ORDER
No. S. 5-9214/50/CS dated 9.10.1951.
1. Sri P. Joseph John was the Electrical Engineer of the Travancore State at the time of integration of Travancore with Cochin and continued as the head of the Electricity Department until he was placed under suspension in Government Order No. A-8-9024/49/SD dated 26.12.1949. The suspension was the result of confidential preliminary enquiries which established prima facie certain charges against him. Sri K. Sankaran, Judge, High Court, was appointed as Commissioner under Section 3, Travancore Public Servants (Inquiries) Act, 11 of 1122, to conduct a formal and public enquiry into the case. There were 26 charges framed against him. The Commissioner has enquired into all these charges & forwarded his report. Of the 26 charges, charges XIII, XIV, XV, XVI, XVII, XVIII, XXIII, XXIV, and XXV were dropped and the irregularity in charge IX was condoned. The articles of charge and a summary of the findings on the various charges are given in the enclosures. After a detailed enquiry the Enquiry Commissioner has found that the remaining 16 charges are established. The Government accepted the findings of the Commissioner and in consultation with the Public Service Commission provisionally decided to remove the delinquent from office from the date of his suspension and to debar him permanently from reappointment in service. This decision was communicated to Sri P. Joseph John and he was asked to show cause within 15 days why the penalty should not be imposed. In reply he wanted 2 months' time to send his explanation. Although usually not more than a month is allowed in such cases, his request was agreed to. On the day the 2 months' time was due to expire, he put in a request for further two months' time. He was given a further fortnight and told that if he failed to give his explanation within that time the case would be disposed of as if he had no explanation. He preferred an appeal against this order to the Hon'ble Chief Minister which was dismissed.
2. The enquiry before the Commissioner appointed under Section 3, Travancore Public Servants (Inquiries), Act of 1122 was elaborate and Sri Joseph John was defended by counsel. All possible lines of defence were taken at the enquiry and these were considered both by the Enquiry Commissioner and by Government before the provisional decision was taken to remove Sri Joseph John from service. He was given more than a reasonable chance to show cause why the punishment proposed should not be inflicted and he has failed to give any explanation. In the circumstances, the Enquiry Commissioner's findings are confirmed. Sri P. Joseph John is removed from service from the date of his suspension and is permanently debarred from reappointment in service.
By Order of His Highness the Raj Pramukh.
Sd. K.G. Menon,
Chief Secretary to Government.
(Ext. M).
On 10.12.1951 the petitioner applied for a review of the said order. (Ext. N). The application for review was rejected on 25.1.1952 (Ext. O). This is the second order that is sought to be quashed by these proceedings.
5. O. P. 51/1952 was presented before this Court on 2.6.1952. It was accompanied by a C.M.P. No. 917/52 for a direction to the respondent to produce in Court six documents scheduled thereto. After hearing preliminary arguments the O.P. and the C.M.P., this Court directed notices to be issued to the respondent. At the first hearing the State filed a counter-affidavit in answer to the affidavit filed by the petitioner in support of the O.P., but took time to file objections to the C.M.P. At the adjourned date the respondent produced two of the six documents called for but objected to producing documents Nos. 1, 3, 4 and 5 in the schedule.
6. The C.M.P. and the O.P. were posted together for hearing before this Full Bench. The C.M.P. was heard first and we passed the following order:
This is an application presented by the applicant in the O.P. for directing the respondent-State for producing in Court six documents listed in the affidavit accompanying the application.
2. The O.P. itself is for a writ of 'certiorari' to bring up the proceedings terminating in the order removing the applicant from service, dated 9.10.1951 and the order dated 25.1.1952 rejecting his application for review of the order. The entire records of the proceedings leading up to those orders are those to be removed to this Court for purposes of the O.P. This Court being satisfied upon, preliminary arguments that there is a case for consideration, issued notice to the respondent. Pursuant to that notice, respondent has not returned any document, but has filed a counter-affidavit and produced 33 documents stating them to be for purposes of evidence on behalf of the respondent. The proper return to an order issuing notice upon an application of this description should be a return producing the records forming the subject-matter of the proceedings in 'certiorari'.
