Shamsher Singh & ANR Vs. State of Punjab [1974] INSC 156 (23 August 1974)
RAY, A.N. (CJ) RAY, A.N. (CJ) PALEKAR, D.G.
MATHEW, KUTTYIL KURIEN CHANDRACHUD, Y.V.
ALAGIRISWAMI, A.
BHAGWATI, P.N.
KRISHNAIYER, V.R.
CITATION: 1974 AIR 2192 1975 SCR (1) 814
CITATOR INFO :
RF 1975 SC 613 (45,50) RF 1975 SC 638 (11) F 1975 SC1096 (3) R 1975 SC1208 (24) R 1975 SC1633 (1) F 1975 SC1755 (6,7,8) RF 1976 SC1766 (57) R 1976 SC1841 (12,18) F 1976 SC1899 (28) RF 1976 SC2490 (24) RF 1976 SC2547 (19,21) RF 1977 SC 451 (6) F 1977 SC 629 (6) RF 1977 SC1361 (169) RF 1977 SC1619 (13) F 1977 SC2328 (41) D 1978 SC 363 (5,11,13) R 1979 SC 193 (38) R 1980 SC 42 (12,20) RF 1980 SC1242 (9) RF 1980 SC1896 (52) RF 1980 SC2147 (61) RF 1981 SC 957 (5) R 1981 SC2138 (4) F 1982 SC 149 (134,333,624,696,709,718,794,9 RF 1982 SC1029 (6) R 1984 SC 636 (11) RF 1984 SC 684 (55) R 1984 SC1110 (6) E&R 1985 SC1416 (58) RF 1986 SC1626 (27) RF 1986 SC1790 (11) E&R 1987 SC 331 (29,32) F 1987 SC1953 (8) R 1987 SC2106 (5,6) R 1987 SC2408 (5) R 1988 SC1388 (16) R 1990 SC1308 (25) E&R 1991 SC 101 (279)
ACT:
President and Governors--Whether formal heads--Whether bound to act on aid and advice of Council of Ministers--Artkles 166(3), 154(1), 53(1) of constitution of India.
Constitution of India--Article 311--termination of service by innocuously worded order whether hit by article 311.
Civil service probationer whether can be deemed to be confirmed on the expiry of probation period.
Punjab Civil Service (Judicial Branch) Rules 1951 rr. 7, 9.
Constitution of India Article 235--High Court whether can depute an executive authority to inquire into allegations made against subordinate judiciary.
Constitution of India, Article 234--Appointment and determination of services of subordinate judges if to be made by Governor personally.
HEADNOTE:
The appellant Shamsher Singh was a Subordinate Judge on probation. His services were terminated by the Government of Punjab in the name of Governor of Punjab by an order which did not give any reasons for the termination.
Likewise, the services of Ishwar Chand Agarwal were also terminated by the Government of Punjab in the name of Governor on the recommendation of the High Court. The appellants contended that the Governor as the constitutional. or the formal head of the State can exercise powers and functions of appointment and removal of members of the subordinate judicial service only personally. the appellants placed reliance on the decision of this Court in Sardari Lal's case where it is held that the satisfaction for making an order under Article 311 is the personal satisfaction of the President or the Governor. The State, on the other hand, contended that the Governor exercises powers of appointment and removal conferred on him by or under the Constitution like executive powers of the State Government only on the aid and advice of his council of Ministers and not personally. The Governor is by and under the Constitution required to act in his discretion in several matters. Articles where the expression "acts in his discretion" is used in relation to the powers and functions of the Governor are those which speak of special responsibilities of the Governor. Our constitution embodies generally the parliamentary or cabinet system of Government of the British model. Under this system the President is the constitutional or formal head of the Union and exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of Ministers. Under the cabinet system of Government, the Governor is the constitutional or formal head of the State and exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. These appeals have been placed before a larger bench to consider whether the decision in Sardari Lal's case correctly lays down the law.
It was further contended that since the probationer continued in service after the expiry of the maximum period of probation he became confirmed that the termination was by way of punishment and was in violation of article 311; and that the High Court failed to act in terms of the provisions of art. 235 of the Constitution and abdicated the control over subordinate judiciary by asking the government to enquire through the vigilance department.
815 (Per A. N. Ray C.J. Palekar, Mathew, Chandrachud.
Alagiriswami, JJ).
HELD :-The decision in Sardari Lal's case that the President has to be satisfied personally in exercise of executive power or function and that the functions of the President cannot be delegated is not the correct statement of law, and is against the established and uniform view of this Court as embodied in several decisions. The President as well as the Governor is the constitutional head or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.
[833C-F] Sardari Lal's case overruled.
