pleasure doctrine and the second proviso to Article 311
(2) were

1. The pleasure doctrine in England is a part of the
C special prerogative of the Crown and had been inherited by India
from England and should, therefore, be construed strictly against
the Government and liberally in favour of government servants.

2. The second proviso which withdraws from government
· servants the safeguards provided by clause. (2) of Article 311
must be also similady construed, otherwise great hardship would
D result to government servants as they could be arbitrarily thr"""'
out of employment, and they and their dependents would be Left
without any means of subsistence.

3. There are several stages before a government servant •:an
be dismissed or removed or reduced in rank namely, serving upon
E him of a show-cause notice or a charge-sheet, giving him
inspection of documents, examination of witnesses, arguments and
imposition of penalty. An inquiry starts only after a show cause
notice is issued and served. A show cause notice is thus
preparatory to the holding of an inquiry and even if the entire
inquiry is dispensed with, the giving of a show cause notice and
F taking of the explanation of the government servant with · respect
thereto are not excluded.

4. It is not obligatory upon the disciplinary authority to
dispense with the whole of the inquiry. Depending upon the
circumstances of the case, the disciplinary authority r.an
G dispense with only a part of the inquiry.

5. Imposition of penalty is not a part of the inquiry and
once an inquiry is dispensed with, whether in whole or in patt,
it is obligatory upon the disciplinary authority to give an
opportunity to the government servant to make a representatl.on
H with respect to the penalty proposed to be imposed upon him.
u.0.1. v. TULSIRAM 135

6. Article 311 is subject to Article 14. Principles of
natural justice SDd the audi alteram partem rule are part of A
Article 14, SDd therefore, a show cause notice asking for the
explanation of the government servant' with respect to the charges
against him as also a notice to show cause with respect to the
proposed penalty are' required to be given by Article 14 SDd not
giving such notices or either of them renders the order of
dismissal, removal or reduction in rank invalid. B

On behalf of the Union of India it was submitted that:

1. The second proviso is unambiguous SDd 111USt be construed
according to its terms.
c
2. Where the second proviso of clause' (2) of Article 311 is
made inapplicable, there is no scope for holding any partial
inquiry.

,3. The very contents of the three clauses of the ,second
proviso show that it is not necessary or not practicable or not D
expedient that any partial inquiry could be or should be held,
depending upon which clause applies.

4. Article 14 does not govern or control Article 311. The
Constitution lllUSt be read as a whole. Article 311(2) embodies the
principle of natural justice including the ~ alteram partem ,
rule. Once the application of clause (2) is expressly excluded by E
the Constitution itself, there can be no question of making
applicable what baa been so excluded by seeking recourse to
Article 14.

5. Considerations of sympathy for the government servants
who may be dismissed or removed or reduced in rank are irrelevant F
to the construction of the second proviso. The doctrine of tenure
at pleasure in Article 310 SDd the safeguards given to a
government servant under clauses (1) SDd (2) of Article 311 as
also the withdrawal of the safeguard under clause ( 2) by the
second proviso are all enacted in public interest and where
public interest conflicts with private interest, the latter lllUSt G
yield to the former.

Allowing the Appeals of the Union of India and dismissing
the Writ Petitions SDd Transferred Cases of the employees.

HELD : (Per Chmdracbad,CJ. V.D. Tulzapurbr, R.S. Pathak & H
D.P. lladao J.J. - K.P. Dvdrkar ,J. dissenting)
136 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

I. The Pleuure Doct:riDe ill the Dniti!d ltingrkn
A 'f,

1. :The pleasure doctrine relates to the tenure of a
government servant, thst is, his right to continue to hold •>ffice.
All public officers and servants of the Crown in the IJnited
Kingdom hold their appointments at the pleasure of the era.ill and
their services can be terminated at will without assigniug any
B cause. [166 F]

2. ·The pleasure doctrine is not base.d upon any special
prerogative of the Crown but is based on public policy and is in
public interest and for public good. The basis of the p1'"'8ure
doctrine is thst the public is vitally interested in the effi-
ciency and integrity of civil services and, therefore, public
c policy requires •. public interest needs and public good dmnands
thst civil servants who are inefficient, dishonest or corrupt or
hsve become a security risk should not contim:.e in seit'Vice.
[166 G]
I
3; In the United Kingdom, Parliament is sovereign mid can
make any law whatever and the courts hsve no power to declare it
D void. The pleasure doctrine is therefore subject to .what •oay be
expressly provided otherwise by legislation. [167 A-168 BJ
'•·
Balabury' a Lan of Engl and. Fourth J!dn, Volm!e 8 para
1106;1162.
': '~
Shenton V• Saith, L.R. [1895) A.C. 229 J.C., Dwm v. the
Queeea, L.R. [1896] Q.B.D. 116; a.c. (1895-96) 73 L.T.R. 695 and
sub namiDe Dunn v. llegen·in [1895-99] All E.R. Rep. 907., Gould
v. Stuart:, L.R. [1896] A.C. 575,578-9 J.C., Challfah ~Alilrlul
v. ~toJ:DerGeneral of Ceylon (1970] A.C. 1111,1118 (P.C.)
referred to.
F I•
II. The Pleasure Docttine in lDdia
f
1. · In India the pleasure doctrinP. has re<:eiv'ed
Constitutional 88DCtion by being enacted in Article 310(1) c>f the
Constitution of India. Under Article 310(1} except as exp10essly
G provided .in the Constitution, every person who is s member of a
defence service or of a civil service of the Union of India or of
an all-Iiidia service or holds any post connected with defe11Ce or
any civil post under the Union of India holds office during the
pleasure of the President, and every person who is a member of a
civil service of a State or holds any civil post under a state
H holds office during the pleasure of the Governor of the :State.
(186 H, 187 E)
u.o.r. v. TULSIRAM 137

2, In India, unlike in the United Kingdcm, the pl.eaaure A
doctrine is DOt subject to any law llllde by Puliament or a State
Legislature but is subject to only what ia ezpresaly provided in
the Constitution. · In India, therefore, the exception&· to the
pleasure doctrine can only be those which are expressly provided .
in the Constitution. [187 E]
B
3. Several exceptions to the pleasure doctrine are
ezpreasly provided in the Constitution.
I 4. Article 311, beixig an express proviaion of the
Constitution, is ·an exception to the pleasure doctrine contained
in Article 310(1) of. the Constitution. Clauee& (1) and (2) of c
Article 311 restrict the oper&tion .of the pleaaure doctrine so
far as civil. servants are concerned by conferring upon civil
servants the safeguards provided in those clauses~ [179 DJ

5• Under clause (l) of Article 311 no civil servant can be
dismissed or removed ·fJ::om service by an authority subordinate to D
that by which he was appointed· [179 E J

6. Uruier clause (2) of Article 311 DO civil servant can be
dismissed or removed from service or reduced.in.rank except after
an inquiry in llhich be hu been informed of the charges .againat
him and given a reasonsble opportunity· of beixig heard in respect
of such chsrges. As a result of the """"'dment made by the E
Constitution (Forty-second Amendment) Act, 1976, in clause (2) of
Article 311 it 18 now DOt ueceasary to give to a civil aenant an
opportunity of making a representation . with respect to the
penalty proposed to be imposed upon him. (179 F,181 EJ

7. An order of compulsory :retirement from service illlpoaed F
upon a civil servant by way of penalty amounts to "removal• from
service and attracts the provisions of Article 311. [180 E, 197 BJ

8. Restrictions on the operation of the pleaaure doctrine
contained in lesislation made by Parliament in the· United lllilgdom
and in clauses (l) and (2) of Article 311 in India are based on G
public policy and arein public interest and for public good in
asmueh as they give to civil servants a feelillg of security of
tenure. (182 E-FJ

9. The safeguard provided to civil servants by clause (2)
of Article 311 is taken away w1ien· any of the three clauses of the H
second proviso (originally the only proviso to Article 311(2))
becomes applicable. (162 DJ
138 SUPREME COURT REPORTS [1985] SUPP.2 S.C:.R.

10. It is incorrect to say that the pleasure doctrine 1.s a
A
prerogative of the British crown which has been inherited by
India and transposed into its Constitution, adapted to suit the
Consti.tutional set up of the Republic of India. Authoritative
judicial dicta both in England and in India, have laid down that
the pleasure doctrine and the protection afforded to civil
servants by legislation in the United Kingdom, and by clauses ( l)
B
and (2) of Article 311 in India are based .on public good.
S:lmilariy, the withdrawal of the safeguard contained in clause
(2) of Article 311 by the second proviso to that clause is also
based on public policy and is in public interest and for public
good. [191 C-E]
I
11. Neither Article 309 nor Article 310 nor Article 3U
c sets out the grounds for dismissal, removal or reduction in rank
or for imposition of any other penalty upon a ci.vil servan.t.
These Articles also do not specify what the other penalties ar•.•
These matters are left to be dealt with by rules made under tht..
proviso to Article 309 or by Acts referable to that Article or:<
rules made under such Acts. [191 G] '
D
12. The pleasure of the President or the Governor is not to
be exercised by him personally. It ,is to be exercised by the
appropriate authority specified in rules made under the proviso
to Article 309 or by Acts referable to that Article or rules made
under such Acts. Where, however, the President or the Governor,
aa the case may be, exerci,es his pleasure under Article 310( l) ,
E
it is not required that such set of exercise of the pleasure
under Article 310(1) must be an set of the President or the
Governor himaelf but it must be an act of the President or the
Governor in the Constitutional sense, that is, with the aid and·
on the advice of the Council of Ministers. [193 E]
F
. .rth-Weat l'roat1er ProviDce V• Suraj llara1D Anmld, L.,R.
[1947-48] 75 I.A., 343,352-3., State of Madhya Pndeab mad Otben
V• smnlul Sillgb, [1970] 3 S.C.R. 302, 305-6., Sardad. Lal v.
IJDioD of India and otbem, [1971] 3 s.c.R. 461, 465. ,l:amabmr
Prasad mad Otben v. D>e State of Bihar mad -tber [1962] Su.pp.
3 s.c.R. 369.. G.K. Qaoae mad 81K1tber V• E.x. Joseph, [1963]
G
Supp. l s.c.R. 789 referred to.

III. Die IDquiry under Article 311(2)

l. Clause (2) of Article 311 gives a Constitutional man<l.ate
to the principles of natural justice and the aud1 alteram E~
H
U.O.I. v. TULSIRAM 139

rule by providing that a civil servant shall not be dismissed or A
removed from service or reduced in rank until after an inquiry in
which he has been,given a reasonable opportunity of~ beard
in respect of those charges • .[234 EJ

2. The nature of this inquiry has been elaborately set out
by this Court in a- Qiand v. 'lbe 1JDioo of India ad Others
B
(1958J s.c.R. 1980, 1095-97 and even after the Constitution
(Forty-second Am<mdment) Act, 1976, the inquiry required by
clause (2) of Article 311 would be the same except that it would
not be necessary to give to a civil servant an opportunity to
make a representation with respect to the penalty proposed to be
imposed upon him. [235 BJ c
3. Apart from Article 311 prior to its amendment by the
Constitution (Forty-second Am<mdment) Act, 1976, it is not
necessary either under the ordinacy law of the land or under
industrial law to give a second f>pportunity to show cause against
the penalty proposed to be imposed upon an employee. [243 HJ
D

4. If an inquiry held against a civil servant under Article
311(2) is unfair or biased or had been conducted in such a
manner as not to give him a fair or ,reasonable opportunity to
defend himself, the principles of natural justice would be
violated; but in such a case the order of dismissal, removal or
reduction in rank would be bad as contravening the express
E
provisions of Article 311(2) and there is no scope for having
recourse to Article 14 for the purpose of invalidating it«
[235 CJ

IV. 'Die Secaad l'l<ov1ao to Article 311(2)
F
l. The language of the second proviso to Article 311(2) is
plain and unambiguous. The keywords in the second proviso are
"this clause shall not apply". There is no ambiguity in these
words. Where a situation envisaged in MJY of the three clauses of
the second proviso arises, the safeguard provided to a civil
servant by clause (2) of Article 311 is taken away. [204 CJ
G
2. The second proviso to Article 311(2) becomes applicable
in the three cases mentioned in clauses (a) to (c) of that
proviso, namely, (a) Where a pexson is dismiased or removed or
reduced in rank on the ground of conduct which has led to his
conviction on a criminal charge; (b) Where the authority
llllpOllered to dilllliae or remove a person or to reduce him in rank
is eatiafied that for - reason, to be recorded by that
140 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A authority in writing, it is not reasonably practicable to hold
such inquiry; and (c) Where the President or the Governor, 88 the
case may be, is satisfied that in the interest of the security
of the State it is not expedient to hold such inquiry. [203 A-C]

3. The goveruing words of the second proviso to clause ( 2)
B ·of Article 311, namely, "this clause shall not apply", are mauda-
tory and, not directory and are in the nature of a ConstituUonal
prohibitory injunction restraining the disciplinary authority
from holding an inqu.try under Article 311(2) or from giving any
kind of , opportunity to the concerned civil servant in a case
where one of the three clauses of the second proviso bec:omes
applicable. There is thus no scope for introducing into the
c second proviso some kind of inquiry or opportunity to show cause
by a process of inference or implication. The maxim ~~
facit cessare tacitum" ("when there is express mention of ce1<tain
things, then anything not mentioned is excluded·) applies to the
case. This well known maxim is a principle of logic and cOlllllOn-
sense and not merely a technical rule of construction. [213
H-214 A] .
D
4. ,.The second proviso to Article 311(2) has been in the
Constitution of India since the time the Constitution was
originally enacted. It was not blindly or slavishly copied from
section 240(3) of the Government of India Act, 1935. There was a
considerable debate on this proviso in the Constituent Assembly.
E The majority of the members of the Constituent Assembly had
fought for freedom and had suffered imprisonment in the cause of
liberty and were therefore, not likely to introduce into our
Constitution any provision from the earlier Government of India
Acts which had been enacted purely for the benefit of a foreign
imperialistic power. They retained, the second proviso 88 a matter
F of public policy and as being in the public interest and for
public good. They further inserted clause ( c) in the second
proviso dispensing with the inquiry under Article 311 (2) in a
case where the President or the 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 inquiry as also added a new clause,
G namely, clause (3), in Article 311 giving finality tc. the
decision of the disciplinary authority that it is not reaso,nably
practicable to hold the inquiry under Article 311(2). Section 240
of the Government of India Act, 1935, did not contain any
provision similar to clause ( c) of the second proviso to Article
311(2) or clause (3) of Article 311. [215 F-1!]
H "
J.0.1, v. TULSIRAM 141

liira Ial Katt.an Ial etc. V• State of o.P. and Another
(1973] 2 s.c.R. 502, .ec-tssioaer of Incme Tax, H!ldras v. A
lladurai Mills eo. I.rd. (1973J 3 s.c.R. 662, a- a.and v. 'lbe
llDion of India and Others [l958J s.c.&. 1080, Suxesh losby George
v. 'I.be llDlversity of Kexala and Others (1969] l s.c.&. 317,326,
Associated Cement Ccwpanh'B Ltd. v. t.c. Sbrivaatava and Others
[1984] 3 S.C.R. 361,369 and B.Shpnkara Hao W and Others v.
State of Mysore and aootber [1969] 3 s.c.&. 1,12, referred to. B

v. Article 14 and the Secowl Provi8o

l. The principles of natural justice are not the creation
of Article 14 of the Con:stitution. Article 14 is not the begetter
of the principles of natural justice 1"1t is their Constitutional c
guardian, [230 DJ

2. The principles of natural justice consist primarily of
two main rules, ll81llely, "nemo judex .!.!!_ � sua" ("no man shall
be a judge in his own cause") and "audi alteram partem" ("hear
the other side") • Tne corollary dedUCed"from the above two rulea D
and particularly the audi alteram parU!m rule was "qui aliquid
statuerit � inaudita altera, adguum licet dixerit, �
aeqUlllll fecerit" ("he who shall decide anything without the other
side having been heard, although he may have said what is right
will not have done what is right" or as is now apressed "justice
should not only be done but should manifestly be seen to be
done"). These two rules and their corollary are neither new nor E
were they tM discovery of English judges but were recognised in
1 civilizations and over many centuries. [235 D, 237 G]
11181Y

Dr. Bonhaa's cue [1610] 8 eo. Rep. 113b,118, . British
Rat.hay Doud V• Pick1n 1.R. (1974] A.C. 765, Drw y, Drw ad
Lebam [1855] 2 Macq . 1,8, Jaes llaDIJ.r Sllitb v. lier Majesty the F
Queen [1977-78] 2 App. Case 614,623 J.C., Artbar Jolm Spvtwm V•
Die P1-tead D.lstrict llollrcl of llorb 1.R. (1884-85] 10 App. Case
229,240, Viooet and aootber v. llumtt mid 8JK1tber [1885] 55 1,J,
Q.B. 39,41, llgglrfns and another Vo Slletlmdt Local. Board of
llealtb 1.R, (1890) 24 Q.ll.Do 712,716, liAlge V• llA1dldA ad otlms
1.R. [1963] 1 Q.B, 539,578, llmeka Glmdbi V• lmiOll of India G
[1978] 2 s.c.R. 621,676, re B.L (An Infmd:) 1.R. (1967) 2 Q.B.
617,630, F•f--t lllveal:Mats J.td, Vo SecntarJ of State for the
IDvinJmml: [1976) 1 W.L.R. 1255,l26H6, lleglm v. Secretary of
state for Ba• Affair• k parte Be snP.11 [1977] 1 w.1.a. 766,
784, Lffl1I ,, Beffll' 111111 others [1978) l w.1.a. 1061, 1076,
!loc:l"D v. 1be worlleQ 1miGD 1.R. (1929) 1 Ch. 602,624, Willia
H
142 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Green v. Isidore J. Blake and others [1948] I.R. 242, Hounslow
London Borough Comrll v. Twlckenlym Garden DevelopJients Ltd.
L.R. [1971] Ch. 233, KrriDgtcn and others. V• Kini.ster of Health
L.R. (1935] l K.B. 249,280, llidge v. Bslclwin and others L.R.
[1964] A.C. 40, on appeal from L.R. [1963] l Q.B. 539 and
Boswell's case [1606] 6 Co. Rep.48b, 52a, referred to.
B
3. Article 14 applies not only to discriminatory class
legislation but also to arbitrary or dlscriminatory State action.
Violation of a rule of natural justice results in arbitrariness
which is the same as discrimination, and where discrimination is
the result of a State action, it is a violation of Article 14.
Therefore, a violation of a principle of natural justic:e by a
c State action is a violation of Article 14. [229 F-G)

4. The principles of natural justice apply both to quasi-
judicial as well as administrative inquiries entailing civil
conaequences. [233 H-234 A)
•
5. It is well established both in England .and in India that
D the principles of natural justice y~eld to and change with the
exigenciea of different situations which are not alike. They are
neither cast in s rigid mould nor can they be put in a legal
strait-jacket. They are not immutable but flexible and can be
adapted, modified or excluded by statute and statutory rules as
also by the Constitution of the tribunal which has to decide a
E particular matter and the rules by which such tribunal is
governed. [235 D-F)

6. If legislation and the necessities of a situation can
exclude the principles of natural justice including , the audi
alteram partem rule, !. fortiorari so can a provision of the
F Constitution such as the second proviso to Article 311(2). [238
BJ
7. The audi alteram partem rule having been excluded by a
Constitutional provision, namely, the second proviso to Article
311(2), there is no scope for reintroducing it by a side-door to
G provide once again the same inquiry which the Constitutional t
provision has expressly prohibited. [238 DJ ~

8. A right of making a representation after an action is
taken against a person has been held by this Court to be a ~
sufficient compliance with the requirements of natural justice.
H In t_he case of a civil servant to whom the provisions of the
second proviso to Article 311(2) have been applied, he has the •

\
U.Q.I. v. TULSIRAM 143

right of a departmental appeal in which he can show that the
charges made against him are not true, and an appeal is a wider A
and more effective remedy than a right of making a
1 representation. [234 CJ

9. The majority view in A.K.Gopalan v. The State of Madras,
[1950J S.C.R. 88 namely, that particular Articles governing
certain F~ntal Rights operate exclusively without having any B
inter-relation with any other Article in the Chapter on Fundamen-
tal Rights was disapproved and held to be not correct in Kustom
Cawasji Cooper v. Union of ludia [1970J 3 $.C.R. 530, its burial
service was read in Sambhu Nath Sarkar v. The State of West
Jleogal and Others (1974] 2 s.c.R. 1, Haradhan Saba and another v.
lbe State of West Bengal and Others [1975J 1 s.c.R. 832 and its C
funeral oration was delivered in Maneka Gandhi's case, [1978J 2
s.c.R. 64 and it is to be hoped that the ghost of that majority
view does not at some future time rise from its grave and stand,
clanking its chains, seeking to block the onward march of our
country to progress, prosperity and the establishment of a
Welfare State. [240 H-241 Aj D

10. R.C. Cooper's case and the other cases which followed
it do not, however apply where a Fundamental Right, including the
·• audi alteram partem rule comprehended within the guarantee of
Article 14, is excluded by the Constitution. Express exclusionary
provisions contained in the Constitution are .Article 31A (1),
Article 3lli, Article 31C, Article 22 (5) and the second proviso E
to. ArticJ_e 311(2) as regards the audi 'alteram partem rule,
namely, affording an opportunity of a hearing to a civil servant
before imposing the penalty of dismissal, removal or reduction in
rank upon him. [241 BJ

11. The principles of natural justice must be' confined with- F
in their proper limits and not allowed to run wild. The concept
of natural justice is a magnificant thorough bred on which this
nation gallops forwards towards its proclaimed and destined goal
of "JUSTICE, social, economic and_ political". This throughbred
must not be allowed to turn into a wild and. unruly house,
carrering off were it listst unsaddli% its rider, and bursting G
into fields where the sign "no passaran" is put up. [242 DJ

In re The Special Courts Bill, 1978 [1979 J z s.c.R. 476,
State of Andhra Pradesh and llnother v. Nalla Kaja Reddy and
Others [1967J 3 s.c.R. 28, E.P. Royappa v. State of Tamil Nadu
and another [1974] 2 s.c.R. 348, Ajay llasia etc. v. Khalid Mujib H
144 SUPREME COURT REPORTS [1985] sUPP;2 s.c.R.

A Sehnmlrdi and others etc. [1981] 2 s.C.R. 79, Boniest Holst
Ltd. V• Secretary of State for Trade and Others L.ll. [1978] 1
Ch.201, A.K. Kraipalt and others etc. v. Union of India and ocbers
[1970] 1 s.c.ll. 457, Union of India v. Col. J.B.Sinha and anotbet ·•
[1971] 1 $.C.R. 791, Swadeshi Cotton Mills v. Union of India
[1981] 2 s.C.R, 533, J. Mobapatra & Co. and another v. State of
B Orissa and another [1985] 1 s.c.R. 322, 334-5, Liberty Oil 1t1.11a
and others v. Union of lnd1a and Otb2rs [1984] 3 S.C.C. 465,
Rustam Cavasji Cooper V• Union of India [1970] 3 S.C,R. 530, A.L
Gopalan · v. The State of lladras [1950] s.c.il. 88, SareNn Bath
Satbr v. The State of West lleng!il and others [1974] l s.c.R.l,
Barclban Saba and Anr. v. The State of ll'est Bengal & Om. [1975)
l S.C,R• 832 and Klmdiram Das v. The State of West Bengal & Ora.
c [1975] 2 s.c.R. 532;

VI• Service Rules and Acts

1. Article 309 is expressly Wlde subject to the provisions
of the Constitution. Rules made under the proviso to Article

D
309, Acts referable to that Article, and rules made under such
Acts are, therefore, subject both to Article 310(1) as also to
Article 311. If any such rule or Act impinges upon or restricts
..
the operation of the pleasure doctrine embodies in Article 310(1) •
except as expressly provided in the Constitution or restricts or
takes away the safeguards provided to civil servants by clauses
(1) and (2) of Article 311, it would be void and unconstitutional
E as contravening the provisions of Article 310(1) or clause (1) or
clause (2) of Article 311, as the case may be. Any such Act or
rule which provides for dismissal, removal or reduction in rank
of a civil servant without holding an inquiry as contemplsted by
clause (2) of Article 311 except in the three cases specified in
the second proviso to that clause would therefore, be unconstitu-
F tional and void as contravening Article 311(2). [243 A-CJ

2. In the same way, for an Act or a rule to provide that in
a case where the second proviso to Article 311(2) applies, any of
the safeguards excluded by that proviso will be available to a
civil servant would be void and unconstitutional as impinging
G upon the pleasure of the ?tesident or the ~vernor, as the case
may be. [243 E]

3. A well-settled rule of construction of statutes is that
where two interpretations are possible, one of which would
preserve and save the constitutionality of the particular statu-
H tory provision while the other would render it unconstitutional
U.O.I. v. TULSIRAM 145

and void, the one which saves and preserves its constitutionality
should be adopted and the other rejected. l243 F] A

4. Where an Act or a rule provides that in a case in which
the second proviso to Article 311(2) applies any of the
safeguards excluded by that proviso will be available to a civil
servant, the constitutionality of such provision would be
preserved by interpreting it as being directory and not B
mandatory. The breach of such directory provision would not.
h01oever, furnish any cause of action or ground of challenge to a
civil servant because at the threshold such cause of action or
ground of challenge would be barred by the second proviso to
Article 311(2). [243 GJ
c
5, Service rules may reproduce the provisions of the second
proviso to Article 311(2) and authorise the disciplinary autho-
rity to dispense with the inquiry as contemplated by clause (2)
of Article 311 in the three cases mentioned in the second proviso
to thst clause or any one or more of them. Such a provi- sion,
however, is not valid and constitutional without reference to the D
second proviso to Article 311(2) and cannot be read apart ffom
it. Thus, while the source of authority of a particular officer
to act as a disciplinary authority and dispense with the inquiry
is derived from the ·service rules, the source of his power to
dispense with the inquiry is derived from the second proviso to
Article 311(2) and not from any service rule. [243 F-G]
E
6• The omission to mention in an order of dismissal,
removal or reduction in rank . the relevant clause of the second
proviso or the relevant service rule will not have the effect of
invalidating the order imposing such penalty, and the order must
be read as having been made under the applicable clause of the
second proviso to Article 311(2) read with the relevant service F
rule. [266 H-267 A]

7. Rule 37 of the Central Industrial Security Force Rules,
1969, is clumsily worded and makes little sense. To provide that
a member of the Central Industrial Security Force who has been
convicted to rigorous imprisoment on a criminal charge "shall be G
dismissed from service". and at the same time to provide that"
only a notice shall be given to the party charged proposing the
penality of dismissal for his having been convicted to rigorous
imprisonment and asking him to explain as to why the proposed
penalty of dismissal should not be imposed" is a contradiction in
te:r:ms. To read these provisions as mandatory would be to render H
146 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A them unconstitutionsl and void. These provisions must, therefore,
be read as directory in order to preserve their constitutiona-
lity. [263 C-G]

8. Rule 19 of the Central Civil Services (Classification,
Control and Appeal) Rules, 1965, is identical with Rule 14 of the
B Railway Servants (Discipline and Appeal) Rules, 196.8, and the
interpretation of the said Rule 19 would be the same as that of
the said Rule 14. [256 F-11]

VII. Cballoppan 's Case

1. The three-Judge Bench of this Court in Divisiooal
l'ersoDnel Officer, Sou!=bern Railways and another v. T.11..
c Clallsppan was in error in interpreting Rule 14 of the Railway
Servants (Discipline and Appeal) Rules, 1968, by itself and not
in conjunction with the second proviso to Article 311(2). [256 DJ

2. The Court in Cballappan's case also erred in holding
that the addition of the words "the disciplinary authority may
D
consider the circumstances of the case and make such order
thereon as it deems fit" in the said Rule 14 warranted an
interpretation of the said Rule different frOlll that to be placed
upon the second proviso to Article 311(2). [254 G]

3. The Court in Chcllappan's case also erred in holding
E
that the addition of the words "the disciplinary authority may
consider the circumstances of the case and make such ordl!r
thereon as it deems fit" in the said Rule 14 warranted an inter-
pretation of the said Rule different f rOlll that to be placed upon
the second proviso to Article 311(2). It also erred in the
interpretation placed by it upon the word "consider" occuring in
F
the above phrase in the said Rule 14 and in taking the view that
a consideration of the circumstances of the case cannot be
unilateral but must be afterhearing the delinquent civil servant
would render this part of the said Rule 14 unconstitutional as
restricting the full exclusionary operation of the second proviso
to Article 311(2). [255 A-CJ
G
4. The word "consider" in its ordinary and natural sense is
not capable of the meaning assigned to it in Clallspi>an 's cue.
[255 GJ
5. The consideration of the circumstances under the said
H
Rule 14 must, therefore, be ~~and· without affording to the
concerned civil servant an opportunity of being heard. (255 HJ
U.O.l. v. TULSIRAM 147

6. The decision in Challappan's case never held the field A
for the judgment in that case was delivered on September 15, 1975
and hardly was that case reported when in the next group of
appeals in which the same question was raised the matter was
referred to a larger Bench by an order made on November 18, 1976.
The reference was in view of the earlier decision of another
three-Judge Bench in H. Gopala Krishna l!aidu v. State of lfadhya
B
Pradesh. The correctness of Cballappan Case was, therefore,
doubted from the very beginning. [256 EJ

VIII. IW!cutive Instructions

Executive Instructions stand on a lower footing than a
statutory rule. Executive instructions which provide that in a
c
case where the second proviso to Article 311(2) applies, any
safeguard excluded by that proviso would be available to a civil
servant would only be directory and not mandatory. [265 HJ

IX. 'lhe Scope of the Second Proviso
D
l· The three clauses of the second proviso to Article 311
are not intended to be applied in normal and ordinary situations.
The second proviso is an exception to the noraml rule and before
any of the three clauses of that proviso is applied to the case
of a civil servant, the conditions laid down in that clause 1D11St
be satisfied. [204 F-205 CJ
E
2. Where a situation envisaged in one of the clauses of the
second proviso to Article 311(2) exists, it is not mandatory that
the punishment of dismissal, removal of reduction in rank should
be imposed upon a civil servant. The disciplinary authority will
first have to decided what punishment is warranted by the facts
F
and circumstances of the case. Such consideration would, however,
be ~~and without hearing the concerned civil servant. If
the disciplinary authority comes to the conclusion that the
punishment which is called for is that of dismissal, removal or
reduction in rank, it 1D11St dispense with the inquiry and then
decide for itself which of the aforesaid three penalties should
G
be imposed. (205 A-BJ

x. Clause (a) of the Second Proviso
1. In a case where clause (a) of the second proviso to
Article 311(2) applies the disciplinary authority is to take the
H
conviction of the concerned civil servant as sufficient proof of
148 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

misconduct on his part. It has thereafter to decide whether the
A conduct which had led to the civil servant's conviction on a
criminal charge was such as to warrant the imposition of a
penalty and, 1f so, what that penalty should be. For this purpose
it must peruse the judgment of the criminal 'court and take into
consideration all the facts and circumsr.,.nces of the caae and the
various factors set out in Qmllappan's Case such as, the rm.tj_re
H conduct of the civil servant of the gravity of the offence
committed by him, the impact which his misconduct is likelv to
· have on' tne administration, whether the offence for .,..ich he was
convicted· was of . a technical or trivial nature, and the
extenuating circumstances, 1f any, present in the case. This,
however, has to be done by the disciplinary authority ~ ~
and without hearing the concerned civil servant. [267 C-E]
c
2. The penalty imposed upon the civil servant should not
be arbitrary or grossly excessive or out of all proportion to the
offence committed or one not warranted by the facts and circum-
stances of the case. [267 H]

3. Where a civil servant goes to the office of his superior
D officer whom he believes to be responsible for stopping his
increment and hits him on the head with an iron rod, so that the
superior officer falls down with a bleeding head, and the
delinquent civil servant is tried and convicted under section 332
of the Indian Penal Code but the Magistrate, instead of
sentencing him to imprisonment, applies to him the provisions of
E section 4 of the Probation of Offenders Act, 1958, and after such
conviction the disciplinary authority, taking the abvoe facts
·into consideration, by way of punishment comiiulsorily retires the
delinquent civil servant under clause (i) of section 19 of the
Central Civil Services (Classification, Control and Appeal)
Rules, 1965, it cannot be said that the punishment inflicted upon
F the civil servant was excessive or arbitraty. [267 F-G]

XI. Clause (b) of l:be Secood Prov:lBo.

' There are two conditions precedent which lllllSt be
l.
satisfied before ciause (b) of the second' proviso to Article
G 311(2) can be applied. These conditions are. (i) there lllllSt exist
a situation which makes the holding of an inquiry contemplated by
Article 311(2) not reasonably practicable, and (ii) the discipli-
nary authority should record in writing its reason for its satis-
faction that it is not reasonsbly practicable to hold such
inquiry. [269 D-E]
H
U.O.I. v. TULSIRAH 149

2. Whether it was practicable to hold the inquiry or not
1Dll8t be judged in the context of whether it was reasonably A
practicable to do so. (269 FJ

3, It is not a total or absolute impracticability which is
required by clause (b) of the second proviso. What is requisite
is that the holding of the inquiry is not practicable in the
opinion of' a reasonable man taking a reasonable view of the B
prevailing situation. [270 BJ

4, The reasonable practicability of holding an inquiry is a
matter of assessment to be made by the disciplinary authority and
1Dll8t be judged in the light of the circumstances then prevailing.
The disciplinary authority is generally on the spot and knows c
what is happening. It is because the disciplinary authority is
the best judge of the prevailing situation that clause (3) of
Article 311 m8kes the decision of the disciplinary authority on
0
his question final. [270 CJ

5. It. is not possible to enumerate the cases in which it D
would not be .reasonably practicable to.hold the inquiry.

Illustrative cases would be

(a) Where.a civil .servant, particularly through or together
with his associates, 8.o terrorizes, threatens or intimidates
witnesses who are going to give evidence against him with fear .of E
reprisal as to prevent them from doing so, or [270 AJ

(b) Where the civil servant by himself or together with or
through others threatens, intimidates and terrorizes the officer
whu is the disciplinary authority or members of his . family so
that he is afraid to hold the inquiry or direct it to be held, or F
[270 BJ

(c) Where an atmosphere of violence or· .of general
indiscipline and insubordination prevails, it being 1.Dmat.erial
whether the cooce"lM!d civil servant is or is not a party to
bringing abour aucb a situation. In all these cases, it 1Dll8t be G
remembered that numbers coerce and terrify while an individual
may not. [270 <lJ

6. The disciplinary authority is not expected to dispense
with a disciplinary inquiry lightly or arbitrarily· or out of
H
150 SUPREME COURT REPORTS [l985J SUPP.2 s.c.R.

A ulterior motives or merely in order to avoid the holding of an
inquiry or because the Department's case against the civil
servant is weak and must fail. (270 CJ

7. The word "inquiry" in clause (b) of the second proviso
includes a part of an inquiry. It is, therefore, not necessary
B that the situation which makes the holding of an inquiry not
reaaonably practicable should exist before the inquiry is insti-
tuted againat the civil servant. Such a situation can also ccime
into existence subsequently during the course of the inquiry, for
instance, after the service of a charge-sheet upon the civil
servant or after he has filed hie written statement thereto or
even after evidence has been led in part. [271 D-E]
c
8. When at the comnencement of the inquiry or pendiug it,
the civil servant abscards and cannot be served or will not
participate in the inquiry it will not be reasonably practicable
to afford to the civil servant and opportunity of a hesriug or
further hearing. In such cases, the matter must proceed~~
and on the materials before the discplinary authority. (271 EJ
D
9. The recordiug of the reason for dispensiug with the
inquiry is a condition precedent to the application of clauae (b)
of the second proviso. ·This is a Constitutional obligation and
if such reason is not recorded in writiug, the order dispensiug
with the inquiry and the other of penalty following thereupon
E would both be void and unconstitutional. It is, however, not
necessary that the reason should find a place in the final order
but i t would be advisable to record it in the final order in
order to avoid an allegation that the reason was not recorded in
writing before passiug the final order but was subsequently
fabricated. [271 GJ
F
lQ, The reason for dispensing with the inquiry need not
contain details particulars but it cannot be vague or just a re-
petition of the language of clsuae (b) of the second proviso.
[272 CJ

G ll. It is also not necessary to commmicate the reaaon for
dispensing with the inquiry to the concerned civil servant but it
would be better to do so in order to elilllinste the possibility of
an allegation beiug made that the reason was subsequently
fabricated. (272 BJ

H
12. The obligation to record the reason in writiug is
provided in clause ( b) of the second proviso so that the
U.O.I v. TULSIRAM 151

superiors of the disciplina1y authority may be able to j\ldge whe- A
ther such authority had exercised its power under clause (b)
properly or not. [272 FJ

13. It is, however, better for the disciplinary authority
to communicate to the concerned civil servant its reason for dis-
pensing with the inquiry because such communication would B
eliminate the possibility of an allegation being made that the
reason had been subsequently fabricated. It would also enable the
civil servant to approach the High Court under Article 226 or, in
a fit case, the Supreme Court under Article 32. [272 HJ

14. It WQuld be illogical to hold that administrative work C
carried out by senior officers should be paralysed by sending
them to other stations to hold the inquiry just because a delin-
quent civil servant either by himself or along with or through
others makes the holding of an inquiry by the designated disci-
plinary authority or inquiry officer not reasonably practicable.
[ill CJ D

15. In a case falling under clause (b) of the second
proviso it is not necessary that the civil servant should be pla-
ced under suspension until such time as the situation improves
and it becomes possible to hold the inquiry because in such
cases neither public interest nor public good requires that
salary or s•ibsistence allowance should be· continued to be paid E
out of the public exchequer to the concerned civil servant. In
certain cases, the exigencies of a situation would require that
prompt action should be taken and suspending a civil servant
would not serve the purpose, and sometimes not taking prompt
action might result in the trouble spreading and the situation
worsening and at times becoming uncontrolable. Not taking prompt F
action may also be construed by the troubl~rs as a sign of
weakness on the part of the authorities and thus encourage them
to step up their activities or agitation. Where such prompt
action is taken there is an element of deterrence in it but this
is unavoidable and. a necessary concomitance of such an action.
(273 DJ G

16. If an inquiry into the charges against a civil servant
is not reasonably practicable, i t stands to reason that an
inquiry into the question whether the disciplinary inquiry should
be dispensed with or not is equally not reasonably practicable.
(273 DJ H
17. In situations where a large group of members of the
Central Industrial Security collectively indulge in several of
acts of insubordination indiscipline and intimidation with the
152 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A COlllllOn object of coercing those in charge of the administratio~
of the Force and the Government to compel them to grant recogni-
tion to their Association and to concede their demands, it is not
possible to particularise in the orders of dismissal the acts of
each individual member who participated in the commission of
these acts. The participation of each individual might be of a
B gre&ter or lesser degree but the acts of each individual
contributed to the creation of a situation in which the security
force itself had become a security risk. [291 C-E]

18. The quantum and extent of the penalty to be imposed in
each case would depend upon the gravity of the situation and the
extent to which the acts said to be committed by the pBrticular
c civil servants, even though not serious in themselves, in
conjunction with acts committed by others, contributed to
bringing about the situation. The fact, that at a particular
centre certain civil servants were dismissed from service while
at some other centres they were only removed from service does
not mean that the penalties were arbitrarily imposed. [292 A-BJ

D
xn. Clause (c) of the Second Pi:oviao.
The expression "security of the State" in clause (c) of the
second proviso to Article 311(2) does not mean security of the
entire country or a whole State but includes security of a part
of a State; [275 E]
E
2. Security of the State cannot be confined to an armed
rebellion or revolt for there are various ways in which the se-
curity of the· State can be affected such as by State secrets or
infonnation relating to defence production or similar matters
being. passed on to other countries, whether inimical or not to
India, or by secret links with terrorists. [275 E]
F
3. The way in which the security of the State is affected
may be either open or clandestine. [275 FJ

4. Disaffection in the armed forces or paramilitary forces
or the p0lice force would affect the security of the State. The
G importance of the proper discharge of the duties by members of
these Forces and the maintenance of discipline among them is
emphasised in Article 33 of the Constitution. [275 GJ

5. Disaffection in any armed fo,ce or para-military force
or police force is likely to spread because dis-satisfaction and
H
U.O. I. v • .TULSIRAM 153

disaffected members of such a Force spread dissatisfaction 'awl A
disaffection among other members of the Force and thus induce
them not to discharge their duties properly and to commit acts of
indiscipline, inaubordination or disobedience to the orders of
their superiors. Such a situation cannot be a J>atter affecting
only law and order or public order but is a matter vitally
affecting the security of the State. [276 A-B] B

6. The interest of the security of the State can be
affected by actual,acts·or even by the likelihood of such acts
taking place. [277 D]

7. In an inquiry into acts affecting the interest of the c
security of the State, several matters not fit or proper to be
made public, including the source of information involving a
c1vil servant in such aCts, would be disclosed and thus in such
cases an inquiry into acts prejudicial to the interest of the
seeurity of the State would as much prejudice the interest of the
security of the State as those acts themselves would. [279 D] D

8. The corulition for ·the application of clause (c) of the
second proviso to Article . 311(2) is the satisfaction of the'
President or the Governor, as the case may be, that it is not ex-
pedient in the interes't of the security of the State to hold a
disciplinary inqUiry. [277 DJ
E
9. Such satisfaction is not required to be that of the
President or the Governor personally but of the President or the
Governi>r, as thecase may be, acting in the Constitutional sense.
[278 A]

State of Bajastban and Others et:c. et:c. v. llDioD of India F
et:c. et:c. '(1978] l s.• c.R. l, 82., referred to.