3. Rules have not been framed by this High Court as regards the procedure applicable to Original Petitions. In the absence of such rules, it cannot be regarded that the respondent was in default in not having made the return as aforesaid. The respondent, however, will now make the return in the manner above indicated.
4. Numbers 2 and 6 in the aforesaid list have been produced in Court by the respondent. Exception is taken for the production of Nos. 1, 3, 4 and 5. Item 6 is the Rules of Business said to have been framed by the Raj Pramukh. Obviously that cannot form part of the proceedings sought to be brought up in the O.P. for purposes of quashing the orders impeached. The Advocata-General, however, has no objection to make it available for us for reference for purposes of these proceedings and we rest content with that assurance.
5. As we understand it, the records of the proceedings sought to be quashed must commence with the preliminaries for placing the petitioner under suspension. Every document in the Secretariat file starting therefrom and terminating in the two orders sought to be quashed must necessarily form part of the proceedings. The decisions referred to in items 1 and 3, as we understand the position, must also be in the said file. The learned Advocate-General mentioned that the notes of discussions referred to in those items are non-existent and if that be so, it is a matter to be disclosed clearly by a further affidavit as the one filed already by the Chief Secretary to Government is not clear upon the subject.
6. The second document read in the order dated 9.10.1951 is the letter from the Public Service Commission. The correspondence leading to it and the further correspondence, if any, thereafter, should necessarily form part of the aforesaid proceedings. They have to be produced and no privilege could be claimed in respect of any one of them.
7. If any document not expressly excluded heretofore forming part of the said proceedings is apprehended to be injurious to public interest if disclosed, liberty is given to the respondent to produce the same in Court in a sealed cover with an explanatory note and the said document will be dealt with by the Court appropriately. The administration of justice by the Court is a part of the administration of the country and the Court is certainly as much interested, as anybody else, In the general administration of the State as it is in the administration of justice specially entrusted to it.
8. The 'certiorari' in this application is not for removal of the records to this Court as evidence. Had it been such, it would have been competent for the State to take objection as was done here at the hearing, based on Sections 123, 124 and 164, Evidence Act. The contention urged by the State was that because the items whose production is objected to, constitute 'affairs of State' within the meaning of Section 123, until the Court decides whether those items do or do not form part of the 'affairs of State' within that section, no order for their production should be made. It is not necessary for us to give an opinion upon this question because we regard this application as only part of the main O. P. for 'certiorari' to bring up the proceedings for purposes of quashing the orders in which the proceedings terminated. This is how we understand the C.M.P. 917/52 as merely being a part of the O.P. which is to bring up the records for purposes of quashing the orders impeached.
9. The respondent is directed to comply with this order immediately.
Sd/- K.T. Koshi, Chief Justice,
Sd/- K.S. Govinda Pillai, Judge.
Sd/- P.K. Subramonla Iyer, Judge.
Dated 30.7.1952.
(7) The remaining 4 documents out of the six called for by the petitioner were immediately produced before Court by the learned Advocate-general. Our order was more comprehensive than the items called for by the petitioner and some more papers were produced at the end of the arguments. The respondent first objected to the production of the Rules of Business as forming 'unpublished official records' within the meaning of Section 123, Evidence Act. At he argument of the petition, however, that objection was not pressed and the Rules were agreed to be made available as stated in our above order. They were accordingly made available to the Court as well as to the petitioner.
8. True to traditions, the Rulers of the erstwhile States of Travancore and Cochin have had the advice and assistance of a Council of Ministers. Both the States were steadily progressing in the direction of democracy. At the time of 'the Covenant entered into by the Rulers of Travancore and Cochin for the formation of the United State of Travancore and Cochin' as from the 1st day of July 1949, both of them had Councils of Ministers, responsible to Houses of Legislature. The first Article of the Covenant provided that:
As from the first day of July, 1949, the States of Travancore and Cochin shall be united in and shall form one State, with a common executive, legislature, and judiciary by the name of the United State of Travancore and Cochin.
The 6th Article provided that:
Subject to the provisions of this Covenant, the executive authority of the United State shall be exercised by the Raj Pramukh either directly or through officers subordinate to him; but nothing in this Article shall prevent any competent Legislature of the United State from conferring functions upon subordinate authorities or be deemed to transfer to the Raj Pramukh any functions conferred by any existing law on any Court, Judge or officer or any local or other authority in either of the Covenanting States.
