Calcutta High Court
Jyoti Prasad Banerjee And Ors. vs Union Of India (Uoi) And Ors. on 1 January, 1974
Equivalent citations: (1975)ILLJ477CAL
ORDER Amiya Kumar Mookerji, J.
1. The Central Government in exercise of the powers conferred by Rule 118 of the Defence of India Rules, 1971, by an order published in the Gazette of India, Extraordinary, dated November 26, 1973, prohibited any strike a connection with any industrial dispute in any of the railway services in India for a period of six months with effect from 6th November, 1973. All India Railway strike started from 6. 00 hours on May 8, 1974, by all the categories of railwaymen. The petioners are seven in number. All of them are supervisors of various ranks in the Railways. They were removed, from their services by orders dated 16th, 25th, and 27th May, 1974, under Rule 14(ii) of the Railway servants (Discipline and Appeal) Rule, 1968. The petitioner No. 6, J. N. Roy was, arrested on the 10th May, 1974, he was released on the 16th May, 1674. It is alleged that powers have been exercised by the respondent No. 2, the Chief Mechanical Engineer, Eastern Railway, arbitrarily, and solely with the motive of victimisation. The petitioners being aggrieved by the said order of removal, moved this Court in an application under Article 226 of the Constitution and obtained the present rule.
2. The petitioners challenge the impugned orders on the ground that it was not a "speaking order". It did not record in writing therein the reasons nor did it disclose the mental process by which conclusion was arrived at, justifying the recourse to the extraordinary powers conferred by Rule 14(ii) of the Railway Servants (Discipline & Appeal) Rule, 1968.
3. Two affidavits have been filed by the respondents. Both of them have been affirmed by Bipin Behari Lal, the Chief Mechanical Engineer, Eastern Railway, who passed the order. In the main affidavit he denied that there was any victimisation on the part of the railway administration and that pursuant to policy of the Railway the orders of removal were issued. He said, that it was not necessary to indicate the source and nature of information derived and circumstances upon consideration of which he passed the orders. In the supplementary affidavit he, however, disclosed the sources and annexed some reports to justify his action. It is stated in the supplementary affidavit that against the background of the emergent situation that had arisen out of the Railway strike, which was striking at the very roots of national economy and adding to the sufferings of the common man as well as the public at large, it was decided to exercise the special powers vested in the administration. The conditions were not at all opportune for following the normal disciplinary procedure to issue charge-sheets, holding inquiries, etc., to effect the removal. Apart from the fact that in highly explosive and turbulent mood of the labour, the normal disciplinary procedure would have been extremely protracted and time consuming. There would have been hardly any staff who would have dared to come out and give evidence. The witnesses would not be forthcoming because of intimidation and threat. In workshop the strength of staff is ten thousand. Removal under this had to be done in only 43 cases, i.e., less than 0.5 percentage.
4. It is contended by Mr. Deb, appearing on behalf of the petitioners, that conditions precedent for exercise of powers under Rule 14(ii) of the Rules have not been fulfilled in the present case. Normal procedure for holding an inquiry is laid down in Rules 9 to 13. Rule 14 is a departure from the normal procedure. Obviously it is intended to apply in those cases where it is not feasible to hold an inquiry in the manner provided in these rules. Requirements of affording reasonable opportunity as provided in Article 311(2) of the Constitution have been taken away completely, Recording of reasons is the only protection which is afforded to the dismissed railway employees to ensure, that the reasons which impelled the disciplinary authority to take recourse to the extraordinary powers are germane to the scope of the powers vested in it. It is argued, that the authority is bound to make a speaking order in cases where this extraordinary power is invoked, the is required to set forth in writing the mental process of the reasonings which have led him to the decision that it is not reasonably practical to hold an inquiry. If the order speaks only, with "the inscrutable face of sphinx", it would be the easiest thing for an administrative officer to avoid judicial scrutiny and correction by avoiding to give reasonings in support of this order. The disciplinary authority, according to Mr. Deb, did not apply his mind to the question before him. Recitals in the body of the cyclostyled order are merely mechanical reproduction of the wordings of Rule 14(ii). The failure of the authority to record his reasons for the impracticability of holding an inquiry is the manner provided in these rules, rendered the action taken against the petitioners under Rule 14(ii) invalid and illegal.
5. To appreciate the contentions it is necessary to advert to the rules.
6. The railway servants (Discipline and Appeal) Rules, 1968, (hereinafter referred to as the Rules) are made by the President in exercise of the powers conferred by the proviso to Article 309 of the Constitution.
Rule 14 reads as follows:
14-Special procedure in certain cases notwithstanding anything contained in Rules 9 to 13 i. where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge, or ii. where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules or iii. where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules;
The disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.
7. Provisions of Rule 14 are similar to proviso to Article 311(2) of the ' Constitution. Clause (i) of I Rule 14 becomes applicable only if a person has been convicted in criminal charge which has been finally resulted in the conviction of the person. Clause (iii) provides that if the President is satisfied that in the interest of the security of the State it is not expedient to hold an inquiry as provided in the Rules a person can be dismissed, without holding an enquiry. This clause is intended to safeguard the larger interest of the security of the State. The satisfaction of the President is also not justifiable.
8. In three cases enumerated in Clauses (i), (ii) and (iii) of Rule 14, there shall be no inquiry. Therefore, it follows that in those cases protection of the civil servants as provided in Article 311(2) of the Constitution shall not be available to them.
9. Rule 14(ii) provides a special procedure which is a complete departure from the normal procedure as laid down in Rules 9 to 13, viz., framing of charges, replying to the charges, inspection of documents, examination and cross-examination of witnesses, report of the inquiry, second show cause notice, all these would not be available in cases falling under the said clause. By its very nature, the said Rule hi a measure to be resorted to only in those cases where the requirements provided in the said Rule are strictly complied with.
