S NEELAKANTA IYER Vs. STATE OF KERALA

JUDGEMENT

(1.) By this petition under Art.226 of the Constitution, the petitioner challenges the validity of Ext. P6, an order dated January 24, 1959, passed by the respondent, the Government of the State of Kerala, removing him from service as a Sub-Inspector of Police. A petition of complaint against him for alleged misconduct, was presented to the then Minister for Law by one Radhamma, upon which, pending enquiry, he was suspended from service, on February 17, 1958. Preliminary enquires having been made thereon, Government ordered, by notification dated March 7, 1958, a detailed departmental enquiry under the Kerala Civil Service (Classification, Control and Appeal) Rules, 1957, which may be referred to hereafter as the Kerala Rules, to be held on the complaint for indecent behaviour and misconduct on his part, and committed the enquiry to the Enquiry Commissioner and Special Judge, who may be referred to hereafter as the Commissioner. Upon the complaint, the Commissioner framed a charge against the petitioner, the substance of which was, that after ascertaining that Radhammas husband was not at home on the evening of February 7, 1958, he entered her house on the pretext of questioning her on a matter pending before him in his official capacity, although she had been questioned previously, directed her brother who was in the house to remain in the verandah, entered the kitchen, talked indecently to her, touched her person, and when she was trying to escape, caught hold of her and restrained her and promised to put an end to her troubles if she acted as desired by him, and that he behaved in this manner with the intention of outraging her modesty. The Commissioner issued summons, Ext. P1 with the charge appended, to the petitioner, who filed his written statement of defence, and after enquiry, submitted to Government a report, Ext. P2, dated May 12, 1958, holding the charge of misconduct to be proved, arid suggesting the petitioners reversion to his next lower post for a particular period, as contemplated by R.9 (iv) of the Kerala Rules, as a suitable punishment. It is seen from the file of papers furnished to me by the learned Government Pleader, that by letter dated July 29, 1958, Government sought the opinion of the Public Service Commission, stating, that in their view, dismissal from service would be the proper punishment. By Ext. P7, reply, dated September 12, 1958, the Public Service Commission agreed with the view of Government as to the punishment, upon which Ext. P3, notice with a copy of Ext. P2 appended, was issued by Government on October 11, 1958, to the petitioner to show cause against the proposed punishment. The petitioner submitted his reply Ext. P4, upon which, suggesting that the punishment may be reduced to one of removal from service, Government again addressed the Public Service Commission on December 26, 1958, for its opinion, and the latter concurred in the modification proposed. Accordingly, the impugned order, Ext. P6, was passed and on February 21, 1959, the Inspector General of Police (General) intimated the petitioner by Ext. P5, that he was removed from service with effect from February 17, 1958, the date on which he was suspended from service. The main contentions on behalf of the petitioner are three-fold, first that he was not afforded reasonable opportunity within the meaning of Art.311 (2) of the Constitution, of showing cause against his removal from service, second, that on receipt of the Commissioners report Government did not come to any finding as to his guilt, and third, that whatever conclusion Government arrived at had been induced by the Public Service Commission.

(2.) The first of the above contentions was really based on non compliance with the provisions in R.17 (2), of Para.1 of the Kerala Rules, which may be extracted below:-

(3.) Art.310 enunciates the doctrine of pleasure if it may be so described, as regards the tenure or the termination of service of a civil servant, and corresponds to the English doctrine that all public officers and servants of the Crown hold their appointments at the pleasure of the crown. The expression during the pleasure as it occurs in that Article is no term of art, but has certain legal implications, such as, that the service of the civil servant is terminable at any time, that damages cannot be awarded to him as for wrongful dismissal, and that arrears of pay cannot be recovered by him, should the order of dismissal be declared to be void. The doctrine has been interpreted by the Supreme Court in State of Bihar v. Abdul Majid, AIR 1954 S.C. 245 at 250, to mean that the tenure of office of a civil servant, except where it is otherwise provided by statue, can be terminated at anytime without cause assigned. It is unnecessary to examine how this doctrine was being applied in India through the decades which have preceded the birth of the Constitution of India, both before and after the date of the Government of India Act, 1919, and the date of the Government of India Act, 1935, as such examination has been undertaken in several decided cases. It is sufficient to note, that Art.310(1) itself has limited the application of the doctrine by making it subject to the express provisions in the Constitution, such provisions being found in Art.124, 148, 218 and 324, which respectively provide, that the Supreme Court Judges the Auditor General, the High Court Judges, and the Chief Election Commissioner, shall not be removed from their respective offices, except under certain conditions, and also, I may add, in Art.311(2) which prescribes, that before a civil servant is dismissed, or removed, or reduced in rank, he ought to be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The Kerala Rules, though framed under Art.309 and are therefore statutory do not proprio vigore form part of the Constitution within the meaning of the term except as expressly provided by this Constitution in Art.310 (1); this is also true of the Civil Service (Classification, Control and Appeal) Rules, framed under S.96-B of the Government of India Act, 1919, or of any similar body of Rules, whether framed, earlier and deemed to continue in force after the Constitution by virtue of Art.313 and 372, or promulgated for the first time under Art.309. The rules so continued or framed, may deal with the tenure of service or with the conditions of service of civil servants, but State of Bihar v. Abdul Majid has made a distinction between them; rules of the former category are of no avail against the doctrine in Art.310(1) in so far as they seek to impose fetters in its application but rules of the latter category have nothing to do with it. At the same time, it has to be observed, that even rules which deal with tenure of service, to the extent that they make up the concept and constitute the essence of reasonable opportunity within the meaning of Art.311(2), may operate to qualify the doctrine, but this is because they are so ingrained in Art.311(2) as to form part of it. In Ramesh Chandra Verma v. R. D. Verma, AIR 1958 Allahabad 532, the court even suggested that