10. "Expedient" means "Advantageous, fit, proper suitable.
Where, therefore, the President of the Governor, as the case may
be, is satisfied that it will not be advantageous or fit or ·
proper or suitable or politic in the interest of the security of G
the State to hold an inquiry, he would be entitled to dispense
with it under clause (c) of the second proviso. [217 F]

ll. Under clause (c) of the second proviso the satisfaction
reached by the President or the Governor, as the case may be,
must necessarily be a subjective satisfaction because expediency H
invol~ matters of policy. [278 G]
154 SUPREME COURT REPORTS [l985J SUPP.2 s.c.R

12. Satisfaction of the President or the Governor under
A clause (c) of the second proviso may be arrived at 8s a result of
secret information received by the Government about the brewing
danger to the security of the State and like matters. There are
other factors which are also required to be considered, weighed
and balanced in order to reach the requisite satisfaction whether
holding an inquiry would be expedient or not. If the requisite
B satisfaction has been reached as a result of secret information
received by the Government, malting known such information uy
very often result in disclosure of the source of such information
and once lcnoW, the particulsr source would no more be available
to the Government. The reason for the satisfaction reached by the
President or the Governor under clause ( c) of the second proviso
cannot, therefore, be required to be recorded in the order of
c dismissal, removal or reduction in rank nor can it be lll8de
public. [279 E, 280 BJ

13. When a number of members of the Madhya Pradesh District
Police Force and the Madhya Pradesh Special Armed Force, in order
to obtain the release on bail of two of their colleagues who had
been refused bail and remaned into judicial custody because of
D an incident which took place at the annual Mela attacked the
police station at the Mela ground, ransacked it and forced the
wireless operator to close dawn the wireless set and the
situation became so dangerous that senior district and police
officers had to approach the judicial Magistrate at night to get
the two arrested· constables relea&ed on bail and, after
E discussion at a Cabinet meeting, a decision was taken and the
advice of the Council of Ministers was tendered to the Governor
of Madhya Pradesh who acc;epted it and issued orders of dismissal
of these persons by applying clause ( c) of the second proviso to
them it cannot- be said that the provisions of the said clause (c)
were not properly applied. [295 E-296 CJ
F
14. Similarly, when after these members of the Madhya
Pradesh District Police Force and the Madhya Pradesh Special
Armed force were dismissed, some other members of theae Forces
began carrying on an active propaganda against the Government,
visiting various ·places in the State of Madhya Pra•!esh, holdill8
G secret meetill8a, distributill8 leaflets and incitill8 the consta-
bulary in these places to rise against the adminiatration as a
body in protest against the action taken liy the Government and,
on such information being received, there were also dismissed by
applying clause (c) of the second proviso to them, it cannot be
said that the said clause (c) was not properly applied. [296
H F-297 BJ
u.o.r. v. TULSIRAM 155

XIII. R Un ..,.nehle to a Civil SenlmC
A.
A civil aervant who bas been dilllledlias , removed or reduced
in rank by applying to bis case one of the clauees of the second
proviso to Article 311(2) or SD awtlogous service rule has two
rmedies available to him· These .remedies are;
R
(1) The appropriate departmental remedy provided for in the
relevant service rn1es, and
(ii) if stiU disBBtisfied, invoking the court's ponr of
jwlicial review. [216 A-II]

nv. Deparmeotal. 1 11•.
c
Service rn1es generally provide for departmental rl!llll!die&
bY way of SD appeal, revision and revie. in the case of discipli
nary action taken sgainat a civil servant.

2. Sub-clause (ii) of clause (c) of the first proviso to
D
Rule 25(1) of the Railway Servants (Diacipline and Appeal) Rules,
1968, provides that where an inquiry has not been held, the
revising authority shall itself bold such iuquiry or indirect
such iuquiry to be held. A railway servant baa therefore a right
to delland in revision an inquiry into the charges sgainat him
subject to a situation enviaaged in Rule 14 of the BBid Rulee not
prevailing at tbat time . [248 G-;1]
E
3. Althougb a provision similar to sub-clause (ii) of
clauee (c) of the first proviso to Rule 25(1) of the RailJrays
.Servants (Discipline and Appeal) Rules, 1968, does not exist in
the rnles relating to appeals, having regard to the factors set
out in Rule 22 (2) which are to be considered by the appellate
F
authority in deciding an appeal, a provision similar to the said
sub-clause (ii) of clause (c) of the first proviso to Rules 25(1)
should be read and imported into the provisions relating to
appeals in the said Rules. [249 I>-F]

4. Even in a case where at the time of the hearing of the
G
appeal or revision, as the case may be, a situation enviaeged by
the second proviso to Article 311(2) exists, as the civil
servants, if dismissed or removed, is not continuing in service
and, if reduced in rank, is continuing in service with the
reduced rank; the hearing of the appeal or revision, as the case
may be, should be post,J>Oned for a resaonsble length of time to
H
enable the situation to return to normal. (273 G]
156 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

5. An order imposing penalty passed by the President or the
A Governor, as the case may be, cannot be challenged in a
departmental appeal or revision. [265 D]

6. A civil servant who has been dismissed or removed from
service or reduced in rank by applying to his case one of the
clauaes of the second proviso of Article 311(2) or of an
B analogous service rule has, therefore, the right in a departmen-
tal appeal or revision to a full and complete inquiry into the
allegations made against him subject to a situation envisaged in
the second proviso to Article 311(2) not existing at the time of
the hearing of the appeal or revision application. Even in a case
where such a situation exists, he has the right to have the hear-
ing of the appeal or revision application postponed for a reason-
c able length of time for the situation to become normal. [273 F]
. '
7. In an appeal, revision or review by a civil servant who
has been dismissed or removed from service or reduced in rank by
applying to his case clause (a) of the second proviso or an
analogous service rule, it is not open to the civil servant to
contend that he was wrongly convicted by the criminal court. He
D can, however, contend that the penalty imposed upon him is to
severe or excessive or was one not warranted by the facts and
circumstances of the case. If he is in fact. not the civil servant
who was actually convicted on a criminal charge, he can contend
in appeal, _revision or review against such order of penalty that
it was a case of mistaken identity. [264 E]
E
s .. A civil servant who has been dismissed ·or removed from
service or reduced in rank by applying to his case clause (b) of
the second proviso to Article 311(2) or an analogous service rule
can claim 'in appeal or revision that in inquiry should be held
with respect to the charges on which such penalty has been
F imposed upon him unless a situation envisaged by the second
pl'.oviso is prevailing at the hearing of the appeal or revision
<'.pplication. Even in such a case the hearing of the appeal or
revision application should be postponed for a reasonable length
of time for the situation to return to norma).. [264 B]
•
G 9. In a case where a civil servant has been dismissed or
removed from service or reduced in rank by applying clause (b) of
the second proviso or an analogous service rule to him, by reason
of clause (3) of Article 311, it is not open to him contend in
appeal, revision or review that the inquiry was wrongly dispensed
with. [264 GJ .
U.O.I. v. TULSIRAM 157

10. In a case where a civil servant has been dismissed or
removed from service or re.duced in rank by applying clause (c) of A
the second proviso or an analogous service rule to him, no appeal
or revision will lie if the order of penalty was passed by the
President or the Governor. If however, the inquiry has been dis-
pensed with by the President or the Governor and the order of
penalty haB been passed by the disciplinary authority (a position
envisaged by clause (iii) of Rule 14 of the Railway Servants B
(Discipline and Appeal) Rules, 1968, and clause (iii) of Bule 19
of the Central Civil Services (Classification, Control and
Appeal) Rules, 1965) a departmental appeal or revision will lie.
In such an appeal ur revision, the civil servant can ask for an .
inquiry to be held into his alleged conduct unless at the time of
the hearing of the appeal or revision a situation to envisaged by c
the second proviso to Article 311(2) is prevailing. Even in such
a situation the hearing of the appeal or revision application
should be postponed for a reasonable length of time for the
situation to become normal. The cl vil servant, however, cannot
contend in such appeal or revision that the inquiry was wrongly
dispensed with by the President or the Governor. [265 B-E) D

xv.' Jnd1cfa1 Reviev.,,.
l. Where a clause of the second proviso to Article 311(2)
or an analogous service rule is applied on an extraneoua ground
or a ground having no relation to the situation envisaged in
such clause or rule, the action of the disciplinary authority in E
applying that clause or rule would be mala fide and, therefore,
bad in law and the court in exercise Ofits power of judicial
review would strike down both the order dispensing with the in-
quiry and the order of penalty following thereupon. [273 C-D)

2 • Where a civil servant has been dismissed or reJ:>Oved from F
service or reduced in rank by applying clause (a) of the second
proviso to Article 311(2) or an analogous service rule and he
invokes the court's power of judicial review, if the court finds
that the penalty imposed by the impuged order is arbitrary or
grossly excessive or out of all proportion to the offence
committed or was not warranted by the facts and circumstances of G
the case or the reqcirements of the particular government service
to which the concerned civil servant belonged, the court will
strike down the impugned order. In such a case, it is; however,
not necessary that the court should always order reinstatement.
The court can instead substitute a penalty which in its opinion
would be just and proper in the circumstances of the case. If H
158 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

however, the court finds that he was not in fact the civil
A servant who was convicted, it will strike down the impugned order
of penalty snd order his reinstatement. [267 G-268 A, 273 FJ

3. In the case of a civil servant who has been dismissed or
removed from service or reduced in rank by applying clause (b) of
the second proviso to Article 311(2) or an analogoils service
B rule, the High Court under Article 226 of this Court under
Article 32 will interfere on grounds well-..stablished in law for
the exercise of its power of judicial review in matters where
administrative discretion is exercised. [274 AJ

4. The finality given by clause (3) of Article 311 to the
disciplinary authority's decision that it was not reasonably
c practicable to hold the inquiry is not binding upon the court and
the court would consider whether clause (b) of the second proviso
or an analogous service rule had been properly applied or not.
[274 BJ

5. In examining the relevancy of the reasons given for
dispensing with the inquiry, the court will consider the
D circumstances which, according to the disciplinary authority,
made it come to the conclusion that it was not reasonably
practicable to hold the inquiry. If the court finds that the
reason are irrelevant, the order dispensing with the inqui:r:y and
the order of penalty following upon it would be void and the
court will strike them down. In considering· the relevancy of the
E reasons given by the disciplina:r:y authority, the court will not,
however, sit in judgment over the reasons like a court of first
appeal in order to decide whether or not the reasons are germane
to clause (b) of the second proviso or an analogous service rule.
The court llll1St put itself in the place of the disciplina:r:y
authority snd consider what in the then prevailing situation a
F reasonable man acting in a reasonable manner would have done. It
will judge the matter in the light of the then prevailing
situation. Where two view are possible, the court will decline to
interfere. [274 C-D]

6. Where it is alleged that clause (b) of the second
G proviso or an analogouei 'service rule was applied mala fide, the
court will examine the charge of mala fides. A mere bare
allegations of mala fides without any particulars of mala ~
will not, however, aioount to a plea of mala fides and ri!<juires to
be ignored. [280 HJ

H 7. If the reasons for dispensing with the inquiry are not
U.Q.I. v. TULSIRAM 159

colllllUllicated to the concerned civil servant and the matter C'!""'S A
to conrt, the court can direct the reasons to be produced and
furnished to the clvil servant and if still no produced, a
presumption should be drawn the reasons were not recorded in
writing and the impugned order would then stand invalidated.
Such presumption can, however, be rebutted by a satisfactory
explanation for the non-production of the written reasons. [272 . B
H-273 A]

8. Where a civil servant is dismissed or removed from
service or reduced in rank by applying clause (c) of the second
proviso or an analogous service rule to his case, the
satisfaction of the President or the Governor that it is not c
expedient in the interest of the security of the State to hold an· .
inquiry being a subjective satisfaction would not be a fit matter
for judicial review. [278 F]

9. It is not necessary for the court to decide the question
whether the satisfaction of the President or the Governor can be D
challenged on the ground that it has been reached mala fide or is
based on wholly extraneous or irrelevant grounds in a case
where
all the materials including the advice of the Council of
Ministers have been produced and such materials show that the
satisfaction of the President or the Governor was neither
reached mala fide nor was it based on any extraneous or
irrelevant ground. [279 E] E

10. By reason of the express provision of Article 74(2) and
Article 163(3) of the Consti.tution the question whether any, and
if so what, advice was tendered by the Ministers to the President
or the Governor, as the case may be, cannot be inquired into by
any court. (279 F] F

n. Whether the court should order production of the
materials upon which the advice Of the Council of Ministers to
the President or the Governor, as the case may be, was based in
order to determine whether the satisfaction of the President or
the Governor was arrived at mala fide or was based on wholly G
extraneous or irrelevant growldSwou~pend upon whether the
doc.-nts fall within the class of privileged doc.-nts and
whether in respect of them privilege has beeD. pi:operly claimed or
not. !277 G-278 BJ

In re Tuls:lraa Patel
160. SUPREME COURT REPORTS (1965] SUPP.2 s.c.R.

The Respondent-Tulsiram Patel was a perimment allditor in
A the Regional Audit Office. Orders were issued for stopping his
increment for one year, where-upon he went to the Regional Audit
Officer demanded an explanation from him as to why he had stopped
his increment, and not satisfied with the reply of the auditor t
officer struck him with an iron rod, wherupon the officer fell
do-wn, his head bleeding. The Respondent was tried and convicted
B under Sec. 332 of . the Indian Penal Code bUt the ·Magistrate
instead of sentencing the respondent to impriso;_,,t, invoked the
provisions Sec. 4 of the Probation of Offend~rs Act, 1956 and
released him for a period of one year on executing a bond of good
behaviour. The Respondent's appeal against bis conviction was
dismissed. [281 F-fl]
c The Controller General of Defence Accounts, the
disciplinary authority, imposed upon the Respondent the penalty
of compulsory reUrement under clause ( l) of Rule 19 of the Civil
Service Rules. The respondent 's departmental appeal was
dismissed. (262 A,D]

The Respondent thereafter filed a Writ Petition, and the
D High Court relying upon a.allappan 's Case held that no oppor-
tunity had. been afforded to the Respondent before imposing the
penalty of compulsory retirement on him and that the impugned
order was ·defective inasmuch as it did not indicate the circuni-
stances which were considered by the disciplinary authority
· except the .fact of conviction of the Respondent. [282 E-F]
E
The appeal of the Union of India was allowed, the judgment
and order appealed against were reversed and set aside and the
writ petition filed by the Respondent in the High Court is
dismissed. [284 A]
F CISF llA1"D!RS

The respondents who were members of the CIS Force Unit at
Bokaro Steel Plant and were disDiissed from service. The members
of this CIS'F Unit at Bokaro had .formed an All-India association
and one of ·the dismissed person was elected it General Secretary.
G Thereafter a country-wi.de · agitation was carried ou for
recognition of the association. In June 1979 some of the members
went to Delhi to meet the Home Miuister. A demonstration was
staged and some of the demonstrators were arrested. At Bokaro
Steel Plant the agitation which was going became aggravated and
out of 1900 persons belonging to CISF Unit Bokaro, about 1000
H
u..o.:r:. v. TULSIRAA.. 16i

persons participated in processions and. violent deaKxlstratiOllll• A
They indulged in serveral acts of violence and created serious
in- discipline. The agitation and the violent activity reecbed
serious proportion ·in the last week ·of June 1979 with the result
that the A:rJJJ:f bad to be called by the State Authorities on
23.6.1979, took up positions round the CISF Lines and called upon
the agitators to give up charge of the Armoury. The agitators B
refused and started firing at the Ar:JJJ:f, who. returned the fire,
and the exchange· of ftre resulted in the instant death of one
A:rJJJ:f Major. The offending CISF members were over powered, ·and
arrested. (284 F-2.85 DJ

The authorities were of the opinion; that having regard to · c
the violent and disturbed situation which prevailed in the Bokaro
Steel Plant, the collective ·action of violence, mass terror and
intimidation and threats to the supervisory and loyal staff, any
inquiry in accordance with Rules 34, 35 and 36 of CISF Rules 1969
or in accordance with the requirl!ments of Article 311(2) lllOUld be
dangerous Counter-productive and would aggravate the existing D
dangerous situation, the delinquent persorinel were diamiased in
ei<ercise of the powers conferred bY sub-rule (b) of rule 37 of
the CISF Rules 1969 read with clause (b) of the second proviso of
clawie (2) of Article 311 of the Constitution. [288 C-289 AJ

The Cis Force bas been constitnted under the CISF Act for
the better protection and sei:urity of industrial undertakings E
owned by the gl)vernment. The .CIS Force is an armed Force and the
security duties to be performed by the CIS Force are of vital
iiuportance to the industrial production of the country, [289 Jl,GJ

All the acts indulged in by the members of the Force vir-
tually amounted to a 11111tiny and boll grave the situation was can F
be judged from the fact that the army. bad to be called 0ut and a
pitched battle took place betweeo the army and the members of the
Force. (291 AJ ·
No person with any reason or sense of responsibility can
say that in such s situation the holding of an inquiry was G
reasonable and practicable. [291 BJ
.,
The appellate authority under the Central Industrial
Security Force Rules i969 was directed to dispose of as
expeditiously as possible such appeals of the members of the
Force as lllig)lt a.till be pending. Such of those members ·who bad H
162 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A not filed any appeal, in view of their reliance on Cball.appan 's
case, time was granted to them to file a departmental appeal, and
the concerned authority was directed to condone the delay in the
filing of the appeal and to dispose it of on merits.[291 H-292 CJ

KADllAY Sl!B.VICE llA1Tl!llS
B
Railway Servants were either dismissed or removed from
serviCe by applying to their cases either clause (ii) of Rule 14
of the Railways Servants Rules or clause (ii) of Rule 14 read
with clause (b) of the second proviso to Article 311(2), as they
were alleged to have been concerned in incidents which took place
in the all-India strikes of railway employees. ,Many of these
c employees belonged to the all-India loco-running staff. The rail-
way servants went on these strikes with the object of forcing the
Government to meet their demands. (292 E-F]

Railway service is a public utility service within the
meaning of clause (a) of section 2 of the Industrial Disputes
Act, 1947 and the proper running of the railway service is s
D vital to the country. Where, therefore, the railway employees
went on an illegal strike without complying with the provisions
of section 22 of the Industrial Disputes Act 1947, and thereby
cOlllllitted an offence punishable with imprisonment and fine under
section 26(1) of the said Act, and the railway serviCllS were
paralysed, loyal workers and superior officers assaulted and
E intimidated, the country held to ransom, the economy of the
country and public interest and public good prejudicially
affected, prompt and iDDediate action was called for in order to
bring the situation to normal. In these circ.-cances, it
cannot be said that an inquiry was reasonably practicable or that
clause (b) of the second proviso to Article 311 was not properly
F applied. [294 C-F, 295 CJ

IWllIA. PIWl!SH l'OLICI! Flll(:l!S llA1Tl!llS

Members of the M.P. District Police Force or M.P. Special
Armed Force were dismissed by orders of the Governor of Madhya
G Pradesh by applying clause ( c) of the second proviso to Article
311(2)• [295 EJ

An incident took place on January 18, 1981 at the annual
Mela held at Gwalior in which one man was burnt all ve. Some per-
sons including a constable from each of these two forces, were
H arrested and remanded to judicial custody. On January 20, 1981
•
u.o.I. V• TULSIRAM [MADON,J.] 163

several members of these two Forces indulged in 'Violent demon- .A
stration and rioted at the Mela ground .demanding the release of
their colleagues. They attacked the police station at the Mela
Grounds, ransacked it and forced the operator to close down the
wireless set. [296 DJ
The police are the guardians of lav and order, and if theae
guards tum law-breakers and create violent public disorder and B
incite others to do the saa, prompt and urgent action ~s
necessary and the holding of an inquiry into the conduct of each
indirldual member of the police force -Ud not be expedient in
the interest of the security o.f the State. {297 A-BJ

(Nr x.r; Tblllibr J- cllil• attng) c
'a..Jlappan • has been rightly decided. And there is no
compulsion to overrule U - Eftll if the other point of view were
to appear to be more 'attractive' it is neither a good nor a
· aufficient ground to overrule •a..uappea•. The decision, does no
more than enjoin in the context of Rule .14(1) (a) and tlterefore, D
u a logical corollary, also in the context of Rule 14 (a) (b) of
the llaf.lways Servants (Discipline and Appeal) Rules, 1968, that
an mployee 1111St atleast be heard on one question of quantum of
punis1-ct before he is dismissed or removed frOlll service without
holcl1ng any inquiry. The ratio of the decision is so innocuous
that there is hardly any need to overturn it· (299 F-G]
Concurrence with the consequential orders being passed in E
thue cuea and association with the exposition of 1av in regard
to the true meaning and content of the 'pleasure doctrine' and
its illplications and impact is not possible. [300 BJ

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6814 of
1981 etc. F
From .the Judgment and Orde dated 23.6.1982 of the Madhya
ptadesh High Court in M.P: No. 1028 of 1981.

L.N.Sinha, M.K.Ramanurthy, K.K.Vinugopal, V.M.Tarkunde,
p;a. Mirdul, p;p:singh, R.N.P6ddar, Umesh Mishra, M.A.Krishna-
moorty, Indira Sawhney, Kittu Bansilal, Chandan Malhotra, J -Rama- G
1111rthy, R.Vaigai, H.K.PUri, V.K.Bahl, K;v:sreekumar, R.Sathish,
s.s. Khanduja, Yashpal Dhingra, P:H.PArekh, p;K.Manohar, C.L.
Sahu, A.K.Jha, T.G.N.Nayar, A.K.PAnda, S.K.Gambhir, S.Gambhir,
Ashok Mahajan, Sunita Kriplani, C.V.Subba Rao, G.D.Gupta, Hemant
Sharma, Inclu Malhotra and Jayshre for the appearing parties.
H
R.K.Garg, S.N.Singh and K.M.K. Nair for the intervener.

The following Judgments were delivered :
164 SUPREME COURT REPoRTS [1985) SUPP.2 s.c.R.

A lllillON, J, The above Appeals by Special Leave granted by
this Court and the above Writ Petitions filed either in this
Court under .artilce 32 of the Constitution of India or in
different High cOurts under Article 226 and transferred to this
Court raise a substantial question of law as to the interpreta-
tion of Articles 309, 310 and 311 of the Constitution and in
B particular of what is now, after the amendment. of cl.iuse (2) of
Article · 311 by the Constitution (Forty-second Amendment) Act,
1976, the second proviso to that clause. ·

1'be Genesis olO the Appeals aod Vd.t: PetitiODS

To ·understand what questions fall for determination by this
c Court in these Appeals and Writ Petitions, it is first. necessary
to sketch briefly how they have come to be heard by .this Consti-
tution Bench.

Article 311 of the Constitution cohfer.s certain safeguards
upon persons employed in civil capacities under the Union of
India or a State. The first safeguard (which is given by clause
D (l) of Article 311) is that such person cannot be dismissed or
removed by an authority subordinate to that by which he wail
appointed. The second BSfeguard (which is given by clause (2) of
Article 311) is that he cannot be dismissed, removed or reduced
in rank except after an iuquiry in which he has been informed of
the charges against him and given a reasonable opportunity of
E being hearli in respect of those charges • The second safeguard
is. hOYever. not available to him 'when he is, dismissed, removed
· or reduced in rank in ' any of the three cases mentioned in the
second proviso to Article ~11(2). These three cases are set out
in clauses (a) to (c) of the second proviso. Under clause (a),
such person can be d:Lsmissed, removed or reduced in rank without
,!Jw,y inquiry ·on the ground of conduct which has led to his convic-
tion on a criminal charge. Under clause (b) ,, any of these three
penalties can be imposed upon him where the authority empowered
to impose any of these penalties is satisfied that for some
reason, to be recorded by that authoirty in writing,it is not
reasonably practicable. to hold such inquiry., Under clause (c),
G any of ·the above penalties can be imposed upi>n hini where the
·President or the Governor of a state, as the case may be, is
,saHsfied that in the interest of the security of the State it is
hot ~ent to hold sueh :Lnq'uiry.

, All the government servants in the above,#~· and- Writ.
H Petitions have been either · dismissed or removed' ftom service
n;ey.
'..itl>Oo.ii holding any inquiry· have not. been 1ihf-O"-t.of die
charges ~i: ·1;tiem nor. beeii· giveri~any·,,opportllnity ~f· being
u.o.r. v. TULSilWI [MADON, J.j 165

heard in respect of those charges.. The penalty of dismissal or A
removal, as the case may be, has been imposed upon them under one
or the other of . the three clauses of the second proviso to Arti -
cle 311(2) or under similar provisions in rules made under the
proviso to Article 309 .or in rules made under an Act referable. to
Article 309, for instance, Rule 19 of the Central Civil Services
Classification, Control and Appeal) Rules, 1965, Rule 14 of the B
Railway Servants (Discipline and Appeal) Rule 1968, and Rule 37
of the Central Industrial Seeurity Force Rules, 1969, or under
such a rule read with one of the clauses of the second proviso to
Article 311(2).

Aggrieved by these orders of dismissal and rem.oval, several C
government servants filed writ petitions under Article 226 of the
Constitution in different High Courts. Some of these writ peti-
tions were allowed, mainly on the baSis of a decision of a
three-Judge Bench of this Court in Divisional Persoonel Officer,
5out:hezn Railway & Anr. V• T.R. Challappan, (1976] l s.c.R. 783,
given on September 15, 1975, while a few were dismissed. Appeals D
by Special Leave against those judgments were filed in this
Court. In three other similar appeals, namely, Civil Appeals
Nos. ·1088,1089 and 1120 of 1975, another three-Judge Bench of
this Court felt that there was a conflict between Challappan 's
case and an earlier decision of another three-Judge Bench of this
Court, mmely, M.Gopala Krishan lla.idu v. State of Madhya Pradesh,
(1968] 1 S.C.R. 355, and directed on November 18, 1976, that the E
~pers in those three appeals be placed before the learned Chief
Justice to enable him to refer those appeals to a larger Bench.
The said appeals were thus referred to the Constitution Bench.
Because of the said order all the above Appeals and Writ
Petitions were also placed before this Constitution Bench. During
the course of the hearing of all these matters by tliis Constitu- F
tion Bench, the . said Civil Appeals Nos • 1088, 1089 and 1120 of
1975 were, however, got dismissed on March 29,1984, but the above
Appeals and Writ Petitions were fully heard and are being
disposed of by this Judgment.

Civi1 5"rvaots G

Justice Oliver Welldell Holmes in his. book ''The Common I.aw".,
consisting of lectures delivered by him while teaching law at
Harvard and published just (/ne year· before he was appointed in
1882 .an Associate Justice of' the Massachusetts Supreme Judicial
Court, sai.d : H
166 SUPRllME COURT RJWOR.TS [1985] SUPP.2 s.c.R.

I
A "The Law embodies the story of a nation's development :,
through many centuries, and it cannot be dealt with as
if it contained only the axioms and corollaries of a
book of a mathematics. In order to know what it is we
oust know what it, has been and what it tends to
become."
B
It will not, therefore, be out of place to begin this Judgment
with a brief historical sketch of the civil service in India as
also of the law applicable. to civil servants and the chan&es
which have taken place in it from time to time.

Ci.vil servants, that is, persons who are members of a civil
C service of the Union of India or an all-India Service or a civil
service of a State or who hold a civil post under the Union or a
State, occupy in law a special position. The ordinary law of
master and servant does not apply to them. Under that law,
whether the contract of service is for a fixed period or not. If
it contains a provision for its tennination by notice, it can be
so tenninsted. If there is no provision for giving a notice and
D the contract is not for a fixed period, the law implies an obli-
gation to give a reasonable notice. Where no' notice in the first
case or no reasonable notice in the s"econd case is given, the
contract is wrongfully tenninated and such wrongful tennination
will given rise to a claim for damages. This is subject to what
may otherwise be provided in industrial and labour laws where
E such laws are applicable. The position of civil servants both in
~ngland and in India is, however, vastly different.

lbe Civil Service in Kogl and

Our civil services are modelled upon the British pattern
F though in some respects there are important differences between
the two• In England, except where otherwise provided by statute,
all public officers and servants of the Crown hold their
appointments at the pleasure of the Crown or durante bene placito
("during good pleasure." or "during · the pleasure of the
appointor") as opposed to an office held. dum bene se gesserit
G ("during good conduct"), also called quadiu ~ bene gesserit ("as
long as he shall behave himself well") • When a person holds
office during the pleasure of the Crown, his appointment can be
tenninsted at any time without assigning cause. The exercise of
pleasure by the Crown can, however, ·be restricted by legislation
enacted by Parliament because in the United Kingdom Parliament is
H sovereign and has the right· .to make or unmake any law whatever
U.O.I. v. TULSIRAM [MADON, J.J 167

and all that a court of law can do with an Act passed by Parlia- A
ment is to interpret its meaning but not to set it aside or
declare it void Blackstone in his Commentaries has thus described
the unlimited legislative authority of Parliament(l Bl., Conm.
PP• 160,161) :

"It hath sovereign and uncontrollable authority in B
the making confirming, enlarging, restraining abrogat-
ing, repealing, reviving, and expounding laws, concer-
ning matters of all possible denominations, ecclesias-
tical or temporal, civil, military, maritime, or
criminal " this being the place where that absolute
despotic power, which must inall govermnents reside c
somewhere, is entrusted by the constitution of these
kingdoms. All mischiefs and grievances, operations
and the laws, are within the reach of this extraordi-
nary tribunal. It can regulate or ne1MDOdel the
succession to the Crown; as was dot\e in the reign of
Henry Vlll, and William Ill. It can alter the estab- D
lished religion of the land; as was done in a variety
of instances, in the reigns of king Henry Vlll and
his three children. It can change and create afresh
even the conatitution of the kingdom and of parlia-
ments themselves; as was done by the act of union,
and the several statutes for triennial and septennial
elections. It can, in short, do everything that is E
not naturaly impossible; and therefore some have no
scrupled to call its power. by a figure rather. too
bold, the omnipotence of Parliament. True it is, that
what the Parliament doth, no aut;hority upon earth
can undo."
F
Jean Louis De Lolme, the eighteenth-century Swiss conatitu-
tionalist in his "Constitution de 1 'Angleterre" ("Constitution
of Engl and"), which gave many on the continent their ideas of the
British Conatitution, sU11111ed up the position of Parliament in the
English constitutional law in the following apophthegm quoted in
Dicey's Introduction to the Study of the Law of the Constitution G
(see 10th Edition, p.43) :

"It is ii fundamental principle with English lawyers,
that Parliament can do everything but make a
-.ill a
man, and a man a woman."
H
168 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A So far as the pleasure doctrine in England is concerned;
Lord Di plock in Chel 11 ab l(odeeswaran v. Attorney-General of
Ceylon, L.R. [1970j A.C. 1111,1118,P.c., has succinctly stated
its position in English law as follows :

"It is now well established in British Constitutional
B theory, at any rate as it has developed since the
eighteenth century, that any appointment as a Crown
·.. servant, however subordinate, is terminable at will
unless it is expressly otherwise provided by legisla-
tion."

In practice, however, a dismissal would take place only as the
c result of well-established disciplinary processes.

In recent years, though the Crown still retains the right to
dismiss at pleasure, the legal position of civil servants has
radically changed as a result of legislation, and legally bindj.ng
collective agreements can be entered into between the Crown ·and
representative of its staff and those representatives can sue for
D breach df any conditions of service covered by these agreement.
Further, , a civil servant can bring an action for unfair dis-
missal or• sue on his conditions of service. But just as an
ordinary ·employee cannot insist on continuing in employment, so
also a civil servant cannot insist on continuing in employment.
The remedy.in both cases is to recover damages for wrongful dis-
E missal. (See llalsbury's Lsws of England, Fourth Edition, Volume
8, Paras 1106 and 1303).

'll1e Pre-<:cmstitution Civil Services in India

It is unnecessary to go back more than two centuries to
F traee the origin and development of the Civil Service in India.
The East India Corupany sent out to India its own servants and so
did the Crown, arui from the earliest times, under the various
Charters given to the ·East India Company, the Crown could at its
pleasure remove any person holding office, whether civil or
·military, under the East India Company. The Court of Directors
G of the EaSt India Company had also the power to remove or dismiss
any of its officers or servants not appointed by the Crown.
Section 35 of the Act of 1793 (33 Geo.IIi.c.52) made it lawful to
and for a King's Majesty, his heirs and successors, by any writ-
ing or instrument under his or their sign manual, countersigned
by the President of the Board of Commissioners for the affairs of
H
U.Q.I. v. TULSil!AM (MADON, J.] 169

India, to remove.or recall any person holding anY office, employ,- A
ment or cOllllllission, civil or military, under the East India Com-
pany; while section 36 of that Act provided that nothing contain-
ed in that Act should extend, or be construed to extend, to pre,-
clude or take away the power of the Court .of. Directors of the
East India Company from removing or recalling anY of its officers
or servants and that the. Court of Directors shall.and may at all B
t~s have full liberty· to remove, recall. or dismiss any of such
officers · or servants at their will and· pleasure . in the like
manner as if ·that Act had nol been passed. Similar . provisions
were made in the Act. of .1833 (3 & 4 WilhIV, c.8~) by sections. 74
and 75 of that Act. .Section 74 made it lawful "for. His Maj.lsty
by any Writing under His Sign Manual, countersigned· by the c
President of the said Board of Coumissioners, to remove or
dismiss any person holding anY office, "!l'Ployment or COlllllission,
civil or military, under the said Company in India, and to vacate
any Appointment or ComnisSion·of any person to any such office or
employment." Section 75 provided that nothing contained in that
Act would take away the power of ;the Court of.Directors to remove D
or dismiss any of the officer.a or .servant;:s of the Company "but
t;:hat .the said Court. shall and may. at all Times have. full Liberty
tp ramive or dismiss any .of suCh officers. or servants st their
will and pleasure ...

By the end of the nineteenth century· a well-organized civil
service had developed in India, the control over it being vested E
in . the executive, and the members of the "civil service of the
Crown in India", were governed in the matter of their appointments
as also the regular of the conditions of .their serv~ce, such as,
classification methods of recruitment, pay and allowances, and
discipline and conduct, by rules made by the executive.

The Government of India Act, 1858 (21 & 22 Viet. ,c.106),
which vested . 1n tlte Bdtish ..Crown the. territories under the
government of East India . Company, repealed certain sections of
the Government of India Act, 1853 (16 & 17 Vict.,c.95), in so far
as they applied to or provided for the admission or appointment
of persons· to the Civil Service· of the ~st India· Company and G
conferred upon the Secretary. of State in Council the power to
'. make regulations for the admission of candidates .to the Civil
Service of India as also with respect to other llliltters connected
therewith. Three years later the Indian Civil Service so envi-
saged received statutory recognition by: tlte .enactment of tlte
\Indian Civil Service Act, 1861 (24 & 25 Viet., c•54}. H
170 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A
The above Acts were repealed by the Goverment of India Act
of 1915 l5 & 6 Geo.V, c.61). Part VIII of the 1915 Act conferred
upon the Secretary of State in Council, with the aid and advice
of the Civil Service Coomissioners, the power' to make rulea for
the Indian Civil Service examination.
B
None of the above nor the Goverment of India (Amendment)
Act, 1916 (6 & 7 Geo. V,c.37) made any reference to the tenure-of
members of the civil service in India. Thill was for the first
time done by the Government of India Act, 1919 (9 & 10 Geo. v,
c.101), which introduced several amendments in the 1915 Act
including the insertion of Part VIIA consisting of section 96 B
to 96 E.
c
Section 96 B pro'Vided as follows ·-

96 B. 1be civil aerv1ces in IDdia. -
•
( l) Subject to the pEOVisiana of this Act and of rules
llllde tbenaader, every person in the civil service of
D
the Crown in India holds office dud,ug 1118 Majesty's .
ple•ntt, and may be employed in any manner required
by a proper authority within the sc~pe of his duty but
no person in that service may be dismissed by any
authority subordinate to that by which he was appoin-
ted, and the Secretary of State in Council may (except
E so far as he may provide by rules to the contrary)
reinstate any person in that sel!"Vice who has been
dismissed.

If any such person appointed by the Secretary of State
in Council thinks himself wronged by an order of an
F official superior in a governor's provinee, and on due
application made to that superior does not receive the
redress to which he may consider himself entitled, he
may, without prejudice to any other right of redress,
complain to the governor .of the province in order to
obtain justice, and thegovemor is hereby directed to
G examine such complaint and require such action to be
taken thereon as may appear to him to be just and
equitable.

(2) The Secretary of State, in Council may make rules
for regulating the classification of the civil
H services in India, the methods of their recruitmel!t,
u.0.1. v. TULSIRllM [MADON, J.j 171

their conditions of services, pay and allanocu, and A
discipline and conduct. Such rules may, to such
extent and in respect of such matters as may be pres-
cribed, delegate the power of making rules to the
Governo~ral in Council or to local governments,
or authorise the Indian legislsture or locsl legis-
lstures to make 1sws regulsting the public services: B

Provided thst every person appointed before the com-
mencement of the Government of India act, 1919, by the
Secretary of State in Council to the civil service of
the Crown in India shall retain all his existing or
accruing rights, or shall receive suchcompensation, c
for the loss of any of them as the Secretary of State
in Council may consider just and equitable.

(3) The right to pensions and the scale and conditions
of pensions of all persons in the civil service of the
Crown in India appointed by the Secretary of State in D
Council shall be regulsted in accordance with the
rules in force at the ttme of the passlng of the
Government of India Act, 1919. Any such rules may be
varied or added to by th& Secretary of State in Coun-
cil and shall hsve effect as so varied or added to,
but any such variation or addition shall not adversely
affect the . pension of any member of the service E
appointed before the date thereof.

Nothiog in this section or in any rule thereunder
shall prejudice the rights to which any person may, or
may hsve, become entitled under the provisions in
·- relstion to pensions contained in the East India
Annuity Funds Act, 1874.
F

( 4) For the. removal of doubts it is hereby declsred
thst all· rules or other provisions in operation at the
time of the passing of the Government of India Act,
1919, whether made by the Secretary of State in Coun- G
cil or by any other authority, relsting to the civil
service of the Crown in lDdia, were duly made in
accordance with the powers in thst behalf, and iu;e
confirmed, but ·any such rules or provisions may be
revoked, varied or added to by rules or lsws made
uru!E.r this section." H
172 ' SUPREMK COURT llliPORTS (1985J SUPP.2 S.C;R.

The Fundamental Rules, the Civil Service '(Classification, Control
A
and Appeal) Rules of i.930 and the Civil Se.rvice (Governors Pro-
vinces Claiisification) Rules are i11Stances of rules made under
authority' conferred by section 96B. Section 96C provided for the
establishment of a Public Service Connnission. Sub-section (l) of
section 96U provided for a~ Auditor-General to be appointed by
the Secretary of State in Council who·was to hold office during
B "His Majesty's. pleasure", and conferred upon the Secretary of
State in Council the power to make rules providing for the
Audito~neral' s pay, powers, duties and. conditiollS of employ-
ment. Sub-section (2) of section 96D provided that, subject to
any rules lnade by the Secretary of State in Council, no officer
could be added to or withdrawn from the public service and the
emoluments of no post could be varied except after co11Sultation
c with such finance authority as wight be designated in therules
being an authority of the Province or of the Government of India,
according.as the post was or was ·not under the control of a local
Government.' Under section 96>: rules under Part VIlA could not
be made except.with the concurrence of the majority of votes at a
meeting 'of the Council of India.
D
Thus, after the 1919 Act, the civil services of India conti-
n~ed to be ~nder the co~trol of the Secretary of State ·in Council
who was t~ regulate by rules the classificat'ion of the civil
setvices, .the methods of recruitment, the co~ditions of services,
pay and allowances, and discipline and conduct. Such rules could
also provide for delegation of the rule-making power to the
E
<.,;overnor-General in Council or the local Governments or autho-
rize the · rndian Legislature or Local Legislatures to make laws
regulating . the public services but only to the extent and in
respect of.matters as were ·prescribed bY the rules. Thus, even
the power of making rules as also the authority to the Indian ·'
Legislature and the Local Legislatures to enanct Acts regulating
F
the public services was derived by delegation of power made by
the Secretary of State in Council.
I•

What is really material for the purposes of the present
Appeals and Writ Petitions is that section 968 of the Government
of India Act, 191~, for the first time expressly stated tnat
G every person in the civil se~vice of the Crown in India hel~
office "during His MaJesty's pleasure." This wa8:, however, made.
subjec·t to three safeguai'ds, namely -

(1) a civil servant could not be dismissed by any
authority subordinate to that by which he was
H appointed;
u.o.I. v. TULSlRt\M [MADON,J.J 173

A
(2) the· Secretary of Stai:e ·1n Council had· the :power,
unless he provided to the contrary in the rules, ·to
reinstate any person in · · service who had· been
dismissed; and

(3) if a civil servant appointed by the Secretary of B
State in Co\Jncil'thought himself wronged by an order
of an official superior in a Governor's Province and
on due application made to that superior did not
receive the redress to which he considred himself
entitled, he could, Without prejudice to any other
right of redress, complain to ·the Governor of the
Province in order to obtain justice and the Governor
c
had to examine such complaint and require· such ·action
to be taken thereon as might appear to him to be just
and equitable.

- The position which prevailed with respect to the Civil ·ser-
vices in India during the intervening period between the Govern-
ment of India Act, 1919, and the Government of India Act, 1935
(25 & 26 Geo. V, c.42) was that the top echelons of the important
D

services, especially those. working under the provincial Govern~
ments, consisted of what wel-e known as the ~·all India setvices· ,·"
which governed a wide variety of departments. There were, in the
·first place, the Indian Civil Service and the Indian Police Ser- E
vice, which provided the framework of the administrative machin-
ery. In addition, there were the Indian Forest Service, the
Indian Educational Service, the Indian-Agricultural· Service, the
Indian Service of Engineers (consisting of an Irrigation Branch
and a Roads and Buildings Branch), the Indian Veterinary Service,
the Indian Forest Engineering Service and the Indian Medical
Service (Civil). The initial appointments and conditions of
r
service for all these services were made by the Secretary of
-State and each officer executed a covenant with the Secretary of
State containing the terms under which he was to serve. In addi-
tion to the all-India services there were the central services
under the Government of-~ndia and the Provincial services in the
Provinces; and lastly the subordinate services. (See Indian
a
Statutory (Simon) Collllllission Report(l930), Vol.I,para· 290 ff.).
During the years following the 1919 Act it was dedded that, as a

'
consequence of the decision to effect progressive transfer of
power to Governments in India, the nwnber of all-India services
under 'the direct control of the Secretary of State should be II
progress! vely reduced espedally in those fields of administra-
tion that were transferred to ministerial control. It was now to
174 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

be left to the Provincial Governments to reorganize in gradual
A
stages the higher cadres of their services in the transferred
subjects, and recruitment and control of the Secretary of State
in Council were accordingly discontinued. This policy resulted
by the early thirties in the Indian Civil Service, the Indian
Police Service, the Ecclesiastical Service and the civil Qranch
of the Indian Medical Service being retained by the Secretary of
B
State and the rest being converted into Provincial services,
safeguards ~ing provided to secure the rights and privileges
~uaranteed to officers recruited earlier to the all-India
services. (See Report of the Joint Select Collllllittee on. Indian
Constitutional Reform, (1934), para 277.)