HELD FURTHER : The President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial Service of the State which is to be made by the Governor as contemplated in Article 234 of the constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution. [836B-D]
HELD FURTHER : No abstract proposition can be laid down that where the services of probationer are terminated without saying anything more in the order of termination that it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution. [837 F]
HELD FURTHER : In the absence of any rules governing a probationer the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged, the same does not involve any punishment. The authority may in some cases be of the view that the conduct of the petitioner may result in dismissal or removal on enquiry but in those cases the authority may not hold an enquiry and may simply discharge the petitioner With a view to giving him a chance to make good in other walks of life without a stigma. The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. It the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then the petitioner is entitled to attract Article 311. Where the departmental enquiry is contemplated and if any enquiry is not in fact proceeded with, Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. [837 G-A;
838 C; F&G]
HELD FURTHER : Rule7(1) of the Punjab Civil Service (Judicial Branch) Rules 1951 provides that every Subordinate Judge in the first instance would be appointed on probation for 2 years but the said period might be extended from time to time expressly or impliedly so that the total period of probation including extension if any does not exceed 3 years. The explanation to rule 7(1) provides that the probation shall be deemed to have been extended if a Subordinate, Judge, is not confirmed on the expiry of his probation. Any confirmation by implication is negatived in the present case because before the completion of 3 years the High Court found Prima facie that the conduct as well as the work of the appellant was unsatisfactory and a notice was given to the appellant to show cause as to why his services should not be terminated. Explanation to rule 7(1) shows that the period of probation shall be deemed to have been extended impliedly if a subordinate Judge is not confirmed on the expiry of probation. Therefore, no confirmation by implication can arise in the present case.
[839B; E-G] 816
HELD FURTHER : The High Court for the reasons which are not stated decided to depute the Director of Vigilance to hold an enquiry. It is indeed strange that the High Court which had control over the judiciary asked the Government to hold an enquiry through the Vigilance Department. The members of the subordinate judiciary are not only, under the control of the High Court but are also under the care and custody of the High Court. The High Court failed to discharge the duty of preserving its control. The request by the High Court to hold an enquiry through the Director of Vigilance was an act of self abnegations. The High Court should have conducted the enquiry preferably through District Judges. The members of the Subordinate judiciary look up to High Court not only for discipline but also for dignity. The enquiry officer nominated by the Director of Vigilance recorded the statements of witnesses behind the back of the appellant.
The enquiry was to ascertain the truth of allegations of misconduct. Neither the report nor the statements recorded by the Enquiry Officer reached the appellant. The Enquiry Officer gave his findings on allegations of misconduct. The High Court accepted the report of Enquiry Officer and wrote to the Government that in the light of the report, the appellant was not a suitable person to be retained in service. [841C-F] The order of termination of the services of Ishwar Chand Agarwal is clearly by way of punishment in the facts and circumstances of the case. The High Court not only denied Ishwar Chand merely the protection under Article 311 but also denied itself the dignified control over the subordinate judiciary. The form of the order is not decisive as to, whether the order is by way of punishment.
Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provisions of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. The order of termination is illegal and must be set aside. [841 G-H] In case of Shamsher Singh the orders of termination of the services are set aside. The appellant Shamsher Singh succeeds by setting aside the order of termination. in view of the fact that Shgamsher Singh is already employed in the Ministry of Law, no relief accepting salary and other monetary benefits which accrued to him upto the time he obtained employment in the Ministry of Law is given.
(Per Krishna lyer J. for himself and Bhagwati J. concurring) (i) The argument about the oath of office of President to defend the Constitution is sometimes put forward by intiministerialist advocates. The President defends the Constitution not by denying its spiritual essence of Cabinet responsibility-indeed he subverts it that way-but by accepting as his Constitutional function what his responsible' ministers have decided. Can a Judge, in fulfillment of the oath of his office, ignore all binding precedents and decide according to the ad hoc dictates of his uninformed conscience ? Tribhovandas's case answers the point in the negative. If every functionary who takes the oath by the Constitution interprets it according to his lights, this solemn document would be the source of chaos and collusion and the first casualty would be the rule of law. Such mischief cannot merit juristic acceptance. [856H;
85-A-B] It is clear from article 74(1) that it is the function of the Council of Ministers to advise the President over the whole of the Central field. Nothing is left to his discretion or excepted from that field by this article. By way of contract see Article 163 which is the corresponding provision for Governors and which expressly excepts certain matters in which the Governor is, by or under the constitution, required to act in his discretion. There is no such exception in the case of the President. [858FG] However, Article 75(3) makes the Council of Ministers responsible to the House of the People. If, therefore, the President acted contrary to advice, the ministers would either resign or, since the advice tendered reflected the view of the House of the People, they would be thrown out of office by the House of the People. For the same reason, no one else 817 would then be able to form a government. The President would, therefore be compelled to dissolve the House. Apart from the technical difficulty of carrying out the many details of a general election in such a situation the President might have to dismiss the Ministry and install a caretaker' government to co-operate with him in ordering a general election--the consequences of the election might be most serious. if the electorate should return the same government to power, the President might be accused of having sided with Opposition and thrown the country into the turmoil and expense of a general--election in a vain attempt to get rid of a Ministry that had the support of Parliament and the people. This would gravely impair the position of the President. [858G-H; 859A-B] If we hold that in a conflict between the Ministry and the President, the President's Voice should prevail in the last resort, either generally or even in a particular class of cases, this would mean the elimination to that extent of the authority of a Ministry which is continuously subject to control or criticism by the house of the People in favour of the authority of a President who is not so subject. It would thus result in a reduction of the sphere of responsible government. So important a subtraction must be justified by some express provisions in out constitution.
