ORDER
B.K. Somasekhara, J.
1. On 26-5-1995 the fateful day for the petitioner he suffered the impugned order in the proceedings ECIL:PG:IR:10.25:099968:303 passed by the 2nd respondent i.e., the Chairman and Managing Director of respondent No. 1, the Electronic Corporation of India Limited purporting to be under Standing order 30 of the standing orders of the Corporation (for short ‘the standing Orders’ and for short ‘the Corporation’ or ‘respondent No. 1). The reason being that such an order was passed dispensing with the enquiry in the public interest and in the interest of the Company as it was inexpedient to keep him in service which otherwise would be detrimental to the interest of the Company and the order was to be the penalty of dismissal from service inflicted on the petitioner. The nexus of the crux was said to be his involvement in the theft of a camera of a foreigner deposited with the Security Officer, one Vinaya Kumar on 20.5.1995.
2. The petitioner has challenged the vires of Standing Order 30 on the anvil of Article 14 and Article 311(2) of the Constitution of India (in short ‘the Constitution’) and further has sought for the relief of striking down the standing order and consequently to strike down the impugned order of dismissal.
3. The short and the crisp impugned order is self -explanatory and may be conveniently repeated:-
“on 20-5-1995 at about 10.00 a.m. two foreigners, Mr. Steven Lee Hammond and Mr. David Francis Morse of M /s. Rockwell Corporation, USA, visited the factory, while entering the factory through its South Gate, the foreigners deposited their two cameras with the Security Incharge, South Gate, for safe custody and return at the time of their departure. After completing their discussions with Wg. Cdr. K.S. Chandrasekhar, AGM, SEG, on their return, at about 4.00 p.m. they asked for their cameras and were informed that one of the two cameras belonging to Mr. Steven Lee Hammond was missing. Immediately thereafter, Security personnel on duty that day at South Gate were summoned and necessary investigations were made by the General Manager (P & A). As no useful information emerged from them nor the camera could be located, a complaint was lodged with the Kushaiguda Police Station regarding the theft of camera. It is reported by the Kushaiguda police that during investigation/interrogation, Shri M.J. Raju, Code No. 099968, Tradesman Mate ‘B’ MIS section, PG, confessed that he committed the theft of the camera in collusion with Shri P. Vinaya Kumar, Code No. 091874 Security Inspector, Security, PG, who had stolen the camera and handed over to him to take it out of the premises of ECIL for disposal, and that he concealed it in his table draw in MIS Section. Thereafter, the Police brought Shri M.J. Raju to his workplace, opened his table draw and at his instance recovered the missing camera in the presence of Manager, MIS. In his investigation report, the GM (P & A) also came to the conclusion that he committed theft of the said camera in collusion with Shri P. Vinaya Kumar, Security Inspector, based on the information/evidence gathered and the Police report. It is clear that only the information provided by them led to the recovery of the camera.”
Thus, after careful consideration of all relevant facts and circumstances of the said theft, including the investigation report submitted by the General Manager (P & A), I, as the Disciplinary Authority, dispense with the enquiry in the public interest and in the interest of the company, in view of the transparency of commission of misconducts for the reasons stated herein, and hold Shri MJ. Raju, guilty of the following misconducts as provided in the certified Standing Orders:
27(2) Theft and dishonesty in connection with the Company’s business or property.
27(20) Breach of any law applicable to works.
27(40) Breach of any rules and regulations of the Company.
The act of theft by Shri MJ. Raju, Tradesman Mate ‘B’, in collusion and connivance with Shri P. Vinaya Kumar, Security Inspector, of the camera of a foreign business associate, particularly when it was kept under the safe custody of security is very grave in nature which has brought disrepute to ECIL and may in turn affect the business prospects of the Company.
Accordingly, I find that it is inexepedient to keep him in service which otherwise would be detrimental to the interest of the Company, I hereby award the penalty of dismissal from service on Shri M.J. Raju as provided under Clause 30 of the certified Standing Orders, and his name stands removed from the rolls of the Company with immediate effect. He is advised to surrender his identity card to the Officer-in-charge, Security. His final accounts including legal dues, if any, will be settled and communicated in due course.