The above position received legislative re~ilgnition and
c sanction under the Government of India Act, 1935 (25 & 26 Geo. V,
c.42), often cited with the year and chapter of the Act in pur-

-
suance of which it was reprinted, 'namely, the Government of India
\Reprinting) Act, 1935 (26 Geo. V & 1 Edw, Vllt,c.l). Part X of
the 1935 Act dealt with the services of the Crown in India.
Chapter II cf Part X made provisions with respect of the civil
services. Section 240 provided for the tenure of office of
D
persons employed in civil capacities in India and conferred upon
them certain statutory safeguards as regards dismissal or reduc-
tion in rank. Section 241 dealt with their recruitment and
conditions of service. Under that section power to make apoirit-
ments was vested in respect of central services in the Governor-
General and in respect of the Provincial servic~s in the respect-
E
ive Governors. In the same manner the power to regulate condi-
tions of service of the ~embers of these services was conferred
upon the Governor- General or the Governor, as the case may be.
The Governor-General as also the Governor could authorize such
person as he might direct to make appointmeqts and rules with
respect to the conditions of service. Provision was also .made
F
for enactment of Acts by appropriate Legislatures to regulate the
conditio~ of service of persons in the civil services. It is
unnecessary to look into the details of these provisions as the
federal structure envisaged by the 1935 Act never came into
existence as it was optional for the Indian States to join the
proposed Federation and they did not give their consent thereto•
G
Chapter 111 of Part X provided for the setting up of a Federal
Public Service Commission and a Public Service Commission for
each province·. A provision was also made for two or more Provin-'
ces to agree to have a joint Public Service Connnission or for the
I
Public Service COnmission of one of these Provinces to serve the
needs of the· other provinces.
H
U.O.I. v. TULSIRAM [MADON,J.] 175

In the context of the present Appeals and Writ Petitions, it A
is section 240 of the 1935 Act which is relevant. Section 240
provided as follows :

"240. Tenure of office of perlions employed in civil
capacities in India. -
B
( 1) Except as expressly provided by this Act, every
persons who is a member of a civil service of the
Crown in India, or holds any civil post under the
Crown in India bolds office during Bis Majesty's
pleasure.
c
(2) No such person as aforesaid shall be d,ismissed
from the service of His Majesty by any authority
subordinate to that by which he was appointed.

(3) No such person as aforesaid shall be dismissed or
reduced in rank until he has been given a reasonable D
opportunity of showing cause against the action
proposed to be taken in regard to him :

Provided that this sub-section shall not be apply -

· (a) where a person ·is dismissed or reduced in rank
on the ground of conduct which has led to his convic- E
tion on a criminal charge; or

(b) where an authority l""POWered to dismiss a person
or 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 F
person an opportunity of showing cause.

(4) Notwithstanding that a person holding a civil post
under the Crown in India holds office during His
Majesty's pleasure, any contract under which a
person, not being a member of a civil service of the G
Crown in India is appointed under this Act to hold
such a post may, if the Governor--{;eneral, or, as the
case may be, the Governor, deems it necessary in
order to secure the service of a person having special
qualifications, provide for the payment to him of
compensation, if before the expiration of an agreed H
176 SUPREME COURT REPORTS [1985) SUPP.2 s.c.R.

A period that post is abolished or he is, for reasoru
not connected with any misconduct on his part,
required to vacate that post.··

While under the 1935 Act, as under the 1919 Act, every
person who was a member of the civil service of the Crown in
B India or held any civil post under the Crown in india held office
"during His Majesty's pleasure", greater safeguards were provided
for him under the 1935 Act than under the 1919 Act. Those safe-
guards were :

(1) under sub-section (2) of section 240, such a per-
son could not be dismissed from service by any autho-
c rity subordinate to that by which he was appointed,
and

(2) under sub-section (3) of section 240, such a per-
son could not be dismissed or reduced in rank until he
had been given a reasonable opportunity of showing
cause against the action proposed to· be taken in
D regard to him.

The safeguard as regards a reasonable opportunity of showing
cause provided for in section 240(3) did not exist in the 1919
Act. The proviso to sub-section(3) of section 240, however, took
away this safeguard in the two cases set out in clauses (a) and
E (b) of the said proviso. These two cases were :

(a) where a civil servant was dismissed or reduced
in rank on ground of conduct which had led to his
conviction on a criminal charge, and

F (b) where an authority empowered to dismiss him or re-
duce him in rank was satisfied that for some reason,
to be recorded by that authority in writing, it was
not reasonably practicable to give to that perSon an
opportunity of showing cause.

G '!he Civil Services under the Constitution '
j

Provisions with respect to services under the Union and the
. itates are made in Part XIV of the Constitution of India. This
Part consists of two Chapters, Chapter I delaing with services
and Chapter II dealing with Public Servieoe Commissions for the
H Union and the State. Article 308, as originally enacted, defined
<J.U;l.-v. TULSIRAM [MADON,J.] 177

the expression "'State" occurring in Part XIV as meaning, unless A
the context otherwise required, "a State specified in Part A or B
of the First Schedule." This Article was amended by the Constitu-
tion (Seventh Amendment) Act, 1956, which was passed in order to
implement the scheme for reorganization of States. The amended
Article 308 provides, "ln this Part, unless the context otherwise
requires, the expression 'State' does not include the State of B
Janinu and Kashmir." Article 309 provides for recruitment and
conditions of service of persons serving the Union oi: a State,
Article 310 for the tenure of office of such persons, and Article
311 for the mode of dismissal removal or reduction in rank of
persons employed in civil capacities under the Union or a State.
Article 312 deals with all-India services and inter alia provides C
that where the Council of State has declared by resolution
supported by not less than two-thirds of the members present and
voting that it is necessary or expedient in the nstiorial interest
so to do, Parliament might by law·provide for the creation of one
or more all-India services comnon to the Union arid the States and
subject to the other provisions of Chapter I regulate the D
recruitment and conditions of service of persons appointed to any
such service; and it further provides that the lndian Administra-
tive Service and the Indian Police Service shall be deemed to be
services created by Parliament under Article 312. Article 313
provides for the continuance in force, so far as consistent with
the provisions of the Constitution, of all the laws in force
inmediately before the comnencement of the Constitution and E
applicable to.any public service or any post which continued to
exist after the commencement of the Constitution as an all-India
service or as service or post under the Union or a State until
other provision was made in this behalf under the Constitution.
Under clause (10) of Article 366 the expression "eXisting law"'
means "any law, Ordinance, order, bye-law, rule or regulation F
passed or made before the coumencement of this Constitution by
any Legislature,· authority or person having power to make such a
law, Ordinance, order, bye-law, rule or regulation." Thus, all
Acts, rules and regulations applicable to different services
inmediately tiefore the commencement of the Con8titution continue
to apply to such services in so far as they were consistent with G
the provisions of the Constitution until amended, varied, revoked
or replaced by Acts, rules or regulations made in accordance with
the'provisfons of the Constitution.

From what has been stated above it will be seen that the
provisiotts 'llitn respect to civil services
in the Gov�rmnent of H

lndia Act, 1935, were taken as the .basis for Chapter I of Part
XIV of the Constitution.
178 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A
Articles 309,310 and 311

It is necessary for the purpose of these Appeals and Writ
Petitions to set out in extenso the provisions of Articles 309,
310 and 311.
B
Articles 309 and 310 were amended by the Constitution
(Seventh Amendment) Act, 1956, to omit from these Articles the
refer~nce to the Rajpramukh. Articles 309 and 310, as so amen-
ded, read as follows :
'
"309.Becruitment and CODditiOllS of service of perSODB
c serving the Union or a State. -

Subject to the provisions of this 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:
D
Provided that it shall be competent for the President
or such person as he may direct in the case of
services and posts in connection with the affairs of
the Union, and· for the Governor of a State or such
person as he may direct in the case of services and
E posts in connection with the affairs of the State, to
make rules regulating the recruitment, and the condi-
tions of service of persons appointed, to suGh
services and posts until provision in that behalf is
made by or under an Act of the appropriate Legislature
under this article, and any rules so made shall have
F
effect subject to the provisions of any such Act.

"310. Tenure of office of persons serving the Union or
a State. -

( 1) Except as expressly provided by this Constitution,
G
every person who is a member of a defence service or
of a civil service of the Union or of an all-India
service or holds any post connected with defence or
any civil post under the Union holds office during the
pleasure of the President, and every person who is a
member of a civil service -of a State or holds any
H
civil post under a state holds office during the
pleasure of the Governor of the State.
u.o.r. v. TULSIRAM [MAOON,J.] 179

A
(2) Notwithstanding thst a person holding a civil post
under the Union or a State holds office during the
pleasure of the President or, as the case may be, of
the Governor of the State any contract under which a
person, not being a member of a defence service or of
an all-India service or of a civil service of the B
Union or a State, is appointed under this Constitution
to hold such a post may, if the President or the
Governor, as the case may be, deems it necessary in
order to secure the services of a person having
speeial qualificatioIIS, provide for the payment to him
of compensation, if before the expiration of an agreed c
period thst post is abolished or .he is, for reasons
not connected with any misconduct O!l his part, requir-
ed to vacate that post."

Article 311 as originally enacted was in the following
terms D

"311. Disllissal, removal or reduction in rauk of
persons employed in Civil capacities under the Union
or a State. -

( 1) No person who is a 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 thst by which he was appointed.

(2) No.such person as aforesaid shell be dismissed or
removed or reduced in rank until he has been given a· F
reasonable opportunity of shoWing cause against the
action proposed to be taken in regard to him

Provided thst this clause shell not apply -

(a) where a person is dismissed or removed or reduced
G
in rank on the ground of conduct which has led to his
conviction on a crimi?"l charge;

(b) where an authority empowered to dismiss or remove
a person or to reduee him in rank is satisfied that
for some reason, to be recorded by that author.ity in
Ii
writing it is not. reasonably practicable to ·give to
thst person an opportunity of showing cause; or
180 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A (c) where the President or Governor or Rsjpramukh, as
the ca·se may be; is ·satisfied truit in the interest of
the' security of the State it is not expedient to give
to that person
.. such, an opportunity.
. ' -~,.

(3) If any questio~ arises .whether it is reasonably
B practicabie to give to ·any person ail opportunity of
showing t:ause under clause ( 2).' the decision thereon
of the authority· eoipowered to dismis's or remove such
person or to reduce him in rank, as "the case may be,
shall be final'" · · ' ·

The words "or Rsjpr~"',in.tlauSe (c) of the ,proviso to Arti-
c cle 311(2) were omitted by tl:\e Constitution (Seventh' Amendment)
Act, 1956. . . .. . . ., . '

By the Constitution (Fifteenth Amendment) Act, 1~63. Clauses
(2) and (3) of Article 311 were substituted b';i: ):he following
clauses :
D "(2) No.such per~on.as ·aforesaltl.snall be dismissed or
removed or reduced in railk exi:ept' after ·a,; inquiry in
which he has been informed of the charges against him
and given a reasonable. opportuni~y of . being heard in
respect of those charges ·and where. ,it . is proposed,
after such inqUiry, to impose.on him any s11ch penalty,
E until h<a has beeb. given a reasonable opportunity of
making representatiprt on. the penalty ·proposed, but
only on the basis of the evidence adduced during such
inquiry :

Provided that this clallse shal not apply -
F
(a) where a person is dismiss~d· or removed or reduced
in railk on the ground of conduct which has led to his
conviction on a criminal charge ; or

(b) where the authority empowered to dismiss or remove
G a person or· to reduce, him· in rank is satisfied that
for some reason,'to be recorded by that authority in
writing, it is n9t reasonably practicable to hold such
inqUicy. ; or '

(c) where the President or the Governor, as the case
H may be, is 'satisfied .. tliat in the interest of the
u.o.r. v. TULSIRAM [MAOON,J.] 181

A
security of the State it is not expedient to hold such
inquiry.

(3) If, in respect of any such person as aforesaid,
a question arises whether it is reasonably practicable
to hold such inquiry as is referred to in dause (2),
B
the decision thereon of the authority empowered to
dismiss or remove such person or to reduce him in rank.
shall be final. "

The Constitution (Forty-second Amendment) Act, 1976, made
certain amendments in the substituted clause'(2) of Article 311
with effect from January 3, 1977. Article 311 as so amended reads c
as follows

"311. DiBllissal, removal or reduction in rank of
persons employed in civil capacities under the llnioo.
or a state.·-
D
(1) No persons who is a 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 E
removed or reduced in rank except after an inquiry in
which he has been informed of the charges against him
and given a reasonable opportunity of being heard in
respect of those charges :

Provided that where it is proposed after such inquiry, F
to impose upon him a:..1y such penalty, such penalty may
be imposed on the basis of the evidence adduced during
such inquiry and it Shall net be necessary to give
such person any opportu.nity of making representation
oh the penalty proposed :
G
Provided further that this clause shall ·not apply -

ta) where a person is -dismissed or rel])()ved or reauced
in rank on ·the groulld of conduCt which has led to his
conviction on a criminal charge; ~r
H
182 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

(b) where the authority empowered to dismiss or remove
A 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
inquiry; or

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

(3) If, in respect of any such person as aforesaid, a
question arises whether it is reasonably practicable
to hold such inquiry as is referred to in clause (2),
c the decision thereon of the authority empowered to
dismiss or remove such person or to reduce him in rank
shall be final."

From the original and amended Article 311 set out above it will
be noticed that of the original Article 311 only clause (1)
remains unaltered, while both the other clauses have become the
D subject of Constitutional amendments. No submission was founded
by either party on the substitution of the present clause (3) for
the original by the Constitution \Fifteenth Amendment) Act, 1963,
for the obvious reason that such substitution was made only in
order to bring clause (3) in conformity with clause \2) as
substituted :by the said Amendment Act.
E
A comparison of Article 311 of the Constitution with section
240 of the Government of India Act, 1935, shows that the safe-
guards provided to civil servants by Article 311 are very much
the same as those under section 240 with this difference that
. while Article 311 also affords safeguards against removal from
F service section 240 did not. Further, though the proviso to
section 240( 3) is reproduced in what originally was the only
proviso and is now the second proviso to Article 311 (2), an
additional clause, namely, clause (c) has been added thereto. A
provis:l,on similar to clause (3) of Article 311 was also absent
from the Government of India Act, 1935. Thus, while on the one
G hand Article 311 enlarges the protection afforded to civil
servants, on the other hand it increases by one the number of
cases in which that protection can be withdrawn.

With the above historical background and bearing in mind the
relevart~
provisions of the Constitution, it will be now conve-
H nient to turn to the submissions made at the Bar with respect to
u.o.r. v. TULSIRAM [MADON, J.) 183

the pleasure doctrine and the second proviso to Article 311(2)
and test the correctness 9£ these submissiolls. A

1be Second Proviso - Iiival Snbn! ssicms

The arguments advanced on behalf of the government servants
on the pleasure doctrine and the .second proviso to Article 3ll
(2) may be sketched in broad outlined as under : B

(1) The pleasure doctrine in England is a part of the
special prerogative of the Crown and has been inheri-
ted by India from Eng.land and ·should, therefore, be
construed strictly, that is, strictly against the
Government and liberally in favour of government C
servants.

(2) The second proviso which withdraws from government
servants the safeguards provided by clause (2) of
Article 311 must be also similarly construed for,
unless a liberal construction were placed upon it, D
great hardship would result to government servants as
they could be arbitrarily thrown out of employment and
they and their dependents would be left without any
means of subsistence.

(3) There are several stages before a government ser-
vant can be dismissed or removed .or reduced in rank, E
namely, serving upon him of a show cause notice or a
charge-sheet, giving him inspection of documents,
examination of witnesses, arguments and imposition of
penalty. An inquiry starts only after a show cause
notice is issued and served upon a government servant.
A show cause notice is thus preparatory to the holding F
of an inquiry and even if the entire inquiry is
dispensed with, the giving of a show cause notice and
asking for the explanation of the government servant
with respect there to are not excluded.

(4) It is not obligatory upon the disciplinary autho- G
rity to dispense with the whole of the inquiry.
Depending upon the circumstances of the case, the
disciplinary authority can dispense with only a part
of the inquiry.
'· H
'184 .SUPREME COURT .REPORTS [1985j SUPP.2 s.c.R.

A (5) Imposition of penalty is not a part of the inquiry
and once an inquiry is dispensed with, whether in
whole or in part, it is obligatory upon the disciplin-
ary authority to give an opportunity' to the government
servant to make a respresentation with respect to the
,, penalty proposed to be imposed. upon him·
B
(6) Article 311.is subject to.Article 14. Principles
of natural justice and the audi alteram partem rule
.are part of Article 14 and, therefore, a show cause
notice· asking for ~he explanation of the government
. servant with respect tv the charges against him as
also a notice to show cause with respect to the pro-
c po5P.d penalty are required to be given by Article 14
and the not giving of such notices or either of them
I
renders the order of dismissal, removal or reduction
in rank .invalid.,

, The .submissions on ·behalf of the Union of India can be thus
S'-'irized
lJ
( l) The second provis~ must be c.ons trued according to
its terms. It is unambiguous and does not admit of
' any such interpretation as canvassed for on behalf of
the govet'Illllent servants.

E (2) Where under the seco!ld proviso, clause (2) of
Article 311 is made inapplicable, there is no scope
for holding any partial inquiry.

( 3) In any event, the very contents of the three
·clauses of the second proviso ahow that i t is not
F necessary or not practicable or not expedient that any
partial inquiry"could be or should be held, depending
upon which clause applles •,

(4) Ait~cle .14 does nOt govern or control Article 311.
The Constitution must be read as a whole. Article
G 311(2) embodies the principles of natural justice
including the audi alter1jIII partei:i rule. It thus
expressly states .what is requiced under Article 14 as .
a result of the interpretation placed upon it by
recent decisions of this Court. Once the application
of clause(2) is expressly excluded by the Constit~tion
\l.O.l. ''· TU!SIRAM iMAOON, J.] 185

itself, there can be no question of making applicable
what has . been so exduded by seeking recourse to A
Article 14.

(5) Consideration of sympathy for the gove1nment ser
vants wllo may re dismissed or removed or reduced in
rank are irrelevant .�o the construction of the second
proviso• The. doctrine of tenure at pleasure in Arti B
cle 31Q and the Safeguards given to a government ser
vant under clauses (I) and (2) of Article 311 as also
the withdrawal of the.· safeguard under clause (2) by
the. second proviso are all enacted in public interest
and where public .'interest confli�ts with private
. interest, the latter DRJSt yield to the former. c

'lbe Pleasure Doctrine.

P
1'he conc.e t of civil service is .not now or of recent origin.
Governments - whether monsrchial, dictatorial or republican -
have to function; and for carrying on the administration and the D
varied functions of the government a large number of persons are
required and have always been required, whether they are consti
t.uted in the form of .a ·civil service or not. Every kingdom and
country of the world throughout history had a group of persons
who helped the ruler to administer the land, whether according to
lllOdem notioxu; � may call that group a civil service or not,
because it is not possible for one man: by himself to rule and E
govern.the land and look after and supeJCVise all the details or
administration. As it was· throughout history, so it has .been in
England and in India.

In England, all public officers a'ld. servants of the Crown
hold their appointments at t})e pleasure of ·the Crown and their F
services can be terminated at· will without assigning any cause.
lly the expression "the pleasure· doc.trine" is conveyed this right
of the Crown. This right is, however,. subject to what may be
provided otherwise by legislation passed by Parliament because in
the Uni.ted Kingdom, Parilament has. legislative sovereignty.
G
The Foundations of modern European civil services were laid
in Prussia in the late seventeenth and eighteenth centuries and
by Napoleon's develvf'll"Ilt of highly organized hierarchy (a IDC'del
copied by many countries in the nineteenth century); and they are
the basis of lllOdem European
· civil services. In England civil
servants Were �
O iginally the !llOna!Ch 1 S personal Sel"�SDtS Slid H
186 SUPREME COURT REPORTS [1985] SUPl'.2 s.c.R.

A members of the King Is household. Clive Is creation from 1765 of a
civil service to govern such parts of India as were under the
dominion of the East India Company and Macaulay's repoft on
recruitment to the Indian Civil Service provided the inspiraUon
for the report of 1~54 on the organization of the permanent civil
service iri Britain which recoumended recruitment by open competi-
B tive examination, the selection of higher civil servants on the
basis of general intellectual attaimnent, and the establishment
of a Civil Service Commission to ensure proper recruitment.

In .the United Kingdom, until about the middle of No~r·
1981, the Civil Service Department, which was set up in r!l68 with
the Prime Minister, as Minister for the Civil Service; tis its
C Head, looked after the management and personnel functions in
connection with the Civil Service which were until then being
looked after by the Treasury. These functions included the
organization and conduct of the Civil Service and the remunera-
tion, conditions of service, expenses and allowances of persons
serving in it; mode of recruitment of persons to the Civil
Service; the pay and allowances of, and the charges payable l>y,
D members of the armed forces; with certain exceptions, superannu- ' ·
ation and injury payments, compensation for loss of employipent or
loss or diminution of emolwnentS or pension rights applicable to
civil servants and others in the public sector and to members of
the armed forces; the exercise by other persons and bodies of
powers to determine, subject to the minister's sanction, the pay
E or conditions of service of members of public bodies ( exuudl.ng
judicial bodies), or the mDDbers, pay or conditions of s1'rvice of
staff employed by such bodies or by the holders of ceTtairi non-
judicial · offices; and the appointment or employment ._and the
remuneration, conditions of service, personal expen.Ses · or
allowances of judges and judicial staff (See Halsbury's L&ws of
F ~lljlland, Fourth Edition, Volume 8, para 1162J•

The Permanent Secretary to the Civil Service Department was
the Head of the Home Civil Service and gave advice to the Prim"e
Minister as to civil service appointments, decorations, etc. The
Civil Service Departments was abolished on November 12,. 1981, .and
G its functions, instead of reverting to the Treasury, were divided
between the Treasury and the newly created Management •. and ..
Personnel Office. ·· ' ' .. ·

In India, the pleasure doctrine has received constitutional
sanction by being enacted in Aricle 310(1). Unlike in the. United
H Kingdom in India it is not subject to any law made by Parliament
U.Q.I. v. TULSIRAl1 [MADON,J.] 187

but i•· subject only to what is expressly provided by t:he A
Constituti<in.

The pleasure doctrine relates to the tenure of a government
servant. "Tenure" means "manner, conditions or term of holding
something"· according to Webster's Third New International Dictio-
nary, and "terms of holding; title; authority" according to the B
Oxford English Dictionary. It, ther_efore, means the period for
which an incl.Ullbent of office holds it. It is for ttJ.s reason
that the statement of law relating to the pleasure doctrine in
England' is given in Halsbury's Laws of England, Fourth Edition,
Voltlne 8, Para 1106, under the heading "Tenure of office".
c
., The first time that a st<ftute relating to the government of
India provided that civil servants hold office during His
Majes.ty's pleasure .was the. Government of India Act of 1919 in
section "96B of that Act. The marginal note to section 96B did
not, however, refer to the tenure 'of civil servants but stated·
"The Civil Services of India". This was because section 96B in D
addition to dealing with the·tenure of civil servants also dealt
with ·matters relating to their recruitment, conditions of
service, pay, allowances, , pensions, etc. The ina.rginal note to
section 240 of the Government of India Act, 1935, however, was
"Tenup' of office of persons employed in civil capacities in
India". The marginal note to Article 310 of the Constitution also
refers to "tenure" and states "Tenure of office or persons E
serving the Union or a State". Thus, it is the tenure of govern-
ment servants which Article 310(1) makes subject to the pleasure
of the President or the Governor of a State, except as expressly
provided by the Constitution.

· While it was vehemently contended on behalf of the govern- F
mant servants that the pleasure .doctrine is a relic of the feudal
age·-· a part of· the special prerogative of the Crown - which was
imposed .upon India by an Imperial power and thus is an anachro-
nism in this democratic, socialist age and must, therefore, be
confined within the narrowest limits, it was submitted on behalf
of the Union of India that this doctrine was a matter of public G
policy, ·aru1 it was in public interest and for public good that
the· tight . to dismiss at pleasure a government servant who has
made himself unfit to continue in office, albeit subject to
certain safeguards, should exist and be exercisable in the Cons-
titutional sense by the Crown in England and by the President or
the Governor of a State in India.· It is not possible to accept H
the arguments advanced on behalf of the government servants for
.
188 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A all tile authoritative judicial dicta ar.e to the contrary. As
pointed out by Lord Hobhouse in Shenton v. Smith, L.R.[1895j A•C.
229 J .c., the pleasure doctrine is founded upon the principle
i:hat the difficulty which would otherwise be experienced in
dismissing those whose continuance in office is detrimental ·to
the State would be such as seriously to impede .the working of the
B public service. In � v. The �. L.R. [1896) Q.B.D. 116;
s.c. [1895-90] 73 L•T.K. 695 and sub .-iiie � v. Begem in
[ i895 99 J All t:.l{. Rep. 907, the Court of Appeal in England held
-

that it was an implied term of every contract of service that
servants of the Crown, civil as well as military, except in
special case where it is otherwise provided by law, hold their
offices only during the pleasure of the Crown. In that case Lord
C Herschell observed (pages 119-120) :

"lt seems to me that it is the public interest which
has led to the term which I have menti.oned being
imported into contracts for employment in the·service
of the Crown. The cases citect shew that, such employ
Ulellt beingfor the good of the public, it is essential
D for the public good that it should be capable of being
detenained at the pleasure of the Crown, except in
certain exceptional cases where it bas been deemed to
. be more for the public good that some restrictioos
should be imposed on the ix-r of the Crow to dismiss
it's s�rvants. •

E (Emphasis supplied)

In the same case Kay, L.J., said (page 120)

"It seems to me that the continued employment of a
civil servant might in many cases be •as deterimental
F to the interests of the State as the continued employ
ment of a military officer."

In this case as reported in the Law Times Reports series the
.
judgments of the three learned Judges who decided the case (Lord
Esher, M.R., being the third judge), though in substance the
G same, are �iven in very different language and the passages ex
tracted above do not appear in that report. The report of the
case in the All England Law Reports Reprint series is with �ery
minor variations the same as 'the report in- the Times Law Reports
series but somewhat abrid�ed. This is bec'1use the All England
Law Keports Keprint series is a revised and annotated rt:p rint of
H a selection from the Law Times J\eporb tor tile years lti43 to
u.u.I. v. TULSIRAM [MADON,J. J 189

1935. The report from which the above extracts are given is the A
one in the Law Reports series published · by the Incorporated
Council of Law Reporting which was established in 1865 and which
report is, therefore, more authoritative.·

In Gould v. Stuart,L.R. [1896] A.C. 575,578-9 .J.C.; the Judicial
Committee of the Privy Council further held that wt.ere by regul- B
ations a civil service is established prescribing · qualifications
for its members ~ :..i tposing some restriction on the power to
dismiss them, such regulations should be deemed to be made for
the public good. . The position that the pleasure doctrine is not
based upon any special prerogative of the Crown but upon public
policy has been accepted . by this Court in 'lbe States of Uttar c
Pradesh & Ors. v. Babu Ram Upadhya,. [1961] 2 s.c.R. 679, 696 and
Hoti· Kam Deka etc. v. General llanager, N.E.r. Railways; llaligaon,
Pandu etc., [1964] 5 s.c.R.683,734-5. This Court has also accept-
ed the.·principle that ·society has an interest in· the due
discharge of their duties by government servants. In Bosban Lal
Tandon V• Union of llldiB., (1968] l S.C.R• 185, Ramaswami, J., D
speaking for the Court said (at page 195) : ,

. "It is true that the origin of Government service is·
contractual. There is ~n offer and acceptance in
every case •. But once appointed to· his post· or. office
the Govermnent servant acquires· a status and his
rights and obligations are no loger de.termined by E
consent of both parties, but by statute or statutory
rules which may ·be.framed and altered unilaterally by
the. Government. In other words, ·the ·legal· position of
I a ~t:. servant. is 1111re ooe. of· status. that of
contract. 'lbe Ball-mark of .status is the attaclmient
to a legal relatiooahf p of rights and duties imposed F
by the .public law and' not by mere .agreement of the
parties. The emolument of - .the Government servant and
his terms of service ..are governed ·by statute .or Statu-
tory rules .which may .. be unilaterally .altered by the
Government without the·consent of the employee. It is
true that Article 311 imposes constitutional .restric- G
tions upon the power of removal .granted. to the Presi-
dent and the Governor uner Article 310. But it is
obvious that. the relationsh~p between the Government
and its servant is not like an ordinary contract of
serVice between a maste:t" · and servant. .The legal
relationship is something entirely different, some- H

•
. thing in the nature of status. It is much more than a
190 SUPREME COURT REPORTS [1985] SUPP:2 s.c.R.

A
purely contractual relationship voluntarily entered
into .between the parties. 'nle duties of status are
fixed by the law and in the enforcement of these
duties society bas an interest. In the language of
· jurisprudence status is a condition of membership of a
B group of which powers and duties are exclusively
determined by law and not by agreement between the
parties concerend."
(Emphasis supplied)

Ministers frame policies and legislatures enact laws and lay
down the mode in which such policies are to be carried out and
c the object of the legislation achieved. In many cases, in a Wel-
fare State such as ours, such policies and statutes are intended
to bring a1bout socio-economic reforms and the uplift of the poor
and disadvantaged classes. From the nature of things the task of
efficiently and effectively implementing these policies and
enactments, however, rests with the civil services. The public
is, therE?fore ; vi tally interested in the efficiency and
D integrity, of such services. Government servants are after all
paid · from the public exchequer to which everyone contributes
either by way of direct or indirect taxes. Those who are paid by
the public and are charged with public and administration for
public goc•d 111JSt, therefore, in their turn bring to the discharge
of their duties a sence of responsibility. The efficiency of
E public ad•dnistration does not depend only .upon the top echelons
of these "ervices. It depends as 1D.1ch upon all the other members
of such services, even on those in the 11Xlst subordinate posts.
For installce, railways do not run because of the members of the
Railway !bard or the General Managers of different railways or
the heads of different departments of the railway administration.
I
F They run also because of engine-drivers, fireman, signalmen,
booking c:lerks and those holding hundred other similar posts.
Similarly, it is not the administrative heads who alone can set
to the pro>per functioning of the post and telegraphs service. For
a service to run efficiently there 1111st, therefore, be a collect-
ive sens" of responsibility. But for a government servant to
G discharge his duties faithfully and conscientiously, ~e nrust
have a feeling of security of tenure. Under our Constitution this
is provided for by the Acts and rules made under Article 309 as
also by the safeguards in respect of the punishments of
dismissal, removal or reduction in rank provided in clauses (1)
and (2) of Article 311. It is, however, as 1111ch in public
H
interest and for public good that government servants who are
inefficient, dishonest or corrupt or have become a security risk
U.Q.I. v. TUISIRAM [MADON, J.] 191

should not continue in service and that the protection afforded A
to them by the Acts and rules made under Article 309 and by
Article 311 be not abused by them to the detriment of public
interest and public good. When.a situation as envisaged in· one of
the three clauses of the second proviso to clause (2) of Article
311 arises and the reievant clause is properly applied and the
disciplinary inquiry dis"pensed with, the concerned govermnent B
servant cannot be heard to complain that he is deprived of his
livdihood. The livelihood of an individual is a matter of great
concern to him and his family but hi.a livelihood is a matter of
his_private :i.nterest and where such livelihood is provided by the
public exchequer and the taking away of such livelihood is in the
public interest and for public good, the former must yield to the C
latter. 1hese consequences follow not because the pleasure
doctrine is a special prerogative of the British Crown which has
been inherited by India and transposed into our Constitution
adapted to suit the Constitutonal set up of our Republic but·
because public policy requires, public interest needs and public;
good demands that there should be such.a doctrine. D

It is thus clear that the pleasure doctrine embodied . in
Article 310 (1), the protection afforded to civil servants by
clauses (1) ana (2) of Article 311 and the withdrawal of the pro-
tection under clause (2) of Article 311 by the second proviso
thereto are all provided in the Constitution on the ground of
public policy and in the public interest and are for public good. E

The Scope of the Pleasure Doctrine.
,, ··.·-,..,
While under section 96B(l) of the Government of India Act
of 1919 the holding of office in the civil service of· the Crown
in India during His Majesty's pleasure was ·"Subject to the F
provisions of this Act and the .rules made thereunder", under
section 240(1) of the Government of India Act, 1935, the holding
of such office during His Majesty's pleasure was "Except as
expressly provided by this Act". Similarly, the pleasure doctrine
as enacted in Article 310(1) is not an absolute one and is not
untrammelled or free of all fetters, but operates "Except as G
expressly provided by this (',onstitution." The constitutional res-
trictions on the exercise of pleasure under. Article 310(1) other
than those contained in Article 311 will be considered later but
what is innnediately relevant is the group of Articles consisting
of Articles 309, 310 .and 311. These three Articl"s are interlink-
ed and form an integrated whole .. There is an organic and thematic H
192 SUPREME COURT REPORTS [1985] SUPP.2 S.C.R.
•
A unity running through them and it is now necessary to see the
interplay of these three Articles.

These Articles occur in Chapter I of Part XIV of the Cons-
titution. Part XIV is entitled "Services under the Union and the
States" and Chapter I thereof is entitled "Services". While
Article 309 deals with the recruitment and conditions of service
B of persons appointed to the public services and posts in connec-
tion with the affairs of the Union or a State, Article 310 deals
with the tenure of office or members of the defence services and
of civil services of the Union and the States and Article 311
provides certain safeguards to persons employed in civil capaci-
ties under the Union or a State but not to members of the defence
services" The first thing which is required to be noticed about
c Article 309 is that it itself makes no provision for recruitment
or conditions of service of goverrnnent servants but confers power
upon the appropriate Legislature to make laws and upon the
President and the Governor of a State to make rules in respect of
these matters. The passing of these Acts and the framing of
these rules are, however, made "Subject to the provisions of this
Constitution." This phrase which preceeds and qualifies the
D power conferred by Article 309 is significantly different from
the qualifying phrase in Article 310(1) which is "Except as
expressly provided by this Constitution".

Wi.th reference to the words ''conditions of service" occur-
ring in section 243 of the Government of India Act, 1935, under
E which the conditions of service of the subordinate ranks of the
various police forces in India were to be determined Py or under
Acts relating to those forces, the Judicial Connnittee of the
Privy Council held in North-vest Frontier Province v. Suraj
Narain Anand, L.R. [1947-48] 75 I.A., 342, 352-3, that this
expression included proVisions which prescribed the circumstances
F under which the employer would be ~ntitled to terminate the
service of an employee, whether such provisions were constitu-
tional or statutory.

In State of Madhya Pradesh & Ors. v. Sbardul Singll, [1970]
3 S.C.K. 302, 305-6, this Court held that tl)e expression "condi-
G tions of service" means all those conditions which regulate the
holding o.f a post by a person right from the time of his
appointment until his retirement and even beyond it in matters
like pension etc. and would include the right to dismiss such
personll from service. Thus, as pointed out in Sardari Lal v.
Union of India & Ors., [1971] 3 s.C.R. 461, 465, a law can be
H
u.o.I; v. TULSIRAll [MADON, J. J 193

made by the appropriate Legislature or a rule by the appropriate A
executiveuruler Article 309 prescribing the procedure and the
authority by whom disciplinary action can be taken againat a
government servant. Thus the functions with respect to the' civil
service which in England until 1968 were being performed by the
Treasury and thereafter by the Civil Service Department and from
mid-November 1981 are bei;:ig performed partly by the Treaaury and B
partly 'by the Management & personnel Office are in. India under
Article 309 of the Constitution to be performed with respect to
not only persons employed in civil capacities but with respect to
all-persons appointed to public services and posts in connection
with the affairs of the Union or any State by.authorities appoin-
ted under or specified in Acts made under Article ·309 or rules C
made under such Acts or made under the proviso to that Article.

As the making of such laws and the framing of such rules
are subject to the ·provisions of the Constitution, if any such
Act or rule, violates any of the provisions of the Conatitution,
it would be void· Thus,. as held in lloti llam Deka 's case (supra), D
i f any such Act or rule trespasses upon the rights guaranteed to
goverruneni: servants by Article 311, it would be void. Similarly,
such Acts and rules _cannot abridge or restri,ct the pleasure of
the President or the Governor of a State exercisable under
Article 310(1) further than what the Constitution has expressly
done• In .the same way, such Act or rule would be void if it
violates any ·Fundamental Right guaranteed by Part III of the
Constitution. Two instances of this may be given by way of
illustration. In Kameshwar Prasad & Ors. v. 'lhe State of B1bar &
Anr·, (1962] Supp. 3 s.c.R. 369, Rule 4A of the Bihar Government
Servants' Conduct Rules, 1956, insofar as it prohibited any form
of demonstration was struck down by this Court as being violative
of sub-clauses (a) and (b) of clause (1) of Article 19. In F
G.K.Gbose awl another v. E.X •.Joseph, [1963] Supp. l s.c.R. 789,
this court struck down Rule 4A of the Central Civil Services
(Conduct) Rules, 1955, on the ground that it violated sub-clause
(c) of clause (l) of Article 19 of the Constitution and that
portion of Rule 4A which prohibited participation.in any demona-
tration as being violative of Sub-Clauses (a) and (b) of clause G
(1) of Article 19. Further, the application of . article 309 is
exclUded by certain provisions of the Conatitution itself which
empower authorities other than those specified in Article 309 to
make appointments or to make rules relating to the conditiona of
service of certain classes of public service, such as, Article
146(1) with respect- to the officers and servants of the Supreme
_H_
194 SUPREME COURT REPORTS (1985] SU~P.2 s.c.R.

A Court, Article 148(5) with respect to persons serving in the
Indian Audit and Accounts Department, Article 229 with respect to
the offic.ers and servants of the High Court, and Article 324(5)
with rnspect of Election Commissioners and Regional
Connnissianers.

B Whkh would be the appropriate Legislature to enact laws or
-the apprllpriate authority to frame rules would depend upon the
provisior.s of the Constitution with respect to legislative compe-
tence and the division of legislative powers. Thus, for instance,
under Entry 70 in List I of the Seventh Shedule to the Constl.tu-
tion, Union Public Services, all-India Services and Union Pulic
Service Conunission are subjects which fall within the exclusive
C legislat:lve field of Parliament, while under· Entry 41 in List II
of the Seventh Schedule to the Constitution, State Public
Services aod State Public Service Conmission fall within the
exclusive legislative field of the State Legislatures. The rules
framed by the Presi.dent or the Governor of a St.ate must also,
therefore, conform to these legislative powers. It is, however,
not nece,ssary that the Act of a.'1 appropriate Legislature should
D . specifically deal with a particular service. It is sufficient if
it is au Act as contemplated by Article 309 by which provision is
made regulating the recruitment and conditions in a service (see
llam Pal Cbaturvedi v. State of Rajastban and others.), [1970] 2
s.c.R. 0•59,564.

E It was at one time thought that the right of a government
servant to recover arrears of salary fell within the ambit of the
pleasure·· doctrine and a servant of the Crown, therefore, cannot
sue for his salary, it being a bounty of the Crown and not a
contractual debt. Thl.s was so stated in the judgment of Lord
Blackburn in the Court of Session (the supreme civil court of
F Scotland) in the case of Mulveniia v. The lldlliralty., [1926] s.c.
(i.e. Sessions Cases) 842. ·Relying heavily upon this decision,
the Judicial Committee of the Privy Council in High Conmissioner
for India and High Comnissioner for Pakistan v. I.K. Lall., L.R.
[1947-48J 75 I.A. 225, 243-4, though it held that Lall's dismiss-
al was contrary to section 240(3) of the Government of India Act,
G 1935, negatived his calim for arrears of pay. In The State of
Bibar ,,. Abdul Majid, [1954j s.c.R. 786, a Constitution Bench of
this Court pointed out that the attention of the Judicial
.Conmittee was not drawn to section 60 and the other relevant
provisions of the Code of Civil Procedure, 1908, and that the
. rule of English law that a Crown servant cannot maintain a suit
H against the Crown for recovery of arrears of Salary did not
u.o.r. v. TULSIRAM [MADON, J.] 195

prevail in India as it had been negatived by the provisions of
A
statutory law in India. It may be mentioned that in its subse-
quent decision in Chelliah Kodeeswaran V• Al:toruey-General of
Ceylon in appeal from the Supreme Court' for Ceylon, the Judicial
Colllllittee held that Lord Blackburn's reasoning in Mulveona 's case
had not been concurred· in by the other two members· of the
Scottish Court of Session, namely, Lord Sands and Lord Ashmore,
B
and had not been subsequently treated in Scotland as correctly
laying down the law and that it was defective and the conclusion
reached by Lord Blackburn was contrary to authority and was
wrong. It further pointed out that there W<:!-S a current of aut_ho-
rity for a hundred years before 1926 (that being the year in
which Mulvenoa's case was decided) to the effect that the arrears
of salary of a civil ·servant of the Crown; as distinguished .from
c
a member of the armed services, constituted a deb~ recoverable by
a petition of right. According to the Privy Council, as the
relevant and prestigious authorities to the contrary, did not
appear to have been cited before the Judicial Committee in I.all's
case, this part of the judgment is that case must be 'regardej as
D
given per incuriam.

As seen earlier, in India for the first time a fetter was
imposed upon the pleasure of the Crown to terminate the service
of any of its servant by secton 96B of the Government of India
Act, 1919, but that was only with respect to the authority which
E
could dismiss him. In that section the holding of office "during
His Majesty's pleasure" was made subject to both the provisions
of that Act and the rules made thereunder. Under the Government
of India Act 1935, the reference to the rules to be made under
the Act was omi.tted and the tenure of office of a civil servant
was to be "during His Majesty's pleasure except as expressly
provided" by that Act. Article 310(1) adopts the ·same phraseo-
F
logy as in section 240 of the 1935 Act. Under it also the hold-
. ing of an office is during the pleasure of the President or the
Governor ;'Except as expressly provided by this Constitution!'.
Therefore the only fetter which is Placed on the exercise of such
pleasure is when it is expressly so provided in- the Constitution
itself, that is, when there is an express proviso_ in that be.half
in the. Constitution. Express provisions in that behalf are to be G
found _in the case of certain Constitutional functionaries in
respect. of whose tenure special provision is ma.de "in the Consti-
tution as, for instance, in clauses (4) and (5) of Article 124
with respect to Judges of the Supreme Court, Article 218 with
respect to Judges of the High Court, Article 148(1) with respect
to the Comptroller and Auditor-General of India, Article 324(1/
H
196 SUPREME COURT REPORTS [1985] SUPP.2 S.C;R.

with respect to the Chief Election Commissioner, and Article
A 324(5) with respect to the Election Commissioners and Regional
Conmissioners.

Clauses (1) and (2) of Article 311 impooe restrictions upon
the exercise by the President or the Governor of a State of his
pleasure under Article 310(1). These are express provisions with
respect to termination of service by dismissal or removal as also
B with respecct to reduction in ran.1< of a civl.l servant and thus
come within the ambit of the expression "Except as expressly
provided by this Constitution" qualifying Article 310(1). Article
311 is thus an exception to Article 310 and was described in
Parabottia Lal lllingra v. Union of india, [1958] s.c.R. 820,829,
as operating as a proviso to Article 310(1) though set out. in a
separate Article. Article 309 is, however, not such an excep-
c tion. It does not lay down any express provision which would
derogate from the amplitude of the exercise of pleasure under
Article 310(1). It merely ·confers upon the appropriate Legis-
lature or executive the power to make laws and frame rules but
this power is made subject to the provisions of the Constitution.
Thus, Article 309 is subject to Article 310(1) and any provision
restricting the exercise of the pleasure of the President or
D Governor in an Act or rule made or frame under Article · 309 not
being an express provision of the Constitution, cannot fall
within the expression "'Except as expressly provided by this
Constitution"' occurring in Article 310(1) and would be in con-
flict with Article 310(1) and must be held to be unconstitu-
tional. Clauses (l) and (2) of Article 311 expressly restrict
E the manner in which a Government servant can be dismissed, re-
moved or reduced in rank and unless an Act made or rule framed
under Article 309 also conforms to these restrictions, it would
be void· The restriction placed by ·clauses (l) and (2) of
Article 311 are two : (l) with respect to the authority empowered
to dismiss or remove a government servant provided for in clause
F (l) of Article 311; and (2) with respect to the procedure for
dismissal, removal or reduction in rank of a government servant
provided for in c1Ause(2). The second proviso to Article 311(2),
which is the central point of controversy in these Appeals and
Writ Petitions, lifts the restriction imposed by Article 311(2)
in the cases specified in the three clauses of that proviso.
G
None of these three Articles (namely, Articles 309,310 and
311) sets out the grounds for dismissal, removal or reduction in
rank of a government servant or for imposition of any other
penalty upon him or states what those other· penalties are.