The 7th Article provided that:
(1) There shall be a Council of Ministers to aid and advise the Raj Pramukh in the exercise of his functions save as provided in Articles 12 and 13.
(2) The Ministers shall be chosen by, and shall hold office during the pleasure of the Raj Pramukh.
Articles 19 and 20 are as follows:
19. (1) The United State hereby guarantees either the continuance in service of the permanent members of the public services qt either Covenanting State on conditions which will not be less advantageous than those on which they are serving immediately before the appointed day or the payment of reasonable compensation or retirement on proportionate pension.
(2) The United State further guarantees the continuance of pensions and leave salaries sanctioned by competent authorities in either Covenanting State to members of the Public Services (civil and military) of that State, who have retired, or proceeded oil leave preparatory to retirement, and the compassionate allowances granted to dependents of deceased members of those services before the appointed day.
20. Except with the previous sanction of the Raj Pramukh, no proceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of either Covenanting State before the appointed day.
Article 11 provides that:
Until a Constitution framed or adopted by the Legislature comes into operation, the Raj Pramukh shall have power to make and promulgate Ordinances for the peace and good government of the United State or any part thereof, and any Ordinance so made shall for the space of not more than six months from its promulgation, have the like force of law as an Act of the Legislature, bat any such Ordinance may be controlled or. superseded by any such, Act.
Pursuant to the powers under this Article, His Highness the Raj Pramukh promulgated several Ordinances of which the first is Ordinance 1 of 1124. The 3rd section of this Ordinance is as follows:
3. (1) Subject to the provisions of this Ordinance, the existing laws of Travancore shall, until altered, amended or repealed by competent authority, continue to be in force 'mutatis mutandis' in that portion of the territories of the United State which before the appointed day formed the territory of the State of Travancore.
(2) All references in any of the existing laws of Travancore to His Highness the Maharaja of Travancore or the Government or the Dewan shall be construed as references to the Raj Pramukh or the Government of the United State or the Minister concerned of the United State, as the. case may be.
A similar provision was made in the next Section 4, as regards the existing laws of Cochin. The 5th section provided that:
5. The Raj Pramukh shall make rules for the more convenient transaction of the business of the Government of the United State and for the allocation among Ministers of the said business.
(9) The Rules of Business above mentioned were the rules made by His Highness the Raj Pramukh under this section. On 26.1.1950, that is the date on which the Constitution of India came into force which, by virtue of Article 238 is applicable to the States in Part B of the First Schedule whereof the State of Travancore Cochin is one, His Highness the Raj Pramukh issued a notification in a Gazette Extraordinary which stated as follows:
Under Article 166 read with Article 238, Constitution of India, His Highness the Raj Pramukh is pleased to direct that the Rules of Business in force immediately prior to the commencement of the Constitution shall be the rules under Article 166(3) of the said Constitution.
By Order of His Highness the Raj Pramukh,
K.G Menon,
Chief Secretary to Government.
The Rules of Business as first made, thus continued in force.
(10) On 16.7.1949, His Highness the Raj Pramukh promulgated the United State of Travancore-Cochin Public Service Commission Ordinance, 6 of 1124, Section 4(2) of which provided that:
4. (1) x x x x(2) The Raj Pramukh after consultation with the Commission may make rules specifying the matters on which either generally or in any particular class of cases or in particular circumstances, it shall not be necessary for the Commission to be consulted but subject to the rules so made and to the provisions of the next succeeding sub-section, the Commission shall be consulted:
(a) x x x x(b) x x x x(c) on all disciplinary matters affecting the persons serving under the Government of the United State in a civil capacity, including memorials or petitions relating to such matters:x x x x x.
11. Of the two orders sought to be quashed the second, as already stated, is the proper order dated 25.1.1952, dismissing the petitioners application for review of the order removing him from service. The petitioner challenges the validity of the order rejecting his application for review on the ground that it was passed without consulting the Public Service Commission as enjoined by Article 329, Clause (3)(c), Constitution of India which provides that:
320. x x x x(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted:
(a) x x x x(b) x x x x(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating. to such matters.
