B C DASS Vs. STATE OF ASSAM

JUDGEMENT

(1.) WE have read the judgment prepared by our learned brother Bhargava: WE are in complete agreement with him so far as decision on points Nos. (2) and (3) is concerned, but with respect we are unable to agree with him on point No. (1).

(2.) IT is unnecessary to repeat the relevant facts which have been set out by our learned brother in his judgment. The impugned order dated 1/04/1965, in the case of appellant P. K. Hore may, however, be again reproduced:

(3.) NO doubt Art. 311 (2) is intended to afford a sense of security to government servants covered by sub-art. (1) and the safeguards provided by sub-art. (2) are mandatory. But cl. (c) of the proviso to this sub-article which is designed to safeguard the larger interest of the security of the State cannot be ignored or considered less important when construing sub-art. (2). The interest of the security of the State should not be allowed to suffer by invalidating the Governor's order on unsubstantial or hyper-technical grounds which do not have the effect of defeating the essential purpose of the constitutional safeguard of individual government servant. It is nobody's case before us that inquiry into the charges against the two appellants as contemplated by the amended Art. 311 (2) had already been held and the question of imposition of penalty alone remained to be finally settled when the impugned order was made. NO inquiry of any kind as contemplated by Art. 311 (2) was, according to the common case of the parties held against the appellants when the Governor made the impugned orders under proviso (c) to this sub-article. In these circumstances the impugned orders when they speak of the "action proposed to be taken" must be construed as intended to refer to the action including inquiry into the truth of the charges against them and the proposed penalty to be imposed after such inquiry. The fact that cl. (c) of the proviso to the amended sub-article only speaks of the inquiry and not of imposition of penalty is under standable because in the absence of inquiry the question of penalty cannot arise. It also serves to indicate that the Governor could not have intended by the impugned order to exclude only representation against imposition of penalty, leaving untouched the inquiry and the right of the government servant to the opportunity of, hearing with respect to the charges. Once it is borne in mind that the Governor's attention was for some reason or the other, drawn only to the unamended Art. 311 and not to the amended article and it is further kept in view that the amendment of Art. 311 in 1963, as already explained, was only designed to clarify and give effect to the judicial decisions interpreting the unamended article, the reason for the form and the language used in the impugned orders becomes clear and there can be no difficulty in understanding their true meaning. Reading the impugned orders in the fight of what has just been stated, they quite clearly exclude the applicability of sub-art. (2) of Art. 311 in both cases.