H
U.O.I. v. TUU>IRAM [MADON, J.] 197

These are matters which are left to be dealt with by Acts and A
rules made under Article 309. There are two classes of penal-
ties in servi.ce jurisprudence, usmely, minor penalties and major
penalties. Amongst mi.nor penalties are censure, with holding of
promotion and with holding of increments of pay. Amongst major
penalties are dismissal or removal from service, compulsory
retirement and reduction in rank. Minor penalties do not affect B
the tenure of a government servant but the penalty of dismissal
or removal does because these two penalties bring to an end the
service of a government servant. It is also now well established
that compulsory retirement by way of penalty amounts to removal
from service. So this penalty also affects the tenure of a
government servant. Reduction in rank does not terminate the c
employment of a government servant, and it would, therefore, be
difficult to say that it affects the tenure of a government
servant. It may however, be argued that it does bring to an end
the holding of office in a particular rank and from that point of
view it affects the government servant's tenure in the rank from
which he is reduced. It is ullllecessary to decide this point D
because Article 311(2) expressly gives protection as against the
penalty of reduction in rank .also.

&ercise of Pleasure

A question which arises in this coIU1ection is whether the E
pleasure of the President or the Governor under Article 310(1) is
to be exercised by the Preside~t or the Governor personally or it
can be exercised by a delegate or some other authority empowered
under the Constitution or by an Act o.r Rules made undet" Article
309. This question came up for consideration before a Constitu-
tion Bench of this Court in llahu Baa Upadhya 's caae. The majority
of the Court (speaking through Subba Rao, J., as he then was) F
stated (at page 701) the conclusions it had reached in the form
of seveo propositions. These propositions are :

(1) In India every person who is a member of a oublic
service described in Article 310 of the Constitution
holds office during the pleasure of the President or G
the Governor, as the case may be, subject to the
express provisions therein.

( 2) The power to dismiss a pOblic servant at pleasure
is outside the scope of Article 154 and, therefore,
cannot be delegated by the Governor to a subordinate
officer, and can be exercised by him only in the H
manner prescribed by the Constitution.
198 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A (3) This tenure is subject to the limitations or
qualificatiens mentioned in Article 311 of the
Constitution.

(4) The Parliament or the Legislatures of States can-
not make a law abrogating or modifying this tenure so
as to impinge upon the overriding power conferred u~n
ll the President or the Goovernor under Article 310, as
qualified by Article 311.

(5) The Parliament or the Legislatures of States can
make a law regulating the conditions of service of
such a member which includes proceedings by way of
disciplinary action, without affecting the powers of
c the President or the Governor under Article 310 of the
Constitution read with Article 310 of the Constitution
read with Article 311 thereof.

(6) The Parliament and the Legislatures also can make
a law laying down and regulating the scope and content
of the doctrine of'reasonable opportunity' embodies in
D Article 311 of the Constitution; but the said law
would be subject to judicial review.

(7) If a statute could be made by Legislatures within
the foregoing permissible limits the rules made by an
authority in exercise of the power confet;red there-
E under· would likewise be efficacious within the said
limits; ·

The question came t be reconsidered by a larger Bench of Seven
0

Judges in Moti Rall Ileka's case. While referring to the judgment
of the majority in Babu Ram Upadbya 's case the Court observed as
F follows (ai pp.731-2) :

."What the said Judgment has held is that while Article
310 .provides for a tenure at pleasure of the President
or the Governor, Article 309 enables the legislature
oi:' the executive·, as the case may be, to make any law
G ol: r:ule in ·regard inter alia, to conditions of service
.wi:thout impinging upon theoverriding power recognised
under Article 310• Ill other words, in exercising the
pmier conferred by Article 309, the extent of the
· plli1tsure recognised by Article 310 cannot be affected,
oi... im.Paireci.. In fact, while stating the conclusions
H
u.0.1. v. TULSIRAM [MADON, J.] 199

in· the form of propositions, the said judgment has A
observed that the Parliament or the Legislature can
make a law regulating the conditions of service with-
out affecting the powers of the President or the
Governor under Article 310 read with Article 311. It
has also been stated at the same place that the power
to dismiss a public ser,ant at plesure is outside the B
scope of Article 154 and, therefore, cannot be delega-
ted by the Governor to a subordinate officer and can
be exercised by him only in the manner·prescribed by
the Corultitution. In the context, it would be clear
that this latter observation is not intended to lay
down that a law cannot be made under Arcicle 309 or a C
Rule. cannot be framed under the proviso to the said
Article prescribing the procedure by which, and . the
authority by whom, the said pleasure can be exercised.
This observation which is mentioned as . proposition
number(2) must be read along with the subsequent
propositions specitied as (3),(4),(5) & (6). The only D
point made is that whatever is done under Article 309
must·be subeject to the pleaaure prescribed by Article
310."

While we are on this point we may es well advert to the
decision of this Court in Sardari Lal v. Union of India & Ors.
In that case it was held that where the President or the E
Governor, as the case may be, if satisfied, makes an order under
clause (c) of What ·ts now the second proviso to Article 311(2)
that in the interest of the security of the State it is not expe-
dient to hold an inquiry for ·dismissal or removal or reduction
in rank of. an officer the satisfaction of the President or the
Governor must be his personal satisfaction. The correctness of F
this view was COl)8idered by a sevP.n Judge Bench of this Court in
Shmeber SiDgb & Anr. V• State of Punjab, [1975] l S.C.R. 814, It
was categorically stated in that case(at page 835) that the
majority view in llahu Baa llpadhya's case was no longer. goods law
after the decision in Motl - Dalla 's csse. Referring to these
two cases the Court observed (at pages 834-5)) : G

"This Court in State of Uttar Pradesh & Ors. v. Babu
llaa Upadhya [1961] 2 s.c.R. 679 held that the power of
the Governor to dismiss at pleasure, subject to the
provision of Article 311, is not an executive power
under Article 154 but a Constitutional power and is H
net capable of being delegated to officers subordinate
200 · SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A to him. The effect of the judgment in Babu Bam
Upadhya's case(supra) was that the Governor couid not
delegate his pleasure to any officer nor could any law
provide for the exercise of that pleasure by an office
with the result that plesure by any officer with the
re.sult that statutory rules governl.ng dismissal are
B binding on every officer though they were subject to
the overriding pleasure of the Governor. This would
mean that the officer was bound by the Rules but the
Governor was not.

Iri Babu Ram Upadhya 's case( supra} the majority view
stated seven propositions at page 701 of the report.
c Proposition No. 2 is that the power to dismiss a
public servant at pleasure is outside the scope of
Article 154 and therefore cannot be, delegated by the
Governor to a subordinate officer and can be exercised
by him only in the manner prescribed by the Constitu-
tion. Propositions No. 3 and 4 are these. The· tenure
of a public servant is subject to the limitations or
D qualifications mentioned in Article 311 of the Consti-
tution. The Parliament or the Legislatures of States
cannot make a law abrogating or modifying this tenure
so as to impinge upon the overriding power conferred
upon the President or the Governor under Article 310
as qualified by Article 311. Proposition No. 5 is that
E the Parliament or the Legislatures of States can make
a law regulating· the conditions of service of such a
member which includes proceedings by way of disciplin-
ary action, without affecting the poliers of the Presi-
dent or ~he Governor under Article ~10 of the Consti-
tution read with Article 311. Proposition No. 6 is
F that the Parliament and the Legislatures also can make
a law laying down and regulating the scope and content
of the.doctrine of 'reasonable opportunity' embodied
in Article 311, but the said law would be subject to
judicial review.

G All these propositions were reviewed by the majority
opinion of this Court in lloti llalll lleka's case (supra}
and this Court restated that proposition No. 2 must
be read along with the subsequent propositions speci-
fied ;iS propositions No. 3,4,5 and 6. The ruling in
Moti Ilam Deka' s case (supra) is that a law can be
H framed ·prescribing the procedure by which and the
u.o.I. v. TULSIR/IM [MADON, J · 1 201

audiority by' whom. the said pleasure can be exercised.
lbe pleasure of the President or the Governor to A
di w;;f ss can therefore not only be delegated but is
also subject to Article 311. The true position as laid
down in Motl Ram lleka's case (supra) is that Article~
310 and 311 nrust no doubt be read together but once
the true scope and effect of Article 311 is determined B
the scope of Article 310(1) nrust be limited .in the
s&nse that in regard to cases falling under Article
311(2) the pleasure mentioned in Article 310(2) 1111St
be exercised in ·accordance with the requireuents of
Article 311.

lbe majority view in Babu Ram Upadhya' s case (supra)
is no longer good law after the declSiou in lloti Ram
Deka's case (supra). The theory that only the Presi-
dent or the Governor is personally to exercise
pleasure of dismissing· or removing a public servant is D
repelled by express words on Article 311 that no
person who is a member of the civil service o' holds a
civil post under the Union or a State shall be
dismissed or removed by authority subordinate to that
by which he was appointed. The words 'dismissed or
removed by an authority subordinate to that by which E
he' was appointed' indicate that the pleasure of the
President or the Governor is aercised by such
office>"s OD whom the President: or the Governor confers.
or delegates pcllff!r•"
(Emphasis supplied)

The Court then stated its conclusion as follows (at F
page 836) :

"For the foregoing reasons we hold that the President
or the Governor acts on the aid and advice of the
Council of .Ministers with the Prime Minister as the
head in the case of the .Union and the Chief Minister G
at the head in the case of State in all matters which
vest in the executive ·whether those functions are
executive or legislati_ve in character. Neither the
President nor the GoVernor is to exercise the
executive functions personally."

The position, therefore, is that the pleasure of the Presi- H
dent or the Governor -is not required. to be exercised- by either of
202 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A them personally, and that is indeed obvious from the language of
Art.icle 311. Under clause (1), of that Article a govermnent
servant cannot be dismissed or removed by an authoriy subordinate
to that by which he was appointed. The question of an authority
equal or superior in rank to the appointing authority cannot
arise if the power to dismiss or remove is to be exercised by the
B President or the Gnvernor personally. Clause (b) of the second
proviso to Article 311 equally makes this clear when the power to
dispense with an inquiry is conferred by it upon the authority
empowered to ~ismiss, remove or reduce in rank a goverrnnent
servant in a case where such authority i~ satisfied that for some
reason, to be recorded by that authority in writing, it is not
C reasoP.ably practicable. to hold such inquiry, because if it was
the personal satisfaction of the President or the Governor, the
question of the satisfaction of any authority empowered to
di&ini.ss or remove or reduce in rank a government servant would
not arise. Thus, though under Article 310(1) the tenure of a
government · servant is at the pleasure of the President or the
U Governor, the exercise of such pleasure can be either by the
President or the Governor acting with the aid and on the advice
of the Council of Ministers or by the authority specified in Acts
made under Article 309 or in rules made under such Acts or made
under the proviso to Article 309; and in the case of clause (c)
of t.he second proviso to Article 311(2), the inquiry to be
dispenced with not en the personal satisfaction of the President
E or the GOvernor but on his satisfaction arrived at with the aid
and on the advice of the Council of Ministers.

The &!cood Proviso to Article 311(2)

Clause (2) of Article 311 gives a constitutional mandate to
F the principles of natural justice and audi alteram partem rule by
providing' that a person employed in a civil capacity under the
Union or a State shall not be dismissed or removed from service
or reduced in rank until after an inquiry in which he has been
informed of the charges against him and has been given a reason-
able opportunity of being heard in respect of thos~ charges. To
G this extent, the pleasure doctrine enacted in Article 310(1) is
abridged because Article 311(2) is a express provision of the
Constitution. This safeguard provided for a government servant
by clause (2)of Article 311 is, however, taken away when the
second proviso to that clause becomes applicable. The safeguard
provided .by clause(l) of Article 311, however, remains intact and
H continues to be available to the government servant. The second
u.o.r. v. TULSIRAM LMAOON, J. J 203

proviso to Article 311(2) becomes applicable in the three cases
mentioned in clauses (a) to (c)· of thst proviso. These cases are
A

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

(b) where the authority empowered to dismiss or remove
a person or to reduce him in rank is satisfied thst
for some reason, to be recorded by thst authority in
writing, it is not reasonably practicable to hold such
inquiry; and c

( c )where the President or the 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
inquiry.
D
The Construction to be placed upon the second proviso and
the scope and effect of thst proviso were much debated at the
Bar. In Hira Lal Hattan Lal etc. v. State of U.P. · & Anr., [1973]
Z S.C.R.SOZ this Court observed (at page 512) ;

"In construing a statutory provision, the first and E
the foremost rule of construction is the literary
construction. All that we have to see at the very
.outset is whst does thst provision say1 If the provi-
sion is unambiguous and i f from thst provision, the
legislative intent is clear, we need not call into aid
the other rules of construction of statutes. The
other rules of construction of statutes are called F
into aid only when the legilsature intention is not
clear. Ordinarily a proviso to a section is intended
to take out a part of the main section for speci8.l
treatment. It is not expected to enlarge the scope
of the main section. · But cases have arisen in which
this Court has held thst despite the fact thst a ~ro G
-vison is called proviSo, it is really a separate pro-
vision and the so called proviso hss substantially
altered the main $ection."

In Comnissiooer of Inccme Tax, lladras v. Madurai Mills Co.
Ltd., [1973] 3 s.c.R. 662, this Court said (at page 669) :
H
204 SUPREME COIJRT REPORTS [1985] SUPP.2 s.c.R.

A "A proviso cannot be construed as enlarging the scope
of an enactment when it can be fairly and properly
construed without attributing to it that effect.
Further, if the language of the enacting part of the
statute is plain and unambiguous and does not contain
the provisions which are said to occur in it, one
B cannot derive those provisions by implication from a
proviso."

The language of the second proviso is plan and unambiguous.
The keywords in the second proviso. are "this clause shall not
apply". By "this clause" is meant clause(2). As clnuse(2)
C requires an inquiry to be held against a government servant, the
only meaning attributable to these words is that this inquiry
shall not be held. There is no scope for any ambiguity in these
words and there is no reason to given them any meaning different
from the plain and ordinary meanJ,ng which they bear. The
resultant effect of these words is that when a s~tuation eavisag-
D ed in any of the three clauses of the proviso arises and that
clause becomes applicable, the safegusrd provided to a government
servant by clause (2) is taken away. As pointed out earlier, this
provision is as much in public interest and for public good and
a matter of public policy as the pleasure doctrine and the safe-
gusrds with respect to security of tenure contained in clauses
(1) and (2) of Article 311.
Before, however, any clause of the second proviso can come
into play the condition laid down in it 11USt be saisfied" The
condition for the application of each of these clauses is
different. In.the case of clause (a) a government servant must be
guilty of conduct deserving the penalty of dismi.ssal, removal or
F reduction in rank which conduct has led to him being convicted on
a criminal. charge. In the case of clause (b) the disciplinary
authority must be satisfied that it is not reasonably practicable
to hold an inquiry. In the case of clause ( c) the President or
the Governor of a State, as the case 'may be, must be satisfied
that in the interest of the security of the State, it is not
G expedient to hold an inquiry. When these conditions can be said
to be fulfilled will be discussed later while dealing separately
with each of the three clauses. The paramount thing, hwever, to
bear in mind is that the second proviso will apply only where the
conduct of a government servant is such as he deserves the
punishment of dismissal, removal or reduction in rank. If the
H conduct is sueh as to deserve a punishment different from those
mentioned above, the second proviso cannot come into play at all,
U.Q.I. v. TULSIRAM [MADON, J.] 205

because Article 311 (2) is itself confined only to these three
penalties. Therefore, before denying a government servant his A
constitutional right to an inquiry, the first consideration.would
be whether the conduct of the concerned government servant is
such as justifies the penalty of disnmissal, removal or reduction
in rank. Once that conclusion is reached and the condition speci-
fied in the relevant clause of the second proviso is satisfied, B
that proviso becomes applicable and the government servant is not
entitled to an inquiry. The extent to which a government servant
can be denied his right to an inquiry formed the subject-matter
of considerable debate at the Bar and we, therefore, now turn to
the question whether under <the second proviso to Article 311(2) c
even though the inquiry is dispensed with, some opportunity at
least should not be afforded to the government servant to that he
is not left wholly without protection. As most of the arguments
on this Part of the case were coDJnOn to all the three.clauses of
the second proviso, it will be convenient at this stage to deal
at one place with all the arguments on this part of the case, D
leaving aside to be separately dealt with the other arguments
pertaining only to a particular clause of the second proviso.

'Die Enent of Denial of Opportunicy uoder the Second Proviso

It was submitted on behalf of the government servants that E
an inquiry consists of several stages and, therefore, even where
by the application of the second proviso the full inquiry is
dispensed with, there is ·nothing to prevent the disciplinary
authority from holding at least a minimal inquiry liecause no
prejudice can because by doing so. It was further submitted that
even though the three clauses of the second proviso are different
in their content, it was feasible in the case of each of the F
three clauses to give to the government servant an opportunity of
showing cause against the penalty proposed to be imposed so as to
enable him to convince the disciplinary authority that the
nature of the misconduct attributed to him did not call for his
dism!ssal, r~val or reduction in rank. For instance, in a case

- falling under clause (a) the government servant can point out
that the offence of which he was convicted was a trivial or a
technical one in respect of which the criminal court had taken a
lenient view and had sentenced him to pay a nominal fine or had
given him the benefit of probation. Support for this submission
was derived from Cballappan's case. It was further submitted that
G

apart from the opportunity to show cause against the proposed
penalty it was also feasible to give a further opportunity in the H
case of each of the three clauses though such opportunity in each_
206 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A
case may not be identical. Thus, it was argued that the charge-
sheet or at least a notice informing the govermuent servant of
.the charges against him and calling for his explanation thereto
was always feasible. I.t was further argued that though under
clause (a) of the second proviso an inquiry into the conduct
B which led to the conviction of the government servant on a
criminal charge would not be necessary, such a notice would
enable him to point out that it was a case of mistaken identity
and he was not the person who had been convicted but was an
altogether different individual. It was urged that there could be
no practical difficulty in serving such charge-sheet to the
c concerned govermnent servant because even if he were sentenced to
imprisonment, the charge-sheet or notice with respect to the
proposed penalty cim always be sent to the jail in which he is
serving' his sentence. So far as clause (b) is concerned, it was
argued that even though it may not be reasonably practicable to
hold an inquiry, the explanation of the government servant can at
D least be asked for· with respect to the charges made against him
so that he would have an opportunity of showing in his written
reply that he was not guilty of any of those charges. It was
also argued that assuming such government servant was absconding,
the notice could be sent by registered post to his last known
address .or ps.sted there. Similar arguments as in case of clause
(b) were advanced with respect to clause (c). It was submitted
E that the disciplinary authority could never make up its mind
whether to dismiss or remove or reduce in· rank a government
servant unless such minimal opportunity at least was afforded to
the government servant. Support for these contentions was sought
to be derived from (l) the language of Article 311(2) and the
implications flowing therefrOIIi, (2) the principle of natural
F justice including the audi alteram partem rule comprehended in
Article 14, and (3) the lariguage certain rules mode either'under
Acts referable to the Article 309 or made under the proviso to
that Aiticle. We will consider the contentions with respect to
each of these basis separately.

G So far as Article 311(2) was c.oncerned, it was said that the
language of tbe second proviso did not negative every single
..•
opportunity which could be afforded to a government servant "
under different situations though the nature of such opportunity
may be different depending upon the circumstances of the case. It
was further submitted that the object of the Article 311(2) was
H that no government servant should be condemned unheard and
dismissed or removed or reduced in rank without affording him at
least some chance of either showing his innocence or convincing
U.O.I. v. TULSIRAM [MADON, J.) 207

the disciplinary authoirty that the proposed penalty was too
drastic and was uncalled for in his case and a lesser penalty A
should, therefore, be imposed upon him. These arguments, though.
attractive at the first blush, do not bear scrutiny.

The language of the second proviso to Article 311(2) read in
·the light of the interpretation placed upon clause (2) of Article B
311 as orginally enacted and the legislative history of that
clause wholly rule out .the giving of any opportunity. While cons-
truing Rule 55 of the Civil Services (Classification, Control and
Appeal) Rules and the phrase "a reasonable opportunity of showing
cause against the acfon proposed to be taken in regard to him" c
occurring in sub-section (3) of section 240 of the Govermnent of
India Act, 1935, the Judicial Committee of the Privy Council in
Lall 'a case stated as follows (at page 242-3) :

"... sub-s. 3 of s. 240. was not· intended to be, and
wss not, a repr-0duction of pile 55, which was left D
unaffected as an administrative rule. ·Rule 55 is con-
cerned that the civil servant shall be . informed 'of
the grounds .on which it is proposed to take action, '
and to afford him an adequate opportunity of def ending
himself against charges which have to be reduced to
writing; this is in marked contrast to the statutory E
provision of 'a reasonable opportunity of showing
cause against the action proposed to be taken in
regard to him·' In the opinion of their Lordships, no
action is proposed within the meaning of the sub-sec-
tion until a definite conclusion has been come to on
the charges, and the actual punishment to follow is
provisionally determined on. Before that stage, the
F
charges are unproved -and the suggested punishments are
. merely hypothetical. It is.on that stage being reached
that the statute gives the civil servants the opportu-
nity for which sub-s.3 makes provision. Their .Lord-
ships would only add that they see no difficulty in
the statutory opportunity being reasonably afforded at
G
more that one stage. If the civil servant has been
through an inquiry under· rule 55, it Would not be
• reasonable that he should ask for a repetition of that
"\
stage, if duly carried out, but that would not exhaust
bis statutory right, and he would still be entitled to
represent .ag8illst the punishment proposed as the
result of the findings of the inquiry. On this v.iew
of the proper cOnstruction of .sub-s.3 of s.240, it is
208 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A not disputed that the respondent has not been given
the opportunity to which he is entitled thereunder,
and the purported removal of the respondent on August
10,1940, did not conform to the mandatory requirements
of sub-s.3 of s.240, and was void and inoperative."

B The very phrase "a reasonable opportunity of stowing cause
against the action proposed to be taken in regard to him" in sub-
section(3) of section 240 of the Government of India Act,1935,
was repeated in clause (2) of Article 311 as originally enacted,
that is in the said clauses prior too its amendment by the Cons-
tituton (Fifteenth Amendment) Act, 1963. Approving the construc-
C tion placed by the Judicial Committee upon this phrase, this
Court in Khan Chand v. 'lbe Union of India & Ors. [1958] s.c.R.
1080, held as follows (at page 1095-97) :

"It is true that the provision does not, in terms,
refer to different stages at which opportunity is ,to
D be given to the officer concerned. All that it says
is that the government ·servant must· be given a reason-
able opportunity of showing cause against the action
proposed to be taken in regard to him. He must not
only be given an opportunity but such opportunity
must be a reasonable one. In order that the opportu-
nity to show cause against the proposed action may be
E regarded as a reasonable one, it is quite obviously
necessary that the government servant should.have the
opportunity, to say, if that be his case, that he has
not been guilty of any misconduct to merit any punish-
men.t at all and also that the particular punishment
proposed to be given is much more drastic and servere
F than he deserves. Both these pleas have a direct
bearing on the question of punishment and may well be
put forward in showing cause against the proposed
punishment. If this is the correct meaning of the
clause, as we think it is, what consequences follow?·
If it is open to the government servant under this
G provision to contend, if that be the fact, that he is
not guilty of any misconduct then how can he take that
plea unless he is told what misconduct is alleged r'
against him? If the opportunity to show cause is to
be a reasonable one it is clear that he should be
informed about the charge or charges levelled against
H him and the evidence by which it is sought to be
established, for it is only then that he will be able
u.o.r .. v. TULSIRAM [!:ADON, J.] 209

to put forward his defence. If the purpose of this
provision is to give the government servant an oppor- A
tunity to exonerate himself from the charge and if
this opportunity is to be a reasonable one he should
be allowed to show that the evidence against him is
not worthy of credence or consideration and that he
can only do if he is given a chance to cross-examine
the witnesses called against him and to examine him- B
self or any other witness in support of his defence.
All this appears to us to be implicit in the language
used in the clause, but this does not exhaust his
rights. In addition to showing that he has not been
guilty of any misconduct so as to lllt<rit any punish-
ment, it is re.asonable that he should also have an c
opportunity to contend that the charges proved against
him do not necessarily require the particular punish-
ment proposed to be meted out to him. He may say for
instance, that althoii.gh he has been guilty of some
misconduct it is not of such a character as to merit
the extreme punishments of .dismissal or even of D
removal or reduction in rank and that any of the
lesser punishments ought to be sufficient in his case.

To summarise : the reasonable opportunity envisages by
the provision under consideration includes. -
E
(a) An opportunity to deny his guilt and establish his
innocence, which he can only do if he is told what the
charges levelled against him are and "the allegations
on which such charges are based;

(b) an opportunity to defend himself by cross-examin-
ing the witnesses produced against him and by e.x.amin- i"
ing himself or any other witnesses in support of his
defence ; and filially

(c) !'n opportunity to make his representation as to
why the proposed punishment should not be inflicted on
him, which he can only do if the competent auth~rity, G
after the enquiry is over ,and after applying his. mind
to the gravity or otherwise of the charges proved
against the government servant tentatively proposes to
inflict one of the three punishments and communicates
the same to. the government servant. In short the
substance of the protection provided by rules, like
H
210 SUPREME COURT REPORTS [1985] SUPP•2 S.C.R.

A rule 55 referred to above, was bodily lifted out of
the rules and together with an additional opportunity
embodied in s.240(3) of the Government of India Act,
1935 so as to give a statutory protection to the
government servants and has now been incorporated in
Article 311(2) so as to convert the protection into a
B constituional safeguard."

While the Judicial Coomittee in Lall' s case held that two
opportunities were required - one under rule 55 of the Civil
ServiCes (Classification,,Control and Appeal) Rules to show cause
against the charges of misconduct made against a government
c servant, and the other under sub-section ·(3) of section 240 of
the Government of InJia Act, 1935, to shoW cause against the
proposed penalty, this Court in Kbem a.an.I's case held that
Article.311(2) bodily lifted the said rule 55 and the additional
opportunity provided for in section 240(3) of the 1935 Act and
incorp<lrated· these provisions in Article 311(2) so as to convert
D
the protection afforded to governinent servants into a constitu-
tional safeguard. This conclusion was reached by this Court even
though Article 311(2) used the same language as section 240(3).
The Constitution (Fifteenth Amendment) Act, 1963, substituted the
whole of clause (2). The substituted clause specifically .provi-
ded for two opportunities to be given to a government servant
:(1) to be informed of the charges against him and to be given a
E
· reasonable opportunity of defending himself against those
charges, and (2) a reasonable opportunity of making representa-
tion· on the penalty proposed where after such inquiry it was
proposed to impose on him the penalty of dismissal, removal or
reduction in rank. No additional rights were, however, conferred
upon government servants by the above amendment because it merely.
declared the rights which a government servant already possessed
under the original clause (2) of Article 311 as interpreted by
this Court in 'lbea. Cland's case. This amendment, therefore, was
merely declaratory, but in a way it was also clarificstory
·because it restricted the right of representation on the proposed
penalty to a representation only on the basis of the evidence
G adduced during the inquiry. This clarification perhaps became
necessary because, as pointed out'by this Court in Suresh Koshy
George v. 1be University of Kerala & Ors. [1969 J 1 s.c.R. 317,
326., there prevailed an erroneous imppression in certain
quarters, evidently influenced by the provisions of the unamended
Article 311(2) that every disciplinary proceeding llll.lSt consist of
H two. inquiries, one before issuing a show cause notice to be
followed by another inquiry thereafter~ · This amendment, there-
. fore, made it expressly clear that the inquiry to be held against
u.o.i. v. TULSIRAM [MADON, J. J 211

a government servant was to be one in which a charge-sheet or a
show-cause notice was to .be issued to him informing him of the
A
charges against him and giving him a resonable. opportunity of
being heard in respect of those charges and a further opportunity
of making representation on the penalty proposed to be imposed on
him but only on the basis of the evidence · adduced during such
inquiry. The substituted cliuse, therefore, showed thst the
B
issue of a charge-sheet or a show-cause notice in respect of the
charges framed against a government servant and a notice to show
cause against the proposed penalty were part of the inqUiry
contemplated by Article 311 (2). Even assllllling for the sake of
argument that because Article 311(2), as substituted by the Cons-
titution (Fifteenth Amendment) Act, spoke of "a reasonable oppol:-
c
tunity of making representation .on the penalty proposed" in a
I case "Where it is proposed, after such inquiry, ·to impose on him

~
any such penalty", ·the show ·cause notice with respect to penalty
was not a part of the inquiry, the opening· words of the proviso
to claus.e (2) (now the second proviso to that clause) namely,
D
"Provided further that this clause aball aot apply", would, Where
any of the three clauses of the said .proviso applies, take away
both the right to have an inquiry held in which the government
servant would be entitled to a charge-sheet as also the right to
make a representation on the proposed penalty. As mentioned
above, the words "this clause shall not apply" are the keywords
E
in the second proviso and govern each and every clause ·thereof
and by reason of these words· not only the holding of an inquiry
but all the provisions of clause (2) have been dispensed with.

The question which then arises is, "Whether the Constitution
(Forty-second Amendment) Act, 1976, whic.h further amended the
substituted clause (2) of Article 3il with effect from 1st
F
January 19.77. has made any change 1n the law?" The ameodments
made by this Act are that in clause (2) that portion which
required a reasonable opportunity of making representation on the
proposed penalty to be given to a government servant was deleted
and in its place the first proviso was inserted, which expressly
provides that it is not necessary to give to a delinquent govern-
G
ment servant any opportunity of making representation on the
proposed penalty. lloes this affect· the opertion of· the original
proviso which, by the Constitution (Forty-second Amendment) Act,
became the second proviso? Such obviously was not and could not
have. been the intention ·of Parliament. The opening words of the
second proviso remain the same except that the word 'further' was
inserted after the word 'Provided', because the original proviso
H
by reason of the insertion of another proviso before it became .
212 SUFREME COURT REPORTS [1985] SUFP.2 s.c.a.

A the second proviso. It souid be borne in mind that the showcause
notice at the punislnnent stage was originally there as a result
of the interpretation placed by the Judicial Committee in La.l's
case and by this Court in Kbem Chand' s case upon the phrase "a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to him". Clause (2) as substituted
.B by the Constitution (Fifteenth Amendment) Act merely reproduced
the substance of what was held in Kliem Cband's c&se. The words
which originally found a place in clause (2), "a reasonable oppor-
tunity of showing cause against the action proposed to be taken
in regard to him", do not any more feature in clause (2). All
that clause (2) now provides is an inquiry in which the govern-
c ment servant is informed of the charges against him and given a
reasonable opportunity · of being heard in respect of those
charges. Clause (2) taken by itself even without the first ~
proviso does not provide, expressly impliedly, for any opportu-
nity to make a representation against the proposed penalty. After
the Constitution (Fifteenth Amendment) Act this second opportu-
D nity formed a separate part of clause (2), which part was deleted
by the Constitution (Forty-second Amendment) Act. Thus, when the
second proviso states in its opening words that "Provided further
that this clause shall not apply" it means that whatever safe-
guards are to be found in clause (2) are wholly taken away in a
case where any of the three clauses of the second proviso is
attracted. In this connection, the following observations of this •
E Court in the Case of Suresh Koshy George V• 1be University of
!Cerala &Ors.(at page 326-7) are pertinent :

"There seems to be an erroneous impression in certain
quarters evidently influenced by .the provisions in
Article 311 of the Constitution particularly as they
F stood before the amendment of that article that every
disciplinary proceeding must consist of two inquiries,
one before issuing the show cause notice to be follo-
wed by another inquiry thereafter. Such is not the
requirement of the principles of natural justice•
Law may or may not prescribe such a course."
G
In Associated Cement Calpaoies Ltd. v. T.C.Shrivastava & Ors.,
[1984] 3 S.C.R. 361,369, this Court held that "neither under the
ordinary law of the land nor under industrial law a second oppor-
tunity to show cause against the proposed punishment is neces-
sary". Since a right to such opportunity does not exist in law,
H it follows that the only right which the government servant had
to make a respresentation on the proposed penalty was to be found
u.0.1. v. TULSIRAM [MADON, J. J 213

in clause (2) of Article 311 prior to its amendment by the Cons- A
titution (Forty-second Amendment) Act. This right having been
taken away by the Constitution (Forty-second Amendment) Act,
there is no provision of law under which a·govermnent servant can
claim this right.
B
As for the argument that in a case under clause (a) of the
second proyiso a government servant could be worngly dismissed,
removed or reduced in rank mistaking him for another with the
same name unless he is given an opportunity of bringing to the
notice of the disciplinary authority that he is not the c
individual who has been convicted, it can only be described as
being too fanciful and far-fetched for though such a case of
mistaken identity may be hypothetically possible, it is highly
improbable. As in all other organizations, there is in govern-
ment service an extremely active grapevi11e, both departmental and
inter-departmental, which is constantly active, humming and D
buzzing with service news and office gossip, and it would indeed
be strange if the· news that a member of a department was facing
prosecution or had been convicted were to remain a secret for
long. Assuming such a case occurs, the government servant is not
without any remedy. He can prove in a departmental appeal which
service rules provide for, ~ave in exceptional cases, that he has E
been wrongly mistaken for another. Similarly, it is not possible
to accept the argument that unless a written explanation with
respect to the charges is asked for from a government servant
and his side of the case known, the penalty which would be
imposed upon him, could be grossly out of proPQrtion to his
actual misconduct. The disciplinary authorities are expected to
act justly and fairly after taking into account all the facts and F
circumstances of the case and if they act arbitrarily and impose
a penalty which is unduly excessive, capricious or vindictive, it
can be set aside in a departmental appeal. In any event, the
remedy by way of judicial review is always open to a government
servant.
G
The position which emerges from the above discussion is that
the keywords of the second proviso govern each and every clause
of that proviso and leave no scope for any kind of opportunity to
be given to a government servant. The phrase "this clause shall
not apply" is mandatory and not directory. It is in .the nature
of a Constitutional prohibitory injunction restraining the
disciplinary authority from holding an inquiry under Article H
311(2) or from giving any kind of opportunity to the concerned
government servant• There is thus no scope for introducing into
214 SUPREME .COURT IIBPORTS [1985] SUPP.2 s.c.R.

A the second proviso some kind of inquiry or opportunity by a
process of inference or implication. The maxim "expressum faclt
cessare tacitum" ("when there is express mention of certain
things, then anything not mentioned is excluded") applies to the
case. A<i pointed out by this Court in B. Shankara Rao Badam &
Ors. v. State of Mysore & Anr., [1969] 3 S.C.R. 1, 12, this
B well-known maxim is a principle of logic and common sense and no.t
merely a technical rule of construction. The second proviso
expressly mentions that clause (2) shall not apply where one of
the clauses. of that proviso becomes· applicable. This express
mention excludes everything that clause (2) contains and there
can be no scope for once again introducing the opportunities
provided by clause (2) or any one· of· them into the second
c proviso. · In Atkinson v. United States of America Government,
L.R. (1971] A.C. 197, Lord Reid said (at page 232) :

"It is now well recognised that the court has power to·
expand procedure laid down by. statute if that is
·necessary to prevent infringement of natural justice
. and is not plainly contrary to the intention of·
D Parliament."

Here, however, the attempt is not merely to do something contrary
to the intention of "Parliament",. that is, in our case, the Cons-
tituent Assembli, but to do something contrary to an express
prohibition contained in the Constitution. The conclusion which
E flows from the express language of the second proviso is·inevit-
able and .there is no escape from it. It may appear harsh but, as
mentioned earlier, the second proviso has been inserted in the
Constitution as a matter of public polfcy and in public interest
and for public good just as the pleasure doctrine and the safe-
guards for a government servant provided in clause (1) and (2) of
F Article 311 have been. It is in public interest and for public
good that government servant who has been convicted of a grave
and serious offence or one rendering him unfit to continue in
office should be summarily dismissed or removed from service
instead of being allowed to continue in it at public expense and
to public . detriment. It is equally in public interest and for
G public good that where his offence is such that he should not be
permi ited to continue to hold the sa.., rank, that he should be
reduced in rank. Equally, where a public servant by himself or
in concert with others has brought about a situation in which it
is not reasonably practicable to hold an inquiry and his conduct
is such as to justify his dismissal, removal or reduction in
H rank, both public interest and · public good demand that such
u.o.r. v. TULSIRAM [MADON, J.] 215

penalty should forthwith·arul.swnmarily be imposed upon him; and .A
similarly, where in the interest of the security of the State it
is not expedient to hold an inquiry, it is in the· public interest
and for public good that where one of ·the three punishments of
dismissal, removal or reduction in rank is called for ,it should
be swnmarily imposed upon the concerned government servant. It
was argued that in a case falling under clause (b) or (c), a ll
government servant ought to be place under suspension until the
situation improves or the danger to the security of the State has
passed, as the case may be, and it becomes possible to hold an
inquiry. This argument overlooks the fact that suspension
involves the payment at least of subsistence allowance and ·such c
allowance is p&id at public expense, and that . neither public
interst would be benefited nor public good served by placing such
govenunent servant under suspension because it may take a
considerable time for the situation .to improve or the danger to
be over. Much as this may seem harsh and oppressive to a govern-
ment servant, this Court must not forget that the object underly- D
ing the second proviso is public policy, · public interest and
public good and the Court must, therefore, repel the· temptation
to be carr.ied away by feelings of coomiseration and sympathy for
those government servants who have been dismissed, removed or
re_duced in rank by applying the second p_roviso. Sympathy and
coomiseration cannot be allowed to out weigh c0nsiderations of. E
public policy, concern for public interest, regard for public
good·and the premptory dictate of a· Constitutional ptohibition.
The Court must bear· in mind that the second proviso has been in
the Constitution since it was originally enacted. It was not
blindly or slavishly copied from section 240(3) of the Government
of India Act, 1935. Article ·311 was article 282-B of the draft
Constitution of India and the ·draft Aiticle 282-B was discussed F
and a considerable debate took place on it in the Constituent
Assembly (see the ·official Report of the Constituent Assembly
Debates, vol.1X, page 1099 to 1116). The greater part of this
debate centred upon the proviso to clause . (2) of the draft
article 282-B, which is now the second proviso to Articie 311.
Further, the Court should also bear in mind that clause (c) of G
the second proviso and clause (3) of Article 311 did not feature
~n secion 240 of the Government of India Act, 1935, but were new
provisions conciously introduced by the Constituent Assembly in
Article 311. Those who formed the Constituent Assembly were not
·the advocates of a despotic or dictatorial form of government.
They were the persons who enacted into our Constitution the
Chapter on Fundamental Rights. The majority of them had fought H
for freedom· and had suffered imprisonment in the cause of liberty
2I6 SUPREME COURT REPORTS ll985] SUPP.2 s.c.R.

and they, therfore, were not likely to introduce into our Consti -
A
tution any provision from the earlier Government of India Acts
which had been intended purely for the benefit of a foreign
imperialistic power. After all, it is not as if a government
applied to him. There are two remedies open to him, servant is
• without any remedy when the se~ond proviso has been applied to
him. There are two remedies open to him, namely, departmental
appeal and judicial review. The scope and extent of these
B
remedies will be considered later in the course of this judgment.

Article 14 and the Seco1ld Proviso

The next question which false to be considered is, "Does
Article 14 make any difference to the consequences which flow
from the second proviso to Article 311(2)?" It ' was submitted on
c behalf of the government servants that Article 14 in which the
principle of natural justice are comprehended permeates the
entire Constitution and, therefore, Article 14 must be readinto
the second proviso to Article 311(2) and according if not under
that proviso read by itself, under it read with Article 14 a
government servant is entitled to an opportunity both of showing
cause against the charges made against him. as also against the
D
penalty proposed to be imposed upon him, though such opportunity
may not extend to the holding of a complete and elaborate inquiry
as would be the case where clause (2) of Article 311 applies.
According to learned Counsel this is what is required by the audi
alteram partem rule which is one of the two main principles of
natural justice. . In the alternative it was submitted that
E
though an order may be valid and supportable under the second
proviso to Article 311(2), it could none the less be void under
Article 14 on the ground that the principles of natural justice
have been wholly disregarded. These arguments are based upon an
imperfect understanding of the principles of natural justice in
their application in courts of law to the adjudication of causes
F
before them and the function of Article 14 vis-a-vis the other
provisions of the Consti.tution and particularly the second pro-
viso to Article 311(2).

The principles of natural justice are not the creation of
Article 14. Article 14 is not their begetter but their Consti-
G tutional guardian. Principles of natural justice trace their
ancestry to ancient civilizations and centuries long past. Until
about two centuries ago the term "natural justice" was often used
interchangeably with "natural law" and at times it is still so
used. The expression "natural law" has been variously defined.
U.Q.I. v. TULSIRAM [ll'JXJN, J.] 217

A
ln Jowitt's Dictionary of English Law (Second Edition, page 1221)
it is defined as "rules derived from. God, reason or nature, as
distinct from man-made law." Black's Law Dictionary (Fifth
Edition, page 9l5) states :

"Tb.is expression, 'natural law' ,or jus naturale, was 8
largely used in the philosophical speculations of
the Roman jurists of the Antonine age, and was inten-
ded to denote a system of rules and principles for the
guidance of human conduct which, independently of
enacted law or of the systems peculiar to any one
people, might be discovered by the rational intelli-
gence of :man, and would be found to grow out of an
conform to his nature, meaning by that word his
whole mental, moral, and physical constitution.
The point of departure for this conception was the
stoic doctrine of a life ordered 'according to D
nature', which in its turn rested upon the purely
supposititious existence, in primitive tl.mes, of a
'state of nature;' that is, a condition Of society in
which men universally were governed solely by a
rational and consistent obedience to the needs,
impulses, and promptings of their true nature, such
E
nature befng as yet undefaced by dishonesty, false-
hood, or indulgenc~ of the baser passions. In ethics
it consists in practical universal judgments which·
man himself elicits. These express necessary and obli-
gatory rules of human conduct which have been
established by the author or human nature as essential
to the divine purposes in the universe and have been
F
promulgated by God solely through human reason".