[859C-D] If the President, in a particular case, where his own views differ front those of his Ministers, ultimately accepts their advice in defence to a well understood convention, then even if the act should result in a breach of some fundamental right, or directive principle' enunciated in the constitution, the responsibility will be that of the ministers and not of the President. [859D-E] The President under the Indian Constitution is not a mere figure head. Like,, the King in England he will still have the right to be consulted, to encourage and to wam Acting on ministerial advice does not necessarily mean immediate acceptance of the Ministry's first thoughts. The President can state all his objections to any purposed. course of action and ask his Ministers in Council, if necessary, to reconsider the matter. it is only in the last resort that he must accept their final advice. [859F-G] The President in India is not at all a glorified cipher. Ho represents the majesty of the State, is at the apex, though only symbolically, and ha,, rapport with the people and parties being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as the right to be consulted, to warn and encourage.' Indeed, Article 78 wisely sad, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him. by law is in effect and in law carried on by his duly appointed mentors, i.e. the Prime Minister and his colleagues. In short, the President, like the' King, has not merely been constitutionally romanticized but actually vested with a persuasive role. Political theorists are quite conversant with the dynamic role of the Crown which keeps away from politics and power and yet influences both. While he plays such a role he is not a rival centre of power in any sense and must abide, by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery. Of course, there is some qualitative difference between the position of the President and the Governor. The former, under Art. 74 hag no discretionary powers; the latter too has none. save in the tiny strips covered by Arts. 163 (2), 371A(1)(b) and (d), 371A(2)(b) and (f); VI Schedule para 9(2) (and VI Schedule para 18(3), until omitted recently with effect from 21-1-1972). These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. Again, a minimal area centering round reports to be dispatched under Art. 356 may not, in the nature of things, be amenable to ministerial advice. [867F-H; 868A-C] L192SupCI/75 818 If only we expand the ratio of Sardarilal and Jayantilal to every A function which the Article of the Constitution confer on the President on the Governor, Parliamentary democracy will become a dope and national elections a numerical exercise in expensive futility. we will be compelled to hold that there are two parallel authorities exercising powers of governance of the country, as in the dyarchy days, except that Whitehall is substituted by Rashtrapati Bhavan and Rai Bhawan. The cabinet will shrinkat Union and State levels in political and administrative authority and, having solemn regard to the gamut of his powers and responsibilities, the Head of State will be reincarnation of Her Majesty's Secretary of State for India, untroubled by even the British Parliament a little taller in power than the American President. Such a distortion, by interpretation, it appears to us, would virtually amount to a subversion of the structure, substance and vitality of our Republic, particularly when we remember that Governors are but appointed functionaries and the President himself is elected on a limited indirect basis.
[869G-H; 870A-B] HELD FURTHER:
The President means, for all practical Purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction of decision is constitutionally secured en his Ministers arrive at such opinion, satisfaction or decision. The independence of the judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant Article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decided the issue. [873A-C] HELD FURTHER:
Nor is Sardarilal of such antiquity and moment that a reversal would upset the sanctity of stare decisis. Some rulings, even of the highest Court. when running against the current of case and the clear stream of Constitutional thought, may have to fall into the same class as restricted railroad ticket, good for the day and train only,' to adopt the language of Justice Roberts (Smith v. Alleright, 321 U.S. 649, 665). [875E-F] In short the law of this branch of our constitution is that the President and Governor, Custodians of all executive and other powers under various Articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.
Without being dogmatic of exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country. is necessarily, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory.
[875F-H] (ii) So far as the appeals are concerned, the effect is that there is no infirmity in the impugned orders on the score that the Governor has not himself perused the papers or passed the orders. [876C-D] 819 The orders of terminations are liable to be quashed and set aside on the facts set out in the judgment of the learned Chief Justice.
Arguments on behalf of the appellant :
Article 234 of the Constitution confers on the Governor the power first to frame rules in consultation with the High Court and the Public Service Commission and then requires him to appoint persons to judicial service of a State in accordance with the Rules so made. The power to appoint includes The power to dismiss or terminate according to section 16 of the general Clauses Act read with Article 367 of the Constitution.
The power of the Governor under Article 234 as regulated by the rules framed thereunder is not the executive power of the State as contemplated under Article 154 and under Article 162 of the Constitution and is, therefore, not exercisable under Article 154 through subordinate officers, which, includes Ministers but must, on the language, the purpose and the setting of the Article, be exercised by the Governor as a power exercisable by himself. Even Rule 7 framed in consultation with the High Court and the Public Service Commission of the Punjab Civil Service (Judicial Branch Rules) confers the power of termination on the Governor alone and being bound by those rules he cannot leave exercise thereof to a subordinate officer. Since the impugned order of termination dated 15th December, 1969 was passed admittedly without even placing the papers before the Governor the same is in contravention of and is not authorized by Article 234 and the rules framed there under.
Under Article 163 of the Constitution the Governor is to act on the aid and advice of his Council of Ministers in the exercise of Ms functions except in so far as he is by or under the Constitution required to exercise his functions in his discretion. The power of termination conferred by Rule 7 is a power conferred by and under the Constitution and since Rule 7 requires the Governor in his own discretion to decide whether or not to terminate the services of a probationer judicial officer the function could be exercised by the Governor even without the aid and advice of his Council of Ministers. Article 163(2) further strengthens this submission in as much as it confers on the Governors the power even to decide whether a matter is or is not one in his discretion.
Alternatively and assuming that the function under Article 234 read with Rule 7 was not within the Governor's discretion in terms of Article 163, the power conferred by Article 234 and said Rule 7 was not exercisable through subordinates under Article 154 although it may be exercisable by the Governor on the aid and advice of his Council of Ministers since the power is not the executive power of the State, but a law making cum executive power of the Governor himself.