10. Requirements of Rule 14(ii) are two folds: (I) satisfaction of the disciplinary authority that it is not reasonably practicable to hold an inquiry and (2) recording, of reasons in writing. The words "for reasons to be recorded" postulates that such reasons must have a relevancy or nexus to the satisfaction arrived at, upon consideration of relevant materials that it is not reasonably practicable to bold an inquiry in the manner provided in these rules. So in my view, "satisfaction" contemplated in Rule 14(ii) is objective that is based on objective facts. There must be existence of objective facts, as for example when the delinquent is absconding his whereabouts are not known or prevailing circumstances are such that no officer at the risk of his life could hold an enquiry or for fear of life no witness would come forward to depose.
11. Rule 14 is divided into two parts-(a) procedure and (b) substantive. First part deals with the procedure, viz., that there shall be no inquiry in these cases falling under Clauses (i) and (ii) and (iii). Unless the conditions contained in the first part are fulfilled, the latter part, viz., consideration of the circumstances of the case and passing of the order would not be operative.
12. So, conditions precedent for exercising of powers under latter part, viz., the passing of an order of removal are dependent upon fulfilment of conditions provided in the Ist part of Rule 14(ii). This legal position is not disputed,
13. On the first place two points require determination, viz., whether recording of reasons, as provided in Rule 14(iiVis mandatory and whether the reasons are to be recorded in the order itself.
14. Mr. Deb, in support of his contentions relied upon the case of Collector of Monghyr v Keshav Prasad A.I.R. 1962 S.C. 1694.
15. The question as to the interpretation of Section 5A of Bihar Private Irrigation Works Act was raised before the Supreme Court. Procedures for holding inquiry and causing notices to be served on the landlords in which the irrigation work is situated have been laid down in Sections 3-5 of the said Act. Section 5A conferred powers upon the Collector to cause the repair of such irrigation work forthwith for the reasons to be recorded by him. The Supreme Court observed that Section 5A" constitutes a departure from this norm. It is obviously designed to make provisions for cases where owing to an emergency it is not possible to comply with the requirements of Sections 3 to 5 of affording an opportunity to the affected persons to make out a case that there is no justification of burdening them with any pecuniary obligation beyond a particular extent. It is in the context of this consideration that the Court has to consider whether the requirement that reasons to be recorded in writing by the Collector is mandatory or not. If the question whether the circumstances recited in Section 5A exists or not is entirely for the Collector to decide in his discretion, it will be seen that the recording of the reasons is the only protection which is afforded to the persons affected to ensure that the reasons which impelled the Collector were those germane to the content and scope of the power vested in him. The Supreme Court held that the requirements was mandatory failure to record the reasons rendered the order passed under Section 5A invalid.
16. Similar provisions for "recording of reasons in writing" are to be found in Section 18 of the Indian Arms Act, 1878. The relevant provision runs as follows:
18. Cancellation and suspension of licence. Any licence may be cancelled or suspended-(a) By the officer by which the same was granted, or by any authority under which he may be subordinate or by any Magistrate of a district or Commissioner of Police in a presidency town within a local limit of whose jurisdiction the holder of such may be, when for reasons to be recorded in writing such officer, authority, Magistrate or Commissioner thinks it is necessary for the security of public peace to cancel or suspend such licensee....
17. Construing that section, Sinha, J. (as he then was,) held in Hazi Md. Vakil v. Commissioner of Police and Anr. , that the following things are essential to make an order under Section 19 valid;
The officer, authority, Magistrate or Commissioner cancelling or suspending the licence, must have reasons for which he deems it necessary for the security of the public peace to cancel or suspend such licence.
2. The person cancelling or suspending the licence must itself record the reasons in writing:
3. The order on the face of it should show:
(a) That it was passed because it was necessary for the security of public peace to cancel or suspend such licence.
(b) That "the reasons for thinking so have been recorded in writing by the person making the order.
18. Similar view was taken by a Division Bench of the Allahabad High Court in Beni Chand v. District Magistrate, Banda .
19. In Testeels Ltd. v. N.N. Desai, Conciliation Officer and Anr. , a question was referred to the Full Bench of the Gujarat High Court whether the conciliation officer is required to make a " speaking order" in a proceeding under Section 33(2)(b) of the Industrial Disputes Act, 1947. During the pendency of the conciliation proceedings a workman was discharged for misconduct not connected with the dispute pending before the conciliation officer. It is, therefore, necessary for the employer under proviso to Section 33(2)(b) to make an application before the conciliation officer for approval of action taken. Beyond stating that the action of the discharge of the workman was not approval, the order of the conciliation officer did not give any reason.
The Full Bench answered the question in the affirmative. Bhagwati, C.J., (as he then was) analysed the principle on which the reasons are to be recorded by an Administrative Officer exercising quasi-judicial function. The learned Chief Justice observed that both on principle and on authority, every administrative officer exercising quasi-judicial function is bound to give reason in support of the order he makes. There are two reasons why every quasi-judicial order must be a speaking order. The necessity of giving reasons flows as a necessary corollary from the rule of law which constitutes one of the basic principles of the Indian Constitutional set up. The administrative authorities having a duty to act judicially cannot, therefore, decide on consideration of policy or expediency. They must decide the matter solely on the facts of the particular case, solely on the material before them, and part from any extraneous considerations by applying pre-existing legal norms to factual situation. The necessity of giving reasons is an important safeguard to ensure observance of the duty to act judicially. It introduces clarity, checks introduction of extraneous or irrelevant considerations and excludes or, at any rate minimises arbitrariness in the decision making process. Another reason which compels the making of such an order is based on the power of the judicial review is possessed by the High Court under Article 226 and the Supreme Court under Article 32 of the Constitution. This power of review can be effectively exercised only if the order is a speaking order. In the absence of any reasons in support of the order, the Courts cannot examine the correctness of the order under review. The result, would be that the power of judicial review would be stultified and no redress being available to the citizen, there would be insidious encouragement to arbitrariness and caprice.