Shri M.J. Raju is advised to acknowledge receipt of this communication.” So, the implication and the expression of the impugned order is that the petitioner abetted or aided the commission of the offence of theft of a camera by the Security Inspector Vinaya Kumar and tried to conceal it and to destroy the evidence in regard to the offence which was revealed to the police when it was found in the table draw of the petitioner on such information given to the police by the concerned person and also the petitioner. Therefore, the respondent No. 2 thought that the continuance of the petitioner was against the interest of the Company and it was inexpedient to keep him in service which otherwise would be detrimental to the interest of the Company and thus, the power to pass such an order was invoked under Standing Order 30.
4. Mr. T.K. Sridhar, the learned advocate for the petitioner, in addition to the grounds of the writ petition, has contended that the impugned order is ultra vires of the Standing Order 29 itself and offends the principles of natural justice and secondly it is ultra vires of Article 14 and Article 311(2) of the Constitution, that it is not an order within the meaning of Standing Order 30, it has deprived the petitioner to question it by way of appeal under Standing Order No. 31 as it was passed by the highest authority, namely, respondent No. 2, that the materials forming basis to pass such an order were not sufficient, that it has created stigma on the petitioner depriving his right to live within the meaning of Article 21 of the Constitution and that judging the matter in any manner, it was a case to be enquired into under Standing Order 29 by giving reasonable opportunity to the petitioner to defend the charges and by holding an enquiry in accordance with Standing Order 29 and to pass appropriate orders by inflicting any penalty if charges were established which would have been commensurate with the gravity and the degree of misconduct complained of against the petitioner as the order of dismissal according to him, is harsh and disproportionate to the nature of the misconduct alleged or if established.
5. Mr. Nageswara Sree, the learned advocate, while repelling the above contentions, has complimented his own contentions that the impugned order has been passed in the extraordinary circumstances under Standing Order Number 30 which is prima facie constitutionally valid and reasonably legal and warranting no application of principles of natural justice and further on it was Passed to preserve and protect the interests of the Company and its reputation and not strictly as a penalty and that it was inevitable having clue regard to the conduct of the petitioner in involving in offence of theft of a camera belonging to a foreigner which was lodged with the security persons for the safety and security whereas, his conduct and the conduct of his accomplice was in itself repugnant to such a protection and preservation of the security of the Company. It is also his contention that the impugned order is not only self-explanatory but also within Standing Order 30 by affording sufficient reasons mentioning all the grounds and passing appropriate order thereon. It is also his contention that if we read the strict meaning of Standing Order 30, it provides no appeal to any higher authority, particularly when it is passed by the highest authority, namely, the respondent No. 2 in view of Standing Order 31 if read properly, contemplating an appeal only against an order passed under Standing Order 29. The learned advocate has pointed out that the petition is not maintainable since no mala fides or bias is pleaded against respondent No. 2 or respondent No. 1 in passing the impugned order which could have been challenged only on such a ground. It is brought to the notice of this Court that Mr. Vinaya Kumar, the Security Inspector who was the Primary accused in relation to the theft of the camera had suffered a similar order which was impugned in W.P.28961 of 1995 and which came to be dismissed by this Court on 7-10-1996 and that his appeal was also dismissed in challenging such an order and therefore, judging the matters emanating from similar circumstances, the petitioner’s case cannot be set at better pedestal nor the writ petition assailing such an impugned order which is already upheld by this Court in the other writ petition cannot be maintained. Both the learned advocates have done their best to bring home their contentions as above, supported by certain precedents and the legal positions which will be dealt with as and when necessary.
6. With such contentions presented to this Court, the following points arise for consideration:-
(1) Whether the Standing Order 30 is ultra vires of Article 14 or Article 21 or Article 311(2) of the Constitution?
(2)(a) Whether the impugned order casts stigma on the petitioner?