Under Article 235 of the Constitution it is the High Court alone which is vested with the control over the subordinate judiciary in all matters including the initiating and holding of enquiries against judicial officers. Since the dismissal or termination of the appellant's services is based on the Superintendent of Police, Vigilance Department's findings of guilt the order is in breach of Article 235 of the Constitution.
The appellant having completed his maximum period of three years probation. a legal right to be confirmed in favour of the appellant. Thereafter he ceased to be a probationer.
Since the appellant had acquired a right to be confirmed his services could not have been terminated without compliance with the provisions of Article. 311 of the Constitution.
The impugned order of termination though innocuous in form, is really an order by way of punishment removing the appellant from service on the basis of charges of gross misconduct found established by an ex-parte enquiry conducted by the S.P. Vigilance Department with the only object of ascertaining the truth, of the alleged misconduct and for the purpose of dismissing or removing the petitioner if the charges were found established. It was ultimately on the basis of specific findings recorded by S.P. Vigilance that the appellant's services were terminated. The enquiry was clearly in breach of Article 311 of the Constitution as also in breach of rules of Natural justice. The enquiry by SP. Vigilance was essentially and in character and object different from the infor820 mal enquiry into the suitability of the appellant held by the two District Judges (Ferozpur and Bhatinda) towards the, end of the maximum period of probation.
The report of the Vigilance Department which formed the very basis of the termination is therefore, based on an entirely un communicated material.
Even the adverse reports referred to by the Respondent Government were not made the subject matter of the show cause notice proposing termination so that in terms of Rule 9 the petitioner never had the opportunity to show cause against them. Although the said reports related to a preshow cause notice, period they were not made the subject matter of the show cause notice )so that the impugned order of termination, which, is admittedly based on these adverse reports also is in breach of Rule 9.
The appellant's service have thus been terminated on the basis of grounds entirely extraneous to the show cause notice and since the appellant was not applied of these new grounds and allegations and was not given an opportunity to submit an explanation with regard to the same, the order of termination dated 15th December, 1969 has clearly been made in breach of mandatory provisions of rule 9 and is liable to be quashed.
Arguments on behalf of the Respondent It is a fundamental principle of English Constitutional law that there must be no conflict between the King and his people, and consequently no conflict between the King and the, House of Commons which represents the people. It is this principle which is responsible for three settled rules of English Constitutional Law : (i) That for every public act of the King, his Ministers must accept responsibility, (ii) That the Sovereign must never act on his own responsibility that is, he must always have advisers who will bear responsibility for his acts; and (iii) The Power of the Sovereign to differ from or dismiss his Ministers is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action and those advisers must have the confidence of the house of Commons.
This rule of English Constitutional Law is incorporated in the Constitution of India. See Articles 74(1), 75(3) and 361(1) and second proviso which clearly point to the conclusion that the Indian Constitution envisages a Parliamentary or "responsible" form of Government and not a Presidential form of Government. The powers of the, Governor as constitutional head are no different-See Article 163(1), 164(2) and 361(1) and second proviso.
The Supreme Court of India has consistently taken the view that the powers of the President and the powers of the Governor under the Indian Constitution are akin to the powers of the Crown under the British Parliamentary system.
See Ramajawari Kapur v. State of Punjab [1955] 2 SCR at 236237 (Mukherjea, CJ.), A. Sanjeevi Naidu v. State of Madras [1970] 3 SCR 505 at 511 (Hegde J.); U. N. Rao v. Indira Gandhi [1971] Supp. SCR p. 46 (Sikri, C.J.). In the last case this Court held that Article 74(1) was mandatory and therefore the President could not exercise the executive power without the aid and advice of Council of Ministers;
but the principle of the decision is not restricted to the exercise of executive power alone. A similar view with regard to the powers of the President and the Governor under our Constitution is expressed by Constitutional lawyers.
(See, for instance, Jennings Constitutional Laws of the Commonwealth 1952 p. 365 where the author characterizes the description of the Indian Constitution as a Sovereign Democratic Republic as "wholly accurate" but that "it might also be described as a constitutional monarchy without a monarch".
The Governor is at the apex of the Executive and the executive power of the State is vested in the Governor [Article 154(1)]. The Governor is also at the annex of the State Legislature (Article 169).
In both these capacities the Governor has several functions to perform. The word functions' includes powers and duties The nature of these functions and the capacity in which he examines them is set out in the Explanatory Note appended to this written argument.
The power to terminate the engagement of a member of a State Public Service Commission such as a Sub-Judge is part of the executive power of 821 the State. (Art. 162 read will Entry 41 of List 11). It can be allocated to a Minister under Art. 166(3). It can be exercised by subordinate officials if this is in accordance with the rules of allocation.
