CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 149 1--1501 of 1974.
From the Judgment and Order dated 21.12.1973 of the High Court of Delhi in C.W. Nos 954/71, 211 to 218 and 249 and 251 of 1972.
F.S. Nariman, U.S. Prasad, S.K. Mehta, M.K. Dua, S.M. Sarin, Aman Vachhar and R. Jagannath for the appellants.
Anil Dev Singh, Miss Halida Khatoon. P. Parmeswaran for the Respondents. The judgment of the Court was delivered by
RANGANATH MISRA, J.These appeals are by certificate under Article 132 and involve the determination of the amplitude contained and nature of the power conferred on the President by clause (c) of the second proviso of Article 311(2) of the Constitution.
18 policemen---Sardari Lal and two others being SubInspectors and the remaining being either Head Constables or Constables--of the Delhi Armed Police Force were dismissed from service by separate but similar orders dated 14th April, 1967, by way of punishment. They challenged those orders before the Delhi High Court mainly contending that the exercise of power under clause (c) of the second proviso to Article 311(2) was not upon President’s personal satisfaction and as there had been no inquiry as mandated by Article 311(2), the dismissals were bad. The High Court did not accept the contention and rejected the writ petitions. The dismissed policemen carried appeals to this Court and by judgment dated 2 1st January, 1971 in Sardari Lal v. Union of India & Ors., [1971] 3 SCR 461 a Constitution Bench of this Court set aside the judgment of the High Court in each of the writ petitions and quashed the several orders of dismissal on the ground that each of them was illegal, ultra vires and void. This Court held:-
"On the principles which have been enunciated
by this Court, the function in clause (c) of
the proviso to Article 311(2) cannot be dele-
gated by the President to any one else in the
case of a civil servant of the Union. In other
words, he has to be satisfied personally that
in the interest of the security of the State,
it is not expedient to hold the inquiry pre-
scribed by clause (2). In the first place, the
general consensus has been that executive
functions of the nature entrusted by the
Articles, some of which have been mentioned
before and in particular those Articles in
which the President has to be satisfied him-
self about the existence of certain fact or
state of affairs cannot be delegated by him to
any one else. Secondly even with regard to
clause (c) of the proviso, there is a specific
observation in the passage extracted above
from the case of Jayantilal Amrit Lal
Shodban--[1964] 5 SCR 294--that the powers of
the President under that provision cannot be
delegated. Thirdly, the dichotomy which has
been specifically introduced between the
authority mentioned in clause (b) and the
President mentioned in clause (c) of the
proviso cannot be without significance. The
Constitution makers apparently felt that a
matter in which the interest of the security
of the State had to be considered should
receive the personal attention of the Presi-
dent or the head of the State and he should be
himself satisfied that an inquiry under the
substantive part of clause (2) of Article 311
was not expedient for the reasons stated in
clause (c) of the proviso in the case of a
particular servant." Following the judgment of this Court, the dismissed policemen were reinstated in service with effect from 16th April, 1971. On 5th of June, 1971, fresh orders of dismissal were served on these policemen again invoking the power under clause (c) of the second proviso to Article 311(2) for dispensing with the inquiry. One of the representative orders is extracted below:-
"Whereas you, Shri Sardari Lal, sub-
Inspector being No. D-331 (present No. D-1177)
of Delhi Police, held your office during the
pleasure of the President."
"And whereas the President, after
considering all the facts and circumstances of
your case, is satisfied under sub clause (c)
of the proviso to clause (2) of Article 311 of
the Constitution, that in the interest of the
security of the State it is not expedient to
hold, in relation to you, such inquiry as is
referred to in clause (2) of the said Article
311 of the Constitution."
"Now, therefore, the President is
pleased to dismiss you from service with
immediate effect."
Several writ applications were again flied before the High Court. It was inter alia contended that the order of dismissal without an inquiry aS envisaged in Article 311(2) was vitiated as the power under sub-clause (c) of the second proviso to Article 311(2) had not been made upon personal satisfaction of the President.