(3)(b) If so, what procedure was to be adopted in such a case before inflicting any penalty for the alleged misconduct of the petitioner?
(4) Whether the impugned order is illegal and void?
(5) (a) Whether the appeal or review lies against the impugned order by virtue of either Standing Order 31 or Standing Order 32 of the Standing Orders?
(b) If so, whether the writ petition is maintainable without exhausting to such a remedy?
(6) Whether a petition is not maintainable in view of the decision of this Court in W.P.No.28961 of 1995 dated 7-10-1996 in regard to one Vinaya Kumar, the Security Inspector along with whom the petitioner is said to have involved in committing the offence of the theft of the camera?
(7) Whether the Standing Order 30 is liable to be quashed?
(8) (a) Whether the impugned order is liable to be quashed or set aside?
(b) If so, to what extent?
(9) (a) Whether the petitioner is entitled to be restored to service in case
the impugned order is set aside or quashed?
(b) If so, or what terms?
(10) If the petitioner has the alternative remedy by means of appeal which he has already preferred, what order has to be passed regarding his further services with the respondents?
(11) What Order?
7. There is no merit in the contention of the petitioner that Standing Order 30 is ultra vires of either Standing Order 29 or Articles 14, 21 or 311(2) of the Constitution. Such a question has been set at rest by the Supreme Court more than once. Standing Order 30 reads as follows:-
“30, Special Procedure in Certain Cases: Where an employee has been convicted of a criminal offence involving moral turpitude in a Court of law or where the Managing Director or General Manager is satisfied in extraordinary circumstances or reasons to be recorded by him in writing, that it is inexpedient or against the interests of the Company’s Security to continue to employ the workman, the workman may be removed or dismissed from service without following the procedure laid down in Standing Order No. 29.”
Although not verbatim or on part mattria in principle and the content, this Standing Order Is almost similar to Article 311(2) proviso ‘2’ consisting of three clauses. There are similar rules akin to Article 311(2) proviso 2 of the Constitution like Rule 25 of A.P.C.C.A. Rules and similar equivalent rules for the Central Government, other State Governments and the like. A similar provision in Station Order 20-IV of the Indian Oil Corporation has been upheld to be constitutionally valid in Hari Pada Khan v. Union of India and other, not being violative of Articles 14,16 and 21 of the Constitution. Therein, the earlier precedent of a Division Bench of the Supreme Court in Union of India v. Tnhiram Patel, . has been referred to, whereby, a similar rule had been held as constitutionally valid. The contention of the petitioner that in view of the impugned order he has suffered, it has violated the principles of natural justice has also been negatived by the Supreme Court in Tulsiram Patel’s Case, .. The law appears to be settled that not only the satisfaction of the authority to pass such an order is subjective but also constitutionally valid. Our own High Court in Mohd. Azam v. State of Hyderabad, AIR 1958 A.P. 619 and the High Court of Bombay in Jagdish v. Accountant-General, AIR 1958 Dom. 283 have taken a similar view. It is also the law that such an order can be challenged only on the ground of mala fides and the bias. Admittedly no such allegations are made in the petition or elsewhere. However, the law is also settled that unless such an order fits into such a provision, the challenge on the basis of mala fides or bias may not arise. In other words, the authority who wants to pass such an order akin to the rule under Article 311(2) proviso ‘2’ sub-clause(c), in particular, has to fundamentally establish that such an order strictly fits into such a provision and further satisfy that such an order was passed for adequate reasons which had been recorded in writing. In the latest pronouncement in Hari Pada Khan’s case, , ‘ also it was positively declared and affirmed with the aid of Tulsiram Patel’s case, . that no principle of natural justice is involved or appended to such an order. In other words, the impugned order cannot be challenged or has been successfully challenged to be ultra vires of either Standing Order 29 which contemplates a regular enquiry before inflicting the penalty of dismissal etc. or ultra vires of Articles 14, 21 and 311(2) of the Constitution. The law also appears to be that when Article 311(2) provisos 1 and 2 are there in Constitution itself, however, which is subject to Article 14, no rule or law by itself can be challenged on the ground of ultra vires in regard to either Article 14 or Article 311(2) of the Constitution. This reasoning may be further supplemented and strengthened that particularly in the case of private employment like the present one, not strictly to be governed by Article 311(2) of the Constitution, although barring the similar principle by framing the Standing Orders, the doctrine of pleasure of the Crown or employer as has been enshrined under Article 310 of the Constitution is not totally taken away, however, subject to the reasonable restriction clause enjoined by the provisions like proviso two, sub-clauses (a) to (c) of Article 311(2) of the Constitution and the Standing Order 30 wherein, the authority passing the order, by giving the reasons in writing will authenticate itself to its subjective satisfaction as to why in a Particular case the expediency of holding an enquiry was found to be not available. Therefore, the impugned order cannot be either challenged or quashed as having been ultra vires for the reasons stated above._________