20. Regulation 5(5) of the Indian Administrative Service' Indian Police Service (Appointment by Promotion) Regulation, 1955, provides that if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the committee shall record its reasons for the proposed supersession. The committee recorded the reasons " the officer concerned is not such as to justify his appointment at this stage in preference to the selected." The Supreme Court observed in Union of lndia v. M.L. Kapoor , that rubber stamp reason given mechanically for the supersession. In this connection the Supreme Court explained what ate the reasons and their necessity. Reasons ate the links between the materials on which certain conclusions are based and the actual conclusion. They disclose how the mind is applied to the subject-matter of a decision whether it is purely administrative or quasi-judicial. They reveal a rational nexus between the fact considered and the conclusion reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. The principle as laid down by the Supreme Court in A.I R. 1962, S.C. 1694 has been reaffirmed in this case. In the Board High School and Intermediate Education v. Ghanashyam Das , the Supreme Court said that even though a statute does not expressly provide for the administrative authority passing the order to act judicially such an obligation could be inferred if a citizen or subject is adversely affected by its decision.
21. In view of the principles laid down in the above decisions I am of the opinion that when an administrative order is made which affects the rights of an individual, the reasons of the order must be fully stated. In other words it must be a speaking order. Where a statute imposes a duty to record reasons in writing, in such cases, recording of reasons is mandatory.
22. Now, coming to the facts of this case, it is necessary to examine the impugned order passed under Rule 14(ii) of the Rules. They are different dates, but in each case the order runs:
Whereas Shri... is willfully and without any reasonable excuse absenting himself from place of work since 8-5-74 with the sole object in making the illegal strike a success and "whereas Shri... is inciting and instigating other loyal and innocent employees for joining the illegal strike and threatening them with severe bodily hurt if they do no not comply with the unlawful demand, viz., joining the illegal strike and whereas the above named staff is preventing the other innocent and loyal staff from attending the office place or work and the innocent and loyal members of the staff are unable to join their duties for fear of their lives and or severe bodily hurt by them and whereas in the interest of the Railway as also of the general public retention of Shri... in the Railway service any further is considered undesirable and it considered that the circumstances of the case are such that it is not reasonably practicable to hold an enquiry in the manner as provided for in the Railway Servants (Disciplinary & Appeal) Rules, 1968.
23. Now, therefore, in' exercise of the powers conferred by Rule 14(ii) of Railway Servants (Disciplinary & Appeal) Rules, 1968, the undersigned hereby removes Sri... from service with immediate effect.
Sd/
Place: Culcutta Chief Mechanical Engineer
Date :-25-5-74 Eastern Railway, Calcutta.
24. It is contended by the learned Additional Solicitor General, appearing on behalf of the respondents, that the order speaks more than what it should. From the factual statements in paragraphs 1, 2 and 3 of the order and which facts have not been denied by the petitioners, a reasonable person can come to a reasonable conclusion that it would not be reasonably practicable to hold an inquiry in the manner provided in the rules under Sub-rule (ii) of Rule 9 witness shall be examined on behalf of the presenting officer and might be cross-examined by or on behalf of the Railway servant. The presenting officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined. When the delinquent threatened the loyal innocent employees with severe bodily hurt and as a result those loyal workers could not join their duties for fear of their lives in such a state of affairs, it is not reasonably practicable to hold an inquiry. It would be impossible for the railway administration to produce witnesses, to prove the charge against these employees. It is contended that nowhere in Rule 14(ii) it is laid down that the reasons are to be recorded on the face of the order. Reports of the controlling officers concerning the petitioners were placed before the disciplinary authority who was satisfied after considering those reports, that it was not possible to hold an inquiry. Those reports have been disclosed and annexed in the supplementary affidavit. These should be read as part and parcel of the order passed by the disciplinary authority under Rule 14(ii). The learned Additional Solicitor General argued that under Clause (3) of Article 311 the decision of the authority whether it was reasonably practicable to hold such inquiry as referred to in proviso (b) to Article 311(2) was "final". Such decision was not justiciable in a Court of Law.
25. In the first, second and first part of their paragraph of the order references have been made to certain acts of the delinquent railway employee, 'viz., absence without any reasonable excuse inciting and instigating other employees to join the strike preventing others from attending the office. Resultant effects of these acts on other employees, viz., they were unable to join the duty for fear of their lives and/or severe bodily hurt by them, are stated in the last part of paragraph 3. Upon those statement of facts, two conclusions have been reached which are stated in paragraph 4(a) retention of employee is undesirable and (b) not reasonably practicable to hold an inquiry.
26. The Supreme Court said "that reasons are the links between the materials on which conclusion is based and the actual conclusion. They reveal a rational nexus between the fact considered and the conclusions reached." If these statements are taken to be the materials then upon these materials, no reasonable persons can come to any conclusion that it is not reasonably practicable to hold an inquiry inasmuch as none of those facts stated in the above three paragraphs of the order are germane to the impracticability of holding an inquiry. These statements may be relevant to come to conclusion that the retention of the employee is undesirable. In this connection my attention was drawn to a standard form of notice prescribed by the Railway authorities which runs as follows:
Eastern Railway Notice for removal from service.
Reference Rule 14(ii) of the Railway Servants (D & A) Rule, 1968.
No... ...(name of office) Place of issue... Dated... 1. Whereas Sri... Designation under
...has been unauthorisidly absenting from... for which a charge-sheet bearing this office No...
dated... was sent to his home address under registered post with Ack. due.
2. Whereas the said charge-sheet has been returned undelivered by the postal authorities with the remarks-...
3. Whereas the said Sri ...could not be contacted at the address on the record of this office, and whereas the present whereabouts of the said Sri... is not known to this office.
4. Whereas the un Jersigned is satisfied that the circumstances of the cases are such that it is not reasonably practicable to hold an inquiry into the manner provided in the Railway Servants (D&A) Rules, 1968.
