KHAIRAT HUSSIAN Vs. UNION OFINDIA

JUDGEMENT

(1.) THIS petition under Art. 226 of the Constitution of India seeks to quash an order dated 5 September 1966, passed by the President of India terminating the petitioner's service. The impugned order runs as follows:

(2.) FOR the petitioner this order was challenged on the ground that the pleasure of the President of India under Cl. (1) of Art. 311 of the Constitution is subject to the rules that have been framed in virtue of Art. 309 of the Constitution. I have repelled this submission in Muhammad Akhtar v. Union of India [1967 - II L.L.J. 767]. In the next place it was submitted that Art. 310 has been held in the decision mentioned above to be subject to Art. 311, Under Art. 311(2) the services of a permanent employee, which the petitioner was, could not be terminated without affording him a reasonable opportunity of showing cause in respect of the charges and the penalty proposed to be inflicted upon him. The exception to the rule is given in the proviso thereof. Clause (c) of the proviso states that where the President or the Governor, as the case may be, is satisfied that in the interest of security it is not expedient to hold such an enquiry, then Cl. (2) of Art. 311 will not apply. The learned counsel urged that in the present case there was nothing to indicate that Cl. (c) of the proviso was attracted. The impugned order did not recite that the President was satisfied that in the interest of security of the State it was not expedient to hold an enquiry under Art. 311(2). The counter-affidavit filed on behalf of the respondents also does not make any such assertion. There is no averment that the President of India was satisfied as to Cl. (c) of the proviso. In this situation Art. 311(2) is clearly attracted. Admittedly no enquiry as contemplated by that provision was held. The impugned order thus violates Art. 311(2) of the Constitution.