In any case the executive power of the State extends to, but is not limited to, matters in respect of which legislature has power to make laws. Neither the appointment nor the termination of the services of a District Judge (Article 233) nor the appointment or termination of service of a member of the Subordinate Judicial Service (Article 234) is a matter with respect to which the Governor is required to act in his discretion. The argument (on behalf of the Interveners) that the "Governor" in Articles 233 and 234 mean the Governor personally and not acting through any other agency is contrary to the plain language of articles 154(1), 162(1) and 166. It is also contrary to the concept "responsible" Government. That the actions of "responsible" Ministers should be scrutinized by a nominated Governor, who is responsible to no one, is a strange argument the confidence in the personal opinion of a nominated individual may or may not be justified; but it is not warranted in a Parliamentary system of democracy. There is nothing in the form of the oath taken by the Governor to militate against the State's submissions. If the Governor is true to his oath he cannot ignore or refuse to follow a ride of constitutional Law-which is that he must act as a constitutional head of a State having a Council of Ministers responsible to the State Legislature. In fact such a contention runs counter to the theory of Cabinet responsibility on which our Constitution is based.
The argument founded on article 167 does not advance the case of the petitioners. The Governor has no right to refuse to act on the advice of the Council of Ministers.
Such a position is antithetical to the concept of "responsible' Government. Article 167 was inserted for the limited purpose of enabling him to obtain information so that he could discharge the constitutional functions of a Governor. It was not intended to give the Governor power to interfere in the administration and as such a result does not flow from the language used in article 167.
A person appointed to a permanent post in Government service on probation has no right to continue to hold that post any more than a servant employed on probation by a private employer is entitled to do. Termination' of the services of the probationer during or at the end of the period or probation will not ordinarily and by itself be a punishment attracting the provisions of article 311. If termination of service of a probationer is founded on a right flowing from the contract or the service rules, then prima facie it is not a punishment and article 311 is not attracted. The test is : Is termination sought to be brought about otherwise than by way of punishment ? If yes, article 311 will not apply. This is ordinarily to be ascertained by reference to the order terminating the service.
Though termination of the service of a probationer during or at the end of the period of probation will not ordinarily and by itself be a punishment-the circumstances attending the termination would be relevant to determine whether or not the termination was by way of punishment. An important circumstance would be the fact that disciplinary action was contemplated and taken. The form of the order is not by itself conclusive.
An order of termination of service in unexceptionable form preceded by an inquiry launched by the superior authority whether under specific rules or otherwise for the purpose of ascertaining whether the public servant should be retained in service does not attract the operation of article 311.
Even where a departmental inquiry is initiated and a charge sheet submitted followed by an explanation from the probationer the provisions of article 311 would not be attracted if the inquiry was not proceeded with and there was a termination of service simpliciter.
But where the inquiry is held under rules giving the public servant on probation an opportunity of showing cause why the probationer's appointment should not be terminated and such a show cause notice is given and an inquiry held under the relevant rule. the order of discharge of the probationer if unexceptionable in form, will not amount to "dismissal".
In the. present case Rule 9 was invoked and was applied.
The confidential reports themselves disclose an unsatisfactory record implying unsuitability for 822 further service. This itself is sufficient to dispose of.
the petitioner's contentions on merits. The confidential reports were available with the Government as they were forwarded by the High Court. The explanation of the petitioner was considered by the High Court both prior to the issue of a show cause notice by the Chief Secretary and after, and the explanation of the petitioners was also considered by the High Court. The record does not show that the view of the High Court was in any way perverse. On the contrary, it is clearly warranted by the facts on record.
The contention that the show cause notice should have been under the specific directions of the Chief Minister is not warranted either by the Allocation Rules of 1966 nor is it justified on a true construction of Rule 9 of the Punjab Civil Service (Punishment and Appeal) Rules, 1952.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2289 of 1970 and 632 of 1971.
From the Judgment and Order dated 28-4-70 of the appeal by Special Leave from the Judgment and order dated 8-10-70 of the Punjab & Haryana High Court in Civil Regular First Appeal No. 446/69 and L.P.A. No. 656 of 1970 respectively.
Appellant appeared in person (In CA No. 2289170).
G. L. Sanghi, S. P. Agarwala, A. T. M. Sampath, A. K. Sanghi and E. C. Agarwala, for the Appellant (In C.A. No.632/71).
F.S. Nariman, Addl. Sol. Gen. of India, H. R. Khanna and O. P. Sharma; for Respondent No. 1 (In CA. No. 2289/70).
V. M. Tarkunde, S. K. Mehta and O. P. Sharma for the Respondent (In CA. 632/71).
Niren De, Att. Gen., P. P. Rao and S. P. Nayar; for the Attorney General of India.
B. R. L. iyengar and Bishamber Lal for the Intervener (Mr. B. L. Gupta) Anand Swarup, A. K.Sen and Harbans Singh Marwaha for Intervener (Punjab & Haryana).
The Judgment of A. N. Ray, C.J., D., G. Palekar,K. K.
Mathew, Y V. Chandrachud and A. Alagiriswami, JJ. was delivered by Ray, C.J., V. H. Krishna Iyer, J. gave a separate Opinion on behalf of P. N. Bhagwati J. and himself.
RAY C. J. These two appeals are from the judgment of the Punjab and Haryana High Court.
The Appellants joined the Punjab Civil Service (Judicial Branch). They were both on probation.