In the returns made to the Rule to two separate affidavits-one by the Inspector General of Police and the other by a Joint Secretary to the Union Government in the Ministry of Home Affairs--it was maintained that the President had personally considered all the facts and circumstances of each case and after having satisfied himself, passed the order that in the interest of the security of the State, it was not expedient to hold the inquiry. The original orders of the President along with the connected papers were placed before the High Court and the High Court held:-
"The contention, therefore, that the President
himself did not pass the impugned orders is
rejected. The question for decision then is
whether the court can scrutinize and examine
the facts and circumstances that led the
President to arrive at the satisfaction that
it was not expedient in the interest of the
security of the State to hold the inquiry
envisaged in Article ,311(2) against the
petitioners, and if so, to what extent." While examining this aspect of the matter, the High Court relied on the ratio of the decision of this Court in Sardari Lal’s case (supra) and examining the second aspect of the contention, the High Court held:-
"The result, therefore, is that the exercise
of power by the President under clause (c) to
the proviso to Article 311(2) is fully covered
by clause (1) of Article 361 and the President
is not answerable to any court for the exer-
cise and performance of his powers and duties
under this clause of the proviso to Article
311 and no court has jurisdiction to examine
the facts and circumstances that led to the
satisfaction of the President envisaged in
clause (c) except probably on the ground of
mala fide." The plea of mala fides is based upon the alleged factual situation that the respective impugned orders had already been taken by the Government and the President simply endorsed them was not entertained by the High Court and ultimately each of the writ petitions was dismissed.
Mr. Nariman, learned counsel appearing on behalf of the appellants has advanced three contentions in support of these appeals:-
(1) the impugned order of dismissal in 1971 which is claimed to have been passed on the personal satisfaction of the President is vitiated in view of the rule in the case of Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR 814.
(2) appellants having been reinstated in service in terms of the judgment of this Court, without leave of the Court, no second order of dismissal on the same material could have been passed; and
(3) the High Court was wrong in holding that the sufficiency of satisfaction of the President was not justiciable.
The first aspect argued by Mr. Nariman is on the basis of the reversal of the view expressed by this Court in Sardari Lal’s case (supra) by a later larger Bench judgment of this Court. The ratio in Sadari Lal’s case came to be considered in Shamsher Singh’s case (supra) by a seven-Judge Bench. Ray, CJ., who spoke for five members of the bench and with whom by a separate judgment, the remain- ing two learned Judges agreed spoke thus:-
"The decision in Sardari Lal’s case that the
President has to be satisfied personally in
exercise of executive power or function and
that the functions of the President cannot be
delegated is with respect not the correct
statement of law and is against the estab-
lished and uniform view of this Court as
embodied in several decisions to which refer-
ence has already been made. These decisions
are from the year 1955 up to the years 1971.
The decisions are Rai Saheb Ramjawaya Kapur v.
State of Punjab, [1955] 2 SCR 225; A. Sanjeevi
Naidu v. State of Madras, [1970] 3 SCR 505 and
U.N.R. Rao v. Smt. Indira Gandhi, [1977]
Suppl. SCR 46. These decisions neither re-
ferred to nor considered in Sardari Lal’s
case."
"The President as well as the Governor is the
Constitutional or formal head. The President
as well as the Governor exercises his powers
and functions conferred on him by or under the
Constitution on the aid and advice of his
Council of Ministers, save in spheres where
the Governor is required by or under the
Constitution to exercise his functions in his
discretion. Whoever the Constitution requires
the satisfaction of the President or the
Governor for the exercise by the President or
the Governor of any power or function, the
satisfaction required by the Constitution is
not the personal satisfaction of the President
or the Governor but the satisfaction of
the President or Governor in the Constitution-
al sense in the cabinet system of Government,
that is, satisfaction of his Council of Minis-
ters on whose aid and advice the President or
the Governor generally exercise all his powers
and functions. The decision of any minister or
officer under rules of business made under any
of these two Articles 77(3) and 166(3) is the
decision of the President or the Governor
respectively. These Articles did not provide
for any delegation. Therefore, the decision of
Minister or Officer under the rules of busi-
ness is the decision of the President or the
Governor." In their writ petitions, each of the appellants had contended before the High Court, following the ratio of Sadari Lal’s case which was then the law, that the President had not been personally satisfied before exercise of the power under the proviso to dispense with the inquiry and the respondents had taken pains to establish by pleading and producing the original records that the President had satisfied himself personally before be made the order dispensing with the inquiry. To reduce the argument on this aspect and to have an exact impression of how the impugned orders were made, we directed learned counsel appearing for the Union of India to produce the original record and the same has been put before this Court. It transpires therefrom that the papers were placed by the Ministry of Home Affairs for the consideration of the President by the Joint Secretary of the Union Territory of Delhi on 22nd of March, 1971, and were returned with a note of 20th of April, 1971, to the effect that the President would like to have the advice of the Council of Ministers in the matter. A draft note for the Cabinet was prepared relating to the matter and as the record indicates it got through the Cabinet and the Prime Minister recorded her approval. Thereafter, it was again placed before the President along with a note prepared on 25th May, 1971. The note clearly indicated:
"President’s Secretariat may kindly see their
note extracted at pre-page 7/n. As desired by
the President, the matter was placed before
the Council of Ministers. A copy of the Note
submitted to the Cabinet may kindly be seen at
flag ’H’. The Cabinet has approved the propos-
al contained in paragraph 6 thereof. Minutes
of the Cabinet meeting may be seen at flag
‘I’."