There are certain basic values which man has cherished
through tout the ages. But man looked about him and found the
ways of men to be cruel and unjust and .so also their. laws and
customs. He saw men flogged, tortued, mutilated, made slaves,
G
and sentenced to row the galleys or toil in the darkness of the
mines or to fight in an arena with wild an hungry beasts of the
jungle or to die in other ways a cruel, horrible and lingering
death. He found judges to pe venal and servile to those in power
and the laws they administered to be capricious, changing with
the whims of the ruler to suit his purpose. When, therefore, he
found a system of law which did not so change, he praised it.
I!
Thus, the old Testament in the Book of Esther (I,19) speaks
218 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A
admiringly of legal system 'of the Achaemenid dynasty (the First
Persian Empire) in which "a royal colllllandment" was "written among
the laws of the Persians and the Medes, that ·it be not altered."
Man saw citie• and towns sacked and pillaged, their populace
dragged into captivity and condemned to slavery - the men to
labour, the women and the girls to concubinage, and the young
boys to be castrated into eunuchs - their only crime being that
their ruler had the misfortune to be defeated in battle and to
lose one· of his cities or towns to the enemy. Thus, there was
neither hope nor help in man-made· laws or man-established customs
for they were one-sided and oppressive, intended to benefit armed
might and monied power and to subjugate ·the down-trodden poor and
c the helpless needy. If there was any help to be found or any hope
to be discovered, it was only in a law based on justice and
reason ·which transcended the laws and customs of men, a law made
by some one greater and mightier than those men who made these
laws and established these customs. Such a person could only be a
divine being and such a law could only be "natural law" or "the
D
law of nature" meaning thereby "certain rules of conduct supposed
to .be so just that they are binding upon all mankind." It was not
"the law .of nature " in the sense of "the law of the jungle"'
where the lion devours the lamb and the tiger feeds upon the
antelope because the lion is hungry and the tiger famished but a
higher lal" of nature or "the natural law" where the lion and the
lamb lie down together and the tiger frisks with the antelope.
E
Most, H not all, jurists are agreed that "reason" and "the
nature of man" constitute the fountain-head of natural law but
there· is a considerable divergence of opinion amongst them as
. also amongst philosophers about the nature and meaning of that
law and its relation to positive law. Among the ancients Greeks
F the Sophists, Artistotle in his ·treatises on "Logic" and Ethics",
and the Stoics developed different theories. The theo.ry propunded
by Aristotle in his "Logic" adhered substantially to the point of
view of the SophiSts, namely, that man is a natural creature but
is also endowed With reason. Later, in his "EthiCs", Aristotle
came to. distinguish between natural and legal or conventional
G justice and postulated that natural law had authority everywhere
and WB;S discoverable by the u·se of reason. The ancient Romans
were not given to philosophical speculati.ons or creative
orignality in Art. They preferred to borrow these from the
. Greeks.. The Romans were a hard-headed, pract1cal race of
conquerors, administrat.ors and legis.lators. ROman jurists, there-·
H fore, used the concept of natural law, that is jus naturale (or
ius naturale as the Romans wrote it because Roman alphabet had no
u.o.r. .v. TULSIRAM [MADON, J.] 219

letter "J" or "J" in it) to introduce into the body of law those A
parts of laws .and customs of foreigners, that is, non-Roman
people with whom. they came if!. commercial contract or whom they
subJugated. The Rules which the Romans borrowed from these laws
and customs were those which were capable of general application
and they developed then into general legal principles, which came
to form jus gentium or the law of nations. In doing so they acted B
upon the principle that any rule of law which was common to the
nations (gentes) they knew of· must be basically in consonance
with reason and, therefore, fundamentally just. They applied.jus
· gentium to those to whom ius civile (civil law) did not apply,
that is, in cases between foreigners or between a Roman Citizen
and a foreigner. On this basic formulation that what was common c
to all known nations must . be in con8onance with reason and
justice, the Roman jurists and magistrates proceeded to the
theory that any rule which instinctively commanded itself to the
sense of justice and reason would be part of the jus gentium.
The jus gentium of the Romans was different from what we call
international law and should not be confused with it, for the D
scope of the jus gentium was much wider than our international
law. Becau5e of the theory of its identity with justice and
reason, the terin u jus gentium" came ~t times to be used ·for .
aequitas, that ,is, equity as understood by the Romans, which was
the bas.is of praetorian law or the power of. the praetors to grant
remedies where non. existed under the .jus civile~ In the Dark E
Ages the expression "natural law" acquired a theological base and
the Fathers of the Church, particularly St. Ambrose, St.
Augustine and St. Gregory, held the belief that it was the
function of the Church to bring about the best possible approxi-
mation of human laws to Christian principles. As Europe emerged .
from the Dark Ages in about . the ninth century, Christianity
became substitued for reason as the supreme force· in the uni- F
verse, and this led to the development of a theory of law in
which Christianity had the supreme spiritual and legal force and
was superior to all other laws , with the Church as the authentic
expositor of the law of nature. Gratian (Francisco Graziano) in
the .twelfth century in his "Decretum" or "Concordies discordan-
tium. canonum." consider the law of nature· as pal:-t of the law of G
God. According to St. Thomas Aquinas (1226-74), na·tural law was
I derived from the law of God which was supreme and such of it as
I was intelligible to men was revealed through Church law as the
incorporaiion of divine wisdom. Thus, according to this Theory,
natural law Was that part of divine law which revealed itself in
natural rea$on, and man as a reasonable being applied this. part
of divine law to human affairs. This theory, though it up.held H

t
220 SUPREME COURT HEPORTS [1985] SUPP.2 s.c.R.

the supreme authority of the Church, made some concession to the
authority of the Emperor, that is, the Holy Roman Emperor. Dante
·in his "De MonarcW.a" championed the supremacy of the Holy Roman
Empire aS-against the Church on the ground that the Emperor was
the legitimate successor of the Roman people and was chosen by
God to rule the world. The authority. of the law of nature or
B natural law was repeatedly sought support from during the
centuries which saw the struggle for supremacy between the Popes
and the General Councils of the Church and between the Popes and
the Emperors and later in the struggle between the Catholics and
the Protestants. Both sides in these conflicts found in natural
law the interpretation of scriptural texts which supported their
c respective views and we.re, therefore, according to them, the true
interpretation. Braction, in the thitteenth century, however,
considered natural law as that which nature, that is, God,
teaches to all animals, and though he tried to reconcile natural
law with human law, he acknowledged the difficulty of doing so
because he found rules of positive law which c 0uld hardly be so
IJ
reconciled •..

Natural law was also seized upon as furnishing arguments in
the struggle between the judges and Parliament for supremacy
which took place in the seventeenth century. Coke in Dr, Bonham's
caae [161UJ 8 Co. Hep. 113b,ll8, said by way of obiter, "when an
Act of Parliament is against cori:unon right or reason, or repug-
E nant, or impossible to be performed, the common law will control
it, and adJudge such Act to be void." There were later assertions
to the same effect until the supremacy of Parliament and the
legislation enacted by it became firmly established in 1688.
However, in British Railways Board v. Pick.in sub nomine Pickin v.
British Hallways Board, L.R. [1974] A.C. 765, the argument was
F once again advanced before the House of Lords that a court was
entitled to disregard a provision in an Act of Parliament and a
distinction was sought be drawn for th.is purpose between a
public Act and a private Act. Refferring to the arguments to this
point, Lord Reid observed (at page 782) :
G "In earlier times many learned lawyers seem to have
believed that an Act of Parliainent could be disregard-
ed in so far as it was contrary to the law of God or
the law of nature of natural justice, but since the
supremacy of Parliament was finally demonstrated by
the Revolution of 1688 any S1.\Ch , idea has become
H obsolete."
u.o.i. v. TULSIRAM [MADON, J.] 221

A
Rejecting the above argument, the House of Lords unani.Inously held
that the function of the court was to consider and apply the
enactments of Parliament, and accordingly, in the course of liti-
gation, it was not lawful to impugn the validity of a statute by
seeking to establish that Parliament, in passing it, was misled
by fraud or otherwise,.nor might a litigant seek to establish a ll
claim in equity by showing that the other party, by fradulently
misleading Parliament, had inflicted damage on him; for any
investigation into the manner in which Parliament had exercised
its function would or might result in an adjudication by the
courts, brir.ging about a conflict with Parliament. c
As a result of the infusion of new ideas during the
Renaissance and the Reformation, the intellectual a~thority of
reason again came to be substituted for the spiritual authority
of divine law as the basis of natural law. 'this new or rather
resuscitated basis of natural law was laid by Grotius (Huigh de D
Groot) in his "De jure belli ac Pacis" - the precursor or of
oodem public international law.- - -

Reason as the theoretical basis for nstu~al law, however,
once again suffered a reversal at the hand of David Hume. Accord-
ing to Hume, only knowledge obtained by mathematical reasoning E
was certain; knowledge obtained from other sciences being only
probable. liis theory of justice was that it served both an
ethical <wd a sociological function. He contended that public
utility was the sole nrigin of legal justice and the sole founda-
tion of its merit, and that for a legal system to be useful, it
must adhere to its rules even though it may cause injustice in
particular cases. He did not make a formal analysis of lew but
distinguished equity or the general system of morality, the legal
order, and law, as a body of precepts. Accordi!)g to him, the
authority of civil law modified the rules of ~tural justice
·according_ to the particular convenience of each community.

Black.stone, however, in his "Commentaries on the laws of
England" had this to say about natural law :

"This law of nature, being coeval with mankind, and
dictated by God himself, is of course superior in
obligation to any other. It ts bindin;; over all the
glove in all countries, and ·at all times : no human
laws are of any validity, if contrary to this ; and H
. such of them as are valid derive all their force and
all their authority, mediately or immediately, from
this original."
222 SUPREME COURT REPORTS . ll985] SUPP.2 s.c.R.

A In the nineteenth and twentieth centuries there was a reac-
tion against natural law as the basis of law. The French Revolu-
tion had enthroned reason as a goddess. The excesses of the
French Revolution, however, led to a reaction against the theory
that·reason was the basis of law. The utilitarian view was that
the basis for law was the practical inquiry as to what would most
B conduce to the general benefit. The spirit of scientific inquiry
which pre-dominated the nirteteenth and twentieth centu~ies could
not favour ·.hypotheses -which were vague and unprovable. In the
twentieth century' disillusionment with . the theory that good
could come out of the power of the State and positive law has,
however, Once again brought about a revival· of interest in
C natural law.

Apart from providing the subject-matter for philosophical
dissertations and speculative theories on the origin and attri-
butes of natural law, ~he concept of natural law has made invalu-
able contribution to the development of positive law. It helped
D to transform the rigidity .of the jus civile.of the Romans into a
more equitable system based on the theory of the jus gentium. It
·provided arguments to both sides in the struggle during the
Middle Ages· between the Popes and the Emperors • It inspired in
the eighteenth century the· movement for codification of law in
order to fo~late ideas derives from th~ concept of natural law
into detailed rules. England, the idea of natural law and natural
E justices has influenced its law in several respects. The origin
and development of equity in England owed much to natural law. It
also served as the basis for the recognition or rejection of a
custom.. It was looked to for support in the struggle for supre-
macy which took place between the. judges and Parliament in the
seventeenth' century. The concept of natural law and. natural
F rights influenced the drafting of the Constitution of. the United
States of America and many of the amendments made thereto as also
the Constitutions .of its various States. It has provide a basis
for much of modern international law and International Conven-
tions, Covenants and Declarations. Above all, it has enriched
positive law by. introudcing into it the principles of natural
G justice, divested of all their philosophical, metaphysical and
theological trappings and disassociated from their identifica-
• tion with,.or supposed deriation from, natural law.

Natural justice has .been variously 4efined by different
judges. A few instances will suffice. In .Drew v. Drew and
H Leburo (1855] 2 Macq. l,8, Lord Craworth defined it as "universal
justice". .In Ja.es Dunbar Smith v. lier Majesty '!he Queen
•
U.O.I. v. TULSIRAM [MADON, J.J 223

A
[1877-78] 3 App. Cas. 614,623 J.C., Sir Robert P.Collier, speak-
ing for the Judicial Connnittee of the Privy Council, used the
phrase "the requirements of substantial Justice", while in Arthur
John Spacmlnnan V• The Plumstead District Board of Works L.R.
[1884~85] 10 App.Gas. 229,240, Earl of Selbome, L.C., preferred
the phrase "the substantial requirements of justice". In Vionet B
arul another v. Barrett arul another [1885] 55 L.J. Q .B.39,41,
Lord Esher, M.R., defined natural justice as "the ·natural sense
of what is right and wrong". While, however, deciding Hopkins
arul another v. Smethwick Local Board of Health L.R. [1890] 24
Q.li.D. 71<,716, Lord Esher, M.R., instead of using the definition C
given earlier by him in Vionet arul another v. Barret and another
chose· to define natural justice as "fundamental justice". In
Ridge v. Ba1dvi.n and others L.R. [1963] l. Q.B. 539,578, Harman,
L.J., in the Court of Appeal equated natural justice with "fair
play of action", a phrase favoured by llhagwati, .J., in Maneka
Gandhi v. Union of lodia [1978] 2 s.c.R. 621,676. In re. H.K.(An D
Infant) L.k. [1967 j 2 Q.B.617,630, Lord Parker, C.J., preferred
to describe natural justice as "a duty to act fairly". In
Fairmount Investments Ltd. v. Secretary of State for the
EnvirOillllellt [1976] l w.1.R. 1255,1265-66, Lord kussell of
Killowen somewhat picturesquely described natural justice as "a
fair crack of the whip". While Geoffrey Lane L.J., in Regina v. E
Secretary of State for Home Affairs, Ex parte Hcsenball [ 19 77 ] l
W.L.R. 766,784, preferred the homely phrase "comm0n fairness".

As some juc!ges, for instance, Ormond, L.J., in Lewis v.
Hefter and others [1978] l W.L.R. 1061°,1076, have foundthe phrase
"natural justice" to be "a highly attractive and potent phrase'' 1
it may not be out of place, in order to set the balance right, tO F
reproduce a passage, full of robust cotmnon sense and biting
Irony, from the judgment · of Maugham, J •• , in Maclean v. the
Workers Union L.R. [1929 j l Ch. 602,624. That passage is as
follows :

.. "Eminent judges have at times used the phr~Se 'the
' principles of natural justice'. The phrase is, of
course, used only in a popular sense and must not be
taken to mean that there is any Justice natural among
men. Among most savages there is no such thing as
justice in the modern sense. In ancient days, a person
wronged executed his own justice. Amongst our own
ancestors, down to the thirteenth century, manifest H
felony, such as that of a manslayer taken with his
weapon, or ?. thief with the ..stolen goods, might be
' 224 SUPl\EME COURT KEPORTS [1985] SUPP.2 s.c.R.

A
punished by summary execution without any form of
trial. Again every student has heard or compurgation
and of or deal; and it is hardly necessary to observe
that (for example) a system of or deal by water in
which sinking was the sign of innocence and floating
B the sign of guilt, a system which lasted in this
country for hundreds of years, has little to do with
modern ideas of justice. It is unnecessary to give
further illustrations. The truth is that justice is a
very elaborate conception, the growth of many
centuries of civilization; and even now the conception
c ' differs widely in countries usually described as
, civilized."

In the Supreme Court of Ireland, Black.J., in William Green
v. lsidore J, Blake and others [1948] I.R. 242, after referring
tc the above passage from the judgment of Maugham, J., proceeded
IJ to state (at page 268) :

,· "I agree, but what then does it mean? We may, if we
choose, describe as 'natural' every evolutionary
advance in our conception of justice. But for me,
natural Justice means no more that justice without any
epithet. I take the essentials of justice to mean
E
those desiderata which, in the existing stage of our
mental and moral development, we regad as essential 1
in contra-distinction from the many extra pracautions,
helpful to justice, but not indispensable ~o it,
which, by their rules of evidence and procedure, our
Courts have made obligatory in actual trials before
themselves. Many advanced peoples have legal systems
which do not insist on all these extra precuations,
yet we would hardly say that they disregard the
essentials of justice."

Megarry, J., also found it necessary to sound a note of warning ~i
G in Hounslow London Borough Council v. Twickenlvna Garden Develop-
ments Ltd, L.R. [1971] Ch. 233, wherein he said (at page 259) :

"'1be principles of natural justice are of wide appli-
cation and great importance, but they 111JSt be confined
within proper limits and not allowed to run wild."
H
(Emphasis supplied)
--
u.o.r. v. TULSIRAM [MADON, J • l 225

Some judges have been faced witt) the contention as Maugham, A
L.J., was in ErriDgton and others v. Minister of Health L.R.
[1935] 1 K.B. 249,280, that "the principles of natural justice
are vague and difficult to ascertain". Referred to such conten-
tions Lord Reid said in Ridge v. llalchir:l.n and otheJ;s L.R. [1964]
A.C, 40, on appeal from L.R. [1963] l Q.B. 539, (at page 64-65) :
B
"In modern times opinions have sometimes been ex-
pressed to the effect that natural justice is so vague
as to be practically meaningless. But I would regard
these as tainted by the perennial fallacy that because
something cannot be cut and dried or nicely weighed or
measured therefore it does not exist. The idea of C
negligence is equally insusceptible of exact difin1-
tion, but what a reasoable man ·-1.d regard as fair
procedure in particular · cirCWEtances and what be
would regard as neg1geoce in particular cirCU11Stances
are equally capable of serv:ill{; as tests in law, and
natural justice as it bas been interpreted in t.be D
courts in much more definite than that. It appars to
me that one reason why the authorities on natural
justice have been found difficult to reconcile is that
insufficient attention has been paid to the great
difference between various kinds of cases in which it
has been sought to •:>ply the principle." E
(Emphasis supplied)

How then have the principles of natural justice been inter-
preted in the courts and within what limits are they to be con-
fined? Over the years by a process of judicial intepretation two
rules have been evolved as representing the principles of
natural justice in judicial process, including therein quasi- F
judicial and~admiriistrative processes. They cQnstitute the basic
elements of ·a fair hearing, having their roots in the innate
sense of man for fair play and justice which is not the preserve
of any particular race or country but is shared in common by all
·men. The first rule is "nemo judex in causa sua" or "n~ debet
esse judex in propria caliSa" asStated in 12 Co. Rep. 114, that G
is, "no man shall be a judge in his own cause". COke used the
form "aliouis ~ debt ~ judex in propria causa quia ~
potest ease judex ~ ~ (Co. Litt. 14la), that is, "no man
ought to be a judge in his own cause, because he cannot act as a
judge and at the same time be a party". The form nemo potest
esse simul aC:tor et judex", that is, "no one can be. at once
suito~ judge" Ts also at times us~d. The second rule - and H
226 SUPREME COURT REPORTS [1985) SUPP.2 s.c.R.

A that is the rule with which are concerned in these Appeals and
Writ Petitions - is "aud~ alteram partem". that is, "hear the
other side". At times and particularly in continental countries
the form "audietur et altera ~ is used, meaning very Dnlch the
samething. A corollary has been deduced from the above two rules
and particularly the audi alteram partem rule, namely, "'qui
alliquid statuerit parte inaudita 31.tera, aequum licet dixerit,
B baud aequum fecerit". that is, "he who shall decide anything
without the other side having been heard, although he may ·have
said what is right, will not have done what is right" (see
llosveil's case) [1606] 6 Co. Rep. 48b,52a, or, in other words, as
it is now expressed, "justice should not cnly be done but should
manifestly be seen to be done."

c The above two rules and their corollary are neither new nor
were they ,the discovery of English judges. They were recognized
in may civilizations and over many centuries. Roman law recogniz-
ed the need for a judge to be impartial and not to have a
personal interest in the case before him (Digest V.1.17) and
Tacitus in his "Dialogus" referred to this principle. Under Roman
law a judge who heard a cause in which he 'had an interest was
D liable as on a quasi-delict to the party prejudiced thereby
(Justinian's.Institutes IV, 5 pr.;as also Justinian's Codex III,
5, 1). Even the Kiganda tribesmen of Buganda have an old proverb
which literally translated means "a monkey does not decide an
affair of the forest (see "law and Justice ih Buganda" by E.S.
Haydo, p.333). The requirement of hellring both sides before
E arriving at a decision was part of the judicial oath in Athens.
It also formed the subject-matter of a proverb which was often
referred' ~o or quoted by Greek playwrights, as for instance, by
Aritophanes in his comedy "The Wasps" and Euripides in his
tragedies "Heracleidae" and "Andromache", and by Greek orators,
for instance, Demosthenes in his speech "De Corona". Among the
F Romans, Seneca in his tragedy ''Medea" referred to the injustice
of coming to a decision without a full hearing. In fact, the
corollary drawn in Bo.....U 's case is taken from a line in
Seneca's ''Medea"• In the Gospel according to St. John(vii,51),
Nicodemus asked the chief priests and the Pharisees, "Doth our
law judge any man, before it hear him, and know what he doeth?"
G Even the p~overb and ~ongs of African tribesmen, fOr instance, of
the Lozi tribe in Barotseland refer to this rule (see "The
Judicia Process Among the Barotse of Northern Rhodesia" by Max
Gluckman, p.102.)

The two rules "_nemo judex in~ sua" and "audi alteram
H
u.o.r. v. TULSIRAM [MADON, J.] 227

A
partem" and their corollary that justice should not only be done
but should manifestly be seen to be done have been recognized
from early days in English courts. References to them are to be
found in the Year Books - a title preferred to the alternative
one of "Books of Years and Terms" - which were a regular series>
with a few gaps, of law reports in Anglo-,norman or Norman-French B
or a mixture of English, Norman-French and French, which had then
become the court language, from the 1270s to 1535 or, as printed
after the invetion of the printing press, from 1290 to 1535,
that is, from the time of Edward 11 to Henry VllI. The above
principles of natural justice came to be firmly established over
' the course of centuries and have become a part of the law of the c
land. Both in England and in India they apply to civil as well as
to criminal cases and to the exercise of judicial, quasi-judicial
and administrative powers. The expression "natural justice" is
now so well understood in England that it has been used without
any definition in statutes of Parliament, .for example, in section
3(10) of the ~'oreign Compensation Act, 1969, and section 6{13) of D
the Trade Union and Labour Reforms Act, 1974, which was later
repealed by the Trade Union and Labour Relations (Amendment) Act,
1976. These rules of natural justice have been recognized and
given effect to in maay countries and different systems of law.
They have now received international recognition by being
enshrined in Article 10 of the Universal Declaration of Hunian
E
Rights adopted and proclaimed by the General Assembly of the
United Nations by Resolution 217A (Ill) of December 10,1948.
Article 6 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms which came into force on
September 3, 1953, and Article 14. of the International Covenant
on Civil and Political Rights adopted by the General Assembly
Resolution 2200A (XXI) of December 16, 1966, which came into F
force on March 23, 1976.

Article 14 does not set out in express terms ·either of the
above two well-established rules of natural justice. The ques-
tion which then arises is ''Whether the rules of natural justice
form part of Article 14 and, if so, how?"
G
Article 14 of the Constitution provides as follows :

"14. l!qualicy before law. - The State shall not deny
to any person equality before the law or the equal
protection of the laws within the territory 6f India."
H

•
228 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Article 14 thus contains an express Constitutional injunction
against the State as defined in Article 12 prohibiting the State
from denying to any person(l) equality before the law, or (2) the
equal protection of the laws. Neither of these two concepts are
new. They are based upon Similar provisions in other Constitu-
tions. One instance is section 40(1) of the Constitution of Eire
B of 1937, which occurs in the Chapter entitled Fundamental Rights
in that Constitution. The Constitution of Eire begins on a
strong religious note. It starts by stating :

"In the name af the Most Holy Trinity, from Whom is
all authority and to Whom, as our final end, all ac-
c tions both of men and States must be referred.

We, the people of Eire,

Humbly acknowledging all our obligations to our.Divine
Lord, Jesus Christ, Who sustained our' fathers through
D centuries of tiral, ..... ".

Section 40(1) of that Constitution provides as follows

"All Citizens shall, as human persons, be held equal
before the law.
E This shall not be held to mean that the State shall
not in its enactments have due regard to dif feren-
1 ces of capacity, physical and moral, and of social
functions."

Anothe< instance is Article 3(1) of the Constitution of the
F
Federal Republic of Germany of 1948 which states '

"All persons shail be equal before the law." Yet another
instance.is section 1. of the FOurteenth Amendment to the Consti-
tution of the United States of America which reads :
G
"All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens
of the United States· and of the State wherein they
reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citi-
zens of the United States, nor shall any State deprive
H
any person of life, liberty, or property, without due
process of law, nor deny to any person within its
jurisdiction the equal protection of the laws."

•
u.0.1. v. TULSIRAM [MADON, J.] 229

Constitution of some other countries also have similar provisions A
but as these Constitutions have suffered political vicissitudes,
it is unnecessary to refer to them. Provisions similar to
Article 14 are to be f ouild in Internatio!\al Charters and Conven-
tions. Thus, Article 7 of the UniVersal Declaration Hwnan
Rights of 1948, provides as folllows
B
"All are equal before the law and are entitled without
any diat.riminatioil to equal protection of the law
;,
•• ii. '

Articie 14 is divided into two parts' in lu Re The spedai c
Courts Bill, 1978 [1979] 2 s.c.R. 476, Chandrachud, C.J., des-
cribe the two parts of Article i4 as follows (at page 534) :

;,The first part of attitle 14, which was adopted from
the Irish Constitution, is a declaration of equality
of the civil tights of all persons within the territo~ D
ries of India:• It enshrines a basic principle· of
republicanism• The second part, which is a cotoilary
of the first iifid is based on the last clause of the·
first section of the Fourteenth Amendinent of the
American Constitution enjoins that equal protection
shall be secured to ail suth per·son.s in the enjoyment E
of their rights and liberties without discriminati6n
of favoilrtfoni, it is a pledge bf the protection. of
equal laws, tM.t is i laws tha·t operht;e alike~ on a1i.
persons ltiidet iike cit'cumstances:1"

Article i4 contains a: guarantee of equality before the iaw
to all persons and a protection to them against discrimination by F
any law. Sub-clause (a) of clause (3) of Article i3 defines law
as follows

.-;'lawi .:includes any Otdinance; otder"J bye....:faw,. tule;
regulation,. rtotification, custom of usage having in
the territory of india the force of' law". G

What Article 14 forbids is disctiniination by iaw, that is; treat-
ing persons similarly circumstanced differentiy ·or treating those
not similarly clrcumstanced in the sa:me: way or; as has been
pithily put, treating equals as unequals and unequals as eq1ials'
Article i4 prohibits hostile clasS~ifiC:ation . by" law and is·
directed against discriminatory .class legislation. The pr'oposi- H
td.oris deducible ftom dec_isions of this court on this point have
SU!'Rtl•lli COURT REPORTS [1985] SUPP.2 s.c.R.

A been i:;et :)ut::. .i.n tt1e for.m of thirteen propositions in the judgment
of ChBndcaclmd, C .J., i.r:> In Re The Special Courts Bill, 1978. The
f Lrst of. these propositions which describes the nature of the two
parts of Art,icle 14 has been extracted earlier. We are not
concerned in these Appeals and Writ Petition!:) with the other
propositions set out in that judgment. In early days, this Court
was concerned with discriminatory and hostile class legislation
H .and it was· to this aspect of Article 14 that its attention was
di~~cted. As fresh thinking began to take place on the scope an
d:hJit of A~ti'cle 14, new d~mensiuns to this guarantee of equality
betore the· law and of the equal protection of the laws emerged
and wer'2 recognized by this Court. It was realized that to treat
one person. differently from another when there was no rational
basis for 1 doing so would be a~bit~·ary and tl)us dicnninatory.
C Arbitrariness can take many forms _and shapes but:, whatever form or
shape it takes, it is none the less discrimihation. It also
became apparent that to treat a persons or a class of persons
unfairly would be an arbitrary act amounting to discrimination
forbidden by Article 14. Similarly, this Court, recognized that
to treat a· person in violation of the principles of natural
justice would amount to arbitrary and discriminatory treatment
D and would violate the guarantee given by Article 14.

In State of Andhra Pradesh and another v. Nalla Raja Keddy
and others [1967] 3 S.C.R. 28, Subba Rao, C.J., speaking for the
Court, said (at page 46)

E "Official arbitrariness is more subversive of the
doctrine of equality than statutory discrimination.
In respect of a statutory discrimination one knows
.where he stands, but the wand of official arbitrari-
.ness can be waved in all directions indiscriminately."

F While considering Article 14 and Article 16, Bhagwati, J.,
in E.p. Boyappa v. State of Tamil Nadu and another [1974] 2
s.C.R. 348; in a passage which has become a ~classic said (at
page 386)

"Article 14 is the genus while Artkle 16 is a
G _species, Article 16 gives effect to the doctrine of
equality in all matters r~lating to public employment.
The basic principle which, therefore, informs both
Articles 14 and 16 is equality and inhibition against
discrimination. Now, what is the content and reach of
this great equalising principle? It is a founding
U.Q.I, v. TULSIRAM [MADON, J.] 231
A
faith, to use the words cf Bose, J., 'a way of life',
and it must not be subjected to a narrow pedantic or
lexicographic approach. We caru<0t countenance any
attempt to truncate its all-embracing scope and mean-
ing, for to do so would be to violate its activist"
magnitude. l!quality is a dynamic coocept with many Jl
aspects and dillensions and it cannot be 'cribbed,
cabined and confined' within traditional and doctrin-
aire limits. From a positivistic point of view,
equality is qntitbetic to arbitrariness. In fact
equality and arbitrariness are sworn ..._1es; one C
belongs to the rule of law in a republic while the
other, to the whim and caprice of an absolute moarch.
Where an act is arbitrary it: is implicit in it that it
is unequal both according to political logic and coos-
titutional law and is therefore violative of Article
14, and if it effects any .natter relating to public D
employment, it is also violative of Article 16.
Article 14 and 16 strike at arbitrariness in State
action and ensure fairness and equality of treatment.
They require that State action DllBt be based on vslent
relevant principles applicable alike to. all similarly
situate and it nust not be guided by any extraneous or E
irrelevant considerations because that 1'0Uld be denial
of equality.. Where the operative reason for State
action, as distinguished from motive inducing from the
antechamber of the mind, is not legitimate and
relevant but is extraneous · and cutside the area of
permissible considerations, it would amount of mala
fide exercise of power and that is hit by Articles 14 F
and 16. Mala fide exercise of power and arbitrariness
are different lethal radiations emanating from the
same vice : in fact the latter comprehends the former.
Both are inhibited by Articles 14 and 16."
(Emphasis supplied)
G
Bhagwati, J., reaffirmed in Maneka Gandhi's case what he had
said i.n Royappa's case in these weirds (at page 673-74) :

"Now,the question immediately arises as to what is the
requireuient of Article 14 : what is the content and
reach of the great equalising principle enuntiated in
this article? There can '.le no doubt that it is .a H
founding faith of the Constitution. It is indeed the
pilar on which rests securely the foundation of our
232 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A democratic republic. And, therefore, it must not be
subjected to a narrow, pedantic or lexicographic
approach. No attempt should be made to truncate its
all-embracing scope and meaning for, to do so would be
to violate its activist magnitude. Equality is a
· dynamic concept with many aspects and dl.mensions and
B it cannot be imprisoned within traditional ·and
doctrinaire limits. We must reiterate here what was
pointed out by the majority in E.P;Royappa v. State of
Tamll Nadu &Another namely, that 'from a positivistic
'point of view, equality is antithetic to arbitrari-
ness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic,
c while the other, to the whim and caprice of an
absolute monarch• Where an act is arbitrary, it is
implicipt in it that it is unequal both according to
political logic and constitutional law and is there-
fore violative of , Article.' Article 14 strikes at
arbitrariness in State action and ensures fairness and
equality of treat11ent. The principle of reasonable-
D oeas, which legally as well as philOSOphically, is a
~tisl el.ellent of equality or non-arbitrariness

' ....... .
pervades Article 14 like a brooding oumipresence

(Emphasis supplied)

E In the course of his judgment in the same case Bhagwati, J.,
further sdd (at pages 676-7)

"Now, if this be the test of applicability of the
doctrine of natural justice, there ""'" be Jio distinc-
tion between a quasi-judiCisl function. and an adminis-
F trative function for this purpose.Th.e aim of both
administratl.ve inquiry as well as quasi-judicial
, inquiry is to arrive at a just decisia·n and if a rule
· of natural justice is calculated to secure justice, or
, to put it negatively, to prevent miscarriage of
justice, it is difficult to see why it should be
G applicable to quasi-judicial inquiry and not to
administrative inquiry. It llllst lOglcally apply to
both. On what principle can disti.nction be made
between one and the other? Can it be said that the
requirement of 'fair play in action' in any the iess
in an administrative inquiry than in a quasi-judicial
one? Sometimes an unjust decision fo administrative
inquiry may have far 100re serious consequences than
u.o.I. "' TULSIRAM [MADON, J. j 233

A
a deeision iil a quasi ~judicial inquiry an.I hence the
rules of natural jUstice DiUBt apply equally in ati
ildministrat.ive iliquiry which entails cl.vii COllll8'-
quences."
(Emphasis supplied)
B
In Ajay llasia etc. v. Khalid Mujib Sehtawrdi and otliers
ete• [l98lj :is.c.a. 79, the same learned Judge, speaking for th<!
Court·, said (at pages lOO-lOl) :

"The true scope and ambit of Article l4 has been. the C
subject matter of numerous deeisions and it is not
necessary to make any detailed reference· to them. It
is .sufficient to state that the content· and reach of
Article 14 inuSt not be confused with the doctrine of
classification. Unfortunately, in the early stages of
the evolution of. our constitutional law, Article 14 D
came to be identified with the doctrine of classifica-
tion because the view taken was that that · Article
forbids discrimination and there would be no discrimi~
nation where the classification.making the differentia
fulfils two conditions, ruanely, (i) that the classi,-
fication . is founded on an intelligible differentia E
which distinguishes persons or things that are grouped
together from others left out of the group, and (ii)
that that differentia has a rational relation to the
object sought to be achieved by the impugned legis-
lative or executive action."

The principles of natural justice ha"t/e thus come to be F
recognized as being a part Of the guarantee contained in Article
14 because of the new and dynamic interpretation given by this
Court to the concept of equality which is the subjett"'matter of
that Article. Shortly put, the syllogism runs thus viOlatiou of a
rule of natural justice results in arbitrariness which is the
same as discrimination; where discrimination is the resillt of G
state action, it is a violation of Article 14: therefore, a
violation of a principle of natural justice by a State action is
a violati.on of Artiele 14. Article 14, however, is not the sole
repository of the principles of natural justice. What it does is
to guarantee that any law or State action violating them will be
struck down. The principles of natural justice, however, apply
not only to legislation and State action but also where any H
tribunal, authority or body men, not coming within the ,de,l':initioII
234 SUPREME C~URT REPORTS [1985] SUPP.2 s.c.R.

A of "State", in Article 12, is charged with the duty of deciding a
matter. In such a case, the principles of natural justice require
that it must decide such matter fairly and impartially.

The rule of natural justice with which we are concerned in
these Appeals and Writ Petitions, namely, the audi alteram partem
rule, in its fullest amplitutle means that a person against whom
B an order to.his prejudice may. be passed should be informed of the
allegations and charges against him, be given an opportunity of
submittin& his explanation thereto, have the right to know the
evidence, both oral or documentary, by which the matter is
proposed to be decided against him, and to inspect the documents
which are relied upon for the purpose of being used against him,
to have the witnesses who are to give evidence against him exami-
C ned in his presence and have the right to cross-examine them, and
to lead his own evidence, both oral and documentary, in his
defence. The process of a fair hearing need not, however, conform
to the judicial process in a court of law, because judicial
adjudication of causes involves a number of technical rules of
procedure and evidence which are unnecessary and not required for
the purpose of a fair hearing within the meaning of audi alteram
D ~rule in a quasi-judicial or administrative inquiry. If we
IOOl<'at clause (2) of Article 311 in the light of what is stated
above, it will be apparent that that clause is merely an express
statement of the audi alteram partem rule which is implicitly
made part of the guarnatee contained in Article 14 as a result of
the interpretation placed upon that Article by recent decisions
E of this Court. Clauses (2) of Article 311 requires that before a
government servant is dismissed, removed or reduced in rank, an
inquiry must be held in which he is informed of the charges
against him and given a reasonable opportunity of being heard in
respect of those charges. The nature of the hearing to be given
to a government servant under clauses (2) of Article 311 has been
F elaborately set out by this Court in U - Qiaod 's case in the
passsages from the jucigment extracted above. Tllough that case
related to the original clause (2) of Article 311, the same
applies to the present clause (2) of Article 311 except for the
fact that 'now a government servant has no right to make any
representation against the penalty proposed to be· imposed upon
G him but, as pointed out ear lier, in the case of Suresh Koshy
George v. 'lbe University of Kerala and others, such an opportu-
nity is not the requirement of the principles of natural
justice and as held in Associated Cement r""P"nfes Ll:d. v. T. c.
Sbrivaatava and others neither the ordinary law of the land nor
industrial law requires such an opportunity to be given. The
H
U.Q.I. v. TULSIRAM [MADON, J.J 235

A
opportunity of showing cause against the pro_posed penalty was
only the result of the interpretation placed by the Judicial
Colll!llittee of the Privy Council in Lall's Case upon section 240(3)
of the Government of India, 1935, which was accepted by this
Court in Kbein Chand 's C'.ase. If, therefore, an inquiry held
against a goverrunent servant under clause (2) of Article 311 is . B
unfair or biased or has been conducted in such a manner as not to
give him a fair Or reasonable opportunity to defend himself,
undoubtedly, the principles of natural justice would be violated,
but in such a case the order of dismissal, removal or reduction
in rank would be held to be bad as contravening the express
provisions of clause (2) of Article 311 and there will be no c
scope for having recour&e to Article 14. for the purpose of
invalidating it.

Though the two rules of natural justiGe, namely, nemojudex
in causa sua em audi alteram. ?art, have now a definitP. meaning
and connota'tiOn in law and their contP.nt and implications are D
1<ell understood and firmly established they are none the less
not statutory rules. Each of these rules yields to and changes
with the exigencies of different situations. They do not apply in
the same manner to situations which are not alike. These rules
are not case in a rigid mould nor can they be put in a legal
strait-jacket' They are not immutable but flexible. These rules E
can be adapted and modified by statutes and statutory rules and
also by the Constitution of the Tribunal which has to decide a
particular matter and rules by which such Tribunal is governed.
There is no difference in this' respect between the law in England
and in India. It is unnecessary to refer to various English
decisions which have held so. It will suffice to reproduce what
Ormond, L.J., said in Norwest Holst Ltd. v. Secretary of State F
for Trade and others L.R. [1978] l Ch. 201, (at page 227):

"The House of Lords and this Court have repeatedly
emphasised ·that the ordinary principles of natural
justice must be kept flexible and must be adapted to
the circumstances prevailing in any particular case. G
One of the most. important of these circumstances, as
has been said throughout the argument, is, of course,
the provisions of the statute in question: in this
case sections 164 and 165 of the Companies Act 1948."'

In India, in Suresh Koshy George v. The University of Kerala
and others this Court observed (at page 322):
236 ,SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A "The question whether the requirements of natural
justice hsye been met by the procedure adopted in a
given case .must depend to a great extent on the facts
. and circtmlStances o.t the case in point, the constitu-
tion of the Tribunal and the rules under which it
functions • "
B
M ter referring to this case, in A.K. Kraipak and others
etc. v. Union of India and others [1970] 1 s.c.R. 457, Hegde, J.,
observed (at page 469):

"What particular rule of natural justice should apply
c to a given case must depend to a great extent on the
facts and circumstances of that case, the framework of
the law under which the inquiry is held and the cons-
titution of the rribunal or body of persons appointed
1 for that purpose. Whenever a complaint is made before

a court that some principle of natural justice had
jJ been contravened the court has to decide whether the
observance of that rule was necessary for a just
decision on the facts of that case."

Again in Union of India V• Col. J.N. Sinha and another
[1971] 1 s.c.R. 791, it was said (at page 794-5):

E "As observed by this Court in Kraipak and Ors. v.
Union of India 'the aim of rules of natural justice is
to secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate only
in areas not covered by any law validly made. In other
·Words they do not supplant the law but supplement
F it.'It is true that if a statutory provision can be
read consistently with the principles of natural
justice, the courts should do so because it must be
presumed th~t the legislatures and the statutory
authorities intend to act in accordance with the
principles of natural justice. But if on the other
G hand a statutory provision either specifically or by
necessary implication excluded the application of any
or all the principles of natural justice then the
court cannot ignore the mandate of the legislature or
the statutory authority and read intc the concerned
provision the principles of natur.il justice. Whether
H the exercise of a power conf P-rred should be made in
acordance with any of the principles of natural
U,Q,I. v. TUISIRAM [MADON, J.J 237

jusLic~ or not depends upon . the express words of the A
provision cot!.ferring the power, the nature of the
power conferred, the purpose for which it is conferred
and the effect of the exercise of that power."

In Swadeshi Cotton Mills v. Union of India [1981] 2 s.c.R. B
533, Chinnappa Reddy, J., in his dissenting judgllient summarized
the position in law on this point as follows (at page 591) :

"The principles of natural justice have taken deep
root in the judicial conscience of our peop!e, .C
nurtured by Binapani, Kraipak, Mohinder Singh Gill,
Maneka Gandhi· etc. etc. They are now con.,iqered .so
fundamental as to be 'i01plicit in the · concept of
ordered liberty' and, therefore, implicit in every
decision making function, call it judicial, qU11si
judicial or administrative. Where authority functions .D
under a statute , and the statute provides for the
observance of the principles of natural justice· in a
particular manner, natural justice will have to be
observed in that manner and in no other. No wider
right than that provided by statute can be claimed nor
can the right be narrowed. Where the statute is silent E
about the observance of the principles of natural
justice such statutory silence is taken to imply
compliance with the principles of natural justice. the
implication of natural justice being presumptive it
may be excluded by express liOrds of statute or by
necessacy. intendmpnt. Where the conflict is bet>.een
the public interest and the private interest, ·the F
presumption must necessarily be weak and may. there.-
fore, be readily displaced.•

(Zmphasis supplied.)