5. Now, therefore, in exercise of the powers conferred by Rule 14(ii) of the Railway Servants (D&A) Rules, 1968, the undersigned hereby removes the said Sri...Designation ...under... from service with effect from...station...
Date... Signature... Copy to... (name) Designation. Station... (Design) ...
27. It appears from the standard form the reasons have been stated in three paragraphs, why it is not reasonably practicable to hold an inquiry. From those statements of facts, a conclusion can be clearly arrived at about the impracticability of holding an inquiry. I do not say that exercise of powers under Rule I4(ii) are restricted or limited only to those circumstances and the reasons stated in the standard form. But such reasons must have a proximate relation with the impraticability of holding an inquiry.
28. The Railway Board was conscious about recording of reasons in an order under Rule 14(ii). In its letter dated 2-4-74 to all the General Managers, the Railway Board, pointed out, "every time such a step is taken, care should be taken to consult competent legal opinion, and to see that reasons are recorded by you to show clearly that you have applied your mind to the whole question." If the standard notice and the impugned order is compared side by side, it will show that impugned order does not contain any reason whatsoever as to why it is not reasonably practicable to hold an inquiry in the manner provided in the Rules.
29. The learned additional Solcitor General asked me to infer the reasons from the given facts. Where statute imposes a duty to record the reasons in writing on the satisfaction founded upon the objective materials, is there any scope for inference by the Court in such a case ?
30. Reliance was placed on behalf of the respondents, upon the two decisions of the Supreme Court to show that existence of recitals in the order, in the absence of evidence of its inaccuracy, should be accepted by the Court as establishing that the necessary condition is fulfilled.
31. In Godavari S. Parulekar v. State of Maharashtra , the Supreme Court held that under Rule 30 of the Defence of India Rules, 1962, it is for the detaining authority to satisfy whether on the materials before it, it is necessary to detain a person under Rule 30, and this question is not justiciable.
32. In Jaichand Sethia v. State of West Bengal . the Supreme Court observed that if an authenticated order of detention is on its face regular and in conformity with the language of Rule 30, it is not ordinarily open to a Court to enter into an investigation about the sufficiency of the materials on which the order of detention is based.
33. When the power to issue a detention order is dependent upon the existence of the state of mind of the detaining authority, in that case Its satisfaction is purely subjective, it is not open to the Court to examine the sufficiency of such satisfaction. The satisfaction of the Government which justify the order of detention under Rule 30, is the subjective satisfaction. Accuracy can be challenged either. by proving that the authority did not apply its mind in the matter or it acted mala fide. But satisfaction referred to in Rule 14(ii) is not the subjective satisfaction of the disciplinary authority. It is the satisfaction which is to be based upon objective materials. The condition precedent to the formation of such "satisfaction" is the actual existence of certain facts which persuaded the authority to take recourse to the extraordinary measure provided in Rule 14(ii). In my view none of the above two decisions would be of any assistance to the respondents.
34. Reference was also made to the decision of the Supreme Court, State of Bombay v. Banji Munji . In that case under Clause (a) of Sub-section (4) of Section 6 of Bombay Land Requisition Act, a premises was requisitioned. In the order of requisition ''public" "public purpose" was not mentioned.
Subsequently a declaration was made to the original order stating the public purpose. It was contended before the Supreme Court, that subsequent declaration would be of no avail, it was an afterthought and not true. The Supreme Court held that it is not necessary to set out the purpose of requisition in the order, The desirability of such a course is obvious because when it is not done, proof of the purpose must be given in other ways and that exposes the authorities to the kind of charges and to the danger that the Courts will consider them well-founded. But in itself omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction of the Court in some other way,
35. When an executive authority is to form an opinion as preliminary step to exercise certain powers conferred on it, such determination of objective facts is of administrative character. The determination of "public purpose" as per S.C. does not affect the right of any person. It is only, when a requisition is made, the right of an individual is affected. So it is not necessary to set out the public purpose in order of requisition-Moreover, there is no statutory requirement to record in writing the public purpose in the order of requisition. So, that decision is not relevent to the facts and circumstances of the present case.
36. The reports of the Controlling Officer and Deputy Chief Mechanical Engineer, some of which are annexed to the supplementary affidavit are only recommendations for invoking powers in those cases under Rule 14(ii). Those furnished materials upon which the disciplinary authority would form its own satisfaction. Rule 14(ii) is not intended to be applied whenever there is factual existence of an extremely grave and dangerous situation which requires immediate action without complying with the requirements of recording reasons in the order. Prevailing situation and reports are not the only relevant factors but the satisfaction of the disciplinary authority founded upon those materials together with its recorded reasons that way it considered that it was not reasonably practicable to hold an inquiry in the manner as provided in the rules. The reports in my view, would not obviate the infirmity arising from the failure of the disciplinary authority to record its reasons, as required under Rule 14(ii). I find that similar contentions write raised before the Supreme Court in Collector of Monghyr's case A.I.R. 1962 S.C. 1964, and the Supreme Court repelled such contentions.
37. Accordingly I hold that the conditions precedent for exercise of powers under Rule 14(ii) have not been fulfilled in these cases inasmuch as the requirement of recording of reasons as provided in the statute has not been complied with. As such the order of removal passed under the said Rule is without jurisdiction and must be set aside.
38. Reference was made on behalf of the respondents to the case of Brundabad Nayek v. Election Commissioner of India , in support of the contentions that the decision made under proviso (b) to Article 311 of the Constitution is final and the jurisdiction of the Court to consider that question is impliedly taken away.
39. The decision of the Supreme Court in that case relates to the construction of Article 192(1) of the Constitution which reads as follows:
If any question arises as to whether a member of a House of Legislature of a State has become subject to any of the disqualifications mentioned in Clause (I) of Article 191 the question shall be referred for the decision of the Governor, and his decision shall be final.