12. The order sought to be reviewed was one removing the petitioner from service. If that is a good order then, he stood removed from service as on its date. The petitioner, therefore, would not be 'a person serving under the Government of a State' within the meaning of Clause (3)(c) of Article 320, because a person who has been removed from service can hardly be said to be serving thereafter. Assuming without deciding that the term 'memorials or petitions' contemplated by Clause (c) would comprise applications for review, in view of the nature of the order sought to be reviewed, the petitioner is not a person, any matter affecting whom has to form the subject of any consultation with the Public Service Commission. This will be the result if the order removing him from service, which was sought to be reviewed, is good. If, on the other hand, the said order is not good and the petitioner succeeds in his prayer to have it quashed, there is no need to have the order passed in review, also quashed. In either view, the prayer for quashing the order passed rejecting the application for review cannot be granted.
13. The question then is whether the order dated 9.10.1951, (Ext. M) removing him from service is liable to be quashed or not.
14. Learned Counsel Sri K. T. Thomas on behalf of the petitioner and the learned Advocate-General on behalf of the respondent State addressed before us elaborate and erudite arguments at very great length. Mr. Thomas fought every inch and canvassed every conceivable position.
15. The provisions regarding the dismissal or removal of a member of the civil service are contained in Article 311 of the Constitution which is as follows:
311 (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil. post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he, was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:
Provided that this clause shall not apply-
(a) where a person is dismissed or removed or reduced In rank on the ground of conduct which has led to his conviction on a criminal charge;
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, t< be recorded by that authority in writing it is not reasonably practicable to give the person an opportunity of showing cause; or
(c) where the President or Governor or Raj pramukh as the case may be, is satisfied the in the interest of the security of the Stats it is not expedient to give to that person such an opportunity.
(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be shall be final.
(16) The order is marked as Ext. M and has been read already. It satisfies the requirements of Clause (1) of Article 311 and of Clause (1) of Article 166 which is to the same effect as Rule 7 in the Rules of Business. It is expressed to be taken in the name of His Highness the Raj Pramukh and is authenticated by the Chief Secretary to Government who, under Rule 8 of the Rules of Business, is competent to authenticate it. The order is thus immune from being called in question under Clause (2) of Article 106. His Highness the Raj Pramukh being the highest executive authority in the State, no objection could possibly be raised under Clause (1) of Article 311 as regards the status of the authority ordering removal.
17. The further point raised by Mr. Thomas is that Clause (2) of Article 311(1) has not been complied with. It is contended that Ext. B which is the notice to show cause why the action proposed to be taken against the petitioner shall not be taken, is not expressed to be made in the name of the Raj Pramukh nor is it properly authenticated. It was first contended by Mr. Thomas that on account of this defect in form the order is altogether void and must be regarded as though there was complete non-compliance with Clause (2) of that Article which is a condition precedent to the propriety of the action under Clause (1). On his attention being drawn to the decision of the Supreme Court in-'Dattatraya Moreshwar v. State of Bombay : 1952CriLJ955 which held that the consequence of an order of the Government of a State not being expressed to be in the name of the Governor and authenticated in the manner specified in the rules is merely to deprive the order of its immunity from being called in question as not being an order passed by the Governor under Clause (2) of Article 166 and not to render the order void, Mr. Thomas confined his arguments to contending that even according to that decision, it is competent for the party to canvass the existence of an order by the proper executive authority and the Court to find whether there was or there was not such an order. Attention was, (therefore, directed towards the existence or otherwise of an order of the executive authority. Mr. Thomas contended that there was none. The argument was that the Raj Pramukh was the person to exercise the executive authority which he might exercise either directly or through officers subordinate to him under Article 6 of the Covenant. It was contended that the Council of Ministers are not officers subordinate to him within the meaning of that clause as there was no delegation of any authority to them by the Raj Pramukh. It was also contended that the decision taken was not communicated to the Raj Pramukh and that even though the Council of Ministers might take a decision their function being merely to aid and advice the Raj Pramukh, unless the advice is in fact tendered to accepted and acted upon by the Raj Pramukh, it would not have the force of an order of the executive authority which vests in the Raj Pramukh. It was further contended that the consultation with the Public Service Commission having been before and not after his being asked to show cause, another condition precedent to the validity of an order of removal under Clause (1) of Article 311 is also not complied with. Exhibit 32 dated 1.10.1951 shows that His Highness the Raj Pramukh was informed and that he approved of the action proposed to be taken against the petitioner. There is thus no conflict between the Council of Ministers and His Highness the Raj Pramukh in this regard. Article 163(3) provides that:
163 (3), The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court.