Not only, thefefore, can the principles of natural justice G
be modified but in exceptional cases they can even be excluded.
There are well-defined exceptions to the nano judex in causa sua
rule as also to the audi alteram Fartem rule.· The· n;;;oo judex in
~ s·ua rule iE Subject to"the doct~ine of necessity and yield$
to it as pointed out by this Court in J.!i>bapatra & Co. and
auother v. State of. Orissa and another [1985] 1 s.c.R. 322,334~5.
So far as the audi alteram partem rul~ is concerned, both in· li
England and in India, it is well established that where a right
to a prior notice and ci.n opportunity to be heard before an ord~r
is passed would obstruct :the taking of prompt action, such a
238 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A right can be excluded. This right can also be excluded where the
na~ure of the action to be taken, its object and purpo&e and the
scheme of the relevant statutory provisions warrant its exclu-
sion; nor can the audi alteram partem rule be invoked if
importing it would havethe effectofparalysing the administrative
process or · where the need for promptitute or the urgency of
taking action so demands, as pointed out in Maneka Gandhi's case
ll at pagB 681. If legislation and the necessities of a situation
can exclude the principles of natural justice 'including the audi
alteram_ partem rule, ~ fortiorari so can a provision of the
Constitution, for a Constitutional pro~ision has a far greater
and all-pervading sanctity than a statutory provision. In the
present case, clause (2) of Article 311 is expressly excluded by
the opening words of the second proviso and particularly its
c keywords "this clause shall not apply". As pointed out above,
clause (2) of Article 311 embodies In express words the audi
alteram partem rule. This principle of natural justice having
been expressly excluded by a Constitutional provision, namely,
the second proviso to clause (2) of Article 311, there is no
scope for reintroducing it by a side-door to provide once again
the same inquiry .which the Constitutional provison has expressly
D prohibited. Where a clause of the second proviso is applied on an
extraneous ground or a ground having no relation to the situation
envisaged in that clause, the action in so applying it would be
mala fide, and, therefore, void. In such a case the invalidating
factor may be referable to Article 14. This is, however, the only
scope which Article 14 can have in relation to the second
proviso~ b1Jt to hold that once the second proviso is properly
applied and clause (2) of Article 311 excluded, Article 14 will
step in to take the place of clause (2) would be to nullify the
effect ; of the opening words of the second proviso and thus '-
frustrate the intention of the makers of the Constitution. The
second . prOviso is based on public policy and is in public
interest and for public good and the Constitution - makers who
inserted i t in Article 311(2) were the best persons to decide
whether.such an exclusionary provision should be there and the
situations in which this provision should apply.

In this connection, it must be remembe~ed that a government
G servant is not wholly without any opportunity. Rules made under
the proviso to Article 309 or under Acts referable to that Arti-
cle generally provide for a right of appeal excep_t in those cases
where the order of dismissal, removal or reduction ·in rank is
passed by the President or the Governor of a State because they
being the highest Constitutional functionar,ies, there can be no
H
U.Q.I. V• TULSIRAM [MADON, J.] 239

higher authority to which an appeal can lie from an order passed
A
by one of them. Thus, where the second proviso applies, though
there is no prior opportunity to a government servant to defend
himself against the charges made against him, he has the opportu-
nity to show in an appeal filed by him that the charges made
against him are not true. 1his would be a sufficient compliance
with the requirements of natural justice. In Maneka Gandhi's
B
case and in Liberty Oil Mills and others v. Union· of India and
others [1984] 3 s.c.c. 465, the right to make a representation
after an action was taken was held to be a sufficient remedy, and
an appeal is a much wider and more effective remedy than a right
of making a representation.
c
In support of the contention that even though the •econd
proviso to Article 311(2) excludes any right of hearing, such a
right is none the less available under Article 14, reliance was
placed on behalf of the government servants upon the case of
Hustom Cavasjee Cooper v. Union of Ind:la [l970j 3 s.C.R. 530. In
D
our opinion, this reliance is misplaced. One of the questions
which arose in that case was the correctness of the majority view
in A.LGopalan v. 'Die State of Madras [1950] s.c.K. 88. In
Gopalan's case it was held by the majority that the law of pre-
ventive detention did not have to satisfy th.e combined test of
Articles 19 and 21. According to the majority view, it was the
E
form' of the State action which would determine which Article in
the Chapter on fundamental Rights would be attracted, and that in
respect of preventive detention Article 21 protected substantive
rights by requiring a procedure and Article 22 laid dcwn the
. minimum rules of procedure which even Parliament c.ould nbt abro-
gate or overlook. Fazal Ali, J., in lds dissenting judgment,
however, took the view that . prevent! ve detention was a direct
violation of a sub-clause (d) Of clause (l) Of Article 19, even ~·

if a.· narrow construction were to be placed upon that sub-clause,
and a law relating to preventive detention was, therefore,
subject to such limited judicial review as was permitted by
clauee (5) of Article 19. In R.C.Cooper's case the majority view
. in Gopalan's case was overruled. In Sambbu Hath sarlrar v. 'Die
G
State of West Beugal &Ors. [1974] l s.C.R. l, after referring to
both these cases,this Court observed (at page 24)

··in Jl.C.Cooper v. 1loion of l:ndia the aforesaid premise
of the majority in Gopa1an was disapproved and there-
fore it no longer holds the field. Though Cooper's
case dealt with the inter-relationship of Article 19
H
and Article 31, the basic approach to construing the
240 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

fundamental rights guaranteed in the different provi-
A
sions of the Constitution adopted in this case held
the major premise of_ the majority in Gopalan to be
incorrect."

In llardhan Saha and another v. The State of West Beogal and
others [1975] l S.C.R. 832, this Court held that a law which
provided for preventive detention was to be tested with regard to
its reasonableness with reference to Article 19. This view was
reaffirmed in Kbudiram Das v. 1be State of West Beogal and Others
[1975] 2 s.c.R. 832. All these decisions were again examined in
Maneka Gandhi's Case. In that case, an order under clause (c) of
sub-section (3) of section 10 of the Passports Act, 1967,
c impounding the petitioner's passport was impugned inter alia on
the ground that i t violated the petitioner's Fundaiiielltal Right
under sub-clauses (a) and (g) of clause (1) of Article 19 and
Article 21 and also under Article 14 because it was made in vio-
lation of the principles of natural justice inasmuch as the
petitioner had not been heard before these impugned order was
D
passed. After referring to various cases :Beg, C.J., said (at
page 648)

"Articles dealing with different fundamental rights
contained in Part Ill of the Constitution do not
represent entirely separate streams of rights which do
not mingle at many points. They are all parts of an
E
integrated scheme in the Constitution. Their waters
must mix to constitute that grand flow of unimpeded
and impartial Justice (social, economic and politi•
cal), Freedom (not only of thought, expression,
belief, faith and worship, but also of association,
movement, vocation or occupation as well as of acqui-
F
sition and possession of reasonable property), of
Equality (of status and of opportunity, which imply
absence of unreasonatle or unfair discrimination bet-
ween individuals, groups and classes), and of Frater-
nity(assuring dignity of the individual and the unity ,_
of the nation), which our Constitution visualises.
G
Isolation of various aspects of humau freedom, for
purposes of their protection, is neither realistic nor
beneficial but would defeat the very objects of such
protection."

The question in Gopalan's case and Cooper's case was whether
H particular Articles guaranting certain Fundamental Rights
cr.o.r. v. TULSIRAM [MADON, J.] 241

operated exclusively without having any inter-relation with any
A
other Article in the Chapter on Fundamental Rights. This is not
the question before us •. Neither Article 19 or 21 excludes the
operation of the other Articles in Part Ill of the Constitution.
Where howeve'r, an Article in the Constitution expressly exc_ludes
the application of certain Fundamental Rights, the view taken in
Cooper's case and the other cases which followed it, namely, that
the Articles in the Chapter on Fundamental Rights do not operate B
in isolation, cannot apply. Article 13 invalidates any law which
violates any of the Fundamental Rights. Article 3lA(l) provides
that "Notwithstanding anything contained in article 13, no law
providing for • . . shall be deemed to be void on the ground that
it is inconsistent with, or takes away or abridges any of the c
rights conferred by article 14 and article 19'". Under Article
3lli, none· of the Acts and Regulations specified in the Ninth
Schedule to the Constitution nor any of the provisions thereof
are to .be deemed to be void on the ground that such Act,
Hegulation or provision is inconsistent with or takes away or
abridges any of the rights conferred by any provisions of Part D
lll. Article 31C provides that ""Notwithstanding anything contain-
ed in Article 13, no law giving effect to the policy of the
otate towards securing • • • shall be deemed to be void .on the
ground that it is inconsistent with, or takes away or abridges
any of the rights conferred by article 14 or article 19 • • • ".
Can it then be contended in face of these express provisions in E
the Constitution that none the less Article 14 will apply to the
provisions of a law specified in Article 3lA(l)or 31B or 31C?
Clause(2) of Article 311 is an express statement of what the
right of a fair hearing guaranteed by Article 14 wouid require
and by the opening words of the second proviso to that clause
that right is expressly taken away, and R.C.Cooper's case cannot
be invoked to reintroduce. that right on the ground that it flows
· by implication from Article 14. If the contention of the
petitioner that in all cases there must be a right of hearing
before an order is made to a person's prejudice were correct, the
result would be startling and anomalous. For instance inspite of
Article 21 & 22 no· pers9n can be taken in preventive detention
unless he has been first given an opportunity of showing cause G
against the proposed action. Results such as these would make a
mockery of the provisions of the Constitution4

The majority view in Gopalan's case was buried in k.C.Coo-
per' s case; its burial service was read in Sambhu Nath Sarkar v.
The State of West BeDgal and others, llardhan Saha and another v.
H
242 SUPREME COURT REPORTS [1985] SUPP.2 S.C.R.

A The State of West Beogal and others and Kbudiram Das v. The
State of West Beogal & Others. and its funeral oration was deli-
vered in Maoeka Gandhi's case. Let us hope and pray that the
ghost of that majority view does not at some future time rise
from its grave and stand, clanking its chains,seeking to block
the onward march of our country to progress, prosperity and the
establishment of a Welfare State. But none the less what was
B buried was the theory of exclusiveness of each Fundamental Right
operating separately and without having any inter-relation with
other Fundamental Rights. The decisions in R.C.Cooper's case and
the other cases which followed it, however, will not apply where
a Fundamental Rights (including the audi alteram partem rule
comprehended within the guarantee of Article 14) is expressly
excluded by the Constitution itself. Here, we must not forget
c the warning given by Megarry, J.,in llouoslow London Borough
Council v. Tickenham Garden Developments Ltd. that the principles
of natural justice ·must be confined' within their proper limits
and not allowed to run wild. The concept of natural justice is a
magnificient thoroughbred on which this nation gallops forwards
towards its proclaimed and let us pray its destines goal of
"JUSTICE, social, economic and political." This thoroughbred
D must not be allowed to turn into a wild and unruly horse, career-
ing off where it lists, unsaddling its rider, and bursting into
fields where the sign "no pasaran" is put up.

Service Rules and the Second Proviso - Challappan 's Case
'·
Rules made under the proviso to Article 309 or under Acts
referable to that Article very Often reproduced in whole or in
part the provisions of the second proviso to Article 311(2)
either in the same or substantialy the same language or with
Certain variations. Such variations at times confer or have been
interpreted to confer an opportunity of hearing to a goverrunent
servant which is excluded by the second proviso. Three such rules
are involved in the matters before us, namely., Rule 14 of the
Railway Servants (Discipline and Appeal) Rules, 1968 (herinafter
referred to in short as the "Railway Servants Rules"), Rule 19 of
tne Central Civil Services (Classification, Control and Appeal)
Rules, 1965 (hereinafter referred to in short as the "Civil
G Services Rules") and Rule 37 of the Central Industrial Security
Force Rules, 1969 (hereinafter referred to in short as "the CISF
Rules"). It was submitted on behalf of the government servants
that -though an Act or rule restricting or taking away any safe-
guard provided by clauses (1) and (2) of Article 311 would be
void, different corisiderations would 'apply when such an Act Ot'
H rule liberalizes the exclusionary effect of the second proviso.
U.O.I. v. TULSIRAM [MADON, J.J 243

It is not possible to accept this submission. The opening
A
words of Article 109 make that Article expressly _"Subject to the
provisions of this Constitulion". Rules macle under the proviso to
Art.icle 309 or under Acts referable to that. Article must, there-
fore, be made subject to the provisions of the Constitution if
they are to be valid. Article 31U(l) which embodies the pleasure
doctrine is a provision contained in the Constitution. There-
J!
fore, rules made under the proviso to Article 309 or. under Acts
referable to that Article are subject to Article 310(1). lly the
opening words of Article 310(1) the pleasure doctrine contained
therein operates "Except as expressly provided by this Constitu-
tion". Article 311 is an express provision of the Constitution.
Therefore, rules made under the proviso to Article 309 or under
Acts referable to Article 309 would be subject both to Article
c
310(1) and Article 311. This position was pointed out by Subba
Rao, J. , as he then· was, in his separate but concurring judgm.ent
in Moti Ram Deka 's case at page 734, namely, that rules under
Article 309 are subject to the pleasure doctrinu and the pleasure
doctrine is itself subject to the two limitations imposed thereon D
by ~rtii:le 311. Thus, as pointed ont in that case, any rule which
contravenes clause (1) or clause (2.) of' Article 311 would be
invalid. Where: howeve-r the second· proviso applies, the only
restriction upon the exercise of the pleasure of the President or
the Governor of a State is the one contained in clause(l) of
A:rticle 311. For an Act or a rule to provide that in a case where E
the second proviso applies any of the safeeuards excluded by that
proviso will be available to a goverrnnent servant would amount to
:.;uch Act or rule impinging upon 'the pleasure of the President or
Governor, as the case~may be, and would be void as being uncons-
titutional. It is, however, a well-settled rule of construction
of statutes that where two interpretations are possible, one of
which would preserve and save the constitutionality of the parti- F
cular statutory provision while the other would render it uncons-
titutional and void, the one which saves and pr~serves its cons-
titutionality should be adopted and the other rejected. Such
constitutionality can be preserved by interpreting that statutory
provision as directory and not mandatory. It is equally well-
settled that where a statutory provision is directory, the courts G
cannot interfere to compel the performance or punish breach of
the duty created by such provision and disobedience of such
provision would not entail any invalidity - see Craies on Statute
Law, Seventh Edition, at page 229. In such a· case breach of such
statritory provisions would not furnish any cause of action or
ground of challenge to- a government servant for at the very
threshold, such cause of action or ground of challenge would be H
barred by the second proviso to Article 311(2).'
244 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A On behalf of the government servants support for the above
contention raised by them was sought to be derived from Cballa-
ppan 's case. Bearing in mind what has been stated above, we will,
therefore, now examine Challapan 's case. Before, however, we
come to-that case it would be convenient to refer to the observa-
tions in M. Gopala Krishna Naidu's case, because it was by reason
Ii of the conflict between those observations and what was held in
Challappan's case that these matters have all come to be decided
by this Constitution Bench. M.Gopala Krishna Maidu's case was not
directly a case under the second proviso to Article 311((2). In
that case the appe+lant, who was an overseer ~n the Public Works
Department of the Central Provinces and lierar Goverment, was
C suspended from service in 1947 and prosecute4 under section 161
of the Indian Penal Code. Ultimately, on orders from the High
Court, the prosecution was dropped. The appellan~ was also
exonerated in a departmental inquiry held against him. There-
after the Goverrumnent by an order held that the charges against
the APpellant had not been proved beyond. reasonable doubt and the
D suspension of the appellant and the departmental inquiry ''were
not wholly unjustified". It accordingly directed that the
appellant should be reinstated in service with effect from the
date of,. the said order and retired from that date, he taving
already attained the age of superannuation, and that the entire
period of absence from duty should be treated as period spent on
duty under rule 54(5) of the Fundamental Rules for purposes of
E pension only, but that he should not be a1lowed any pay beyond
what he had actually received or what was allo~ed to him by way
of subsistence allowance during the period of! suspension. The,
appellant's writ petition was dismissed by the High Court. In
appeal a three Judge Bench of this Court allowed the appeal. '!be
court held that rule 54 of the Fundamental Rules contemplated a
F duty to act in accordance with the basic. concept of justice and
fair play, and the authority, therefore had to afford a reason-
able opportunity to the appellant to show cause why clauses (3)
and (5f of rule 54 should not be applied and ·at this not having
been done, the order was invalid. While discussing the scope of
rule 54 of the Fundamental Rules the Court observed as follows
G (at page, 358-59) :

"It is true that the order under F.K.54 is in a sense
a consequential order in that it would be passed after
an order of reinstatement is made. But the fact that
ti it is a consequential order does not determine the
1

question whether the government liervant has to be
u.o.r. V• TULSIRAM [MADON, J.] 245

given an opportunity to show cause or not. It is also A
true that in a case where reinstatement is ordered
after a departmental inquiry the government servant
would ordinarily have had an opportunity to show
casue. In such a case, the authority no doubt would
have before him the entire record including the expla-
nation given by the government servant from which all Jl
the facts and circumstances of the case would be
before the authority and from which he can form the
opinion as to whether he has been fully exonerated or
not and in case of suspension whether such suspension
was wholly unjustified or not. In such a case the c
order passed under a rule such as the present Funda-
mental Rule might be said to be a consequential order
following a departmental inquiry. But there are three
classes of cases as laid down by the proviso in Arti-
cle 311 where a departmental inquiry would not be
held, viz., (a) where a person is dismissed, removed D
or reduced in rank on the ground of conduct which has
led to his conviction on a criminal charge; (b) where
the authority empowered to dismiss or remove a person
or to reduce him in rank is satisfied for reasons to
be recorded in writing that it is not reasonably prac-
ticable to hold such an inquiry and (c) where the E
President or the Governor as the case may be is satis-
fied that in the interest of security of the State it
is not -expedient to hold such inquiry. Since there
would be no inquiry in these classes of cases the
authority would not hc:ive before him any explanation by
the government servant. lbe authority in such cases
would have to. consider and pass the order merely on F
such facts which might be placed before him by the
department concerned. The order in such a case :would
be ex parte without the authority having the other
side-of the picture. In such cases the order that such
authority would pass would not be a consequential
order as where.a departmental inquiry has been held.
Therefore, an order passed under Fundamental Rule 45
is not always a consequential order nor is such order
a continuation of the departmental proceeding taken
against the employee."

Cballapan's case.decided three appeals against a common
judgment of the High Court of Rajasthan allowing the writ peti- H
tions filed by three railway servants. Challappan, the respondent
246 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

h in one of these appeals, was a railway-pointsman. He was arrested
at Olavakkot Railway Station platform for disorderly, drunken and
indecent behaviour and was prosecuted and convicted under section
5l(a) of the Kerala Police Act. Instead of sentencing him, the
sub-magistrate, Palghat, released him on probation under section
3 of the Probation of Offenders Act, 1958. Thereafter he was
ti removed from service by the disciplinary authority of the Depart-
ment, without holding any inquiry, on the basis of his conviction
in the said criminal case. The order of rem.oval from service was
made under clause (i) of rule 14 of the Railway Servants Rules.
The Kerala High Court -held that as no penalty was imposed upon
him, clause (i) of rule 14 did not in terms apply, and allowed
c his writ petition. So far as the other two railway employees were
concerned, one was convicted under section 3 of the Railway Pro-
perty (Unlawful Possession) Act, 1966, and the other under
section 42U of the Indian Penal Code. Both of them were released
on probation and were similarly removed from railway service.

u The Railway Servants Rules have been made by the President
in exercise of the powers conferred by the proviso to Article
309. Kule 6 specifies the penalties which can be imposed upon a
railway servant. These penalties are divided into minor penalties
and major penalties. Major perialties include removal from service
which is not to be a disqualification for future employment under
the Government or railway administration and dismissal from ser-
E vice which is ordinarily to be a disqualification for future
employment under the Government or railway administration. Under
sub-rule (1) of Kule 7, the President may impose any of the
penalties specified in Rule 6 on any railway servant. Sub rule
(2) of Rule 7 states that without prejudice to the provisions of
sub-rule (i), any of the penalties specified in Rule 6 may be
F imposed on a railway servant by the authorities specified in
Schedules, I, II and III to the Railway Servants Rules. Rules 9
and 10 prescribe a detailed procedure for imposing major penal-
ties while Rule 11 prescribes the procedure for imposing minor
penalties. Originally, sub-rule (5) of Rule 10 requied that a
notice be given to a railway servant informing him of the penalty
G proposed to be imposed upon him and giving him an opportunity of
making a representation on the proposed penalty on the basis of
the evidence adduced during the inquiry held under Rule 9. The
whole of that sub-rule was substituted by the Railway Servants
(Discipline and Appeal) (Third Amendment) Kules, 1978, to bring
sub-rule (5) in conformity with, clause (2) of Article 311 as
H amended by the Constitution (Forty-second Amendment) Act, 1976.
It may be mentioned that on the respective dates of the orders·
U.Q.I. v. TULSIRAM [MADON, J.] 247

A
impugned in Cballappan's case the original sub-rule (5) of Rule
lU formed part of the Railway Servants Rules and clallse (2) of
Article 311 in force was that clallse as amended by the Constitu-
tion (Fifteenth Amendment) Act, 1963. This However, does not metke
any difference to the point which falls to be decided·
B
Rule 14 of the Railway Servants Rules provides as
follows :

"14. Special procedure in certain cases. -

Notwithstanding anything contained in rules 9 to 13 : - c
(i) where any penalty is imposed on a railway servant
on the grollnd of conduct which has led to his convic-
tion on a criminal charge; or

(ii) where the disciplinary authority is satisfied, 0
for reasons to be recorded by it in writing, that it
is not reasonably practicable to hold an inquiry in
the manner provided in these rules ; or

(iii) where the President is satisfied that in the
interest of the security of the State, it 'is not expe- E
dient to hold an inquiry in the manner provided in
these rules ;

the disciplinary authodty may consider the circumstances of the
case and make such orders thereon as it deems fit;

Provided that the Commission shall be consulted, where F
such consultation is necessary, before any orders are
made in any case under this rule."

Clause (b) of Rule 2 of the Railway Servants Rules defines the
word "Commission" as meaning the "Union Public Service
Goomission."
G

Rule 17 of the Railway Servants Rules sets out the orders
against which no appeal lies. Under that rule, no appeal inter
alia lies against any order made by the President. Under Rule 18,
subject to the provisions of Rule 17, an appeal inter alia lies
against an order imposing any of the penalties specified in Rule
6, whether made by the disciplinary authority or by any appellate H
or reviewing authority. Rule 20 prescribes a period of limitation
248 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A for filing an appeal. The appellate authority is, however,
conferred the power to condone the delay in filing the appeal if
it is satisfied that the appellant had sufficient cause for not
preferring the appeal. Rule 22 (2) provides as follows :

"(2) In the case of an appeal against an order impo-
ll sing any of the penalties specified in Rule 6 or en-
' hancing any penalty imposed under the said rule, the
appellate authority shall consider -

.(a) whether the procedure laid down in these rules has
been complied with, and if not, whether such non-com-
pliance has resulted in the violation of any provi-
sions of the Constitution of India or in the failure
of justice;

• (b) whether the firidings of the disciplinary autho-
l, ·rity are warranted by the evidence on the record; and
D
· (c) whether the penalty or the enhanced. penalty
1
imposed is· adequate, inadequate or severe; and pass
. orders -

', (i) confirming, enhancing, reducing or setting aside
the penalty: or
E
'',(11) remitting the case to the authority which imposed
·, .ar enhanced the penalty or to any other authority with
1
' such directions as.it may deem fit in the circumstan-
ces of the case.
'.:.

F x x x x x X"

'
Rule 25 confers power upon (i) the President, (ii) Railway Board,
(iii) the General Manager of a Zonal Railway or an authority of
that status in any other Railway Unit or Administration in the
case of a~·railway servant se~ving under him ·ar its control, (iv)
G the appellate authority not below the rank of a Deputy Head of
DePartment or a Divisional Railway Manager in cases where no
appeal has been preferred, or (v) any other authority not below
the rank of a Deputy Head of Department or a Divisional Railway
Manager in the case of a railway servant serving under its
control, at anytime, either on his or its own motion or other-
H wise, to call for records of any_ inquiry and revise any order
made under the Railway Servants Rules. Clause (c) of the first
proviso to Rule 25(1) inter alia provides as follows : -
U.Q.l. v. TULSIRAM (MAOON, J.] 249

"Provided that - A

.x x x x x x
(c) subject to the provisions of Rule 14, the revising
authority shall, -
B
x x x x x x x
(ii) where an inquiry in the manner laid down in Rule
9 has not already been held in the case, itself hold
such inquiry or direct that such inquiry be held in
accordance with the provisions of Rule 9 and there- c
after on a consideration of the proceedings of such
inquiry, pass such orders as it inay deem fit."

The second proviso to Rule 25(1) provides for a period of
limitation for initiating any revisional proceedings by an
appellate authority other than the President or a revising autho- D
rity mentioned in item (v) xxxxx in that list of authorities set
out above. In the case of other authorities, the power.- of
revison is not subject to any time-limit. Rule 25-A confers
power upon the President at any time· either on his own motion or
otherwise to review any order passed under the RB.ilway Servan.ts
Rules when any new material or evidence which could not be pro- E
duced or was not available at the time of passing the order under
review and. which has the effect of changing the nature of the
case has come or has been brought to his notice. Rules 25 and
25-A were substituted by the ·Railway Servants (Discipline and
Appeal)(First Amendment) Rules, 1983, for the original Rule 25
whiCh provided for a view in somewhat similar terms as the
pri;sent Rule 25. F

In Cba1Ja.ppan's case the Kerala High Court allowed the writ
petitions filed before it solely on the ground that the orders of
the Magistrate releasing the concerned railway servants on proba-
tion did not amount to imposition of penalty as contemplated by
Rule 14 of the Railway Servants Rules. Reversing that view th:!.s G
Court held that the word "penalty" in clause (i) of Rule 14 of
the Railway Servants Rules does not ref er to a sentence awarded
by the ·Court to the accused on his conviction but it merely
indicates the nature of the penalty imposable by the disciplinary
authority if the delinquent employee has been found guilty of
conduct which has led to his conviction on a criminal charge. The
Court observed (at pages 789-790) : H
250 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A "The view of the Kerala High Court, therefore, that as
the Magistrate released the delinquent employee on
probation no penalty was imposed as contemplated by
rule 15 (i) of the Rules of 1968 does not appear to us
to be legally correct and must be overruled. Never-
theless we would uphold the order of the Kerala High
Court, on the ground, that the last part of rule 14 of
the rules of 1968 which requires the consideration of
the circunstances not having been complied with by the
disciplinary authority, the order of removal from
service of the delinquent employee was rightly
quashed."

C The Court pointed out that clause (i) of Rule 14 merely sought to
incorporate the principle embodied in clause (a) of the second
proviso. The Court in the course of its judgment reproduced the
provisions of clause (2) of Article 311 alongwith clause (a) to
the proviso thereto, at that time clause (2) of Article 311 in
force being that clause as amended by the Constitution
(Fifteenth amendment) Act,1963, that is, clause (2) prior to its
D amendment by the Constitution (Forty-second Amendment) Act, 1976,
and the proviso thereto being the same as the second proviso to
clause (2) as amended by the Constitution (Forty-second
Amendment) Act. The Court then pointed out that there were three
stages in a departmental inquiry under Article 311(2), the third
being the stage before actually imposing the penalty in which
E final notice to the delinquent employee should be given to show
cause why the penalty proposed against him be not imposed on
him. It then stated that clause (a) of the proviso (nvw the
second proviso) Article 311(2), however, completely dispensed
with all the three stages of a departmental inquiry when an
employee was convicted on a criminal charge because the employee
F already had in the criminal trial a full and complete opportunity
to contest the allegations against him and to make out his
defence. The Court pointed out that clause (a) of the proviso
(now the second proviso) is merely an enabling provision and does
not enjoin or confer a mandatory duty on the disciplinary
authority to pass an orde·r of dismissal, removal or reduction in
G rank the moment and einployee is convicted. The Court then
considered the extent and ambit of the last part of Rule 14,
namely, the phrase "the disciplinary authority may consider the
circumstances of the case and make such orders there on as it
deems fit" and stated its conclusions as follows (at pages
795-97) :

•
u.o.I. v. TULSIRAM [MADON, J. I 251

"The word 'consider' has been used in contradiction ta A
the ward 'determine'. The rule-making authority deli-
berately 'used the word 'consider' and not 'determine 1
because the ward 'determine' has a much wider scape.
The word 'consider' merely connotes that there should
be active application of the mind by the disciplinary
authority after considering the entire circumstances B
of the case in order to decide the nature and extent
of the penalty to be imposed on the delinquent
employee on his conviction on a criminal charge. This
matter can be objectively determilled only i f the
delinquent employee is heard and is given a chance to
satisfy the authority regarding the fiOal. orders that c
may be pa8sed by the said authority. In other words,
the term 'consider' postulates consideration of all•
the aspects, the pros and cons of the matter after
hearing the aggrieved person. Such an inquiry -.1.d
be a suD.ary inquiry to be held by tbe disciplinary
authority after bearing the delinquent employee. It D
is not at all necessary for the disciplinary authority
to order a fresh departmental inquiry which is
dispensed with under rule 14 of the Rules of 1968
which incorporates the principle contained in Article
311(2) proviso (a). This provision confers power on
the disciplinary authority ta dec.ide whether in the E
facts and circumstances of a particular case what
penalty, if at all should be imposed an the delinquent
employee. It is obvious that in COORidering this
.matter the disciplinary authority will have to take
into account the entire conduct of the delinquent
employee, the gravity of the misconduct coomf.tted by
him, the 1-ct which his misconduct islikely to have F
on the admfni stration and other extewating circum-
stances or redeeming the features if any present in
the, case and so an and so forth. It may be t.hat the
conviction of an accused may be for a trivial offence
as in the case of the respondent T.R. Challappan in
Civil Appeal No. 1664 of 1974 where a stern warning or G
a fine would have been sufficient ta meet the exigen-
cies of service. It is possible that the delinquent
employee ""'Y be fouod guilty of same technical
offence, for instance, violation of the transport
rules or the rules under the Motor Vehicles Act and so
on, where no major penalty may be attracted. It is
difficult ta lay dawn any hard and fast rules as to H
252 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A the factors which the disciplinary authority would
have to consider, but I have mentioned some of these
factors by way of instances which are merely illustra-
tive and not exhaustive. In other words, the position
is that the couviction of the delinquent employee
would be taken as sufficient proof of miscooduct and
B then the authority will have to embark upon a s.-ry
inquiry as to the nature and extent of the penalty to
be imposed on the delinquent employee and in the
,course of the inquiry if the authority is of the
opinion that the of fence is too trivial or of a tech-
nical nature it may refuse to impose any penalty in-
spite of the conviction. This is a very salutary
c ·provision which has been enshrined in these Rules and
one of the purposes for conferring this power is that
in cases where the disciplinary authority is satisfied
that the delinquent employee is a youthful offender
_who is ·not convicted of any serious offence and shows
poignant penitence or real repentence he may be dealt
·with as lightly as possible •. This appears to us to be
D ~the scope and ambit of this provision. We must, how-
ever, hasten to add that we should not be understood
as laying down that the last part of rule 14 of the
'.Rules of 1968 contains a licence to employees convic-
~ted of serious offences to insist on reinstatement. •
The statutory provision referred to above merey
E ' imports a rule of natural justice in enjoining that
' before taking final action in the matter the delin-
quent employee should be heard and the circUIStsDces
of the case may be objectively considered. This is in
keeping with the sense of justice and fair-play. The
· disciplinary authority bas the Ulldoubted ix-r after
F , hearing the delinquent employee and considering the
· circ111Stances of the case to inflict any major penalty
on the deinquent employee without any further depart-
mental inquiry if the authority is of the opinion that
the employee has been guilty of a serious offence
, involving moral turpitude and, therefore, it is not
G · desirable or conducive in the interests of administra-
, tion to retain such a person in service.

Mr. S.N.Prasad appearing for the appellants submitted
. that it may not be necessary for the disciplinary
authority to hear the accused and consider the matter
H where no provision like rule 14 exists, because in
iJ,Q,I. v. TULSIRAM [MADON, J. J 253

such cases the Govermnent can, in the exercise of its
A
executive powers, dismiss, remove or reduce in rank
any employee who has been convicted of a criminal
charge by force of proviso (a) to Article 311(2) of
the Constitution. In other wrods, the argment 1188
that to cases where proviso (a) to Article 311(2)
applies a deparmental inquiry is cmpletely dispeased
B
wil:h and the disciplinary authority can on the
doctrine. of pleasure l:enllinate the services of the
. delioqueot employee. We "'-ver, refrain fi:m
expression. any opinion on this aspect of the 111.tter
because the cases of all the l:htee respoodeats before
us are cases which clearly fall within rule 14 of the
Kules of 1968 where· 1:hey have been ~ .fnim
c
service without complying wil:h the lsst part of rule
14 of the Rules .of 1908 as indicated above. In none
of the cases has the disciplinary authority either
considered the circumstances or heard the delinquent
employees on ·.the limited point as to the nature and
D
extent of the penalty to be imposed if at all. On the
other hand in all these cases the disciplinary autho-
rity has proceeded to pass the ·order of removal from
service straightaway on the basis of .the conviction of

- the delinquent eployees by the criminal courts."

So far as Challappan's Case is concerned,
(llmphasis supplied)

it is not possible
to find any fault either with the view that neither clause (a) of
the second proviso to Article 311(2) nor clause (i) of Rule. 14
E

of the Railway Servants Rules is mandatory or with the considera-
tions which have been set out in the judgment as being the consi-
derations to be taken into account by the disciplinary authority
be:fore imposing a penalty upon a delinquentgovernment servant. F
Where a situation envisaged in one of the three clauses of. the
second proviso to Article 311(2) or of an analogous service rule
arises, it is not mandatory that the major penalty of dismissal,
removal or reduction in rank should be imposed upon the concerned
government servant. The penalty which can be imposed may be
some other major penalty or even a minor penalty dependingupon G
the facts and circumstances of the case. In order to arrive ata
decision as to which penalty should be imposed, the' disciplinary.
authority will have to take into consideration the various
factors set out in Cballappan's case. It is, however, not
possible to agree with approach adopted in Challappan's case in

•
H
considering Rule 14 <lf the Railway Servants Rules in isolation
254 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A and apart from the second proviso to Article 311(2), nor with the
interpretation placed by it upon the word "consider" in the last
part of Rule 14. Neither Rule 14 of the Railways Servants Rules
nor a similar rule in other service rules can be looked at apart
from the second proviso to Article 311(2). The authority of a
particular officer to act as a disciplinary authority and to
B impose an penalty upon a government servant is derived from rules
made under the proviso to Article 309 or under an Act referable
to that Article. As pointed out earlier, these rules cannot
impinge upon the pleasure of the President or the Governor of a
State, as the case may be, because theyare subject to Article
310(1). Equally, they cannot restrict the safeguards provided by
clauses (1) and (2) of Article 311 as such a restriction would
c be in violation of the provisions of those clauses. In the same
way, they cannot restrict the exclusionary impact of the second
proviso to Article 311 (2) because that would be to impose a
restriction upon the exercise of pleasure under Article 310(1)
which has become free of the restrictions placed upon it by
clause (2) of Article 311 by reason of the opei;ation of the
second proviso to that clause. The only cases in which .a govern-
D ment servant can be dismissed, removed or reduced in raDk . by way
of punishment without holding an inquiry contemplated by
clause(2) of Article 311 are the three cases mentioned in the
second proviso to that clause. A rule which provides for any
other case in which any of these three peµalties can be imposed
would be unconstitutional. Service rules may reproduce the
E provisions of the second proviso authorizing the disciplinary
authority to dispense with the inqiry contemplated by clause (2)
of Article 311 in the three cases mentioned in the second proviso
to that clause or any one or more of them. Such a rule, however,
cannot be. valid and constitutional without reference to the
second proviso to Article 311(2) and cannot be read apart from
F it. Thus,"while the source of authority of a particular officer
to act as a disciplinary authority and to dispense with the
inquiry is derived from the service rules, the source of his
power to dispense with the inquiry is derived from the second
proviso to Article 311 (2) and not from any service rules. There
is a well-established distinction between the source of authority
G to exercise a power and the source of such power. The Court in
ClMt.llappan 1 s case was, therefore, in error in interpreting Rule
14 of the Railway Servants Rules by itself and not in conjunction
with the· second proviso (at that time the only proviso) to
Article 311(2). It appears that in Cballappan's case the Court
felt that the addition of the words "the disciplinary authority
H may consider the circunstances of the case and make such orders
u.0.1. v. TULSIRAM [MADON, J.j 255

thereon as it deems fit" warranted an interpretation of Rule 14 A
different from that to be placed upon the second proviso. This is
also not correct. It is true that the second proviso does not
contain -these words but ~rom this it does not follow that when
acting uoder the second proviso, the disciplinary authority
should not .consider the facts and circumstances of the case or
make an order not warranted by 'them. It is also not possible to
accept the interpretation placed upon the word "consider" in
Challappan's case. According to the view taken in that case, a
consideration of the circumstances of the case cannot be
unilateral but must be after hearing the delinquent government
servant. If such were the correct meaning of the word "consider",
it woµld render this part of Kule 14 unconstitutional as restric- c
ting the full exclusionary operation of the second proviso. The
word "consider", however, does not bear the meaning placed upon
it in r.tialiappan 's case. The word "consider" is used in Rule 14
as a transitive verb. ~e meaning of the word "consider" as s,o
used is given in the Oxford English lJictionary as "To contemplate
mentally, fix the mind upon; to think over, meditate or reflect ll
on, bestow attentive thought upon, given heed to, i:ake note of."
The relevant definition of the word "consider" given in
Webster's Third New International Dictionary is "to reflect on:
think about with a degree of care of caution". Below this defini-·
tion are giv;en the synonjms of the word "consider", these syno-
nyms being ·:contemplate, s_tudy, weigh, revolve, excogitate". E
While explaining the exact different shades of meaning in this
group of words, Webster's Dictionary proceeds to state as under
with respect to the word "consider".

"CONSIDER often indicates little more than think
about. It may occasionally suggest somewhat more
conscious direction of thought, somewhat greater depth F
and scope, and some·Nhat greater purposefulness."

It is thus obvious that the word "consider" in its ordinary and
natural sense is not capable of the meaning assigned to it in
Challappan 's case. The consideration under Rule 14 of· what
penalty should be imposed upon a delinquent railway servant must, • G
therefore, be ex parte and where the disciplinary authority comes
to the conclusion that the penalty which the facts and circum-
stances of the case warrant is either of· dismissal or removal or
reduction in rank~ no opportunity of showing·cause against such
penalty proposed to be imposed upon him can be affo,-ded to the
deliquent government servant. Undoubtedly, the disciplinary
authority must have regard to all the facts and circumstances of H
the case as set out tn Qsa..Uapan 's case. As pointed out
256 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A earlier, considerations· of fair play and justice requiring a
hearing to be given to a government servant with respect to the
penalty to be imposed upon him do not enter into the picture when
the second proviso to Article 311(2) comes 'into play and the
same would be the position in the case of a service rule repro-
ducing the second proviso in whole or in part and whether the
language used is identical with that used in the second
B proviso qr not. There are a number of orders which are of
necessity passed without hearing the party who may be affected
by them. For instance, courts of law can and often do pass ex
parte ad interim orders on the application of a plaintiff,
petitioner or appellant without issuing any notice to the.other
side or hearing him. Can it, therefore, be contended that the
judge or judges, as the case may be, did not apply ·. his or
c their mind while passing such an order?

The Decision in Cballappan's case is, therefore not corre~t
with respect to the interpretation placed by it upon Rule 14 of
the Railway, Servants Rules and particularly upon the word
"consider" occuring in the last part of that rule and in inter-
preting Rule 14 by itself and not in conjunctJ.ou with the second
D proviso to Article 311(2). Before parting with Cballappan's case,
we may, also point out that that case never held the field. The
judgment in that case was delivered on September 15,. 1975, and it
was reported in [1976] 1 s.c.R. at pages 783ff. Hardly was that
case reported the1\ in the next group of appeals in which the same
question was raised, namely, the three Civil Appeals meq.tioned
earlier, an order of reference to a larger Bench was made on
November 18, 1976. The correctness of Challappan 's case was,
therefore, doubted from the very begining.

The next service rule which falls for consideration in
these matters is Rule 19 of the Civil Services Rules. The CiVil
F Services Rules are also made under the proviso to Article 309.
The scheme of these rules so far as disciplinary proceedings are
concerned is very similar to that of the Railway Servants Rules.
Rule 11 specifies the penalties which can be imposed on a govern-
ment servant. These penalties are divided ihto minor penalties
and major penalties. Clauses (i) to (iv) of that rule specify
G what the minor penalties are while clauses (v) t~ (viii) specify
what the major penalties are. The major penalties include compul-
sory retirement, removal from service which is not to be a dis-
qualification for future employment under the Government and
dismissal from service which is ordinarily to be a disqualifica-
tion for future employment under the Governmdnt. Rules 14 and 15
H
u.0.1. v. TULSIRAM [MADON, J.] 257

prescribe the procedure to be followed where· a major penalty i.s A
to be imposed while Rule 16 prescribes the procedure for imposing
a minor penalty, Previously, under sub-rule ( 4) of Rule 15 the
government servant was also to be given a notice of the penalty
proposed to be imposed upon him and an opportunity of making
representation· with respect to such proposed penalty. However, by
Government of India, Ministry of Home Affairs (Deptt. of B
Personnel & Admn. Reforms) Notification No. 11012/2/77 - Ests.
dated August 18, 1978, sub-rule ( 4) was substituted by a new
sub-rule to bring it in conformity with the amendment made in
clause (2) of Article 311 by the Constitution (Forty-second
Amendment) Act, and the opportunity to show cause against the
proposed penalty was done away with. Rule 19 provides as follows C

"19. Special procedure in certain cases"

Notwithstanding anything contained in rule 14 to rule
l~ D

(i) where any penalty is imposed on Government servant
on the ground of conduct which has led to his convic-
tion on a criminal charge, or

(ii) where the disciplinary authority is satisfied for
reasons to be recorded by it in writing that it is not E
reasonably practicable to hold ·an inquiry in the
manner provided in these rules, or,

(iii) where the President is satisfied that in the
interest of the security of the State, it is not expe-
dient to hold.any inquiry in the manner provided in F
these rules , ~

the disciplinary authority may consider the circum-
stances of the case and make such orders thereon as it
deems fit;
G
Provided that the Commission shall be consulted, where
such consultation is necessary, before any orders are
made in any case under this rule."

The word "Commission" is defined by clause \d) of Rule 2 as mean-
ing "The Union Public Service Commission". Under Rule 22, no H
appeal is lies against any order made by the President or orders
258 SUPREME COURT REPORTS [1985] SUPP.2 $.C.R.

A of certain nature specified in that rule. Subject to the provi-
sions of Rule 22, Rule 23 provides for a right of appeal. Rule 25
provides for a period of limitation for filing an appeal but the
appellate authority is conferred the power to condone the delay
in filing the appeal if it is satisfied that the appellant had
sufficient cause for not preferring the appeal in time. Rule
27(2) provides as follows:
B
"(2) In the case of an appeal against an order impos-
ing any of the penalties specified in rule 11 or en-
hancing any penalty imposed under the said rule, the
appellate authority shall consider -

(a) whether the procedure laid down in these rules
c has been complied with, and if not, whether such non-
compliance has resulted in the violation of any provi-
sions of the Constitution of India or in the failure
of justice;

(b) whether the findings of the disciplinary authority
are warranted by the evidence on the record; and
lJ
(c) whether the penalty or the enhanced penalty impos-
ed is adequate, inadequate or severe;
and pass orders -

(i) confirming, enhancing, reducing or setting aside
E the penalty; or
•
(ii) remitting the case to the authority which imposed
or enhanced the penalty or to any other authority with
such direction as it may deem fit in the circumstances
of the case.
F
x x x x x
Rule 29 ·provides for a right of revision. Under it an applica-
tion for revision is to be dealt with in the same manner as if it
were an appeal under the Civil Services Rulesr Rule 29-A confers
G upon the President a power of review similar to Rule 25-A of the
Railway Servants Rules.

