PETITIONER: STATE OF MADHYA PRADESH & ORS. Vs. RESPONDENT: SHARDUL SINGH DATE OF JUDGMENT: 02/12/1959 BENCH: ACT: Constitution of India, Art. 311(1) --If the Authority empowered to dismiss should itself initiate or conduct the enquiry-Article 309, proviso, -"Conditions of service", meaning of. HEADNOTE: The Superintendent of Police initiated a departmental inquiry against the respondent, who was a Sub-Inspector, with respect to certain charges, found him guilty, and forwarded the report to the Inspector-General of Police, who was the authority competent to dismiss him, for necessary action. The Inspector-General sent a copy of the report to the respondent, called upon him to show cause against the proposed punishment of dismissal, considered his explanation, and passed an order dismissing him. The procedure followed was in accordance with Regulations 228 and 229 of the Central Provinces and Berar Police Regulations framed under s. 241 of the Government of India Act, 1935, corresponding to Art. 309 of the Constitution. On the question whether the Regulations were ultra vires because, under Art. 311, the authority empowered to dismiss (in this case the Inspector-General) must have himself initiated,or conducted the inquiry preceding the dismissal, HELD : Under the proviso to Art. 309, power is conferred on the President of India and the Governor of a State to make rules Regulating the conditions of service of persons appointed to the civil service of the Union or the State, as the-case may be, until provision in that behalf is made by an Act of the appropriate Legislature. 'Conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond, in matters like pension etc., and includes rules relating to the dismissal of an officer. Article 311 (1) confers an additional right on the civil servant, namely, that no person holding a civil post shall be dismissed or removed by an authority subordinate to that by which he was appointed. But for that Article rules could have been framed even in respect to these matters under Art. 309. Article 311(l) however, does not, in terms, provide that the relevant disciplinary inquiry should also be initiated or conducted by the authority mentioned in the Article. Therefore, -rules could be framed under Art. 309 with respect to conditions of service other than those in Art. 311(l) and hence, the Regulations were not ultra vires the Constitution. [306 B-E] Pradyat Kumar Bose V. The Hon'ble the Chief Justice of Calcutta High Court, [1955] 2 S.C.R. 1331 and P. Balakotaiah v. Union of India, [1958] S.C.R. 1052, followed. North West Frontier Province v. Suraj Narain Anand, (1948) L.R. 75 I.A. 343, applied. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2554 of
1966.
303
Appeal from the judgment and order dated November 4, 1965
,of the Madhya Pradesh High Court in Misc. Petition No. 646
of 1964.
I.N. Shroff, for the appellants.
A.K. Sen, M. M. Kshatriya and G. S. Chatterjee, for the
respondent.
The Judgment of the Court was delivered by
Hegde J. _ Scope of Art. 311(l) of the Constitution comes up
for consideration in this appeal by certificate. The High
Court of Madhya Pradesh has opined that the power of
dismissal and removal referred to in Art. 3 1 1 ( 1 )
implies that the authorities mentioned in that Article must
alone initiate and conduct the disciplinary proceeding
culminating in the dismissal or removal of a delinquent
officer.
The respondent herein was a Sub-Inspector of Police in the
State of Madhya Pradesh. A departmental enquiry was
initiated against him on the basis of certain charges, by
the Superintendent of Police, Surguja, on June 24, 1962.
After holding the enquiry as prescribed by the Central
Provinces and Bihar Police Regulations, the Superintendent
of Police submitted his report to the Inspector-General of
Police, Madhya Pradesh through Deputy Inspector-General of
Police, Raipur. On the basis of the enquiry held by him,
-the Superintendent of Police concluded that the respondent
was guilty of the charges levelled against him. He
recommended his dismissal. After receiving the report of
the Superintendent of Police, the Inspector General sent a
copy of the same to the respondent and called upon him to
show cause why he should not be dismissed from service. The
respondent submitted his explanation. After considering the
same, the Inspector General of Police dismissed the
respondent from service on November 30, 1963. The
respondent’s appeal to the Government against the order
dismissing him was rejected. Thereafter the respondent
moved the High Court under Art. 226 of the Constitution to
quash the order dismissing him by issuing a writ of
certiorari. The dismissal order was challenged on various
grounds. The High Court rejected all but one of them. It
came to the conclusion that the Superintendent of Police,
Surguja was not competent to initiate or conduct the enquiry
held against the respondent as he had been appointed by the
Inspector-General of Police. It was of the view that the
enquiry in the case was without the authority of law and
against the, mandate of Art. 3 1 1 ( 1 ). It accordingly
allowed the writ petition and quashed the impugn%-,,-‘
order. The Superintendent of Police, Surg ja initiated and
conducted the enquiry against the respondent on the basis of
Regulations 228 and 229 of the Central Provinces and Bihar
Police Regulations. These ‘Regulations are evidently framed
on the basis of S. 241 of the Government of India Act,
1935,a Provision which. permitted the State Governments to
make rules regulating the recruitment and conditions of
service of persons appointed to State service. Regulation
228 says :
“In every case of dismissal, reduction in rank, grade or
pay, or withholding of increment for, a period in excess of
one year, a formal proceeding must be recorded, by the
District Superintendent in the prescribed form, setting
forth
(a) the charge;
(b) the evidence on which the charge is based;
(c) the defence of the, accused;
(d) the statements of his witnesses (if any).