By an order dated 27th April, 1967 the services of the appellant Shamsher Singh were terminated. The order was as follows :
"The Governor of Punjab is pleased to terminate the services of Shri Shamsher Singh, Subordinate Judge, on probation, under Rule 9 of the Punjab Civil Services (Punishment' and Appeal) Rules, 1952 with immediate effect. It is requested that these orders may be conveyed to the officer concerned under intimation to the Government." By an order dated 15 December, 1969 the services of the appellant Ishwar Chand Agarwal were terminated. The order was as follows:
"On the recommendation of the High Court of Punjab and Haryana, the Governor of Punjab is pleased to dispense with 823 the services of Shri Ishwar Chand Agarwal, P.C.S. (Judicial Branch), with immediate effect, under Rule 7(3) in Part D' of the Punjab Civil Services (Judicial Branch) Rules, 1951, as amended from time to time".
The appellants contend that the Governor as the Constitutional or the formal head of the State can exercise powers and functions.of appointment and removal of members of the Subordinate Judicial Service only personally. The State contends that the Governor exercises powers of appointment and removal conferred on him by or under the Constitution like execute powers of the State Government only on the aid and advice of his Council of Ministers and not personally.
The appellants rely on the decision of this Court in Sardari Lal v. union of India & Ors. (1971)3 S.C.R. 461 where it has been held that where the President or the Governor, as the case may be, if satisfied, makes an order under Article 311(2) proviso(c) that in the interest of the security of the State it is not expedient to hold an enquiry for dismissal or removal or reduction in rank of an officer, the satisfaction of the President or the Governor is his personal satisfaction. The appellants on the authority of this ruling contend that under Article 234 of the Constitution the appointment as well as the termination of services of subordinate Judges is to be made by the Governor personally.
These two appeals were placed before a larger Bench to consider whether the decision in Sardari Lal's case (supra) correctly lays down the law that where the President or the Governor is to be satisfied it is his personal satisfaction.
The appellants contend that the power of the Governor under Article 234 of the Constitution is to be exercised by him personally for these reasons.
First there are several constitutional functions, powers and duties of the Governor. These are conferred on him eo nomine the Governor. The Governor, is, by and under the Constitution, required to act in his discretion in several matters. These constitutional functions and powers of the Governor eo nomine as well as these in the discretion of the Governor are not executive powers of the State within the meaning of Article 154 read with Article 162.
Second, the Governor under Article 163 of the Constitution.
can take aid and advice of his Council of Ministers when he is exercising executive power of the State. The Governor can exercise powers and functions without the aid and advice of his Council of Ministers when he is required by or under the Constitution to act in his discretion, where he is required to exercise his Constitutional functions conferred on him eo nomine as the Governor.
Third, the aid and advice of the Council of Ministers under Article 163 is different from the allocation of business of the Government of the state by the Governor to the Council of Ministers under Article 824 166(3) of the constitution. The allocation of business of Govt. under Article, 166(3) is an instance of exercise of executive power by the Governor through his council by allocating or delegating his functions. The aid and advice is a constitutional restriction on the exercise of executive powers of the State by the Governor. The Governor will not be constitutionally competent to exercise these executive powers of the State without the aid and advice of the Council of Ministers.
Fourth, the executive powers of the State are vested in the Governor under Article 154(1). The powers of appointment and removal of Subordinate Judge under Article 234 have not been allocated to the Ministers under the Rules of Business of the State of Punjab. Rule 18 of the Rules of Business States that except as otherwise provided by any other rule cases shall ordinarily be disposed of by or under the authority of the Minister-in-Charge who may, by means of Standing orders, give such directions as he thinks fit for the disposal of cases in his department. Rule 7(2) in Part D of the Punjab civil Rules which states that the, Governor of Punjab may on the, recommendation of the High Court remove from service without assigning any cause any subordinate Judge or revert him to his substantive post during the, period of probation is incapable of allocation to a Minister. Rule 18 of the, Rules of Business is subject to exceptions and rule 7(2) of the Service Rules is such an exception. Therefore, the appellants contend that the power of the Governor to remove Subordinate Judges under Article 234 read with the aforesaid Rule 7(2) of the Service Rules cannot be allocated to a Minister.
The Attorney General for the Union, the Additional Solicitor General for the State of Punjab and Counsel for the State of Haryana contended that the President is the, constitutional head of the Union and the Governor is the constitutional head of the State and the President as well as the Governor exercises all powers and functions conferred on them by or under the Constitution on the aid and advice of the Council of a Ministers.
In all the Articles which speak of powers and functions of the President, the expressions used in relation thereto are is satisfied', is of opinion as he thinks fit' and if it appears to. In the case of nor, the expressions used in respect of his powers and functions are is satisfied', if of opinion' and as he thinks fit'.
Article 163(1) states that there shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of Was functions, except in so far as he is by or under this Constitution, required to exercise his functions or any of them in his discretion. Article 163(2) states that if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of he Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that the ought or ought not to have acted in his discretion. Extracting the words "in his discretion" in relation to exercise of functions, the appellants contend that the Council of Ministers may aid and advise the 825 Governor in Executive functions but the Governor individually and personally in his discretion will exercise the constitutional functions of appointment and removal of officers in State Judicial Service and other State Services.
It is noticeable that though in Article 74 it is stated that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions, there is no provision in Article 74 comparable to Article 163 that the aid and advice is except in so far as he is required. to exercise his functions or any of them in his discretion.
It is necessary to find out as to why the words, in his discretion' ire used in relation to some powers of the Governor and not in the case of the President.