It will be notl.ced that the language of Rule 19 of the Civil
Services l<ules is identical with that of Rule 14 of the Railwa}

H
u.0.1. v. TULSlRAM [MADON, J.] 259

Servants Rules and the interpretation of Rule · 19 of the Civil A
Services Rules would be the same as that placed by us upon Rule
14 of the Railway Servants Rules.

The rule which now remains to be considered is Rule 37 of
the CISF Rules. The CISF Rules have been made by the Central
Goverrunent in pursuance of the power conferred by section 22(1) B
of the Central Industrial Security Force Act, 1968 (Act No. 50 of
1968) (hereinafter referred· to in short as "the CISF Act")•
Section 22(1) of the CISF Act confers upon the Central Goverrunent
the power to make rules for carrying out the purposes of that
Act. Sub-section (2) of Section 22 ~ alia provides as
follows: C

"(2) In particular, and without prejudice to the gene-
rality of the foregoing powers, such rules may provide
for -

(a) regulating the classes, ranks, grades, pay and D
remuneration of supervisory officers and members of
the Force and their conditions of service in the
Force;

x x x x x
(g) regulating the punishments and prescribiflll autho- E
rities to whom appeals shall be preferred from orders
of punishment or remission of fines or other punish-
ments, and the procedure to be followed for the dispo-
sal of such appeals;

.x x x x x x F

Before we turn to the CISF Rules, it is necessary to refer
. to certain other provisions of the CISF Act. Section 3 of the
CISF Act provides for the c.onstitution and maintenance by the
Central Government of a Force to be called the Central Industrial
Security Force (hereinafter referred to in short as "the CIS G
Force") for the better protection and security of Industrial
undertakings owned by the Goverrunent. Clause(i) of section 2(1)
of the CISF Act defined "supervisory officer" as meaning "any
of the officers appointed under Section 4 and includes any other
officer apppointed by the Central Government as a supervisory
'officer of the Force". Section 4 provides for the appointment of H
supervisory officers and their powers and is in the following
terms :
260 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A "4, Appointment and powers of supervisory officers. -

(1) The Central Government may appoint a person to be
the Inspector-General of the Force and may appoint
other persons to be Deputy Inspectors-<;eneral, Chief
.Security Officers or Security Officers of the Force.

B (2) The Inspector-General_ and every other supervisory
· '• officer so appointed shall have, and may exercise,
such powers and authority as is provided by or under
this Act."

Sections 8 and 9 provided as follows:

c ~ ."8. Dismissal, reaoval,etc .. , of members of the Force.

Subject to the provisions of Article 311 of the Cons-
. titution and to such rules as the Central Government
may make under this Act, any spervisory officer may -

D l·(i) dismiss, suspend or reduce in rank any member of
the Force whom he thinks remiss or negligent in the
,discharge of his duty, or unfit for the same; or

.x x X."

E "9. Appeal and revision. -

· ( 1) Any member of the Force aggrieved by an order
·made under Section 8 may, within thirty days from the
date on which the order is communicated to him, prefer
an appeal against the order to such authority as may
F be prescribed, and subject to the provis.ions of
sub-section(3), the decision of the said authority
thereon shall be final :
1
Provided that the prescribed authority may entertain
the appeal after the expiry of the said period of
G thirty days, if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal
in time.

(2) ln disposing of an appeal,the prescribed aurhority
'shall follow such procedure as may be prescribed.
H
u.0.1. v. TULSIRAM [MADON, J.] 261

( 3) The Central Government may call for and examine A
the record of any proceeding under Section 8 or under
sub-section(2) of this section and may make such
inquiry or cause such inquiry to be made and subject
to the provisions of this Act, may pass such order
thereon as it thinks fit:
I!
Provided· that no orc\er imposing an enhanced penalty
under sub-section(2) or sub-section(3) shall be made
unless a reasonable opportuiiity of being heard has
been given to the person affected by such order."

_We now turn to the relevant CISF Rules. Rule 29-A specifies C
the disciplinary authorities. Rule 31 specifies the penalties
which may be ·imposed on a member of the CIS Force. Amongst these
penalties are dismissal, removal, compulsory retirement and re-
duction to a lower class or. grade or rank or to a lower
time-scale or to a lower stage in the time-scale of pay. CIS
Rules do not specify which out of the penalties specified in Rule D
31 are the major penalties and which are minor penalties b.ut as
these terms are well understood in service jurisdiction the same
classification as in the Civil Services Rules and the Railway
Servants Rules will apply here. Rule 34 prescribes the detailed
procedure for imposing major penalties and Rule 35 prescribes the
procedure for imposing minor penalties. Rule 32 specifi.es what E
are described as "petty punishments" to be awarded ordinarily in
Orderly Room for petty breaches of discipline and trifling cases
of misconduct by members of the CIS Force not above the. rank of
the Head Security Guard and Rule 36 prescribes the procedure .for
imposing these punishments. Rule 37 of the CIS Rules ·is as
follows :
F
"3 7 • Special Procedure in certain cases -

Notwithstanding anything contained in rule 34, rule 35
or rule 36, where a penalty is imposed on a member of
the force -
G
(a) on the ground of conduct which had led to his con-
viction on a crimi,nal charge; or

(b) where the disciplinary authority is satisfied for
reasons to be recorded in writing, that i t is not
reasonably practicable to follow the procedure pres-
cribed in the said rules : H
262 SUP!lliME COURT REPORTS [1985] )UPP.2 s.c.R.

A the disciplinary authority may consider the circum-
stances of the casi.:: dnd pass such orders thereon as it
deems fit.

A member of the force who has been convicted to rigo-
rous imprisorunent on a criminal cha·rge shall be dis-
B missed from service. In such cases, no evidence need
be given to proved the ct1arge. Only a notice shall be
given to the party charged proposing the pwiishment of
dismissal for his having been convicted to rigorous
impr isorunent and asking him to explain as to why the
propuse<l punishment of dismissal should not be
imposed".
c
.l\ule 42 provides for a right of appeal in the case of an order
imposing any of tile penalties specified in Rule 31. Rule 42-1.
prescribes the period of limitation for filing an appeal. The
appellate authority, howeve.r, has the power to condone the delay
in filing an appeal H it is satisfied that the appellant had
sufficient cause for not submitting the appeal in time. Sub-
D rule(2) of Rule 4( provides as follows :

"4 7 • Consideration of appeals -

x x x
(2) In the case of an appeal against an order imposing
E any of the penalties specified in rule Jl, the appel-
late authority shall consider -

(a) whether the procedure prescribed in these rules
has been complied with, and if not, whether such
non-c..)'~.,pliance has resulted in violation of any provi-
si~ns of the Constitution or in failure of justice;
F

(b) whether the findings are Justified; and

(c) whether the penalty imposed is excessive, adequate
or in.adequate; and µass orders;
G
(i) setting aside, reduction, confirming or enhancing
tile penalty;.

(i1_J remitting Lile case to the authority which imposed
the penalty; or to any other authority with such
H
u.o. l. v. TULS1:1Nt [ilAiJIJN, J.] 26J

direction as it nv:ty Jer~m tit in ti·H~ ci.rcu.:nst~nces
A
oi tt1e case :

x x x
k.ul~~ 41.J prr.:v1aes
fo:r; suo motu revision. It inter alia en.ables
th~ tevi.sing authority to' take further evidence and provides that
B
cnt provisions of Kule 47 relating to appeals shall apply so far
as may be to orders in- revision.

It will be noticed· that Rule 37, except the last paragraph
thereof, is in pari 'materia with Rule 14 of the Railway Servants
Rules and Rule--19 of the Civil Services Rules with this
difference that a provision akin to clause (iii) of Rule 14 of
c
the Railway Servants Rules and clause (iii) of Rule 19 of the
Civil Services Rules is not to be found in Rule 37 of the CISF
Rules. The same interpretation as placed by us on the word
""consider"" occurring in Rule 14 of the Railway Servants Rules and
Kule 19 of the Civil Services Rules must, therefore, be placed
D
upon the word ""consider" ia Rule 37 of the CISF Rules. The last
paragraph of Rule 37 of the CISF Rules is peculiar to itself and
does not find a place either in the said Rule 14 or the said Rule
1!::1. It is clumsily worded and makes little sense. 1'o provide
that a member of· the CIS Force who has been convicted to rlgorous
imprisonment on a criminal charge "shall be Jism.issed from
service" and at th~ same time to provide that "only a 01.otice
E
shall be i;i ven co the party charged proposing the punishment of
dismiss11l for his having been convicted to rigorous imprisonment
and asking him t<.) exp la tn as to why the proposed ptmishJ.::ent of
dismissal should not be imposed", is a contradiction in terms.
If either of these provisions were taken as mandatory, it would
be void as violating the second proviso to Article 311(2) because
F
the penalty contemplated by the second proviso to Article 311(2)
is not the penalty of dismissal only but also of removal or
reduction in rank, and to -make it mandatory to issue a notice to
show cause against the proposed penalty ,of dismissal would
equally violate the second proviso because it would whittle down
the exclusionary effect of the second proviso. Therefore, both
G
these provisions in the last paragraph of Rule 37 must be read as
directory and not mandatory, not only to make sense out of them
but also to preserve their constitutionality. So read, a breach
of these provisions would not afford any cause of action to a
member of the CIS Force.
H
264 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A A conspectus of the above service rules and the CISF Act
shows that a govermnent servant who has been dismissed, removed
or reduced in rank without holding an inquiry because his case
falls under one of the three clauses of the second proviso to
Article· 311(2) or a provision of the service rules analogous
thereto is not wholly without a remedy. He has a remedy by way of
B an appeal, revision or in some cases also by way of review.
Sub-clause (ii) of clause (c) of the first proviso of Rule 25(1)
of the Railway Servants Rules expressly provides that in the
case of a major penalty where an' inquiry has not been held, the
revising authority shall itself hold such inquiry or direct such
inquiry to be held. This is, however, made subject to the
provisions of Rule 14 of the Railway Servants Rules. The other
c service rules referred to aboved not appear to have • a similar
provision nor does the Railway Servants Rules make the same
provision in the case of an appeal. Having regard, however, to
the factors to be taken int" consideration by the appellate
authority which are set out in the service rules referred to
above a provision similar to that contained in sub-clause (ii) of
clause(c) of the first proviso to Rule 25(1) of the Railway Ser-
D vants Rules should be read and imported into provisions relating
to appeals in the Railway Servants Rules and in the other service
rules and also in the provisions relating to revision in the
other service rul.,s. This would, of course, be subject to the
second proviso to Article 311(2), Rule 14 of the Railway Servants
Rules Rule 19 of the Civil Services Rules and Rule 37 of the CISF
E Rules. Thus, such a right to an inquiry cannot be availed of
where clause (a) to the second proviso of Article 311(2) or a
similar provision in any service rule applies i~ order to enable
a government servant to contend that he was wrongly convicted by
the criminal court. He can, however, contend that in the facts
and circumstances of the case, the penalty imposed upon him -is
F too severe or is excessive. He can also show that he is not in
fact the gover ,nt servant who was convicted on a criminal
charge and that it is a case of mistaken identity. Where i t is a
case falling under clause(b) of the second proviso or a provision
in the service rules analogous thereto, the dispensing with the
inquiry by the disciplinary authority was the result of the
G situation prevailing -t that time. If the situation has changed
when the appeal or revision is heard, the government servant can
claim to have an inquiry held in which he can establish that he
is not guilty of the charges on which he has been dismissed,
removed or reduced in rank. He, however, cannot by reason of the ·
provisions of clause(3) of Article 311 contend that the inquiry
H
U.O.I. v. TULSIRAM [MADON, J.] 265
'
was wrongly dispensed with and it was reasonably practl.cable to A
hold an inquiry because by the said clause (3) the decision on
this point of the disciplinary authority has been made final. So
far as clause· (c) is concerned, dispensing with the inqu~·ry
depends upon the satisfaction of the President or the Governor,
as the case may be, that in the interest of the security of the
State .it is not expedient to hold an inquiry. In such a case, an B
order imposing penalty can, however be passed by a disciplinary
authority because in such a case the President or the Governor,
as the case may be, can direct the disciplinary authority to
consider the facts of the case and impose the appropriate penalty
without holding any inquiry. Clause. (iii) of Rule 14 of the
Railway Servants Rules and clause (iii) of Rule 19 of the Civil c
Services Rules envisage this being done. In such a case the
satisfaction that the inquiry should be dispensed with as not
being expedient in the interest of the security of the State
would be that of the :President or the Governor, the selection of
one of the three penalties mentioned .in Article 311(2) as being
the proper penalty to be imposed would be of the disciplinary D
authority. The satisfaction of the President or the Governor
cannot be challenged in appeal or revi_sion but the government
servant can in appeal or 'revision ask for an inquiry ~o be held
into his alleged conduct unless even at the time of the appeal or
revision, the interest of the security of the State makes it
inexpedient to· hold such an iL1quiry • Of course, no such right E
would be available to a government servant where-the order impos-
ing penalty has been made by the President or the Governor of a
State, as the case may be.

Executive Instructions and the Second Proviso

In the course of the arguments certain executive instruc- F
tions issued by the Government of India were referred to and
relied upon on behalf of the government servants. It is unneces-
sary to deal with these instructions in detail. At the highest
they contain the opinion"of the Government of India on the scope
and effect of the second proviso to Article 311(2) and cannot be
binding upon the Court with respect to the interpretation it G
should place upon that proviso. To the extent that they may
liberalized the. exclusionary effect of the second proviso they
can only be taken as directory. Executive instruction stand on a
lower .footing than a statutory rule for they do not have the
force of a statutory rule. If an Act or a rule· cannot alter or
liberalized the exclusionary effect of the second proviso, execu-
tive instructions can do so even much less. H

•
26b SUPREME COURT REPORTS [1985J SUPP.2 s.c.R.

A <bission to Mention the Belevant Clause of the Second Pro-
viso or the Relevant Service Rule in the Impugned Orders

Some of the orders impugned before us refer only to one or
the other of the three clauses of the second proviso to Article
311(2) for dispensing with an inquiry without referring to the
B relevant service rule, some refer both to a clause of the second
proviso and the relevant service rule, while the others refer
only to the relevant service rule without making any mention of
the particular clause of the second proviso which has been appli-
ed. The question is whether the omission to mention the particu-
lar clause of the second proviso or the relevant service rule
makes any difference.
c
As pointed out earlier, the source of authority of a parti-
cular officer to act as a disciplinary authority and to dispense
with the inquiry is derived from the service rules while the
source of his power to dispense with the disciplinary inquiry is
derived from the second proviso to Article 311(2). There cannot
be an exercise of a power unless such power exists in law. If
D such power does not exist in law, the purported exercise of it
would be an exercise. of a non-existent power and would be void.
The exercise of a power is, therefore, always referable to the
source of such power and must be considered in conjunction with
it. The Court's attention in Cballappan's Case was not drawn
to this settled position in law and hence the error committed by
E it in considering Rule 14 of the Railway Servants Rules by itself
and without taking into account the second proviso to Article
311(2). It is also well settled that where a sourca of power
exists, the exercise of such power is referable only tu that
source and not some other aource under which were that power
exercised, the exercise of such power would be Invalid and with-
F :>ut jurisdiction. Similarly, if a source of power exists by
reading together two provisions, whether statutory or constitu-
tional, and the order refers to only one of them, the validity of
the order should be upheld by construing it as an order passed
under both those provisions. Further, · even the mention of a
wrong provision or thE! omission to mention the provision which
G contains the source of power will not invalidate an order where
the source of such power exists. (See Dr. Ram Manobar Lohia v.
State of Bihar and others [1966] 1 s.c.R. 709,721 and 'lbe Muni-
cipal Corporation of the City of Abmedabad ·v. Ben Hirsben Manilal
[1983] 2 s.c.R. 676,681. The omission to mention in the impugned
orders the relevant clause of the second proviso or the relevant
H service rule will not, therefore, have the effect of invalidating
u.o.I. v. TULSIRAM [MADON, J.] 267

the orders and the orders must be read as having been made under A
the applicable clause of the second proviso to Article 311(2)
read with the relevant service rule. It may be mentioned that in
none of the matters before us has it been contended that the
disciplinary authority which passed the impugned order was not
competent to do so.
B
The Second Proviso. - Clause (a)

Not much remains to be said about clause (a) of the second
proviso to Article 311(2)·. To recapitulate briefly, where a
disciplinary authority comes to know that a government servant
has been convicted on a criminal charge, it must consider whether c
his conduct which has led to his conviction was such as warrants
the imposition of a penalty and, if so, what that penalty should
be. For that purpose it will have to peruse the judgment of the
criminal court and consider all the facts and circumstances of
the case and the various factors set out in Q:aallappan 's case.
This, however, has to be done by it ex parte and by itself. Once D
the disciplinary authority reaches~the conclusion that the
government servant's conduct was such as to require his dismissal
or removal from.service or reduction in rank he nn.ist decide which
of these three penalties should be imposed on him. This too it
has to do by itself and without hearing the concerned government
servant by reason of the exclusionary effect of the second pro- E
viso. The disciplinary authority must, however, bear in mind
that a conviction on a criminal charge does not automatically
entail dismJssal, removal or reduction in rank of ·the concerned
government servant. Having decided which of these three penal-
ties is required to be imposed, he has to pass the requisite
order. A government servant who is aggrieved by the penalty
imposed can agitate in appeal, revision or review, as the case F
may be, that the penalty was too severe or excessive_ and r..ot
warranted by the facts and circumstances of the case. If it is
his case that he is not the government servant who has been in
fact convicted, he can also agitate this question in appeal,
revision or review. If he fails in all the departmental remedies
and still wants to pursue the matter:, he can .invoke the court's G
power of judicial review subject to the court permitting it. If
the court finds that he was not iri fact_ the person convicted, it
will strike down the impugned order and order him to be reinsta-
ted in service. Where the court finds that the penalty imposed
by the impugned order ls arbitrary or grossly excessive or out of
all proportion to the offence committed or not warranted by the
facts and circumstances of the case or· the requirements of that H
268 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A
particular government service the court will also strike down the
impugned order. Thus, in Shaokar Dass v. Union of India and
another, [1985] 2 s.c.c. 358, this Court set aside the impugned
order of penalty on the ground that the penalty of die!llissal from
service imposed upon the appellant was whimsical and ordered his
reinstatement in service with full back wages. It is, however,
B
not necessary that the Court should always order reinstatement.
The Court can instead substitute a penalty which in its opinion
would be just and proper in the circumstances of the case.

1'he Second Proviso - Clause (b)

The main thrust of the arguments as regards clause (b) of
c the second proviso to Article 311(2) was that whatever the situa-
tion may be minimal inquiry or at least an opportunity to show
cause against the proposed penaltyis always feasible and is
required by law. The arguments with respect to a minimal inquiry
were founded on the basis of the applicability of Article 14 and
the principles of natural justice and the arguments with respect
to an opportunity to show cause against the proposed penalty
D were in addition founded upon the decision in Challappan's case.
These contentions have already been dealt with and negatived by
us and we have further held that Challappan's case in so far as
it held t~t a government servant should be heard before imposing
a penalty upon him was wrongly decided.
E
The next contention was that even if it is not reasonably
practicable to hold an inquiry, a government servant can be
placed under suspension until the situation improves and it
becomes possible to hold the inquiry. This contention also can-
not be accepted. Very often a situation which makes i t not
reasonably practicable to hold an inquiry is of the creation of
F the concerned government servant himself or of himself acting in
concert with· others or of his associates. It can even be that he
himself is not a party to bringing about that situation. In all
such cases neither public interest nor public good requires that
salary or subsistence allowance should be continued to be paid
out of the public exchequer to the concerned government servant.
G It should also be borne in mind that in the case of a serious
situation which renders the holding of an inquiry not reasonably
practicable, it would be difficult to foresee how long the situa-
tion will last and when normalcy would return or be restored. It
is impossible to draw the line as to the period of time for which
the suspension should continue and on the expiry of that period
H action should be taken under clause (b) of the second proviso.
U.O.I. v. TULSIRAM [MADON, J.] 269

Further, the exigencies of a situation may require that prompt A
action should be taken and suspending the government servant
callllot serve the purpose. Sometimes not taking prompt action may
result in the. trouble spreading and the situation worsening and
at times becoming uncontrolable. Not taking prompt action may
also be construed by the trouble-makers and agitators as sign of
weakness on the part of the authorities and thus encourage them B
to step up the tempo of their activities or agitation. It is true
that when prompt action is taken in order to prevent this happen-
ing, there is an element of deterrence in it but that is an un-
avoidable and necessary concomitance of such an action resulting
from a situation which is not of the creation of the authorities.
After all, clause (b) is not meant to be applied in ordinary, c
normal situations but in such situations where is not reasonably
practicable to hold an inquiry.

The condition precedent for the application of clause (b)
is the satisfaction of the disciplinary.authority that "it is not
reasonably practicable to hold" the inquiry contemplated by D
clause (2) of Article 311. What is pertinent to note is that the
words used are "not reasonably practicable" and not "impracti-
cable". According to the Oxford English llictionary "practicable"
means "'Capable of being put into practice, carried out in
action, effected, accomplished, or done; feasible". Webster's
Third New International Dictionary defines the word "practicable"
inter alia as meaning "possible to practice or perform : capable E
of being put into practice, done or accomplished : feasible".
Further, the words used are not "not practicable" but "not
reasonably practicable". Webster's Third New International
Dictionary defines the word "reasonably" as "in a reasonable
manner : to a fairly sufficient extent". Thus, whether it was
practicable to hold the inquiry or not must be judged in the F
context of whether it was reasonably practicable to do so. It is
not a total or absolute impracticability which is required by
clause (b). What is requisite is that the holding pf the inquiry
is not practicable in the opinion of a reasonable man taking a
reasonable view of the prevailing situation. It is not possible
to enumerate the cases in which it would not be reasona~ly prac- G
ticable to hold the inquiry, but some instances by way of illus-
tration may, however, be given. It would not be reasonably
practicable to hold an inquiry where the governme~~ servant,
particularly through or together with his associates, so
terrorizes, threatens or_ intimidate witnes~es who are going to
given evidence against him. with fear of reprisal as to prevent H
them from doing so or where the government servant by himself or
270 SUPREME COURT Rll~ORTS [1985] SUPP.2 s.c.R.

A togethe.r with or through other thretens, intimidates and terrori-
ze,; the officer who is the disciplinary authority or member of
It.is family so that he is afraid to hold the inquiry or direct it
to be held. It woulct also not be reasonably practicable to hold
the inqutry where an atmosphere of violence or of general
indiscipline and insubordination prevails, and it is imaterial
B whether the concerned government servant is or is not a party to
bringing about such an atmosphere. In this connection, we must
bear in mind that numbers coerce and terrify while an individual
may not. The reasonable practicability of holding an inquiry is a
matter of assessment to be made by the disciplinary authority.
Such authority is generally on the spot and knows what is
happening. It is because the disciplinary authority is the best
c judge of this that clause(3) of Article 311 makes the decision of
the disciplinary authority on this question final. A disciplin-
ary authority is not expected to dispense with a disciplinary
inquiry lightly or arbitrarily or out of ulterior motives or
merely in order to avoid the holding of an inquiry or because the
Department's case against the government servant is weak and must
fail· The finality given to the decision of the disciplinary
D authority by Article 311(3) is not binding upon the court so far
as its power of judicial· review is concertled and in such a case
the court will strike down the order dispensing with the inquiry
as also the order imposing penalty. The case of Arjun Claubey v.
Union of India and others,· [1984] 3 s.c.R. 302, is an instance in
point. In that case, the appellant was working as a senior clerk
E in the office of the Cheif Commercial Superintendent, Northern
Railway, Varanasi. The Senior Commercial Officer wrote a letter
to the appellant calling upon him to submit his explanation with
regard to twelve charges of gross indiscipline mostly. relating to
the Deputy Chief Commercial Superintendent. The appellant submit-
ted his explanation and on the very next day the Deputy Chief
F Commercial Superintendent served a second notice on the appellant
saying that his explanation was not convincing and that another
chance was being given to him to offer his explanation with
respect to those charges. The appellant submitted his further
explanation but on the very next day the Deputy Chief Commercial
Superintendent passed an order dismissing him on the ground that
G he was not fit to be retained in service. This Court struck down
the order holding that seven out of twelve charges related to the
conduct of the appellant with the Deputy Chief Commercial
Superintendent who was the disciplinary.authority and that if an
inquiry were to be held, the principal witness for the Department
would have been the Deputy Chief Commercial Superintendent him-
H self, resulting in th" same person being the main accusor, the
e.hief witness and als~ the judge of the matter.
, U.O.I. v. TULSIRAM [MADON, J.j 271

It was subn!itted that where a delinquent government servant A
so terrorizes the disciplinary authority that neither that
officer nor any other officer stationed at that place is willing
to hold the inquiry, some senior officer can be sent from outside
to hold the inquiry. This submission itself shows that in such a
case the holding of an inquiry is not reasonably practicable. It
would be illogical to hold that the adminis~rative work carried Jl
out. by senior officers should be paralysed because a delinquent
government servant either by himself or along with or through
others makes the holding of an ·inquiry not reasonably
practicable.

It is not necessary that a situation which makes the hold- c
ing of an inquiry not reasonably practicable sould exist before
the disciplinary inquiry is initiated· against a government
servant. Such a situation can also come into existence subse-
quently during he course of an inquiry, for instance, after the
service of a charge-sheet upon the government servant or after he
has filed his written statement thereto or. even after evidence u
has been led in part. In such a case also the disciplinary
authority would be entitled to apply clause (b) of the second
proviso because the word "inquiry" in that clause includes part
of an inquiry. It would also not be reasonably practicable to
afford to -the .government servant an opportunity of hearing or
further hearing, as the case may be, when at the commencement of
the inquiry or pending it the government servant absconds and
cannot be served or will not participate in the inquiry. In such
cases, the matter must proceed ~ ~ and on the materials
before the disciplinary authority. Therefore, even where a part
of an inquiry has been held and the rest is dispensed with under
clause (b) or a provision in the service rules analogous thereto,
the exclusionary words of the second proviso operate in their
full vigour and the government servant cannot complain that he
has been dismissed, removed or reduced in rank in violation of
the safeguards provided by Article 311(2).

The second condition necessay for the valid application of
clause (b) of the second proviso is that the disciplinary autho-
rity should record in writing its reason for its satisfaction
that it was not reasonably practicable to hold the inquiry
contemplated by Article 311(2). This is a Constitutional obliga-
tion and if such reason is not recorded in writing, the order
dispensing with the inquiry and the order of penalty following
thereupon would both be void and unconstitutional. Ii
272 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

/, It is obvious that the recording in writing of the reason
for dispensing with the inquiry must preceed the order imposing
the penalty. The reason for dispensing with the inquiry need
not, therefore, find a place in the final order. It would be
usual to record the reason separately and then consider the
question of the penalty to be imposed and pass the order imposing
the penalty. It would, however, be better to record the reason
B in the final order in order to avoid the allegation that the
reason was not recorded in writing before passing the final order
but was subsequently fabricated. The reason for dispensing with
the inquiry need not contain detailed particular, but the reason
must not be vague or just a repetition of the language of clause
(b) of the second proviso. For instance, it would be no
compliance with the requirement of clause (b) for the disciplin-
e ary authority simply to state that he was satisfied that it was
not reasonably practicable to hold any inquiry. Sometimes a
situation may be such that it is not reasonably practicable to
give detailed reasons for dispensing with the inquiry. This
would not, however, ~ se invalidate the order. Each case must
be judged on its own merits and in the light of its own facts and
circumstances.
D
It was vehmently co~tended that if reasons are not recorded
in the final order, they must be coonnunicated to the concerned
government servant to enable him to challenge the validity of
that reasons in a departmental appeal or before a court of law
and the failure to coonnunciate the reasons would invalidate the
E order. This contention too cannot be accepted. The constitu-
tional requirement in clause (b) is that the reason for dispen-
sing with the inquiry sould be recorded in writing. There is no
obligation to conmrunicate the reason to the government servant.
As clause (3) of Article 311 makes the decision of the discipli-
nary authority on this point final, the question cannot be
F agitated in a departmental ·appeal, revision or review. The
obligation to record the reason in writing is provided in clause
(b) so that the superiors of the disciplinary authority may be
able to judge whether such authority had exercised its power
under clause (b) properly or not with a view to judge the perfor-
mance and capacity of that officer for the purposes of promotion
G etc. It would, however, be better for the disciplinary authority
to communicate to the government servant its reason for dispens-
ing with the inquiry because such communication would eliminate
the possibility of an allegation being ma<le that the reasons have
been subsequently fabricated. It would also enable the govern-
ment servant to approach the High Court under Article 226 or, in
H
u.0.1. v,. TULSIRAM .[MADON, J.] 273

a fit case, this Court under Article 32. If the reasons are not A
communicated to the government servant and the matter comes to
the court, the court can direct the reasons to be produced, and
furnished to the government servant and if still not produced, a
presumption should be drawn that the reasons were not recorded in
writing and the impugned order would then stand invalidated.
Such presumption can, however, be rebutted by a satisfactory B
explanation for the non-production of the written reasons.

It was next submitted that though cla\Ule (b) of the second
proviso excludes an inquiry into the charges made against a
government servant, it does not exclude'an inquiry preceding it,
namely, an inquiry into whether the disciplinary inquiry should c
be dispensed with or not, and that in such a preliminary inquiry
the government servant should be given an opportunity of
hearing by issuing to him a notice to show cause why the inquiry
should not be dispensed with so as to enable him to satisfy the
disciplinary authority that it would be reasonably practicable
to hold the inquiry. This argument is illogical and is a contra- o
diction in terms. If an inquiry into the charges against a
government servant -is not reasonably practicable, it stands to
reason that an inquiry into the question whether the disciplinary
inquiry should be dispensed with or not is equally ,not reasonably
practicable.

A government servant who has been dismissed, removed or E
reduced in rank by applying to his case clause ( b) or an analo-
gous provisions of a service rule is not wholly without a remedy.
As pointed out earlier while dealing with the various service
rules, he can claim in a departmental appeal or revision that an
inquiry be held with respect to the charges on which the penalty
of dismissal, removal or reduction in rank has been imposed upon F
him unless the same or a similar situation prevails at the time
of hearing of the appeal or revision application. If the same
situation is continuing or a similar situation arises, it would
not then be reasonably practicable to hold an inquiry at the time
of the hearing of the appeal or revision. Though in such a case
as the government servant if dismissed or removed from service, G
is not continuing in service and if.reduced in rank, is continu-
ing in service with such reduced rank, no prejudice could be
caused to the Government or the Department i f the hearing of .ln
appeal or revision application, as the case may be, is postponed
for a reasonable time.

Where a government servant is dismissed, removed or reduced
274 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A in rank by applying clause (b) or an analogous provision of the
service rules and the approaches either the High Court under
Article 226 or this Court under Article 32, the court will inter-
fere on'grounds well established in law for the exercise of power
of judicial review in matters where administrative discretion .is
exercised. It will consider whether clause (b) or an analogous
provision in .the service rules was properly applied or not. The
ll finality given by clause (3) of Article 311 to the disciplinary
authority's decision that it was not reasonably practicable to
hold the inquiry is not binding upon the court. The court will
also ex&nine the charge of mala fides, if any, made in the writ
petition. In examining the relevancy of the reasons, the court
will consider the situation which according to the disciplinary
authority made j.t come to the conclusion that it was not reason-
c ably· practicable to hold the inquiry. If the court finds that
the reasons are irrelevant, then the recording of its satisfac-
tion by' the disciplinary authority would be an abuse of power
conferred upon it by clause (b) and would take the case out of
the purview of that clause and the · impugned order of penalty
would stand invalidated. In considering the relvancy of the
reasons given by the disciplinary authority the court will not,
D however, sit in judgment over them like a court of first appeal.
In order, to decide whether the reasons are germane to clause (b),
the court must put itself in the place of the disciplinary autho-
rity and. consider what in the then prevaling situation a reason-
able man acting in a reasonable way would have done. The matter
will have to be judged in the light of the then prevailing situa-
E tion and'not as if the disciplinary authority was deciding the
questioh ·whether the inquiry should be dispensed with or not in
the cool and detached atmosphere of a court room, removed in time
from the situation in question. Where two views are possible,
the court will decUne to interfere.

F During the course of the argument a reference was made to
certain High Court decisions and their citations were given. We
have carefully gone through those decisions. It is, however,
unnecessary to refer to them. In so far as what was held in
those deCisions or any of them is contrary to or incosistent with
what has been held by us, those decisions are not correct and
G are to that extent hereby overruled.

The Second Proviso - Clause (c)

We now turn to the last. clause of the second proviso to
Article 311(2) , namely, clause (c). Though its exclusionary
H
U.O.I. v: TULSIRAM [MADON, J.J 275

operation on the safeguards provided in Article 311(2) is the A
same as those of the other two clauses, it is very different in
content from them. While under clause (b) the satisfaction is to
be of disciplinary authority, under c.lause (c) it is to be of the
President or the Governor of a State, as the case may be.
Further, while under clause (b) the satisfaction has to be with
B
respect to whether it is not reasonably practicable to hold the
inqiry, under clause (c) it is.to be with respect to whether it
will not be expedient in the interest of the security of. the
State to hold the inquiry. Thus, in one case the test is of
reasonable practicability of holding the inquiry, in the other
case it is of the expediency of holding t~e inquiry. While clause
(b) expressly requires that the reason for dispensing with the c
inquiry should be record~d in writing, clause (c) does not so
require it, either expressly or impliedly'.

The expressiona "law and order", "public order" and
"security of the State" have been used in different Acts. Situa-
tions which affect "public order" are graver than those which D
affect "law and order" and situationa which affect "security of
the State" are graver than those which affect "public order".
Thus, of these situationa these which affect "security of the
State" are the gravest. 'Danger to the security of the State may
arise from without or within the State. The expression "security
of the ·state" does not mean security of the entire country or a E
whole State. It includes security of a part of the State. It.also
cannot be confined to an armed rebellion or revolt. There are
various ways in which security of the State can be affected. It
can be affected by State secrets or information relating to
defence production or similar matters being passed on to other
countries, whether inimical or not. to our country, or by secret
links with terrorists. It is difficult to enumerate the various F
ways in which security of the State can be affected. The way in
which security of the State is affected may be either open or
clandestine. Amongst the more obvious acts which affect the
security of the State would be disaffection in the Armed Forces
or para-military Forces. Disaffection in any of these Forces is
likely to spread, for disaffected or dissatisfied members of G
these Forces spread such dissatisfaction and disaffection among
other members of the Force and thus induce them not to discharge
their duties properly and to commit acts of indiscipline,
insubordination and disobedience to the orders of their
superiors. Such a situation cannot be a matter affecting only law
and order or public order but is a matter affecting vitally the
security of the State. In this respect, the Police Force H
276 SUPREME COURT REPORTS [1985] SUPP.2 $.C.R.

A stands very much on the same footing as a military or a para-
military force for it is charged with the duty of ensuring and
maintaining law and order and public order, and breaches of
discipline and acts of disobedience and insubordination on the
part of the members of the Police Force cannot be viewed with
less gravity than similar acts on the part of the members of the
B military or para-military Forces. How important the proper
discharge of their duties by members of these Forces and the
maintenance of discipline among them is considered can be seen
from Article 33 of the Consitution. Prior to the Constitution
(Fiftieth Amendment) Act, 1984, Article 33 provided as follows :

"33. e.-r to Parliament to modify the rights con..-
c ferred by this Part in their application to Forces.

Parliament may by law determine to what extent any of
the rights conferred by this Part shall, in their
application to the member of the Armed Forces or the
Forces charged with the maintenance of public order,
be restricted or abrogated so as to ensure the proper
D discharge of their duties and the ma1ntervure of
disclpllue 8llDDg them."

By the Constitution (Fiftieth Amendment) Act, 1984, this Article
was substituted. By the substitued Article the scope of the
Parliament's power to so restrict or abrogate the application of
E any of the Fundamental Rights is made wider. The substituted
Article 33 reads as follows :

"33. PcNer to Parlfl!ll!'Ot to lllOdtiy the rights confer-
red by this Part in their application to Forces, etc.,

F Parliament may, by law, determine to what extent any
of the rights conferred by this Part shall, in their
application to, -

(a) the members of the Armed Forces ; or
G (b) the members of the Forces charged with the main-
tenance of public order; or

(c) persons employed in any bureau or other organisa-
tion established by the State for purposes of intelli-
gence or counter intelligence; or
H
u.o.r. v. TULSIRAM [MADON, J.] 277

(d) persons employed in, or in connection with, the
A
telecommunication systems set up for the purposes of
any Force, bureau or organisatiion referred to in
clauses (a) to (c),

be restricted or abrogated so as to ensure the proper
cliscl'Brge of t:heir duties and the maintenance of B
discipliDe amoog them. -

Thus, the discharge <>f their duties by the members of these
Forces and the maintenance of discipline amongst them is consi-
dered of such vital importance to the country that in order to
ensure this the Constitution has conferred upon Parliament to c
restrict or abrogate to them.

The question under clause (c), however, is not whether the
security of the State has been affected or not, for the
expression used in clause (c) is "in the interest.of the security
of the State". The interest of the security of the State may be
D
affected by actual acts or even the -likelihood of such acts
taking place. Further, what is required under clause (c) is not_
the satisfaction of the President or the Governor, as the case
may be, that the interest of the security of the State is or will
be affected but his satisfaction that in the interest of the
security of the State, it is ~ expedient. to hold an inquiry as
contemplated by Article 311(2). The satisfaction of the
E
President or Governor must, therefore be with respect to the.
expediency or inexpediency of holding an inquiry in the interest
of the security of the State. The Shorter Oxford English
Dictionary, Third Edition, defines the word "inexpedient" as
meaning "not expedient; disadvantageous in the circUlllStances,
unadvisable impolitic." .The same dictionary defines "expedient"
F
as meaning inter alia "advantageous; fit, proper, or suitable to
the circUlllStanees-----Of the ~se." Webster's Third New
International Dictionary also defines the term "expedient" as
meaning inter alis "characterzied by suitability, practicality,
and efficiency '""iiiachieving a particular end : fit, proper, or
advantageous under the circUlllStances." It must be borne in mind
G
that the satisfaction required by clause (c) is of the Constitu-
tional Head of the whole country or of the State. Under Article
74(1) of the Constitution, the satisfaction of the President
would be arrived at with the aid and advice of his Council of
Ministers with the Prime Minister as the Head and in the case of
a State by reason of the provisions of Article 163(1) by the
H
Q:ivernor acting with the ai.d and advice of his Council of
278 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Ministers with the Chief Minister as the Head. Whenever, there-
fore, the President or the Governor in the Constitutional sense
is satisfied that it will not be advantageous or fit or proper or
suitable or politic in the interest of the security of the State
to hold an inquiry, he would be entitled to dispense with it
under clause (c). The satisfaction so reached by the President
B or the Governor must necessarily be a subjective satisfaction.
Expediency involves matters of policy. Satisfaction may be
arrived at as . a result of secret information received by the
' Government about the brewing danger to the security of the State
and like matters. There may be other factors which may be
required to be considered, weighed and balanced in order to reach
the requisite satisfaction whether holding an inquiry would be
c expedient or not. If the requisite satisfaction has been reached
as a result of secret information received by the Government,
making, known such information may very often result in dis-
closure of' the Source of such information. Once known, the
particular source from which the information was received would
no more be available to the Government. The reasons for the
satisfaction reached by the President or Governor under clause
D (c) cannot, therefore, be required to be recorded in the order ·of
"dismissal, removal or reduction in rank nor can they be made
public,

In the.case of clal!Se (b) of the second proviso, clause (3)
of Article 311 makes the decision of the disciplinary authority
E that it was not reasonably .practicable to hold the inquiry final.
There is no such clause in Article 311 with respect to the satis-
faction reached by the President or the Governor under clause (c)
of the second proviso. There are two reasons for this. There
can be no departmental appeal or other departmental remedy
against the satisfaction reached by ~he President or the
F Governor; and so far as tl)e Court' s power of judicial review is '
concerned, the Court cannot sit in judgment over State policy or
the wisdom or otherwise of such policy. The court equally cannot
be the judge of expediency or inexpediency. Given a known situa-
tion, it is not for the Court to decide whether it was expedient
or inexpedient in the circumstances of the case to dispense with
G the inquiry. The satisfaction reached by the ·President or
Governor under clause (c) is subjective satisfaction and, there-
fore, would not be a fit matter for judicial review. Relying
upon the observations of Bhagwati, J., in State of Bajastban and
others e.tC.etc. v. Union of India eta.etc., [1978] l S.C.R. l,
82, it was submitted that the power of judicial review is not
H excluded where the satisfaction of the President or the Governor
U.Q.I. v. WLSIRAM [MADON, J.] 279

has been reached mala fide or is based on wholly extraneous or
irrele,vant grounds because in such a C'1ose, in law there would be A
no satisfaction of the President or the Governor at. all. It is
unnecessary to decide this question because in the matters under
clause (c) before us, all the materials including the advice
tendered by the j;owicil of Ministers, have been produced and they ·
clearly show that in those cases the satisfaction of the Governor
was neither reached mala fide nor was it based on an.y extraneous B
or irrelevant ground-.- - -

It was further submitted that what is required by clause (c)
is that the holding of the inquiry should not be expedient ill
the interest of the security of the State and .not !:he actual
conduct of a government servant which would be the subject-matter c
of the inquiry. This submis.sion is correct so far as it goes but
what it overlooks is that in an inquiry into acts affecting the
interest of the security of the State, several matters not fit or
proper to be made public, including the source of information
involving a government servant in such acts, would be disclosed
and thus in cases such as these an inquiry into acts prejudicial D
to the interest of the security of the State would prejudice the
int~rest of the security of the State as much as those acts
would.

It was also submitted that the Government must produce
before the court all materials upon which the satisfaction of the
President or the Governor, as the case may be, was reached. So E
far as the advice given. by the Council of Ministers to the Presi-
dent or the Governor is concerned, this submission is negatived
by the express provisions of the Constitution. Article 7~(2) of
.. the Constitution provides :

"(2) The question whether any, and i f so what, advice F
was tendered by Ministers to the President shall not
be inquired into in any Court."

Similarly, Article 163(3) provides
.... "(3) The question whether any, and i f so what, advice G
was tendered by Ministers to the Governor shall not be
inquired into in any Court."

