SATYENDRA KUMAR DUTTA Vs. UNION OF INDIA

JUDGEMENT

(1.) THROUGH this writ of certiorari the petitioner Satyendra Kumar Dutta has challenged his dismissal from service as a Lower Division Clerk in the Ministry of home Affairs by order of the President dated 17th of January, 1957 (Annexure D ).

(2.) CONCEDEDLY, the petitioner was not given an opportunity to show cause against the dismissal as required by clause (2) of Article 311 of the Constitution of India. It is the case of the respondent-Union that the applicability of clause (2) of Article 311 requiring "reasonable opportunity of showing cause against the action" is excluded by virtue of sub-clause (c) of the proviso because "the President. . . . . . . . . . . . is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.

(3.) MR. Sinha, learned counsel for the petitioner, submits that Article 311 (2) has been interpreted to mean that a person holding a civil post is entitled to a dual opportunity when (1) enquiry is held, and (2) action is proposed to be taken against him. This principle has been recently affirmed in the decision of their lordships of the Supreme Court in Khem Chand v. Union of India. AIR 1958 SC 300. Mr. Sinha then contends that sub-clause (c) of the proviso to this Article, referring as it does only to "an opportunity" could relate only to a single opportunity. He submits, therefore, that the President can only dispense with one of the two opportunities presaged in clause (2) of Article 311. It is further argued that opportunity to deny his guilt and establish his innocence at the time of enquiry is the one which cannot be withheld even under the proviso. It is the counsel's ensuing contention on this aspect of the case that the only opportunity of which requires him to show cause why the action proposed should not be taken in respect of him. This argument is both fallacious and untenable. In exceptional circumstances, enumerated in the proviso, the Constitution takes away the right of being afforded reasonable opportunity of showing cause under Article 311 (2) and it is "such' opportunity which the President on his satisfaction, in the interest of the security of the State, can dispense with. Manifestly, it would be a futile exception if this denial is restricted in the interest of security only to the second opportunity and a full trial is permitted to be held and the concerned official has the right to deny his guilt and establish his innocence by cross-examining the witnesses produced against him. Sub-clause (c) of the proviso would be devoid of any meaning and content if it is held that the first or even the second opportunity under Article 311 (2) falls outside the purview of the President's satisfaction. The exceptions to the proviso to clause (2) of Article 311 in the peculiar circumstances referred to therein cannot be negatived by a strained construction which is sought to be put on the word 'opportunity' used in singular.