Article 143 in the Draft Constitution became Article 163 in the Constitution. The draft constitution in Article 144(6) said that the functions of the Governor under Article with respect to the appointment and dismissal of Ministers shall be exercised by him in his discretion. Draft Article 144(6) was totally omitted when Article 144 became Article 164 in the Constitution. Again Draft Article 153(3) said that the functions of the Governor under clauses (a) and (c) of clause (2) of the Article shall be exercised by him in his discretion. Draft Article 153(3) was totally omitted when it became Article 174 of our Constitution. Draft Article 175 (proviso) said that the Governor " may in his discretion return the Bill together with a message requesting that the House. will reconsider the Bill". Those words that "the Governor may in his discretion" were omitted when it became Article 200. The Governor under Article 200 may return the Bill with a message requesting that the House will reconsider the Bill. Draft Article 188 dealt with provisions in case of grave emer s. clauses (1) and (4) in Draft Article 188 used to words "in his discretion in relation to exercise of power by the Governor. Draft Article 188 was totally omitted Draft Article 285(1) and (2) dealing with composition and staff of Public Service Commission used the expression "in his discretion" in relation to exercise of power by the Governor in regard to appointment of the Chairman and Members and making of regulation. The words "in his discretion" in relation to exercise of power by the Governor were omitted when it became Article 316. In Paragraph 15 (3) of the Sixth Schedule dealing with annulment or suspension of acts or suspension of acts and resolutions of District and Regional Councils it was said that the functions of the Governor under the Paragraph shall be exercised by him in his discretion. Sub-paragraph 3 of Paragraph 15 of the Sixth Schedule was omitted at the time of enactment of the Constitution.
It is, therefore, understood in the background of these illustrative draft articles as to why Article 143 in the Draft Constitution which became Article 163 in our Constitution used the expression "in his discretion" in regard to some powers of the Governor.
Articles where the expression "acts in his discretion" is used in relation to the. powers and functions of the Governor are those which speak of Special responsibilities of the Governor. These Articles are 371A(1) (b), 371A(1) (d), 371A (2) (b) and 371A(2) (f). There 826 are two Paragraphs in the Sixth Schedule., namely, 9(2) and 18(3) where the words "in his discretion" are used in relation to certain powers of the Governor. Paragraph 9 (2) is in relation to determination of amount of royalties payable by licensees or lessees prospecting for, or extracting minerals to the District Council. Paragraph 18(3) has been omitted with effect from 21 January, 1972.
The provisions contained in Article 371A (1) (b) speak of the Special responsibility of the Governor of Nagaland with respect to law and order in the State of Nagaland and exercise of his individual judgment as to the action to be taken. The proviso states that the decision of the Governor in his discretion shall be final and it shall not be called in question.
Article 371A(1) (d) states that the Governor shall in his discretion make rules providing for the composition of the regional council for the Tuensang District.
Article 371A(2)(b) states that for periods mentioned there the Governor shall in his discretion arrange for an equitable allocation of certain funds, between the Tuensang District and the rest of the State.
Article 371A(2) (f) states that the final decision on all matters relating to the Tuensang District shall be made by the Governor in his discretion.
The executive power of the Union is vested in the President under Article 53(1). The executive power of the State is vested in the Governor under Article 154 (1). The expression "Union" and "State," occur in Articles 53(1) and 154(1) respectively to bring about the federal principles embodied in the Constitution. Any action taken in the exercise of the executive power of the Union vested in the President under Article 53(1) is taken by the Government of India in the name of the President as will appear in Article 77(1). Similarly, any action taken in the exercise of the executive power of the State vested in the Governor under Article 154(1) is taken by the Government of the State in the name of the Governor as will appear in Article 166(1).
There are two significant features in regard to the executive action taken in the name of the President or in the name of the Governor. Neither the President nor the Governor may sue or be sued for any executive action of the State. First, Article 300 States that the Government of India may sue or be sued in the name of the Union and the Governor may sue or be sued in the name of the State.
Second, Article 361 states that proceedings may be brought against the Government of India and the Government of the State but not against the President or the Governor.
Articles 300 and 361 indicate that neither the President nor the Governor can be sued for executive actions of the Government. The reason is that neither the president nor the Governor exercises the executive functions individually or personally. Executive action taken in the name of the President is the action of the Union. Executive action taken in the name of the Governor is the executive action of the State.
827 Our Constitution embodies generally the Parliamentart or Cabinet system of Government of the British model both for the Union and the States. Under this system the, President is the Constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers Article 103 is an exception to the aid and advice of the Council of Ministers because it specifically provides that the President acts only according to the opinion of the Election Commission. This is when any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102.
Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and be exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.
The executive power is generally described as the residue which does not fall within the legislative or judicial power. But executive power may also partake of legislative or judicial actions. All powers and functions of the President except his legislative powers as for example in Article 123 viz., ordinance making power and all powers and functions of the Governor except his legislative power as for example in Article 213 being ordinance making powers are executive powers of the Union vested in the President under Article 5 3 ( 1) in one case and are executive powers of the State vested in the Governor under Article `54(1) in the other case. Clause (2) or Clause (3) of Article 77 is not limited in its operation to the executive action of the Government of India under clause (1) of Article 77.
Similarly, clause (2) or clause (3) of Article 166 is not limited in its operation to the executive action of the Government of the State under clause (1) of Article 166.
The expression "Business of the Government of India" in clause (3) of Article 77, and the expression "Business of the Government of the State" in clause (3) of Article 166 includes all executive business.