40. The question before the Supreme Court was whether the Election Commission was entitled to hold an inquiry before giving its opinion to the Governor as required under Article 192(2). The Supreme Court observed that the decision on the question raised under Article 192(1) has no doubt to be pronounced by the Governor but that decision has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. The Supreme Court held that the Election Commission was within its jurisdiction to start an inquiry.
41. I am unable to follow how this decision is relevant in this matter.
42. Finality in Clause 3 of Article 311 is attached, when the decision made under proviso (B) to Article 311 is a valid decision. If the statutory requirements are not complied with that "decision" is not a "decision" within the meaning of the said proviso, in such case "finality" does not attach to that decision. The jurisdiction of the Court is not ousted to set aside such an invalid decision.
43. Article. 363 of the Constitution expressly excludes the jurisdiction of the Courts in the matters specified therein. In Madhav Rao Shindia v. Union of India , Shah, J., observed that jurisdiction of the Courts even in those matters is not barred at "threshold". To accede to the claim that the jurisdiction of the Court is barred in respect of whatever the executive asserts is valid is plainly to subvert the Rule of Law. It is, therefore, within the province of the Court alone to determine what the dispute brought before it is, and to determine whether the' jurisdiction of the Court is, because it falls within one of the two limbs of Article 363, excluded qua that dispute. A provision which purports to exclude the jurisdiction of the Courts in certain matters and to deprive the aggrieved party of the normal remedy will be strictly construed, for it is a principle not to be whittled down that an aggrieved party will not unless the jurisdiction of the Courts, is by clear enactment or necessary implication barred, be denied recourse to the Courts for determination of his rights. The Court will interpret a statute as far as possible agreeable to justice and reasons and that in case of two or more interpretations, one which is more reasonable and just will be adopted for there is always a presumption against law maker intending injustice and unreason. In an avowedly democratic policy statutory provisions ensuring the security of fundamental human rights including the right to property will unless contrary mandate be precise and unqualified, be construed liberally so as to uphold the right. These rules apply to the interpretation of Constitution and statutory provisions alike.
44. It is stated in Article 4(4) of the Foreign Compensation Act, 1950, that "determination by the Commission of any application made to them under this Act shall not be called in question in any Court of Law". In Anosmatic Limited v. Foreign Compensation Commission [1969] 2 W.L.R. 163, the House of Lords held that the word "determination'', should not be construed as including everything which purporated to be a determination but shall not in fact be a determination. The Court is not precluded from enquiry whether or not the order of the Commission was a nullity.
45. In Tahrani and Anr. v. Rostron [1972] I Q.B. 162, Lord Denning, M. R., observed, the Courts have given more thought to the meaning of the Legislature when it says that a decision of this or that Tribunal is to be "final". The modern cases establish this principle when Parliament says that a decision of an inferior Tribunal is to be "final", it does so on the assumption that the Tribunal will observe the law. Parliament only gives the impress of "finality" to the decision on the condition that it is reached in accordance with law and the Queens' Courts will see to it that this condition is fulfilled. Accordingly, if a Tribunal goes wrong in law and the error appears on the face of the record, the High Court will interfere by certiorari to quash that decision. It is not to be deterred by the enactment that the decision is "final". The decision may be final on the facts, but it is not final on the law.
46. Article 217 of the Constitution was amended by the Constitution Fifteenth Amendment Act, 1963, and Clause (3) was added thereto to the following effect With retrospective effect:
If any question arises as to the age of a Judge of the High Court, the question shall be decided by the President after consultation with the Chief Justice of India, and the decision of the President shall be final.
47. In Union of India v. Jeytt Prakash Mitter , the Supreme Court observed that notwithstanding the declared finality of the order of the President, the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rules of natural justice were not observed or that the President's judgment was coloured by the advice or representation made by the Executive or it was founded on no evidence. But this Court, will not sit in appeal over the judgment of the President nor will the Courts determine the weight which should be attached to the evidence.
48. So, it is abundantly clear that the jurisdiction of the Court is not ousted to set aside a decision made under proviso (b) to Article 311, although such decision is "final" under Clause (3) of Article 311 when requirements of that proviso have not been complied with. In other words if the decision is not in accordance with law, if no reasons are recorded, or reasons so recorded are irrelevant or they have no rational nexus to the object or such reasons are coloured by policy or expediency in such cases, the Court is not powerless to set aside such decision. At the same time if any reason as that of an honest and reasonable person based upon relevant materials, and circumstances are recorded, in that case, sufficiency of those reasons cannot be investigated by the Court. This Court is not sitting in appeal over the decision of the disciplinary authority. The Court can only consider whether there is ground which prima facie justifies the recourse to the extraordinary measure by which a civil servant is deprived of his constitutional remedy provided in Article 311(2) of the Constitution.
49. If the reasons are not recorded in the order itself, the appellate authority cannot effectively exercise its power. The power of judicial review would be stultified and no redress by way of writ of certiorari would be available to the aggrieved parties. An order without any reason cannot be tested on the ground of mala fide, as in the absence of reason it is difficult to ascertain whether the authority acted arbitrarily or with malice or not, therefore, I am unable to accept the contention of the learned Additional Solicitor General that reasons are not required to be stated in the order itself. It is inconceivable to think that a "decision" would be without any reason and the reasons for that "decision" are to be found elsewhere, Application of mind is to be seen from the order itself. Lack of reasons in the order of quasi-judicial nature could not be remedied by looking into the departmental file in support of the order.
50. There is another aspect which requires consideration. An order of removal passed under Rule 14(ii) is a punishment within the meaning of Rule 6, and such punishment may be imposed "for good and sufficient reasons". It follows, therefore, that a quasi-judicial approach is required by the punishing authority, for it is only on good and sufficient reasons that an employee can be punished. That ''good and sufficient reasons" can also be challenged, before the appellate authority who is required to examine also the sufficiency of the grounds. The disciplinary authority cannot be treated merely as an administrative authority, determining a question of policy. Accordingly, in my opinion the reason must be recorded on the face of the order.