8. Undisputably, the petitioner who was an employee of the respondents at the time of the impugned order was being governed by the Standing Orders. Standing Order 26 in general, explains the conduct of an employee. Standing Order 27 defines and classifies the acts of misconduct. In fact, under the impugned order the acts of misconduct indicted against the petitioner are the theft and dishonesty in connection with the Company’s business and property governed by Standing Order 27(2), breach of law applicable to the works under Standing Order 27(20) of the Standing Orders and breach of the Rules and regulations of the Company contemplated under Standing Order 27(40). Patently, the impugned order has been passed in regard to the misconducts attributed to the petitioner as above and within the meaning of Standing Order 27(2), (20) and (40). Standing Order 28 consists of different types of penalties including the order of dismissal as in the present case to be inflicted for good and sufficient reasons for misconduct (as has been explained in Standing Order 27). Standing Order 29 regulates the procedure for dealing with cases of misconduct, the sub-clause (a) of it contemplating the mandatory requirement of informing the delinquent in writing, of the allegations made against him and to be given an opportunity to make a representation within forty-eight hours and his representation if any to be considered by the management to proceed to impose the penalty (admittedly no such procedure is adopted). Thereafter, the management will decide whether to impose the minor penalties under Standing Order 28(a), (b) and (c) or to hold an enquiry if it comes to the conclusion that it is a case to impose the major penalties under Standing Order 28(d) to (g) which include the order of dismissal. The other part of the procedure to conform to the principles of natural justice as in the case of regular enquiry to impose penalty for the misconduct is to be found from the other portion of the Standing Order 29 with which we are not concerned, as has been admittedly such a procedure has not been adopted in this case by the respondents.
9. Patently, the impugned order not only alleges the theft as against the petitioner but also accepts it as having established it prima facie. It is nobody’s case that such an allegation or confirmation by means of impugned order would not create any stigma on the petitioner. If we read the impugned order as above, in the main body, not only the allegation of theft is attributed to the petitioner but also sought to be supported with the First Information Report and the report of the police and also the report of an officer confirming the same to the effect that the camera which is said to have been stolen was found in the table draw of the petitioner. In such a situation the petitioner was to be presumed either as a thief or a person receiving the stolen property, both of them being punishable in law, namely, under Section 379 IPC and Section 411 IPC. Even the operative portion of the impugned order suggests that the authority which inflicted the punishment was totally satisfied that it was a case of theft implicating the petitioner whose services could not be continued in the interest of the Company and also in the public interest as it was inexpedient to continue him in such service. Therefore, patently, the impugned order creates stigma. Even in the simple grammatical dictionary meaning, stigma’ means a mark or sign of disgrace or discredit or a distinguishing mark or characteristic etc. (page 1197 left column of the Concise Oxford Dictionary, new 8th edition of Oxford 5th impression 1994). Whether or not the impugned order intended to inflict a serious penalty of dismissal, even if it is to be construed as a simple termination of service protanto, it has created a serious stigma on the life and career of the petitioner. The law is settled that even in such a situation, such a delinquent has to be given an opportunity to defend the charges to remove the stigma and clear the way of life for him, in addition to the future career. In other words, normally speaking, it was a case to be disposed of in accordance with the procedure prescribed under Standing Order 29 of the Standing Orders. But the only go for the respondents has been to vindicate its adoption of the rule of the inevitable purging out of the petitioner under Standing Order 30 which is akin to Article 311(2) proviso 2(c) of the Constitution.
