UNION OF INDIA V. TULSIRAM PATEL(1985) 3 SCC 398

UNION OF INDIA V. TULSIRAM PATEL

(1985) 3 SCC 398

 

FACTS

Here, it involved the interpretation of Articles 309, 310 and 311 of the Constitution and in particular the second proviso to clause (2) of Article 311 after its amendment by the Constitution (Forty-second Amendment) Act, 1976. All the civil servants in the case had either been dismissed or removed from service without being informed of the charges and holding any inquiry into the charges. They were not given any opportunity of being heard in respect of the charges. The dismissal or removal orders had been passed under one or more of the sub-clauses of second proviso to clause (2) of Article 311 or under similar provisions in rules made under the proviso to Article 309 or in the rules made under an Act referable to Article 309, for instance, Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, Rule 14 of the Railway servants (Discipline and Appeal) Rules, 1968, and Rule 37 of the Central Industrial Security Force Rules, 1969, or under such a rule read with one of the clauses of the second proviso to Article 311(2).

 

JUDGEMENT AND ANALYSIS

1. This Hon'ble court observed that the Government can issue general instructions in exercise of its executive power. These instructions may look very much like rules which the government makes in exercise of its statutory rule-making power which constitute delegated legislation. The instructions issued by the government under its executive power can supplement, but cannot supplant, the statutory rules made by the government. The executive instructions stand on a lower footing than statutory rules as they do not have the force of law.
2. The court also examined that Article 309 is, to be read, subject to Article 310. A law or a rule cannot impinge upon the overriding power of the President or the Governor to put an end to the tenure of a civil servant at his pleasure. The inter-relationship between Articles 309 and 310 has been explained by the Supreme Court as follows in Tulsiram Patel:The opening words of Article 309 make that Article expressly subject to the provisions of this Constitution. Rules made under the proviso to Article 309 or under Acts referable to that Article must be made subject to the provisions of the Constitution if they are to be valid. Article 310(1) which embodies the pleasure doctrine is a provision contained in the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to that Article are subject to Article 310(1). By the opening words of Article 310(I) the pleasure doctrine contained therein operates "except as expressly provided by this Constitution." Article 311 is an express provision of the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to Article 309 would be subject both to Articles 310(1) and Article 311. 
3. Furthermore, the court, while explaining the scope of article 311(2)(b), stated “... whether it was practicable to hold the inquiry or not, must be judged in the context of whether it was reasonably practicable to do so. It isn't considered an absolute impracticability which is required by clause (b). What is imperative is that the holding of the inquiry isn’t practicable according to the opinion of the reasonable man.”
4. It was held that none of the clauses i.e. (a),(b),(c) in article 311(2)(b), applied that there was to be held an inquiry or a hearing. The second proviso in the article was inserted as a matter of public policy and in public interest for the greater good. The second proviso also mentions that clause (2) wouldn't apply where one of the clauses of that proviso becomes applicable.

 

RELEVANT CASE LAWS

1. In Moti Ram Deka v. G.M., NEF Railwa, it was held that any such Act or rule trespasses upon the rights guaranteed to government servants by Article 311, it would be void. Similarly, such Acts and rules cannot abridge or restrict the pleasure of the President or the Governor of a State exercisable under Article 310(1) further than what the Constitution has expressly done. In the same way, such Act or rule would be void if it violates any Fundamental Right guaranteed by Part III of the Constitution.
2. In Sardari Lal v. Union of India, it was held that where the President or the Governor, as the case may be, if satisfied, makes an order under clause (c) of what is now the second proviso to Article 311 (2) that in the interest of the security of the State it is not expedient to hold an inquiry for dismissal or removal or reduction in rank of an officer, the satisfaction of the President or the Governor must be his personal satisfaction. The correctness of this view was considered by a seven-Judge Bench of this Court in Samsher Singh v. State of Punjab . It was categorically stated in that case that the majority view in the State of U.P. v. Babu Ram  was no longer a good law after the decision in Moti Ram Deka v. G.M., NEF Railwa. The theory that only the President or the Governor is personally to exercise pleasure of dismissing or removing a public servant is repelled by express words in Article 311 that no person who is a member of the civil service or holds a civil post under the Union or a State shall be dismissed or removed by authority subordinate to that by which he was appointed. The words “dismissed or removed by an authority subordinate to that by which he was appointed” indicate that the pleasure of the President or the Governor is exercised by such officers on whom the President or the Governor confers or delegates power.