(e) the finding of the District Superintendent, with the
reasons on which it is based;
(f) the District Superintendent’s final order or re-
commendation, as the case -may be.”
Regulation 229 prescribes that in cases where the District
Superintendent is not empowered to pass a final order, he
should forward his proposals for the dismissal, removal or
compulsory retirement of an officer of and above the rank of
Sub-Inspector to the proper authority through the District
Magistrate, except in cases where an officer is not serving
in a district.
There is no dispute that the Superintendent of Police had
complied with the requirements of Regs. 228 and 229. The
question for consideration is whether the power conferred on
the Superintendent of Police under Regs. 228 and 229 is
ultra vires Art. 3 11(1).
Art. 311(1) provides that no person who is a member of
Civil Service of the Union or of an All India Service or
Civil Service of a State or holds civil post under the Union
or State shall be dismissed or removed by an authority
subordinate to that by which he was appointed. This Article
does not in terms require that the authority empowered under
that provision to dismiss or remove an official, should
itself initiate or conduct the enquiry preceding the
dismissal or removal of the officer or even that that
enquiry should be done at its instance. The only right
guaranteed to a civil servant tinder that provision is that
he shall not be dismissed or removed by an authority
subordinate to that by which he was appointed. But it is
said on behalf of the respondent that that guarantee
include,, within itself the guarantee that the relevant
‘disciplinary enquiry should be initiated and con-
305
ducted by the authorities mentioned in the Article. The
High Court has accepted this contention. We have now to see
whether the view taken by the High Court is correct.
Art. 310(l) of the Constitution declares that every person
who is a member of civil service of a State or holds any
civil post in a State holds office during the pleasure of
the Governor of a State. But the pleasure doctrine embodied
therein is subject to the other provisions in the
Constitution. Two, other Articles in the Constitution which
cut down the width of the power given under Art. 310(l) are
Arts. ‘309 and 311. Art. 309 provides that subject to the
provisions of the Constitution, Acts of the appropriate
Legislature may regulate the recruitment, and conditions of
service of persons appointed, to public services and posts
in connection with the affairs of the Union or of any State.
Proviso to that Article says :
“Provided that it shall be competent for the President or
such person as he may direct in the case of services and
posts in collection with the affairs of the Union, and for
the Governor of a State or such person as he may direct in
the case of services and posts in connection with the
affairs of the State to make rules regulating the
recruitment, and the conditions of service of persons
appointed, to such services and posts until provision in
that behalf is made by or under an Act of the appropriate
Legislature under this article, and any rules so made shall
have effect subject to the provisions of any such Act.”
One of the powers conferred under this proviso is to make
rules regulating the conditions of service of persons
appointed to civil services of the Union or the State as the
case may be. The expression “conditions of service” is an
expression of wide import. As pointed by this Court in,
Pradyat Kumar Bose v. The Hon’ble the Chief Justice of
Calcutta High Court (1), the dismissal of an official is a
matter which falls within “conditions of service of public
servants. The Judicial Committee of the Privy Council in
North West Frontier Province v. Suraj Narain Anand (2) took
the view that a right of dismissal is a condition of service
within the meaning of the words under s. 243 of the
Government of India Act, 1935.
Lord Thankerton speaking for the Board observed therein
“apart from consideration whether the context indicates a
special significance to the expression conditions of
service? their Lordships are unable in the absence of any
such special significance, to regard provisions
(1) [1955] 2 S.C.R. 1331.
(2) [1948] L.R. 75 I.A. 343.
306
which prescribe the circumstances under which the employer
is to be entitled to terminate the service as otherwise than
conditions of the service, whether these provisions are
contractual or statutory; they are therefore of opinion
that the natural meaning of the expression would include
such provisions.”
In P. Balakataiali v. 7he Union of India and Ors.(1) this
Court proceeded on the basis that a rule providing for the
termination of the service of a railway official can be made
in exercise of the powers conferred on the Government by ss.
241(2), 247 and 263(3) of the Government of India Act, 1935.
The expression ‘conditions of service’ means all those
conditions which regulate the holding of a post by a person
right from the time of his appointment till his retirement
and even beyond it in matters like pension etc.
But for the incorporation of Art. 311 in the Constitution
even in respect of matters provided therein, rules could
have been framed under Art. 309. The provisions in Art. 311
confer additional rights on the civil servants. Hence we
are unable to agree, with the High Court that the guarantee
given under Art. 311(l) includes within itself a further
guarantee that the disciplinary proceedings resulting in
dismissal or removal of a civil servant should also be
initiated and conducted by the authorities mentioned in that
Article.
In the result this appeal is allowed, the judgment of the
High Court is set aside and the writ petition dismissed. In
the circumstances of the case we make no order as to costs-.
Y.P. Appeal allowed.
(1) [1958] S.C.R. 1052.
307