10. It is true that if the impugned order falls within the category of Standing Order 30, the petitioner has no case. As already pointed out, the detailed discussion of the materials mentioned in the impugned order exposes the petitioner to a serious misconduct of theft creating a stigma. Barring that, the operative portion of the order also is suggestive of such a misconduct only leading to the order of dismissal in the impugned order.
11. Before adverting to the propriety or otherwise of the impugned order falling within or out of Standing Order 30, we must examine the true implications of Standing Order 30 which has been already repeated earlier. It has got two limbs, namely, (1) such an order can be passed where the employee has been convicted of a criminal offence involving moral turpitude in a Court of law and (2) where the Managing Director or General Manager is satisfied that in extraordinary circumstances, for reasons to be recorded by him in writing, that it is inexpedient or against the interests of the Company’s security to continue to employ the workman. The ingredients in the second limb are simple, namely, (i) that such an order has to be passed in extraordinary circumstances, (ii) reasons are to be recorded in writing to pass such an order and (iii) that it must be inexpedient or against the interests of the Company’s security to continue to employ the workman, No doubt the impugned order has afforded reasons as to why such an order has been passed. To that extent it must be taken to have compiled with one of the conditions of the Standing Orders. The extraordinary circumstances are not mentioned in the order. However, It can be gathered, as rightly pointed out by the learned advocate for the respondent that the fact that the petitioner committed a serious misconduct of theft aiding and abetting theft by the Security Inspector who was to secure the camera of a foreigner, thereby, with such a misconduct exposed the Company or persons interested therein to insecurity. If the impugned order can be gathered as a whole, it must be taken to have bean for extraordinary circumstances as stated therein although such words are not expressed. Patently enough, the authority which has passed the impugned order has been very much upset about the misconduct of the petitioner and another person in regard to the misconduct committed by them or him by committing the theft of a camera of a foreigner and therefore, it was due to such a misconduct it was against the interest of the Company and the interest of the public to continue him in service. In other words, the impugned order is passed having a direct nexus to the misconduct of theft etc, committed by the petitioner and not for any other extraordinary reason which the Company had thought of. The whole embryo, foetus and the delivery of the intent is only due to the misconduct prima facie established and not because of any extraordinary circumstance impairing the security of the Company. The law in regard to resorting to such a Standing Order to inflict a serious punishment like dismissal etc. has been settled while dealing with Article 311(2) proviso 2(c) of the Constitution and similar provisions. As back as 1971 the Hon’ble Supreme Court in B.C. Das v. State of Assam and Ors.. . made it emphatic that the satisfaction of the authority who passes such an order is about the inexpediency in holding the enquiry. The matter is further elaborated in Tidsiram’s case (cited 2 supra) in paras 140 to 143. While we are dealing with such a provsion or the Standing Order which is in pari materia with Article 311 (2) (c) of the Constitution, such an interpretation put up on the expressions therein about the security of the State in Tulsiram’s case (cited 2 supra) and B.C. Das’s case (cited 5 supra) is not only of a great guideline but also of the binding character by virtue of Article 141 of the Constitution. In the considered opinion of this Court that such a law laid down therein should be taken as law declared for the purpose of Article 141 of the Constitution. The security of the State is a very comprehensive and compound expression. It may be difficult to explain as to when and how the security of the State would become imperilled or impaired. That may arise for various reasons. That has been explained by the Supreme Court in Tulsiram’s case (cited 2 supra) as follows in para 140 at page 1482:-