In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rule-. for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Article 77 (3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of Presidents the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles' 123, 21-3, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the Personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the, Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77(3) nor Article 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) provide 828 that the President under Article 77(3) and the Governor under Article 166(3) shall make rules for the more convenient transactions of the business of the Government and the allocation of business among the ministers of the said business. The rules of business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the rules of business make under these two Articles viz., Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively.
Further the rules of business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor as the case may be, arc sources of the rules of business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor.
Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because constitutionally the act or decision of the official is that of the, Minister. Ile official is merely the machinery for the discharge of the functions entrusted to a Minister (See Halsubry's laws of England 4th Ed. Vol. I paragraph 748 at p. 170 and Carleton Ltd. v. Works Commissioners (1943) 2 AU. (E.R. 560) It is a fundamental principle of English Constitutional law that Ministers must accept responsibility for every executive act. In England, the sovereign never acts on his own responsibility. The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons.
This rule of English constitutional law is incorporated in our Constitution. The Indian Constitution envisages a parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. Tie powers of the Governor as the Constitutional head are not different.
This Court has consistently taken the view that the powers of the President and the powers of the Governor are similar to the powers of the Crown under the British Parliamentary system. (See Ram Jawaya Kapur v. State of Punjab (1952) 2 S.C. R. 225 at 236237, A. Sanjeevi Naidu v. State of Madras (1970) 3 S. C. R. 505 at 511. U. N. Pao v. Indira Gandhi (1971) Supp. S. C. R. 46. In Ram Jawaya Kapur's case (supra) Mukherjea, C. J. speaking for the Court stated the legal position as follows. The executive has the Primary responsibility for the formulation of governmental policy and its transmission into law. The condition precedent to the exercise of this responsibility is that the executive retains the confidence of the legislative branch of the State. The initiation of legislation, the maintenance of order, the promotion of Social and economic welfare, the 829 direction of foreign policy, the, carrying on the general administration of the State are ail executive functions.
The executive is to act subject to the control of the legislature. Ile executive power of the Union is vested in the President. The President is the formal or constitutional head of the executive. The real executive powers are vested in the Ministers of the Cabinet. There is a Council of Ministers with the Prime Minister as the head to aid and advise the President in the exercise of his functions.
The functions of the Governor under rules of business of Madras Government in regard to a scheme for nationalization of certain bus routes were considered by this Court in Sanjeevi Naidu's case (supra). The validity of the scheme was challenged on the ground that it was not formed by the State Government but by the Secretary to the Government pursuant to powers conferred on him under Rule 23-A of the Madras Government Business Rules.
The Scheme was upheld for these reasons. The Governor makes rules under Article 166(3) for the more convenient transaction of business the Government of the State. The Governor can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But that could be done on the, advice of the Council of Ministers.
The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible for every action taken or omitted to be taken in his Ministry. In every administration, decisions are taken by the civil servants. The Minister lays down the policies.
The Council of Ministers settle the, major policies. When a Civil Servant takes a decision, he does not do it as a delegate of his Minister. Ho does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Ministry's department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister.
In Rao's case (supra) this Court had to consider whether House of People being dissolved by the President on 27 December, 1970, the Prime Minister ceased to hold office thereafter. Our Constitution is modeled on the British Parliamentary system. The executive has the primary responsibility for the formation of Government policy. The executive is to act subject to control by the Legislature.
The President acts on the aid and advice of the Council of Ministers with the Prime Minister at the head. The Cabinet enjoying as it does a majority in the Legislature concentrates in itself the virtual control of both legislative and executive functions. Article 74(1) Which states that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the legislative functions is mandatory. The contention in that case that on the President dissolving the House, there will be no Prime Minister was not accepted because it would change the entire content of the executive Government.
830 If there will be no Council of Ministers, the President will not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there will be no Council of Ministers, nobody will be responsible to the House of the People. Article 75 states that the Prime Minister will be appointed by the President and the other Ministers shall be appointed on the advice of the Prime Minister. Article 75(3) states that the Council of Ministers is collectively responsible to the Government. This is the basis of responsible Government. Article 75(3) by itself may not apply when the House of People, is dissolved or prorogued.
But the harmonious reading of the mandatory character of Article 75(1) along with Articles 75(2) and 75(3) is that the President cannot exercise executive powers without the aid and advice of the Council of Ministers with the Prime Minister at the head. In that context, Articles 77(3) and 78 have full operation for duties of the Prime Minister and allocation of business among Ministers.
These decisions of this Court are based on the root authority in King Emperor v. Sibnath Banerji & Ors. 72 I. A.
241. Section 59(3) of the Government of India Act, 1935 referred to as the 1935 Act contained provisions similar to Article 166(3) of our Constitution. The question arose there as to whether the satisfaction of the Governor meant the personal satisfaction as to matters set out in the rule 26, of the Defence of India Rules. It was held that these matters could be dealt with by him in the normal manner in which the executive business of the Provincial Government is carried on and in particular under Section 49 of the 1935 Act and the provisions of the Rules of Business made under the aforesaid Section 59 of the 1935 Act. The orders of detention were held to be regular and appropriate. A presumption of constitutionality was also to be implied under the Rules of Business. The presumption of course could be rebutted.
The Judicial Committee observed that the executive authority in its broad sense included both a decision as to action and the carrying out of such decision. The Judicial Committee said that