51. Another contention was raised on behalf of petitioner that provisions of an appeal are provided in Rule 18. If no reasons were given on the face of the order, the appellate authority could not examine the correctness of the order, under appeal. The result would be that the petitioner's right of appeal would be stultified
52. It was pointed out on behalf of the respondents that an order under Rule 14(ii) became "final" under Clause (3) of Article 311. So, no right of Appeal against such order is provided in Rule 18.
53. It is well-settled that an appeal does not exist in the nature of things. The right of appeal must be given by an express enactment, it cannot be implied.
54. Rule 17 specifies three cases in which no appeal lies-(i) any order made by the President, (i) any order of interlocutory nature or of the nature of step-in-aid to the final disposal of a disciplinary proceedings other than an order of suspension, (iii) any order passed by an inquiring Authority in the course of an inquiry under Rule (9).
55. Rule 18 specifies the orders against which appeal lies. Rule 18(ii) provides an appeal against an order imposing any of the penalties specified in Rule 6;
56. Rule 22 deals with consideration of appeal. It is stated in Clause (a) of Rule 22(2) that the appellate authority shall consider whether the procedure laid down in these rules has been complied with and if not Whether such non-compliance has resulted in the violation of any of the provisions of the Constitution of India, or in the failure of justice.
57. Rule 22(b)(c)(ii) empowers the appellate authority to remit the case to the authority which imposed or enhanced the penalty or to any other authority which such directions as it may deem fit in the circumstances of the case.
58. Now it appears that an order under Rule 14(ii) has not been included in Rule 17 where it has been specifically laid down those cases in which there shall be no appeal. It is not disputed that "removal" is a penalty specified in Rule 6, therefore, it follows that provisions of Rule l5(ii) are attracted in an order made under Rule 14(i). 19. Rule 22(2)(a) provides that the appellate authority shall consider whether the procedure laid down in these rules have been complied with. The procedure laid down "in these rules also includes "special procedure" as provided in Rule 14(ii). It is true, that question of holding an inquiry is "final", under Clause (3) of Article 311. I have mentioned herein before that if a "decision" is not in accordance with proviso (b) to Article 311 under or Rule 14(ii), then it would not be fine. In such cases the appellate authority is competent under Clause (i) of Rule 22(2)(c) to remit the case to the authority which imposed the penalty. If such penalty is adequate, inadequate or severe,
60. Therefore, I am of the opinion that an order under Rule 14(ii) is appealable under Rule 18. Provision of appeal is also admitted by the respondents in paragraph 24 of the Affidavit-in-opposition.
61. Lastly, it is contended by Mr. Deb that although it is not reasonably practicable to allow the petitioner to defend himself at the first stage, viz., at the inquiry stage, but even then he is entitled to a notice at least in the second stage. In support of his contentions Mr. Deb, relied upon a decision of the Jammu & Kashmir High Court, Karoo Singh v. Transport Commissioner and Anr. A.I.R. 1965 J. & K. 53.
62. When a valid order is passed under Rule 14(ii) it is not disputed that the provisions of Article 311(2) are not attracted in such a case. That being so, I am unable to follow how the question of affording the delinquent a second show cause notice arises.
63. In Jammu & Kashmir's case referred to by Mr. Deb, there was a departmental inquiry against the delinquent, untimately, the civil sefvant was discharged from service, but the order of discharge was not communicated to him. A copy of the same was given to him, long after termination of his service. It was contended that the termination of his service was in violation of provision of Section 126 of the Constitution of the State and, therefore, void. It was urged on behalf of the authorities that under proviso (b) to Section 126 of the Constitution of India of the State, the disciplinary authority found that in view of serious offence involing defence stores, it was neither desirable nor practicable to issue any notice to the driver and cleaner before discharge from the department. J. Fazal Ali, J., (as he then was) observed that if it was found reasonbly practicable to defend himself at the first stage (stage of departmental inquiry), by the appointing authority, it will be serious contradiction in terms to hold that it was not practicable to give the same opportunity at the second stage; namely, that the authority had formed a tentative opinion in regard to the punishment to be inflicted on the delinquent, in other words if the disability contemplated by Proviso (b) to Section 126 was not found to apply to the departmental proceedings, one cannot understand how it could at once be made to apply to the second stage when the punishment is proposed to be inflicated on the petitioner. On that ground the Court set aside the order.
64. In my view, that decision does not support the contention of the petitioner, that in a case falling under Rule 14(ii), the authorities are required to give a second show cause notice.
65. Mr. Sadhan Gupta appearing on behalf of some of the petitioners in the connected rules, raised another point that in a case falling under Rule 14(ii) although provisions of Article 311(2) are not applicable, but even then the element of natural justice and fair-play are not excluded. According to Mr. Gupta, some sort of natural justice should be followed in these cases. In support of his contentions, Mr. Gupta, relied upon a Bench decision of this Court, Makhanlal Dey v. Union of India (70) C.W.N. 925, and two well-known decisions of the Supreme Court, A. K. Kraipak v. Union of India A.I.R. 1970 S.C. 156, and the Board High School and Indermediate Education, U.P. v. Kumar Chittra Srivastava .
66. Makhanlal Dey was a civilian employee in defence service and regarding disciplinary matters he was governed by a body of rules described as Army instructions 212 of 1949. Makhanlal filed a suit against the Union of India wherein he challenged that he was not given any opportunity to defend himself by reason of withholding of material and important papers by the authorities concerned. The trial Court came to the conclusion that the order of dismissal was in contravention of rules of natural justice and the provision of Clauses 6 and 8 of the Army Instructions 212 of 1949 and also the said order of dismissal was repugnant to Rule 15 of the Rules framed under Article 390 of the Constitution. Alak Gupta, J., observed it is not correct to think that apart from Article 311 one has no right to complain even if the most elementary principles of justice are disregarded. The special importance of Article 311 lies in this, that it serves as a check on the power of the President or the Governor under Article 310 to dismiss at pleasure, which is otherwise supreme. One who does not come within the categories of persons to whom Article 311 has been made applicable, has no protection if the President or the Governor is pleased to dismiss in exercise of powers under Article 310. Article 311 is not in the Constitution just to keep a class of persons out of the scope of application of the fundamental rules of justice recognised in that Article,
67. In Kraipak's case, the Supreme Court observed the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not convered by any valid limit. In other words they do not supplant the law of the land but supplement it.