“The expressions “law and order”, “public order” and “security of the State” have been used in different Acts. Situations which affect “public order” are graver than those which affect “law and order” and situations which affect “security of the State” are graver than those which affect “public order”. Thus, of those situations those which affect “security of the State” are the gravest. Danger to the security of the State may arise from without or within the State. The expression “security of the State” does not mean security of the entire country or a whole State. It includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the State can be affected. They way in which security of the State is affected may be either open or clandestine. Amongst the more obvious acts which affect the security of the State would be disaffection in the Armed Forces or para-military Forces. Disaffection in any of these Forces is likely to spread, for disaffected or dissatisfied members of these Forces spread such dissatisfaction and disaffection among other members of the Force and thus induce them not to discharge their duties properly and to commit acts of indiscipline, in subordination and disobedience to the orders of their superiors. Such a situation cannot be a matter affecting only law and order or public order but is a matter affecting vitally the security of the State. In this respect, the Police Force stands very much on the same footing as military or a para-military force for it is charged with the duty of ensuring and maintaining law and order and public order, and breaches of discipline and acts of disobedience and insubordination on the part of the members of the Police Force cannot be viewed with less gravity than similar acts on the part of the members of the military or para-military Forces. How important the proper discharge of their duties by members of these Forces and the maintenance of discipline among them is considered can be seen from Article 33 of the Constitution. Prior to the Constitution (Fiftieth Amendment) Act, 1984, Article 33 provided as follows:
“Power to Parliament to modify the rights conferred by this part in their application to Forces-Parliament may be law determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.”
By the Constitution (Fiftieth Amendment) Act, 1984, this Article was substituted. By the substituted Article the scope of the Parliament’s power to so restrict or abrogate the application of any of the Fundamental Rights is made wider. The substituted Article 33 reads as follows:
“33, Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.– Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,-
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.”
Thus, the discharge of their duties by the members of these Forces and the maintenance of discipline amongst them is considered of such valid importance to the country that in order to ensure this the Constitution has conferred power upon Parliament to restrict or abrogate any of the Fundamental Rights in their application to them.”
No more explanation is permissible or necessary to understand the meaning of the security of the State. The commission of the misconduct of any government servant or the public functionaries in the discharge of their duties by themselves may not constitute the security of the State as every misconduct of serious nature might affect the interest of the State. If we read the real and true meaning of the same, such a misconduct either isolation or with the other circumstances may constitute a threat to the security of the State either internal or external and not by itself constituting the misconduct in the criminal sense of the expression. Even assuming that a misconduct in such a situation constitutes the threat to the security of the State, it is pointed out by the Supreme Court as clarified in categoric expression that the question under clause (c) of Article 311(2) of the Constitution, however, is not whether the security of the state has been affected or not, for the expression used in clause (c) is “in the interest of the security of the State”; the interest of the security of the State may be affected by actual acts or even the likelihood of such acts taking place; further, what is required under Clause (c) is not the satisfaction of the President or the Governor, as the case may be, that the interest of the security of the State is or will be affected but his satisfaction that in the interest of the security of the State, it is not expedient to hold an enquiry as contemplated by Article 311(2) of the Constitution. With such an expression, the Supreme Court has explained as to what is the true meaning of the satisfaction in relation to expediency or otherwise of holding an enquiry as follows:-
“The satisfaction of the President or Governor must, therefore, be with respect to the expediency or inexpediency of holding an inquiry in the interest of the security of the State. The Shorter Oxford English Dictionary, Third Edition, defines the word “inexpedient” as meaning “not expedient; disadvantageous in the circumstances, unadvisable impolitic”. The same dictionary defines “expedient” as meaning inter alia “advantageous; fit, proper, or suitable to the circumstances of the case”. Webster’s Third New International Dictionary also defines the term “expedient” as meaning inter alia “characterized by suitability, practicality, and efficiency in achieving a particular end; fit, proper, or advantageous under the circumstances”. It must be borne in mind that the satisfaction required by Clause (c) is of the Constitutional Head of the whole Country or of the State. Under Article 74(1) of the Constitution, the satisfaction of the President would be arrived at with the aid and advice of his Council of Ministers with the Prime Minister as the Head and in the case of a State by reason of the provisions of Article 163(1) by the Governor acting with the aid and advice of his Council of Ministers with the Chief Minister as the Head. Whenever, therefore, the President or the Government in the Constitutional sense is satisfied that it will not be advantageous or fit or proper or suitable or politic in the interest of the security of the State to hold an inquiry, he would be entitled to dispense with it under Clause(c). “(page 1483 para 141) of Tulsiram case) (cited 2 supra),