though Article 167 provides that:
It shall be the duty of the Chief Minister of each State-
(a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation.
The two Articles read together would show that the question as to the tendering of advice is a matter purely between His Highness the Raj Pramukh and his Council of Ministers. If there is a failure to communicate as provided in Article 167, the Governor has his remedies under Article 164(1) which provides that 'the Ministers shall hold office during the pleasure of the Governor'. If the Governor who owes his existence to the Constitution does not accept the advice tendered by his Council of Ministers, the Ministers will have their remedy by way of resignation. The Governor may have a right to send back a recommendation for reconsideration. The communication under Article 167 is not provided to be in any particular form or manner. All these will show that whether there is or there is not a communication of the decisions and if so what the advice tendered was, is not justiciable as Article 163 Clause (3), already mentioned, clearly provides. No party is, therefore, free to challenge an order of the executive on the ground that it has not had the assent of the Raj Pramukh. In this case, it is clear that His Highness the Raj Pramukh in fact had intimation of the decision of the Council of Ministers and the action proposed to be taken against the petitioner and that in fact His Highness approved of the proposed action. The precise date when and the particular manner in which the communication was made to His Highness the Raj Pramukh is beyond the jurisdiction of the Court to consider as it comes within the prohibition contained in Clause (3) of Article 163.
18. Mr. Thomas also contended that the Council of Ministers are not competent to decide upon the removal of the petitioner as that function has not been delegated to the Council of Ministers and had to be performed by His Highness the Raj Pramukh directly within the meaning of the relevant Article of the Covenant and Article 154 of the Constitution. The exercise of the executive power directly by the Raj Pramukh is as regards the function or functions which he can exercise in his discretion under Article 163(1) whichever it or they may be.
19. The Rules of Business made by the Raj Pramukh are relied upon by the petitioner to Sustain his argument that there has been no delegation of the power to remove a member of a civil service to the Council of Ministers. The attitude of the respondent-State as regards these Rules was, as already stated, that is immune from examination as an 'unpublished official record' under Section 123, Evidence Act. This attitude became less strict at the time of the argument on the application filed by the petitioner for directions to produce documents. At the third stage that is at the time of the arguments in reply addressed by the Advocate-General, he took the stand that the Rules may not merely be looked into, but they ought to be looked into and in fact the State is depending upon them. The petitioner as already stated also depends upon these Rules and does not contend that any part of the Rules is 'ultra vires'. If, therefore, the Rules do provide for a decision being taken by the Council of Ministers or any of them, there will be no defect attaching to the order issued to the petitioner to show cause why action should not be taken against him by way of his being removed from service. Rules 3, 4 and 5 provide for the distribution and classification of the business of the Government among the Departments of the Secretariat according to the schedule appended to the Rules and for the assignment of the business of the Government in one or more departments to the charge of a Minister and for the collective responsibility of the Council of Ministers even if one of them be In charge of a particular portfolio. Rules 7 and 8 provide for orders made or executed on behalf of the Government to be expressed to be made by or by order of the Raj Pramukh. Rule 8 provides for the authentication of the said ?orders by the various officers detailed therein including the Chief Secretary, the Secretary, Additional, Joint, Deputy, Under or Assistant Secretaries, etc. Rule 16 provides for the various matters which are to be submitted to the Raj Pramukh before the issue of orders. Clause (g) of this Rule reads thus:
(g) Proposals to take action otherwise than as recommended by the Public Service Commission in the case of gazetted officers:
and Clause (k) and (1) read as follows:
(k) cases involving any important question of guarantees to the Public Services under Article 19 of the Covenant;
(1) proposals under Article 20 of the Covenant to institute civil or criminal proceedings against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of either Covenanting State before 1.7.1949.