68. In Chittra Srivastava' s case the Supreme Court held that in cancelling an examination, the Board was exercising quasi-judicial function and it was incumbent upon it to issue a show cause notice.
69. Provisions of Article 311(2) are not applicable to civilians in defence services. Principles of natural justice have been provided in the Army Instruction and the rules framed under Article 309. Even then in absence of any Rules, principles of natural justice should be applicable in all such cases. So, when these rules are violated, obviously, there has been a violation of the principles of natural justice. But where natural justice has been expressly taken away by the Constitution itself, thereafter, nobody can say that he is till entitled to some sort of natural justice. In my view, Mr. Gupta's contentions cannot be accepted.
In Re: C.R. 3164.68 (W)74:
70. The petitioners in these rules are employees of Chittaranjan Locomotive Works at Chittaranjan. The petitioner Bimal Kanti Bose fell ill on 27-4-74. During the railway strike on 25-5-74 he found an 6rder being SFC/I(a), dated 21-5-74, near the main entrance of his residence. The order reads as follows:
Chittaranjan Locomotive Works, Chittaranjan, Dated the 21st May, 1974 No. SEC/I (A) Order Whereas I am satisfied that it is not reasonably practicable to give an opportunity of showing cause in terms of Railway Servants (Disciplinary and Appeal)Rules, 1968, and/or Article 311(2) of the Constitution of India;
Now, therefore, in exercise of the powers conferred by Rule 14(ii) of the Railway Servants (Disciplinary & Appeal) Rules, 1968, I have decided that Sri Bimal Bose, Ticket No. 59/029 ERS, be removed from service for grave misconduct.
Accordingly, I hereby order that you are removed from service with effect from 28-5-1974 (FN) Sd/-A. L. Kochar GENERAL MANAGER
71. An affidavit in opposition filed on behalf of the respondents Nos. 2&3 has been affirmed by Amritlal Kochar, the General Manager, Chittaranjan Locomotive Works. In this affidavit he said that the petitioner was one of the leaders in the illegal demonstration and meeting held before the strike which commenced from May 8, 1974. The petitioner and some other employees of the Chittarajan Locomotive Works were hard core and active trouble makers. Being fully satisfied on reliable and dependable evidence about the illegal activities of the petitioner and some other persons as afforesaid he formed the opinion or view that if the ordinary procedure for removal of the said petitioner from service be followed then there would be innumerable complications and grave disorder leading to unruliness amongst large number of workers in the Chittaranjan Locomotive Works. He thought on well-founded reasons that in a vital establishments like Chittaranjan Locomotive Works, creation of grave disorder was brought with considerable danger and so he was convinced that it would not be reasonably practicable to give the petitioner the hard core and active trouble makers an opportunity to show cause before removal from service following the normal procedure in terms of Railway Servants' (Discipline & Appeal) Rules, 1968.
72. He further said that It was not required under the law to state In the body of the order removing the petitioner from service the circumstances under which it was considered fit to exercise power under Rule 14(ii). He did not act in any quasi-judicial capacity but made an administrative order. It is not correct be said, that his opinion or decision should be an objective consideration, Clause (3) of Article 311 of the Constitution lays down that the decision on the question as to whether it is not reasonably practicable to hold an inquiry or not is final, and is not justiciable or subject to judicial review. The reasons are not required to be disclosed in the order of removal. The General Manager emphatically denied that he was required to make any speaking order according to the reasons or disclosing the mental process in the body of the order removing the petitioners from service;
Re : C. R. 3295-99(W)74
73. The petitioners in these rules are employees of S.E. Railway, Jatindra Nath Samanta, the petitioner in C.R. 3296 ; Manindra Nath Tarafdar, petitioner is C.R. 3298, Biswanath Roy, petitioner in C.R. 3299 have been dismissed from service by the order of the Traffic Superintendent. S. E. Railway, Khargpur. The petitioner in C.R. No. 3299 was removed by the order of the Security Officer, South Eastern Railway, dated 16-5-74. Orders are cyclostyled. The language is the same.
The said order reads as follows:
South Eastern Railway Dismissal from Service notice No. D.T.S./Con/67/M.N.T. Office of the Divl.
Superintendent, Kharagpur, Dated 16-5-74 Sri Manindra Nath Tarafdar Head Goods Clerk, Place of work, TS's office, Shalimar.
You are absenting yourself from duty on 8-5-74 without reasonable cause notwithstanding notices issued to all staff to be present in the context of the emergency arising out of the illegal strike. You are also found to be indulging in incitement and abetting Dt of illegal strike while remaining underground. Thus, in this case there is no doubt that you are guilty of gross misconduct that, besides violating departmental rules you are indulging in prejudicial acts, contravening and abeting, contravention of rules and order issued under the Defenee of India Act.
It is without doubt in the facts and circumstances of the case that you merit dismissal from service. Therefore, if, the' competent authority here by order that you, Shri Manindra Nath Tarafdar, shall be dismissed from service with immediate effect in accordance with Rule 14(ii) of the Railway Servants D & A rules, 1968, read with porviso (b) to Article 311(2) of the Constitution of India.
Receipt of this notice may please be acknowledged.
Designation:
Signature: Sd. G. S. Ganguly, Traffic Superintendent S.E. Rly., Shalimar.
74. The other two petitioners in CR, No. 3/95 & 297 (W)/74 were also removed from service by an order of the Traffic Superintendent, South Eastern Railway, Shalimar on 21-5-74. The said order reads as follows:
Sri... son of... is hereby removed from service with effect from 21-5-74 in accordance with Rule 14(ii) of the Railway Servants (D& A) Rules, 1968.