The ultimate declaration of law in this regard by the Supreme Court in Tulsiram’s case (cited 2 supra) appears to be moulded in para 143 at page 1484 as follows:-
“It was further submitted that what is required by Clause (c) is that the holding of the inquiry should not be expedient in the interest of the security of the State and not the actual conduct of a Government servant which would be the subject-matter of the inquiry. This submission is correct so far as it goes but what it overlooks is that in an inquiry into acts affecting the interest of the security of the State, several matters not fit or proper to be made public, including the source of information involving a government servant in such acts, would be disclosed and thus in cases such as these an inquiry into acts prejudicial to the interest of the security of the State would prejudice the interest of the security of the State as much as those acts would.”
Therefore, now to equate the security of the State contemplated under Article 311(2) proviso 2(c) with the security of the Company (it is used as Company’s security and both are the same), an order to be passed under Standing Order 30 would be the satisfaction of the authority in extraordinary circumstances for reasons to be recorded in writing that it is inexpedient or against the interest of the Company’s security to continue to employ the workman etc. If we read Standing Order 30 and Article 311(2) proviso 2(c) of the Constitution read with Standing Order 29, the only meaning possible is that the extraordinary circumstances bearing out the reasons to be recorded in writing should be inexpedient to hold an inquiry in case of the conviction of the employee for criminal offence involving moral turpitude or that it would be inexpedient to continue to employ the workman in the Company if it affects the security of the Company. With such a subjective satisfaction, an order like impugned order can be passed but not for the misconduct said to have been committed by the workman. Even assuming that the inexpediency to continue the workman in employment would be one of the grounds for passing an order in the nature of the impugned order for extraordinary circumstances in the satisfaction of the authority, it should never be about misconduct committed by the employee. The subjective satisfaction in passing such an order is incapable of examining by the Courts whereas, the basis for passing such an order reflected in the order will be capable of examining by the Court as it had happened in the present case. As rightly pointed out by the learned advocate for the petitioner, there were certain things to be examined as to whether the petitioner had anything to do with the theft of the camera or whether he was only assisting the culprit in concealing the evidence or concealing the stolen article or that he was in possession of the stolen article or a receiver of the stolen property or that he had a reasonable explanation affordable in the circumstances to believe or not to believe or whether he had become the victim of the act of somebody else.
12. Barring the discovery of the camera on the information given by the main accused and on some enquiry conducted by one of the officers, there was no material to directly involve the petitioner in the commission of the theft. If a proper enquiry had been held it was possible for the respondents to find out whether the petitioner was innocent or partly innocent or had any reason to be victimized or had any reason to be involved in such an offence to inflict a minor penalty or a less a penalty than the penalty of dismissal. That is how the impugned order could not have been passed within the meaning of Standing Order 30. In other words and to put it summarily, the respondents chose to pass the impugned order of dismissal as one of the penalties for the misconduct committed by the petitioner in becoming the privy in the commission of the theft of the camera and concealing it and not for the satisfaction that due to extraordinary circumstances that it was against the security of the Company or that it was inexpedient to continue him in the service etc. the unveiling or ungarbing the impugned order purported to have been passed under Standing Order 30 has transpired to be one passed under Standing Order 27 read with Standing Order 29 of the Standing Orders. Patently enough, not only the impugned order has violated the principles of natural justice but it has also violated the Standing Order 29. It cannot stand the test of validity and enforceability and requires to be set at nought by quashing the same as having violated the said Standing Orders and the principles of natural justice.