Rule 17 is in these terms:
In making appointments of Collectors of Divisions and Heads of Departments the Ministers concerned shall consult and obtain the concurrence of the Premier.
20. It is clear from these Rules that there is no part of the Business of the Government of the State which has in fact been reserved by the Raj Pramukh to be exercised by him directly. It is seen from Rule 16 what the matters which are reserved to be referred to him before the issue of orders are. The matter of the removal of a member of a civil service agreed to by the Public Service Commission is not one of those so reserved. The next Rule 17 would make the matter clear because, as regards appointments, the Ministers concerned are directed to obtain the concurrence of the Premier and not of the Raj Pramukh. Though Section 15, Travancore and Cochin Interpretation and General Clauses Act, 7 of 1125, corresponding to Section 16 of the Indian Act may not apply to the construction of these Rules, the principle thereof can be applied even apart from any statutory provision. The intention gatherable from the Rules of Business is clearly that as for appointment even so for removal or any other kind of dealing with the appointees, the order could be passed by the Minister concerned with the concurrence of the Prime Minister. The Raj Pramukh does not and need not come on the scene at all in this matter though in this as. in every other case the decision of the Council of Ministers would have to be communicated to the Raj Pramukh. The result is that the non-existence of a record indicating communication of the decision of the Ministry to remove the petitioner to the Raj Pramukh and his concurrence therewith before the petitioner was requested to show cause against the action proposed to be taken against him is of no moment. Indeed it is a matter which really falls beyond the scope of the jurisdiction of the Court to enquire into. There is thus a decision taken by the proper executive authority in the matter of removing the petitioner from service.
21. The Public Service Commission was in fact consulted in the matter of the action proposed against the petitioner by removing him. The Public Service Commission did agree to the proposed action. The consultation and the agreement was before the petitioner was asked to show cause why he should not be removed from service. The complaint of the petitioner is that the consultation with the Public Service Commission should have been after he was asked to show cause. The petitioner did not show cause. That being so, no question arose of consulting the Public Service Commission after cause is shown by a delinquent civil servant after notice to show cause against the pro^ posed action. The question as to whether the consultation with the Public Service Commission should be after the notice to show cause and cause is shown does not fall to be decided in the facts of this case.
22. Another argument urged by Mr. Thomas is that a reasonable opportunity 'for showing cause against the action proposed to be taken in regard to him' has not been given to the petitioner in this case. The argument is that the time asked for by him on the second occasion should also have been fully granted. From the facts stated above, it is clear that at first he wanted only time till 10.9.1951. That was allowed. After the expiry of that period he applied for further time, a part of which alone was granted. Assuming the question as to whether in a particular case the time granted is reasonable or not is justiciable, it is obvious in the facts of this case that the complaint that he has had no reasonable opportunity to show cause is altogether unfounded. Before the Commissioner started the enquiry the petitioner applied for and obtained access to all the papers and files relating to the various charges brought against him. The enquiry was a long drawn out one wherein the petitioner was defended by able counsel and the witnesses were cross-examined and the petitioner filed a detailed written answer to the various charges that were brought against him. Under the circumstances, except that the report is voluminous which had to be perused, there does not appear to be nor has it been stated before us that there was any fresh matter for investigation before tendering his answer to the action proposed to be taken against him. Under the circumstances it is not possible to accept the contention that the petitioner has not had a reasonable opportunity to show cause.
