CHANDIGARH ADMINISTRATION UNION TERRITORY CHANDIGARH Vs. AJAY MANCHANDA

JUDGEMENT

(1.) Leave granted. Heard counsel for the parties. Clause (2) of Article 311 of the Constitution of India declares that no person who holds a civil post under the Union or the State "shall be dismissed or 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". The second proviso to clause (2), however, specifies three situations in which the requirements in Clause (2) do not apply. Clause (b) of the second proviso states that "where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such an inquiry", the enquiry and the opportunity provided by clause (2) can be dispensed with and punishment imposed straightaway. Clause (3) of Article 311 is really a continuation of clause (b) of the second proviso. Clause (3) says, "if , in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such an inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

(2.) In Union of India v. Tulsiram Patel, (1985) 3 SCC 398 , it has been held by the Constitution Bench that the second proviso to Article 311 is based on public policy, is conceived in public interest and is to be employed for public good. The Constitution Bench has pointed out that the paramount thing to bear in mind is that the second proviso will apply only where the conduct of the government servant is such that he deserves the punishment of dismissal or removal or reduction in rank. It was further pointed out that once the above test is satisfied and the conditions specified in the relevant clause in the second proviso are satisfied, the said proviso is attracted and it would not be necessary to comply with the requirements specified in clause (2). That was a case where a large number of railway employees had participated in an illegal All-India strike and the Government had responded by ordering their dismissal en masse. The action was held to be justified in the circumstances. At the same time, it was held that recording of reasons for forming the requisite satisfaction is mandatory. Though it is not necessary that those reasons must find a place in the order of punishment, it was held, the authority must produce the same when called upon to do by the Court. The desirability of incorporating the said reasons in the order imposing punishment was emphasised. It has been held by this Court in Collector of Monghyr v. Keshav Prasad Goenka (1963) 1 SCR 98 that where the statue requires the recording of reasons, any action taken without recording the reasons is invalid. Here, of course, the requirement is contained in the constitutional provision itself.

(3.) It is true that clause (3) of Article 311 declares further that when a question arises whether it is reasonably practicable to hold an inquiry, the decision of the competent authority shall be final on that question. But that does not mean that the scope of judicial review is excluded altogether. In State of Rajasthan v. Union of India, (1977) 3 SCC 592, it was held that clause (5) of Article 356 (introduced by Constitution 38th Amendment Act and deleted by the 44th Amendment Act, which provided that "notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground") does not preclude the Court from entertaining the challenge to a notification under Article 356 (i) on the ground that the requisite satisfaction was formed mala fide or that it was founded on extraneous grounds, because it was pointed out, in either of those cases, there is in law no satisfaction as contemplated by clause (1) of Article 356. It has been held by this Court in S. R. Bommai v. Union of India, (1994) 3 SCC 1 that even in the matter of exercise of power under Article 356 of the Constitution, the satisfaction of the President, while undoubtedly subjective, is not beyond the judicial scrutiny of the Courts under Article 32 or Article 226, as the case may be. The parameters of judicial review enunciated in S. R. Bommai (supra) have been held applicable in A. K. Kaul v. Union of India, (1995) 4 SCC 73 to a matter arising under proviso (c) to Article 311 (2). A reading of clauses (b) and (c) of the second proviso would establish that, if at all, the power under clause (b) is more circumscribed than the power under clause (c).