"It is requested that the matter may now be
placed before the President for
consideration."
On 2nd June, 1971, the President made the
following order:-
"I have considered the cases of the eighteen
Police officers, whose names are given in the
list appended to this order. I have also
considered all the facts and circumstances of
their cases stated in the notes of the Minis-
try of Home Affairs, dated March 22, 1971, and
May 25,1971."
"I am satisfied, under paragraph (c) of the
proviso to clause (2) of Article 311 of the
Constitution, that in the interest of the
security of the State it is not expedient to
hold an inquiry into the case of any one of
these Police Officers. I accordingly order
that these eighteen Police Officers be dis-
missed from service with immediate effect." It is clear from what has been extracted above that the order of the President was not on the basis of his personal satisfaction as required by the Rule in Sardari Lal’s case but was upon the aid and advice of the Council of Ministers, as required in Shamsher Singh’s case. In view of this factual position, learned counsel for the appellants fairly stated that there was no force in his first contention.
We see no force in the second point canvassed by Mr. Nariman. This Court quashed the orders of dismissal on account of noncompliance of the requirements of the law and when the Police Officers returned to service it was open to the employer to deal with them in accordance with law. No leave of this Court was necessary for making a fresh order in exercise of the disciplinary jurisdiction after removing the defects.
Now coming to the third contention of Mr. Nariman, the matter appears to have been concluded by the judgment of this Court in the case of Union of India & Anr. v. Tulsirara Patel & Ors., [1985] 3 SCC 398. Those were also cases of striking railwaymen against whom orders of dismissal had been made after dispensing with the inquiry by exercise of powers under the same proviso. Four learned Judges representing the majority spoke through Madon, J. and this Court held that there was a constitutional obligation to record in writing the reason for the satisfaction that one of the sub-clauses was applicable and if such reason was not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. The Court further stated that communication of the resaon to the aggrieved Government servant was not obligatory but perhaps advisable. The record of the case produced before us clearly indicates that the reason has been recorded though not communicated. That would satisfy the requirements of the law as indicated in Tulsiram Patel’s case. The plea of mala fides as had been contended before the High Court and casually reiterated before us arises out of the fact that typed orders dated 3rd of June, 1971, were already on record in the file when the papers were placed before the President; such a contention is without any substance. The President’s order is dated 2nd of June and the typed orders of dismissal bear the date of the following day. In this setting, there is no scope to suggest that typed orders representing Government’s decision were available on the record by the time the matter was placed before the President.
All the legal contentions have failed. Ordinarily in such a situation, the appeals have to be dismissed. Mr. Nariman, however, has placed before us for consideration a statement made by the Home Minister before the Lok Sabha on 18th of December, 1978. Therein he had stated:-
" .............. 18 persons who have been
dismissed by invoking clause (c) of the provi-
so to Article 311(2) will be considered for
grant of compassionate allowances." This statement was also reiterated in the papers placed before the President. Obviously the Government intended to pay them compassionate allowances. We have no sympathy for indiscipline. In fact, in an orderly force like the Police, indiscipline is bound to give rise to serious problems of administration. It is, however, unnecessary to go into that aspect of the matter as the Government had made it known that they intended to treat even these 18 policemen liberally by giving them compassionate allowances. The matter has been sufficiently protracted, the first order of dismissal was made a little more than 20 years back and in the meantime some of the policemen out of this group of 18 have died. In such circumstances to leave this matter for a future date for fixing compassionate allowance would not be just and proper. We had suggested to the learned counsel appearing for the Union of India to have instructions and give us an indication of what was in view of the Government when compassionate allowance was thought of. There has been no response yet. We are not prepared to detain delivery of the judgment on that ground. In our opinion, the situation would be met in a just way if instead of paying a recurring allowance, a lump sum amount is paid to the policemen who are alive or their legal representatives in the case of the policemen who are dead. We accordingly direct that in the case of Sub-Inspectors who were dismissed, a lump sum amount of Rs.60,000 (Rupees Sixty Thousand only), in the case of Head-Constables who were dismissed a sum of Rs.50,000 (Rupees Fifty Thousand only) and in the case of Constables a lump sum of Rs.40.000 (Rupees Forty Thousand only) should be paid within one month from today.
The appeals are dismissed subject to the direction for payment of the lump sum amounts indicated above in lieu of compassionate allowance. There would be no orders for costs. N.P.V. Appeals dismissed.