23. A comparison of the language used in the several Sub-clauses of Article 311 leads to the subjoined considerations and yields the following results. Proviso (c) to Clause (2) expressly mentions the President or Governor or Raj Pramukh as the person to decide the expediency of giving the opportunity in the interest of security of the State indicating that the other portions of the Article are more comprehensive. A hierarchy of authorities is essential to conduct the executive business of the Government and is envisaged in the Rules of Business. The first clause of the Article must & can only be understood with reference to such a hierarchy. The prohibition contained in the first clause is only against an authority subordinate to that which made the appointment dealing with the appointee by dismissing, removing or reducing him in rank. That the authority can dismiss, remove or reduce in rank the appointee, is clear as that idea is implicit in the words used in Clause (1). The result is that the Governor or Raj Pramukh who is the highest executive authority can unquestionably act under the first clause but he need not; because any authority subordinate to him down to and inclusive of the authority which made the appointment can do so. The second clause does not mention the authority that should ask the delinquent officer to show cause why the action proposed should not be taken against him. In the absence of such motion, it must be taken to mean that whoever can take the action proposed is the authority to whom cause has to be shown and therefore the one competent to give the opportunity to show cause, the expediency of giving the opportunity in the interest of the security of the State alone being reserved exclusively to the Governor or Raj Pramukh. The petitioner was appointed by the Government as Chief Engineer (Electricity) by order dated 11.8.1949 which has been read. He was asked to show cause against the action proposed to be taken against him by removal from service by order dated 5.7.1951 which has also been read. A comparison of those two makes it obvious that the identical authority is the author of both or in the other words that there has been not merely substantial but strict compliance with the requirements of the second clause.
24. If the provisions contained in Article 311 of the Constitution have been satisfied as we find in this case they all have been, violation of any of the rules in regard to any antecedent enquiry or otherwise would not be material. See-Krishnamoorthy v. State of Madras : AIR1951Mad882 . The Court may not even have jurisdiction to consider the violation of any such rules which would be incidental, ancillary and unessential.
25. In the view that we take on the question considered above the petitioner would not be entitled to any relief in this application and the other questions round which the arguments at the Bar revolved do not fall to be decided. We may, however, refer to the more important of them.
26. Mr. Thomas raised the point that the earliest record Ex. A, is an Uri authenticated and unwonted publication in the Travancore-Cochin Information and Listener. It was contended that the order appointing Shri C. Kunhi Raman to take disciplinary action against the petitioner as also the one appointing K. Sankaran J. as an officer for taking the same disciplinary action against the petitioner are bad in law. This criticism is not altogether unfounded. That circumstances will not, however, render the enquiry made by Sankaran J. invalid or improper because, besides the said order challenged as bad, there is one Ex. V against which no such challenge could be or has been made. The only argument raised about that document is that it operates only as a committal of the enquiry to Sankaran J. and not as an order appointing him as the Commissioner to conduct the enquiry. We are not inclined to accept this interpretation of the document. We consider that that document can be construed as at once containing an order appointing Sankaran J. as Commissioner and committing the enquiry to him.
27. Another argument of Mr. Thomas was that the enquiry before Sankaran J. was criminal in nature and that it was one that could not be instituted without the sanction of the Raj Pramukh. He contends that Article 20 of the Covenant which has been read applies and there not haying been the sanction of the Raj Pramukh which is a condition precedent to all proper institution of proceedings, the enquiry is altogether bad. We are unable to accept this argument. Article 20 refers to the institution of civil and criminal proceedings, two well-known expressions which are terms of art and clearly relate to civil and criminal proceedings before civil and criminal Courts. The said two kinds of proceedings do not exhaust the totality of matters which can be called proceedings. Proceedings before the Revenue authorities, Land Acquisition Proceedings, Proceedings before arbitrators, before Court-Martial, may be cited as instances besides proceedings which are quasi-civil, quasi-criminal or otherwise. It is only in respect of civil and criminal proceedings that the sanction of the Raj Pramukh is required under Article 201 of the Covenant. It is not contended on behalf of the petitioner that the proceedings before the Commissioner are criminal proceedings. The only contention is that they partake of the nature of criminal proceedings. In our judgment, Article 20 of the Covenant does not apply to proceedings which are not criminal but merely partake of that character. Assuming, therefore, the proceedings before the Commissioner were criminal in nature, that will not render the antecedent assent of the Raj Pramukh to their institution necessary and the proceedings are not bad on account of the absence of such assent.
28. Article 227 of the Constitution has no application at all to the facts of this case and does not fall to be discussed.
29. In the result we dismiss the petition but direct that the respondent do bear their costs, regard being had to the irregularities in respect of the initial orders and to the matter of production and use of the Rule of Business to which, as it transpires, they party owe their success.
30. We certify that the case involves sub-stantial question of law as to the interpretation of the Constitution and accordingly grant the leave sought for.