13. Patently, an appeal lies against such an order under Standing Order 31, because even an order passed under Standing Order 30 is not excluded from such Standing Order. Furthermore, Standing Order 31 generally states that appeal lies in regard to any penalty passed under Standing Order 27 which should include penalty under Standing Order 30 also. Added to it, a circular has been issued by the Chairman and the Managing Director in Circular No. 0377 dated 1-3-1996 that an appeal may be filed against such an order. Accordingly, the petitioner has already filed an appeal. If an appeal really arose due to Standing Order 31 of the Standing Orders there was no reason to issue such a circular and it only shows that both the authorities and the employees of the respondent No. 1 were in doubt about the maintainability of such an appeal and therefore, the petitioner appears to have approached this Court by means of this writ petition. However, now that the appeal is filed, the learned advocate for the respondents contends that the petitioner may agitate his case before the Board of the respondents in his appeal and not to take decision in this case. The learned advocate for the petitioner apprehends that the result may not be different from what has happened in case of Mr. Vinaya Kumar. He has all the force in his contention notwithstanding the further reason that on the face of it the impugned order is found to be void and unenforceable and therefore, the question of hearing the appeal may not exist unless there is a suitable order passed in accordance with the Standing Orders and in accordance with the principles of nataural justice.
14. At this stage it is pointed out that when the case of Mr. Vinaya Kumar is already put an end to both on merits in W.P. 28961 of 1995 by an order of this Court as above and when his appeal is also dismissed, there is no reason to entertain the matter of the petitioner by holding an inquiry. There is no merit in this contention. On the face of it, the cases of the petitioner and Vinaya Kumar stand on different footings although they might have arisen out of same transaction. Mr. Vinaya Kumar is said to be the culprit whereas the petitioner is said to be a person who aided and abetted in concealing or destroying the evidence as detailed in the impugned order. Moreover, the petitioner has been involved only on the basis of discovery of the fact of the availability of the camera in the table draw of the petitioner when searched by the concerned police on the information given by Vinaya Kumar said to be the real culprit. By holding an inquiry, as already pointed out, several matters are to be examined to come to a definite conclusion which may be distinguishable from the conduct of Mr. Vinaya Kumar in regard to the commission of the theft. Now that the impugned order is going to be quashed, the question arises whether the petitioner has to be reinstated into service with the benefits of backwages etc. Since the respondents are to hold inquiry against the petition in accordance with Standing Order 29, it has to decide whether the petitioner can be continued in service or should be treated as suspended by virtue of its powers under Standing 29(c) and to deal with him in accordance with sub-clauses (d) to (f) whereby he has to be paid subsistence allowance, his emoluments are to be determined during the period of suspension including the remuneration while the final orders are passed. Therefore, such a thing should be kept open to be considered and suitably decided by the respondents before and during the period of holding the inquiry till the final orders arc passed. Therefore, this Court is not persuaded to accept the contention of the learned advocate for the petitioner that the petitioner should be reinstated in service automatically on quashing the impugned order with a direction to pay the backwages and the further wages pending enquiry.
15. In the result, the petition is allowed. The impugned order is quashed. The respondents shall be entitled to hold an inquiry against the petitioner in regard to the alleged misconduct in accordance with the standing orders of the Company and to pass appropriate orders.
If the respondents so advised to hold an inquiry, it shall be initiated within one month from today and shall be disposed of within a period of six months thereafter. If neither of these is done within the stipulated period, the petitioner shall be restored to the service with all the benefits to which he is entitled to according to the terms of his employment.
The respondents shall be entitled to decide and to pass appropriate orders in regard to the questions whether the petitioner should be reinstated into service and continued during inquiry or suspended or whether he should be paid subsistence allowance etc. as per the Standing Orders and the terms of the employment and to pass final orders in accordance with Standing Orders in regard to his rights and liabilities.
There shall be no order as to costs.