RAJ KISHORE TEWARI Vs. UNION OF INDIA

JUDGEMENT

(1.) WHILE speech may be good and a great art, sometimes reticence is better and also a greater art. The judgment of brother Ray, which follows hereinafter and in which I concur, has marshalled the relevant facts and determined the questions of law with such admirable and lucid dexterity that I thought of only signifying my concurrence without any further articulation But on a further scrutiny of the draft prepared by Ray, j. , I have thought that, in view of the importance of the question, I may add a few words, mainly by way of emphasis.

(2.) THE pleasure doctrine, so zealously enshrined and solemnly proclaimed in Article 310 (1) of the Constitution of India has fainted and failed in the very succeeding Article 311 (2) to such an extent that the former has become anachronistic, a hyperbole and almost a ritualistic legal verbiage, if the government cannot dismiss, remove or demote a holder of a Civil Post "except after an inquiry in which be has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges", as mandated in Article 311 (2) then to say as declared in grandiloquent terms in article 310 (1), that a holder of a Civil Post under the Union or the State "holds office during the pleasure of the President or the Governor, as the case may be, (meaning thereby the Central Government or the State Government vide, Section 3 (8) and Section 3 (60)of the General Clauses Act, 1897, read with article 367 of the Constitution),, would be highly incongruous. The doctrine of pleasure as in Article 310 (1) stands so much overturned and overborne by article 311 (2) as to become, by and large, an idle parade of empty words.

(3.) SUB-CLAUSE (b) of the Second Proviso to Article 311 (2), however, provides that clause (2) shall not apply where the authority concerned "is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry" as mandated in Clause (2) and Clause (3)provides that the decision of the authority concerned as to the impracticability of holding inquiry "shall be final". A too literal reading of these provisions might suggest that is only for the authority just to say in writing that an inquiry is not resonably practicable for some alleged reason and then to the employee any ground alleged, but without any enquiry, and the pledges of the authority. as to any inquiry being not reasonable practicable would be beyond any challenge, having been made "final" under Clause (3 ). This would obviously bring back the doctrine of pleasure and the creed of "hire and fire, so openly and deliberately sought to be overthrown by Clause (2) through the back door in disguise. Apart from the dictum of Justice Frankfurter that there is no surer way to misread a provision than to read it literally, such a literal constitution would make the words "reason to be recorded" and "reasonably practicable" absolutely redundant and otiose, unless it is held that the propriety of the reasons for holding the inquiry to be not reasonably practible must be subject to judicial scrutiny.