It was then suhnitted that leaving aside the advice given by
the Ministers to the President or the Governor, the Government is
bound to disclose at least the materials upon which the advice of H
280 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A ' can examine
the Council of Ministers was based so that the Court
whether the satisfaction of the President or the Governor, as the
case may be, was arrived at mala fide or based on wholly extrane-
ous and irrelevant grounds so that such satisfaction would in law
amount to no satisfaction at au. It was further submitted that
if the Government does not voluntarily disclose such materials it
B can be compelled by the Court to do so. Whether this should be
done or not would depend upon whether the docunents in question
fall within the calss of privileged docunents and whether in
respect of them privilege has been properly claimed or not. It is
unnecessary to examine this question any fUllther because in the
caaes under clause (c) before us though at first privilege was
claimed, at the hearing privilege was waived and the materials as
C also the advice given by the Ministers to the Governor of Madhya
Pradesh who had passed the impugned orders in those caaes were
disclosed.

'!he Nature of the av.uenge to the Jmpugµed Orders

In all matters before us the challenge to the validity of
D the impugned orders was confined only to legal grounds, the main
ground being based upon what was held in a.aJ.lappan' s case and
the application of principles of natural justice. The cotent1.ons
with respect to these grounds have been considered by us in the
preceding part of this Judgment and have been negatived. In
most of the matters the Writ Petitions contain no detailed facts.
E Several of the Petitioners have gone in departmental appeal but
that fact is not mentioned in the Writ Petitions nor the order
of the appellate authority challenged where the appeals have been
dismissed. Many government servants have combine together to
file one Writ Petition and in the case of such of them whose
departmental appeals have been allowed and they · reinstated in
F service, the Petitions have not been amended so as to delete
their names and they have continued to remain on the record as
Petitioners. Several Petitions are in identical terms, if not,
almost exact copies of other Petitions. No attempt has been made
in such matters to dJ.stinguish the case of one Petitioner from
the other. Apart from contesting the legal validity of the im- ,_
G pugned orders, hardly any one has. even stated in his Petition
that he was not involved in the situation which has led to clause
(b) or clause (c) of the second proviso to Article 311 being
applied in his case. There is no allegation of mala ~
against the authority passing the impugned orders except at times
a more bare allegation that the order was passed mala fide. No
H particulars whatever of such alleged mala fides have been given.
u.o.I. v. TlllaSIRAM [MADON, J.J 281

Such a bare averment cannot amo\Dlt to a plea of mala £idea and A
rec1uires to be ignored. In this uosatisfactory state of affairs
so far as facts are concerned, the only course whieh this Court
can adopt is to consider whether the relevant clause of the
second proviso to Article 311(2) or of an analogous service rule
ha" been properly applied or not. If this Court finds that such
provision has not been- properly applied, the Appellant or the B
Petitioner, as the case may be, iii entitled to succeed. If,
however, we find that it has been properly applied, the Appeal or
Petition would be llible to be dismissed, because there are no
proper materials before the Court to investigate and ascertain
whether any particular government servant was, in fact, guilty of
the charges made against him or not. It is alao not the function c
of this Court to do so because it would involve an inquiry into
disputed questions of facts and this Court will not, except in a
rare case, embark upon such an inquiry. For these reaaons and in
view of the directions we propose to give while disposing of
these matters, we will while dealing with facts refrain from
touching any aspect except whether the particular clause of the D
second proviso to Article 311(2) or an analogous service rule was
properly applied or not.

C.A. No. 6814 of 1983

Civil Appeal No. 6814 of 1983 is the only matter before us
under clause (a) of the ~econd proviso to Article 311(2). E

The respondent, Tulsiram Patel, was a permanent auditor in
the Regional Audit Officer, M.E.S., Jabalpur. It appears that
orders were issued'by Headquarters, c.D.A. c.c., Meerut, stopping
the increment of the Respondent for one year. One Baj Kunar
Jairath was at the relevant time the Regional Audit Officer, F
M.E.s., Jabalpur. On July 27,1976, the Respondent went to Raj
Kunar's office and demanded an explanation from him as to why he
had stopped his increment whereupon Raj Kumar replied that he was
nobody to stop his increment. The Respondent then struck Raj
Kl.lllllr on the head with an iron rod. Raj Kumar fell down, his
head bleeding. The Respondent was tried and convicted under G
section 332 of the Indian Penal Code by the First Class Judicial
Magistrate, Jabalpur. The Magistrate instead of sentencing the
Respondent to imprisonment applied to him the provisions of
section 4 of the Probation of Offenders Act, 1958, and releaaed
him on his executing a bond of good behaviour for a period of one
y,ear. The Respondet's appeal against his conviction was dismiss- H
ed by the Sessions Judge, Jab!llpur. The Controller ~aeral of
282 SUPREME COURT REPORTS [1985) SUPP.2 s.c.R.

A Defence Accounts, who was the disciplinary authority in the case·,
imposed upon the Respondent the penalty of compulsory retirement
under clause .( i) of Rule 19 of the Civil Services Rules. The
said order was in the following terms :

''WllEREAS Shri T.R. Patel, Pt. Auditor (Accmmt ·
B No.8295888) has been convicted on a criminal charge,
to wit, under. Section 332 of I.P.C.,

WHEREAS it is considered that the conduct of the said
Shri T.R.Patel, · Pt.Auditor, (Account No. 8295888)
which has led to his conviction, is such as to render
his further retention in the public service
c undesirable,

Now, therefore, in exercise of the powers conferred by
Rule 19ti) of the Central Civil Services (Classifica-
tion,. Control and Appeal) Rules, 1965, the undersigned
hereby direct that the said Shri T.R. Patel, Pt. Audi-
tor,(Account No.8295888) shall be compulsorily reti~ed
D from service with effect from 25.11.1980."

The Respondent thereupon filed a departmental appeal which was
diSmissed.

Thereafter the Respondent filed in the Madhya Pradesh High
E Court a writ petition under Articles 226 and 227 of the Constitu-
tion. Relying upon Qiallappsn' a Case the High Court held that no
opportunity had been afforded to the Respondent before imposing
the penalty of compulsory retirement on him. It further held
that the impugned order was defective inasmuch as it did not
indicate the circumstances which were considered by the discip-
F linary authority except the fact of conviction of the Respondent•

We are unable to agree with either of the two reasons given
by the High Court for setting aside the order of compulsory
retirement. So far as the first ground upon which the High Court
proceeded is concerned,' as already pointed out that part of the
G judgment in "'811apan 1 s case is not correct and it ~~s, there-
fore, not necessary to give to the Respondent any opportunity
of hearing before imposing the penalty of compulsory retirement
on him.

It was, however, argued that the penalty imposed upon the
H Respondent was not of dismissal or removal from service but of
U.Q.I. v. TULSIRAM [MADON, J.] 283

A
compulsory retirement and, therefore, clause (a) of Article
311(2) did not apply. The argument cannot be accepted. The
compulsory retiremen~ of the Respondent was not by reason oi his
reaching the age of superannuation or under other rules which
provide for compulsorily retiring a go .ernment servant on his
completing the qualifying period of service. The order of com- B
pulsory retirement in this case was under clause (i) of Rule 19
of the Civil Services Rules and was by way of imposing upon him
one of the major penalties provided for in Rule 11. It is ruiW
we.11 settled by decisions of this Court that where an order of
compulsory retirement is imposed by way of penalty, it amounts to
removal from service . and the provisions of Article 311 are c
attracted. (See State of U.P. v. Shyam Lal Shanaa, [1972] 1
$.C.R. 184,189 and the cases referred to therein).

The second ground upon which the High Court rested its deci-
, sion is equally unsustainable. The circumstances which were
taken into consideration by the disciplinary authority hc.ve been o
sufficiently set out in the order of. compulsory retirement, they
b"ing that the Repondent 's conviction under section 332 of the
Indian Penal Code and the nature of the offence committed which
led the disciplinary authority to the conclusion that the further.
retention of the Respondent in the public service was undesir-
able.. The mention of section 332 of the Indian Penal Code in the E
said order itself shows that Respondent was himself a public
servant and had voluntarily caused hurt to another public servant
in the discharge of his duty as such public servant or in conse-
quence of an act done by that person in the lawful discharge of
his duty. The facts here are eloquent and speak for themselves.
The Respondent had gone to the off ice of his superior officer and
had hit him on the head with an iron rod. It was fortunate that F
the skull of R£.j Kumar was not fractured otherwise the offence
committed would have been the more serious one under section 333.
The Respondent was lucky in being dealt with leniently by the
Magistrate but these facts clearly show · that his retention in
public service was undesirable. In fact, the conduct of the
Respondent was such that he merited the penalty of dismissal from G
government service and it is clear that ·by imposing upon him only
the penalty of compulsory retirement, the disciplinary authority
had in his mind the fact that the Magistrate had released him
on probation. We accordingly hold that clause (i) of Rule 19 of
the Civil Services Rules was rightly applied to the case of the
Respondent.
H
284 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A This Appeal, therefore, requires to be allowed and the writ
petition filed by the Respondent in the Madhya Pradesh High Court
deserves to be dismissed.

CISF Matters

B Civil Appeal No. 3484 of 1982 - Union of India and others v.
Sada Nand Jha nd others and Civil Appeal No. 3512 of 1982 - Union
of India and others v. G.P.Koushal- relate to the members of the
CIS Force who were dismissed from the Force after dispensing with
the disciplinary inquiry by applying clause (b) of Rule 37 of the
CISF Rules read with clause (b) of the second proviso of Article
311(2). All except one of them filed a writ petition in the
c Patna High Court while the remaining one filed a writ petition in
the Madhya Pradesh High Court. Both the High Courts allowed the
writ petitions relying upon the decisions in Cballappan's case.
Civil Appeal No. 3484 of 1982 is directed against.the judgment of
the Patna High Court while Civil Appeal No. 3512 of 1982 is
directed against the judgment of the Madhaya Pradesh High Court.

D Before dealing with the relevant facts, we may mention that
the counter affidavit filed to the writ petition in both the said
High Courts were unsatisfactory. At the hearing .of these Appeals
an application was made on behalf of the Appellants for leave to
file a supplementary return• This application was granted by us
in the interest of justice and the supplementary Return annexed
E to the said application was taken on the record. We will now
briefly set out the facts which led to the passing of the impug-
ned orders. The Respondents in Civil Appeal No. 3484 of 1982 are
dismissed members of the CISF Unit at Bokaro Steel Plant of the
Bokaro Steel Limited situate at Bokaro in the State of Bihar
temporary security guard in the CISF Unit posted at Security
F Paper Mill at Hoshangabad in the State of Madhya Pradesh. We
will first deal with the facts of Civil Appeal No. 3484 of 1982.
The members of the CISF Unit at Bokaro had formed an all-India
association in March 1979 and one Sadanand Jha, Respondent No. 1,
was elected as its General Secretary. Thereafter, a country wide
agitation was carried on for recognition of the said association.
In June 1979 some of the members of the said association were
G
called upon to meet the Home Minister at llelhi· A delegation of
the said association went to Delhi. While there they staged a
demonstration. Some of the demonstrators, including Sadanand Jha,
were arrested. What happened thereafter can best be related by
extracting paragraphs 3 tu 9 of the supplementary Return filed by
H Shri Madan Gopal, the Depurty Inspector~neral, CISF Unit of
Bokaro Steel Plant, Bokaro, pursuant to the leave granted by this
Court. These paragraphs . read as follows :
u.o.r. V• TULSIRAM [MADON, J. J 285

A
"3. The said persons were arrested at Delhi, but
subsequently released on bail. At Bokaro Steel Plant,
the agitation which was going on assumed aggravated
from on and from 27th May, 1979. Out of 1900 persons
belonging to CISF Unit, Bokaro Steel Plant, Bokaro,
about 1000 persons participated in the processions and
B
violent demonstrations. The said employees indulged in
agitational acts and violent indiscipline. The said
personnel unleashed a reign of terror in the unit
lines and openly incited others to disobey the lawful
orders. The said persons indulged in several acts of
violence and created a very serious law & order
problem and an atmosphere of collective violence and c
intimidation. The said agitat,ton and the violent
activity reached a very serious proportion in the
last week of June, 1979 with the result that Army had
to be called by the State Authorities on 23.6.1979.
Annexed hereto and marked Annexure AFD-I is the
request from the Home Commissioner, Eihar Government D
to the Ministry of Defence, Government of India dated
23.6.1979 requesting for the deployment of the Army so
as to restore normalcy in the area. The State Govern-
ment had also deployed 9 Magistrates to assist the
Arniy authorities as also the CR.PF for restoring the
nonual conditions at the Bokaro Steel Plant. A copy E
of the ordl".'t' is enclosed herewith and marked as
Annexure AF'!J-II,

4. On 24.6.1979, on seeing the arrival of the Army,
the agitators started making preparations for armed
resistence by putting up sand bags, flood lights and
barricades in the CISF Lines. They had gained the F
control of CISF Lines and the Officers were not allow-
ed to have any access to the Lines or to other ranks
of CISF.

5. On 25.6.1979, the Army along with 9 Magistrates
took up positions round the CISF Lines in the early G
hours and called upon the agitators to give up charge
of the Armoury. Inspite of giving repeated warnings
by the authorities to give up charge of the Armoury,
the agitators did not give up arms, but, instead,
resorted to violence. The agitators started firing at
0320 hours at the Arrey. The Army returned the fire.
The said exchange of fire continued for 3 hours before H
the Army could spell out the violent retaliation of
286 SUPREME COURT 1'.ilPORTS [1985] SUPP.2 s.c.R.

A the agitators. The said violent exchage of fire
resulted in the instant death of one Army Major and 2
more Army personnel were also killed as a result of
firing by the CISF personnel.

6.It may also be stated that there were 22 death in
B the course of the said pitched battle, 'which went on
for three hours between th e violent armed agitators
and the Army.

7. In regard to the aforesaid violent activities and
the comnission of offences, about800 personnel were
rounded up by the Army and later on arrested by the
c local police. It is pertinent to mention here that at
the relevant time, about 1900 personnel were deployed
in CISF Unit, Bokaro Steel Plant, Bokaro. More than
1000 personnel participated in the aforesaid
agitational activities. Besides the persons arrested
by the authorities concerned, a substantial number of
agitators were at large. Most of them either fled
D away or went underground and large number of arms and
ammunitions were also with them. The search and
seizure of arms and ammunition were going on and as a
result thereof uptill 1.7.1979, 65 rifles along with
large quantity of amunitions, 11 molotov cocktails, 20
kgs. of sulphur, 20 kgs of glass chips and other
E explosives and 1048 empties of .303 ammunition were
recovered from the area after the Army action. A copy
of the FIR lodged in connection with aforesaid commis
sion of offences .is annexed herewith and marked as
Annexure (AFD-llI).

F 8� Notwithstanding the arrest of the said about 800
employees, as aforesaid, atmosphere at the Bokaro
Steel Plant continued to be vitiated due to terror ar.d
collective fear and the functioning of the CISF Unit
and its administration at Bokaro had completely broken
down. It was only Army which could control the situa
G tion by its continued presence. The Army was with
drawn from the Bokaro Steel Plant only on or about
2.7.1979, however it may not be out of place to men�
tion here that although the Army was withdrawn in the
P.arly July, 1979 but atmosphere of terror and tension
continued for a couple of months. The CRPF continued
H performing security duties till Nov. 79. Besides this
u.o.I. v. TULSIRAM [MADON, J.] 287

Bihar Military Police took charge of anooury from arm:r A
and continued to perform some of armed duties of CISF
as CISF Unit was not in a position to function nor-
mally for a considerable time. Even the State autho-
rity apprehended a dangerous situation after the Army
action including threat to lives of senior officers of
CISF. B

9. In the meanwhile, having regard to the violent and
distrubed situation which prevailed in the Bokaro
Steel Plant as also the collective actions of
violence, mass terror and intimidation and threats to
supervisory and loyal staff, it wa8 reasonably c
believed that any inquiry in accrodance with the pro-
visions of the Rules 34, 35 and 36 of CISF Rules, 1969
or in accordance with the requirements of Article
311(2) would be dangerous, counter productive· and
would aggravate the already existing · dangerous
situation. It was also reasonably believed that the D
circumstances were such as would make the holding of
any inquiry self~efeating, subversive or would result
in consequent detriment to public interest. It was in
these circumstances that the concerned authoFities
formed reasonable nexus that any inquiry in accordance
with ·the rules was reasonably impracticable and
impugned orders were passed in view thereof." E

We see no reason to doubt the ~bove statmements made by Shri
Madan Gopal in. the Supplementary Return for these statements are
supported by documents which have been annexed to the Supplement-
ary Return. The facts set out in the above paragraphs of the
Supplementary Return are eloquent and speak for themselV..s. They F
are also reflected in the impugned order. All the impugned
orders are in the. same terms .apart from the mention of the name
and service number of the particular member of the said CISF Unit
against whom the order is made. By way of a specimen we set out
below the impugned order dated June 29, 1979, made in the case of
Sadanand Jha. The said order is as follows G
''Whereas a large group of members of Central
Industrial Security Force (hereinafter referred to as
the Force) of CISF Unit, Bokaro Steel Ltd., Bokaro
have indulged and still continue to indulge in acts of
insubordination and indiscipline, dereliction of duty, H
absenting from PT and parade, taking out processions
288 SUPl@lE COURT REPORTS [1985) SUPP:2 s.c.a.

A ,
and raising slogans ~uch as 'INQULAB ZINDABAD'. 'VARDI
VARDI VARDI BHAI BHAI LARKE I.ENGE PAI PAI' 'JO llAllSE
TAKRAYEGE CHOOR CHOOR HO JAYEGA' and 'PUNJAB KI JEET
HAMAR! HAI AAB CISF Kl BARI HAI', participating in the
gherao of Supervisory Officers, participating in
hunger strike and 'dharna' near the Quarter Guard and
Administrative Building of CISF Unit, Bokaro Steel
Ltd., since 27th May 1979 in violation of the provi-
sions of CISF Act, 1968 and instructions of the
Superior Officers and in complete disregard of their
duties as members of the Force;

And whereas the aforesaid group also indulged in threats
c of violence, bodily harm and other acts of intimation to Super-
visory Officers and loyal members of the Force;

And whereas by the aforesaid collective action, the
members of the Force have created a situation whereby the normal
functioning of the Force at the aforesaid CISF Unit has been
rendered difficult and impossible;
D
And whereas 7205199 Security Guard Sada Nand Jha as an
active participant of the aforesaid group has been extremely
remiss and negligent in the discharge of his duty and has proved
totally unfit for the same by absenting himself from parade un-
authorisedly and indulging in various acts of extreme indiscip-
E line and mis-conduct, as aforesaid;

And whereas I am satisfied that in the facts and circum-
stances, any attempt to hold departmental inquiry by serving a
written charge-sheet and following other procedures in the manner
provided in rules 35 and 36 of the CISF Rules, 1969 will be
F frustrated by the collective action on the part of the aforesaid
group and hence it is not reasonably practicable to hold such
inquiry;

And whereas on a consideration of the f~cts and circumstan-
ces of the case I am satisfied that the penalty of dismissal from
G service should be imposed on 7205199 Security Guard Sada Nand
Jha;

Now, therefore, in exercise of the powers conferred by sub-
rule (b) of the rule 37 of the CISF Rules, 1969 read with clasue
(b) of the second proviso to clause (2) of Article 311 of the
H
u.o.r. v. TULSIRAM [MADON, J.] 289

Constitution, 1 hereby order that 7205199 Security Guard Sada A
Nand Jha be dismissed from service with immediate effect."

The CIS Force has been constituted under the CISF Act for
the better protection and security of industrial undertakings
owned by the Government. Under section 14 of the Act, the
Inspector~neral of the CIS Force may on a request in that B
behalf from the Managing Director of an Industrial undertaking in
pubHc sector, showing the necessity thereof, depute such number
of supervisory officers and members of the ClS Force as the
Inspector~neraJ. may consider necessary for the protection and
security of that industrial '\lndertaking and any installation
attached thereto. '!'h~,purpose of ·constituting the CIS force is c
set out in the State!lli!fie'of Objects' and Reasons to the Bill which
when enacted becaJ!hO the ClSF Ai:t. The said Statement of Objects
and Reasons is published in the Gazette of India Extraordinary
dated August 2, 1966, Part II, Secction 2, at page 435, and is as
follows :

"At present security.arrangements at, important indust-
rial undertakings in the public sector are handled by
the Watch and Ward staff of the Organization concer-
ned. The Watch and Ward staff is generally engaged in
guarding the entrances or the perimeter of the indust-
rial undertaking and in preventing entries of unautho- E
rised persons. Unplanned recruitment, insdequate
supervision, training and discipline have made the
existing watch and ward staff ill equipped to
discharge its responsibilities. It is considered
necessary to strengthen the,security arrangements in
vital industrial undertakings. For that purpose it is
proposed to constitute a centrally recruited, organis- F
ed and trained , Industrial Security Force. The Force
will primarily be responsible for the watch and ward
of industrial undertakings owned by the Central
Government and may be deployed at the request and
cost of managements, for security duties of industrial
undertakings in public sector." G

The CIS Force is an Armed Force and the security duties to
be performed by the CIS Force are of vital importance to the
industrial production of the country. The CIS Force has been
conferred very wide powers. Under Section 11 of the CISF Act, any
supervisory officer or member of the Force may, without any order
H
290 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A from a Magistrate and without a warrant, arrest any person who
has been concerned in or against whom a reasonable suspicion
exists of his having been concerned in or who is found taking
precautions to conceal his presence under circumstances which
afford reason to believe that he is taking such precaut1ons with
a view to cOllllllitting a cognizable offecne relating to the
B property belonging to any industrial undertaking or other instal-
lations. Similarly, under section 12 for the same purpose a
supervisory officer or member of the CIS Force, not below the
prescribed rank; has the power to search the person and belong-
ings of any person whom he has reason to believe to have cOllllllit-
ted any such offence as is referred to in section 11. From what
is stated above, it is obvious that in a Force entrusted with
c such large responsibility, maintenance of discipline is most
essential and, this is made clear by section 18(1)of the CISF Act
which pr~vides as follows :

, "18. Penalties for oeglect of duty, etc.
' >

(1) Without prejudice to the provisions contained in
D Sec tion e, every member of the Force ,who shall be
',·,]! guilty of any violation of duty or wilful breach or
neglect of any rule or regulation or lawful order made
I
• by a supervisory officer, or who shall withdraw from
• the duties of his office without permission, or who,
being absent on leave, fails, without reasonable
E cause, to report himself for duty on the expiration of
the leave or who engages himself without authority in
any employment other than his duty as a member of the
i , Force, or who shall be guilty of cowardice, shall, on
conviction, be punished with imprisonment for a term
which may extend to six months."
F
Under section 19 of the CISF Act, the Police (Incitement to Dis-
affection) Act, 1922, applies to. supervisory officers and memhers
of the CIS Force as it applies to members of a Police Force.
Under seCtion 20, neither the Payment of Wages Act, 1936, nor the
Industrial Disputes Act, i947, nor the Factories Act, 1948, nor
G any corresponding State Act applies to the member of the CIS
Force.

The facts s~t out in the Supplementary Return of Shri Mohan
Gopal and in the impugned orders show that there was a total
breakdown of discipline in the CIS Force. There was a wilful and
H deliberate disobedience of orders of the supervisory officers and
'gherao'. of such officers. There was a hwiger strike, dharna,
u.o.r. v. TULSIR&'! [MADON, J. J 291

shouting of revellious slogans and threats of violence and bodily A
harm to supervisory officers and acts tending to intimidate the
supervisory officers and loyal members of ~he staff. There were
acts of insubordination and deliberate neglect and wilful vio-
lation of their duties by a very large section of the members of
the CIS Force stationed at Bokaro. All these acts virtually
amounted to a mutiny and how grave the situation was can be judge B
from the fact that the army had to be called out and a pitched
battle took place between the army and. the members of the Force.
No person with any reason or sence of responsibility can say-that
in such a situation the holdirig of an inquiry was reaaonably
practicable.
c,
It was said that the impugned orders did not set out the
particular acts done by each of the members of the CIS Force in
respect of whom the dismissal orders was made, and- these were
merely cyclostyled orders with the names of individual members of
the CIS Force f llled in. Here was a case very much like a case
under section 149 of the Indian Penal Code. The acts alleged D
were not of any particular individual acting by himself. These
were acts of a large group acting collectively with the common
object of coercing those in charge of the administration of the
CIS Force and the Government in order to obtain recognition for
their association and to concede their demands. It- is not possi-
ble in a si.tuation such as this to particularize the acts of each E
individual members who participated in the commission of these
acts. The participation of each individual may be of greater or
lesser degree but· the acts of each individual contributed to the
creation of a situation in which a securitY force itself became a
security risk.

It was submitted' at the Bar that the real reason for passing F
the orders impugned in Civil Appeal No. 1484 of 1982 was the
encounter with the army on June 25, 1979, and this real reasOn as
not mentioned in the impugned order because the Respondents had
been arrested and were being prosecuted and, therefore, before
passing the impugned' 'orders, the disciplinary authority would
have had to wait till the prosecutions were over. Such an G
allegation has not been made in the writ petition filed in the
High Court. In fact, there is no mention in the writ petition of
the help of the army being sought or of the encounter with the
army• ' The impugned orders ·mentioned the· reasons why they were
passed. Thell SuppleJnentary Returns 'bears out these reasons. We
have, therefore, no hesitation in.accepting what is stated in the
H
292 SUl'Rl'ME . COURT REPORTS [1985] 5UPP.2 s.c.R.

impugned orders. In our opinion; clause (b) of Rule 37 of the
A CISF Rules and clause (b) of the second proviso to Article 311(2)
were properly applied to the cases of the Respondents.

Finally, a grievance was made at the Bar that the dismissed
members of the CIS Force had filed departmental appeals and the
appeals of those who had been discharged by the Magistrate were
B allowed and these appellants were re.instated. We do not know how
far this is correct nor the reasons for allowing such appeals,
but if what is stated is ture, it is not fair and the remaining
appeals should be disposed of as early as possible.

The impugned order in Civil Appeal No. 3512 of 1982 is in
the same terms as the impugned orders in Civil Appeal No. 3484 of
C 1982. The situation at Hoshangabad was very much the same as at
Bokaro and in our opinion clause (b) of Rule 37 of the CISF Rules
and clause (b) of the second proviso to clause (2) of Article 311
were properly applied to the case of the Respondent.

Both these Appeals, therefore, require to be allowed.

D ~y Service Matters

Civil Appeals Nos. 3231 of 1981 and 4067 of 1983 and all the
Writ petitions filed in this Court (except Writ Petitions Nos.
1953 of 1981, 7393,1392 and 2022 of 1981) and all Transferred
Cases, that is, writ petitions filed in High Courts annd trans-
E ferred t,, this Court, relate to railway servants who were either
dismissed or removed from service by applying to their cases
either caluse (ii) of Rule 14 of the Railway Servants Rules or
clause (b) of the second proviso to Article 311(2) or clause (ii)
of Rule 14 read with clause (b) of the second proviso.

F We have carefully gone through the facts of each of these
cases. The majority of the railway employees who were dismissed
or removed are alleged to have been concerned in incidents which
took place in all-India strikes of railway employees. Many of
these employees belonged to the all-India loco-running staff.

G Ille proper running of the railway service is vital to the
country. Railway trains carry not only those going for a holiday
but also those who commute to work or business. In certain
cities, for instance - Hom.bay, Lakhs commute daily by train for

H
U.O.I. V• TULSIRAM [MADON, J.j 293

this purpose. The railway trains also carry those going to attend A
the funeral or obsequiel ceremonies of near and d~ar ones and
equally they carry marriage parties. They carry those who are in
urgent need of medical treatment or have been seriously injured
and not having proper medical aid in the places where they
reside, have to be rushed to the nearest town, city or district
headquarter where such medical aid . is available. They carry B
essential commodities like foodgrains, oil, etc. They carry
equipment and machinery vital for the needs of the country. In
times of disturbances they carry members of the Defence Forces
and the Central Reserve Police Force. In this connection, it is
pertinent to note what Shah ,J., as he then was, had to say in
lloti Ram Deka's case (at pages 795-6) about the railway c
administration and employment in railaway service:

" ••• einployement in the Railways is in a vitally
important establishment of the Union .in which the
employees are entrusted with valuable equipment and a
large measure of confidence has to be reposed in them D
and on the due discharge of the duties the safety of
the public and the efficient functioning of the
governmental duties depend. Not only the travelling
public, but the Union and the States have in a
considerable measure to depend upon rail transport for
the functioning of the governmental machinery and its E
welfare activities •. It would be possible even for one
or a few employees of the Baihray to paralyse COll!lOOlli-
cations 8lld movement of essential supplies leading to
\
diBorder and confusion. 1be Railway service has there-
fore a special responsibility in the smooth function-
ing of our body politic •••• •
F
As pointed out. in Kamesbwar Prasad and others v. 1be State
of l!ihar and 8DOther (at page 385) there is no Fundamental Right
to resort to a strike. A strike is only legal if an Act permits
it and only if i t is called in compliance with the conditions
prescribed by the Act. The definition of "public utility service"
in clause (n) of section 2 of the Industrial Disputes Act, 1947, G
includes any railway service. The term ,;strike" is defined in
clause (q) of section 2 of the said Act. The said clause (q) is
as follows

"'strike' means a cessation of work by a body of
persons employed in any industry acting in combination
H
294 SUPREME COURT REPORTS (1985] SUPP;2 S.C.R.

A or a concerted refusal, or a refusal under a common
understanding, of any number of persons who are or
.have been so employed to continue to work or to accept
employment".

Under sub-section (1) of section 22 of the said Act, no person
B employed in a public utility service can go on strike in breach
of contract without giving to his employer a notice of strike as
prescribed by that section. Under section 24 a strike is illegal
i f it is cOlllilenced or declared in contravention of section 22.
Under section 26(1) any workman who connnences, continues or
otherwise acts in furtherance of a strike which is illegal under
the said Act, comnits an offence punishable with imprisonment for
C a term which may extend to one month or with a fine which may
extend to fifty rupees or with both. The railway strikes were all
commenced without complying with the provisions of section 22.
These strikes were, therefore, illegal and each of the railway
servants who participated in these strikes committed an offence
punishable under section 26(1) of the said Act.

D It may be that the railway servants went on these strikes
with the object of forcing the Government to meet their demands.
Their demands were for their private gain and in their private
interest. In seeking to have these demands conceded they caused
untold hardship to the public and prejudicially affected public
good add public interest and the good and interest of the nation.
E
It ·was contended that the conduct charged .againat all
employees was not of equal gravity. This is true for in the case
of some of the railway servants the acts alleged to have been
conmitted by them would not if committed in normal times, merit
the penalty of dismissal or removal from service, but when
F committed in furtherance of an all-India strike which has
paralysed a public utility service they cannot be viewed in the
same light.
It was also contended that the punishments were arbitrarily
meted out because in some centres the railway servants were
G dismissed from service while in some other centres they were
removed from service. The quantum and extent of penalty would
depend ,upon the gravity of the situation at a particular centre
and the extent to which the alleged acts, though not serious in
themselves, in conjunction with acts committed by others; contri-
buted to the bringing about of this situation.
H '.
r
'
u.o.I. v. TULSIRAM [MADON, J.] 295
,

In the context of an all-India strike where a very large
A
nwnber of railway servants had struck work, the railway services
paralysed, loyal workers and superior officers assaulted and
intimidated, the country held to ransom, the economy of the
country and public interest and public good prejudicially affect-
ed, prompt and innnediate action was called for to bring the
situation to normal. In these circwnstances, it cannot be said
B
that an inquiry was reasonably practicable.

On a careful examination of the facts of these cases and the
impugned orders, we find that in each of these cases clause (ii)
Rule 14 of the Railway Servants Rules or clause (b) of the second
proviso to Article 311(2) or both, as the case may be, were
properly applied. All these matters therefore .require to be c
dismissed.

'Die Madhya Pradeab Police Forcea Matters

The matters which now remain to be dealt with are Writ
Petitions Nos. 1953,7393,1392 and 2022 of 1981. The Petitioners
belonged either to the Madhya Pradesh District Police Force or·
the Madhya Pradesh special Armed Force. The Petitioners were
dismissed by orders ·of the Governor ,.of, Matlhya Pradesh by
applying clause ·(c) of the second proviso to Article 311(2) to
them. All the orders are in the same tenns except for the same
and designation of the concerned policeman. One of the orders E
may be reproduced as a specimen. That order is as follows:

"As the Governor of.M.P. Under article 311(2) C clause
2, sub-clauses (c) of the proviso of Constitution is
satisfied, that it is not expedient in the interest
of the security of State that in case of Shri Karan
Singh cons t. no. 602, 2nd Bn. SAF the alleged charges F
to be told, enquiry to .be conducted, or opportunity to
show cause is to be provid~ as per provisions of
clause (2) of the above article,

And, as Governor of M.P. is satisfied .that the con-
duct, which appears from his actions or omissions, is G
such that it is sufficient ground for his .dismissal/
termination,

As such, t.he ,Governor of M. P. on the ground of powers
vested. to him under article 311(2) C read with article
H
29.6 SUPREME COURT REPORTS [1985) sUPP:2 s.c.a.

A 310 of the Constitution dismisses/terminstes Shri
Karan singh Const. no. 602, 2nd B.n. SAP, under said
power, from the services, which will apply with
immediate effect.

On behalf and under orders of
B the Governor of M.P.
Sd/- (Indira Mishra)
Under Secretary
Govt. of M.P:, Home (Police) Deptt."

We have already held that in applying clauae (c) of the
second proviso the Governor of a State acts on his subjective
C satisfaction taking into consideration facts and factors which
are not proper matters for judicial review. However, the claim
of privilege .was waived by the Government a.nd all the materials
produced at ·the hearing and inspection given to the other side.
These materials disclose that an incident took place on January
18, 1981, at the annual Mela held at Gwalior in which one man was
burnt alive. Some persons, including a constable from each of
D these two Forces, were arrested. These persons were remanded
into judicial custody. On January 20, i 981, several members of
these two Forces indulged in violent demonstrations and rioted at
the Mela ground, demanding the release of their colleagues. They
attacked the police station at the Mela ground, ransacked it and
forced the operator to close down the wireless set. The situa-
E tion became so dangerous that senior district and police officers
had to approach the Judicial Magistrate at night and get the two
arrested constables released on bail. The incident was discussed
at a Cabinet meeting, a decision was taken and the advice of the
Council of Ministers was tendered to the Governor of Madhya
Ptadesh who accepted it and issued the impugned orders. On
F further scrutiny some nsmes were deleted from the list of
dismissed personnel and some others included. As a result of
this, some other members of these Forces began carrying on an
act!ve propaganda against- the Government, visiting Jabalpur and
other places in the State of Madhya Ptadesh, holding secret meet-
ings, distributing leaflets, and inciting the constabulary in
G these places to rise against the administration as a body in
protest against the action taken by the Government. On this
information being received, they too were similarly dismissed.
These facts speak for themselves. The police normally oppose the
grant of bail to an accused but here we have the '
paradoxical
situation of some of the highest police and district officers
H going at midnight to the Magistrate's house to apply for bail for
u.o.r. v. TULSIRAM (J:IADON, J. J 297

the ·accused. The police are the guardians of law and order. A
They stand guard at the border between the green valleys of law
and order and the rough and hilly terrain of lawlessness and
public disorder. If these guards turn law~breakers and create
violent public disorder and incite others to do the same, we can
only exclaim with Juvenal, "Quis custodiet ipsos' Custodes?" -
"Who is to guard the guards themselves?" (Satires, VI,347). B
These facts leave no doubt . that the situation was such that
prompt and urgent action was necessary and the holding of a
inquiry into the conduct of each of the Petitioners would not
have been expedient in the interest of the security of the State.
All these four Petitions, therefore deserve to be dismissed.·
c
Final Orders in the Appeals and Writ Petitions

For the reasons set out above, we pass the following orders
in the above matters

(1) Civil Appeal No. 6814 of 1983 is allowed and the •D
judgment and order appealed against are reversed and
set aside and the.writ petition filed by the Respon-
dent in the High Court is hereby dismissed.

(2) Writ Petitions Nos. 1953, 7393, 1392 and 2022 of
1981 are hereby dismissed. E

(3) All the remaining Writ Petitions and all the
Transferred Cases and Civil Appeals Nos. 3231 of 1981
and 4067 of 1983 are dismissed while Civil Appeals
Nos. 3484 and .3512 of 1982 are allowed and the judg-
ments and orders appealed against are reversed and set
aside and the writ petitions filed by the Respondents F
in the High Courts are hereby dismissed. We· direct
the appellate authority under the Central Industrial
Security Force Rules, 1969, to dispose of as expe-
ditiously as possible such appeals of the members of
the Central Industrial Security Force as may still be
pending. In the case of those government servants in G
this particular group of matters who have not filed
any appeal, in view of the fact that they were relying
upon the decision of this Court in a.a.J.appan's case,
we give them time till September 30, 1985, to file a
departmental appeal, if so advised,-and we direct the
concerned appellate authority to condone in the
exercise of its power under the relevant service rule H
298 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A the delay in filing the appeal and, subject to what is
stated in this Judgment under the headings "Service
Rules and the Second Proviso - Challappan's case and
"The Second Proviso - Clause

_(b)", to hear the appeal on merits.
B ( 4) All interim orders made in the above matters are
.'vacated but the government servants will not be liable
to refund any amount so far paid to them.

(5) There will be no order as to costs in all the
above matters.

C (6) All other matters pending in this Court in which a
1
- question of the interpretation of the second proviso
to clause (2) of Article 311 or of an analogous
service rule is involved will stand disposed of in .
1
accordance with this Judgment.

THAKKAR, J. A benevolent and justice-<>riented decision of
D a three-Judge Bench of this Court, rendered ten years back in a
group of service matters, (D.P.O. Southern Railway v. T.R.
Challappan), [1976] 1 S.C.R. 783, is sought to be overruled by
the judgment proposed to be delivered by my learned Brother
Madon, J, with which, the majority appear to agree. "Challappan"
having held the field for such ·' long time, it would have been
E appropriate if a meeting of the Judges Constituting the Bench
had been convened to seriously deliberate and evolve a consensus
as to whether or not to- overrule it. A 'give' and 'take 1 of
ideas, with due respect for the holders of the opposite point of
view (in a true democratic spirit of tolerance), with willingness
to accord.due consideration to the same, would not have impaired
F the search for the true solution or hurt the cause of justice.
The holders of. the rival view. points could have, perhaps,
successfully persuaded and converted the holders of the opposite
point of view or got themselves persuaded and converted t:b the
other point of view.

G Brother Madon, J, to whom the judgment was assigned by the·
learned Chief Justice, also appears to Suffer heart-ache on the
same score, for, in his covering letter date:! July 6, 1985
forwarding the first instalment of 142 pages he says :

"...... I regret to state that the .draft judgment
H could not be sent to vou earlier. The reason was that
u.0.1. v.· TULSIRAM [THAKKAR, J,] 299

A
as we did not have a meeting to discuss th$,s matter, I
did not know what would be the view of my other
Brothers on the large number of points which fall to
be. ~etermined in these cases, except partly in the
case of two of my Brothers with whom by chance _I got
en opportunity to discuss certain broad aspects ..... "•
B
[ f only there had, been a meeting in order to have a dialogue,
there might have been a ·meeting of minds, and we might have
.spoken in one voice. Failing which, the holders of the dissent-
ing view point could have prepared their dissenting opinions.
[That was not to be. On the•other hand, it has so transpired that,
the full draft judgment running into 237 pages has come to be c
circulated in the morning of July 11, 1985, less than 3 hours
before the deadline for pronouncing the judgment. There is a
time-compulsion to pronounce the judgment, on 11th July, 1985, as
the learned Chief Justice who has presided over the Constitution
!Bench is due to retire on that day, and the judge-time invested
D
by the five Judges would be wasted if it is not pronounced before
his retirement. The judge-time would be so wasted because the
entire exercise would have to be done afres~. The neck-to-neck
race against time and circumstances is so . keen that it is
impossible to prepare an elaborate judgment presenting the other
point of view within hours and circulate the same amongst all the
E
Judges constituting the Bench in this important matter which was
heard for months, months ago. I am, therefore, adoptirtg the only
course open to me in undertaking the present exercisee

'Challappan', in my opinion, has been rightly decided. And
there is no compulsion to overrule it - Even if the other point
of view were to appear to be more 'attractive', it is neither a
good nor a sufficient ground to overrule 'Challappan'. After all F
what does 'Chaliappan' do? It does no more than enjoin in the
context'of Rule 14(1) (a) and therefore, as a logical corollary,
also in the cont~xt of Rule 14(a) (b) of the Railway Servants
(Discipline and Appeal) Rules, 1968, that an employee must
at least be heard on the question of quantum of punishment before
G
'he. is dismissed or removed from service without holding any
inquirye The ratio of the decision is so innocuous that there is
hardly any need to overturn it. Apart from the weighty reasons
articulated by the three-Judge Bench, there are some more-which
can be called into aide But while the 'will' is very much there,
not the 'time', to elaborate the reasons to buttress 'ChallappB.n'
and to counter the criticism levelled against the thesis
H
300 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

propounded therein. Or to expound my point of view in regard to
A propositions in respect of which I have reservations. I propose
to do so later if deemed necessary.

For the present, therefore, suffice it to say, I am unable
to persuade myself to fall in line with the majority in overrul-
ing 'Challappsn' and unable to concur with the consequential
orders being passed in that context. I am also unable to asso-
B ciate myself with the exposition of law in regard to the true
meaning and content of the 'pleasure doctrine' and its implica-
tions and impact.

The sphere in which I am able to agree with the proposed
judgment is in regard to the matters arising out of orders passed
in exercise of powers under Article 311(2) (c) of the Constitu-
C tion of India and the orders proposed to be passed therein.

In the result:

I

Following the law laid down in 'Challappan' the undermen-
D tioned appeals are dismissed with no order as to costs:-

Civil Appeal No. 6814 of 1983
Union of India &Anr. v. Tulsiram Patel

Civil Appeal No. 3484 of 1982
E Union of India &Ors. v. Sadanand Jha & Ors.

Civil Appeal No. 3512 of 1982
Union of India & Ors. v. G.P. Koushal
II

F Following the law laid down in 'Challappan', the Writ Peti-
tions and allied appeals and the companion matters hereafter
mentioned are allowed and the impugned orders against the Peti-
tioners are declared to be void and quashed with no order as to
costs:-

G Writ Petitions Nos.2267,2268,2269,2273,3349,3350,3351,
3352,3353,6500,8120 of 1982 & 562 of 1983. Bishwaroop
Chatterjee etc. v. Union of India & Ors. etc. with
Civil Appeal Nos. 3231 of 1981 and 4067 of 1983 •
. Aehinita Biswas etc. v. Union of India & Ors. etc. and
other allied Transferred cases and matters arising out
H of Railway Service matters.
U.Q.l. V• TULSIRAM [THAKKAR, J.) 301

III A

The same orders dismissing the Writ Petitions coupled wi.th
the same directions as per the majority judgJnent in :

Writ Petition No. 1953 of 1981,7393,1392, 2202 of l98l
and Other allied M.P. Police Force matters under B
Article 3ll (2) (c).

N.V.K.