Sd/-Signature of the appointing authority, G.S. Ganguly, Traffic Superintendent, S.E. Rly, Shalimar.
75. So it appears that orders have been passed in different languages by different authorities in different railway establishments.
Re : Civil Rule No. 4775 (W)174.
76. The petitioner Chittaranjan De was a guard at Andal. He fell ill and was admitted in the railway hospital on May 8,1974. While be was receiving treatment in the hospital, the Medical Officer of the hospital told him on l3th of May, 1974 that as the petitioner had been dismissed with effect from 1lth of May, 1974, he would not be allowed to stay in the railway hospital. In the affidavit in opposition affirmed by the Harbans Singh, Divisional Personnel Officer, Eastern Railway a note has been annexed as Annexure "X" wherein certain allegations were made against the petitioner whose name was included in the list, stating that along with others hey were preventing the loyal staff from joining their duties by intimidation and harassment to their families. That note was prepared on the 10th May, 1974, by one M.L. Chatterjee, Senior DOS(T). It is admitted that between 6th and 13th of May, 1974, the petitioner was in the railway hospital. That being so, the statements made in the note could not be correct. Mr. Banerjee could not also offer any explanation that why the petitioner's name was included in that list.
77. Three affidavits have been filed on behalf of the respondents one affirmed by Gouri Shankar Ganguly, Traffic Superintendent, S.E. Rly. another affirmed by Dilip Gupta, Security officer. S. E. Railway, and the third by J.N. Loveri, Divisional Mechanical Manager, The contents of these three affidavits are the same. A copy of the order written in the departmental file has been annexed to the affidavit in opposition. The only reason recorded in the said order is that the de linqents were absconding.
78. It is admitted that no charge-sheet had been framed. No attempt was made to send the charge-sheet to the delinquent by registered post to the last address recorded in the office. The record was produced before us. I found that the delinquent officer's address was written in the report. There was nothing in that report that he was not found at his address. The order recorded in the departmental file had not been communicated to the petitioners, Rule 26, provides that every order, notice and other process made or issued under these rules shall shall be served in person by the railway servant, or communicated to him by registered post. Nowhere it is stated in the affidavit-in-opposition that why Rule 26 was not followed. The petitioners did not know what were the charges against them or the reasons why they were deprived of their right of reasonable opportunity of being heard. It is not known that for what purpose the order was kept in the departmental file. What prevented the authorities from communicating the said order to the delinquent has not been disclosed in the affidavit. If the petitioners were absconding then how could they get the notice of removal and come by this Court to challenge the same.
79. In Chittaranjan Locomotive Works cases the departmental files were produced. I found that there was a note of the General Manager, and the said note was similar to the reasons disclosed in the affidavit-in-opposition.
80. Rule 14(ii) contemplates an order, and not a notice of removal similar to Rule 5 of Central Civil Services (Temporary Service) Rules. Such an order should contain four essential things, viz., (i) charge against the delinquent, without the charges question of any enquiry does not arise (ii) Recorded reasons as to why it is not reasonably practicable to hold an enquiry, (iii) consideration of the charges and (iv) punishment.
81. I have carefully gone through the office files. It seems that there was no application of mind by the disciplinary authority. There was no consideration of individual cases. Everything was done mechanically and in utmost efforts to expedite the matters. Rule)4(ii) is not intended as a means to justify an immediate removal or dismissal of a railway employee. Concept of Rule of Law would lose its vitality if the instrumentalities of the State function in complete disregard of the requirements of the statute. None of the orders communicated to the petitioners contains any reason as to why it was not reasonably practicably to hold an inquiry.
82. Mr. Banerjee, who appears on behalf of the respondents in the cases sought to urge two additional points, which accordingly to him, were not raised by the learned Additional Solicitors General in Civil Rule 3632/W of 74.
83. In the first place Mr. Banerjee argued that the validity of order under Rule 14(ii) did not depend upon recitals or reasons in the order itself but on the recording of reasons by the disciplinary authority. If it was challenged before the Court that the authority did not record any reason before exercising powers under Rule 14(ii), in that case, materials might be produced before the Court to show that the reasons have been actually recorded. In these cases reasons have been recorded in the departmental file. In support of his contentions Mr. Banerjee relied upon two decisions of the Supreme Court. Express Newspapers (P) Limited v. Union of India A.I.R. 1958 S.C. 371, and Swadeshi Cotton Mills v. State Industrial Tribunal U.P. .
84. In express Newspapers' case the validity of the Working Journalists (condition of service) and Miscellaneous Provision Act, 1955, was challenged on the ground that there was no proviso in the Act for giving reasons for its decisions by the Wage Board and thus the petitioners right to approach to the Supreme Court under Article 32 of the Constitution became nugatory. My attention was drawn to a passage at page 636 wherein the Supreme Court observed, "the Act was made no provision in this behalf and the Board was perfectly within its right to choose not to give any reason for its decision. The fact that no reasons are thus given, however, would not vitiate the decision in any manner and we may at once say that even though not reasons are given in the form of regular judgment, we have sufficient indications of the Chairman's mind in the note which he made on April 30, 1936, which is a contemporaneous record explaining reasons for the decision of the majority".
85. In the same case the Supreme Court said, "it is no doubt true that if there was any provision to be found in the impugned Act which prevented the Wage Board from giving reasons for its decision, it maybe construed to mean that the order which was thus made by the Wage Board could not be a Speaking order and writ of certiorari could never be available to the petitioners in that behalf. It is also true that in that event this Court would be powerless to redress the grievances of the petitioners by issuing a writ in the nature of certiorari and the fundamental right which a citizen has of approaching this Court under Article 32 of the Constitution would be rendered nugatory".
86. The Supreme Court took the view that there was no provision in the main Act which prevented the Wage Board from giving the reasons for its decision. The petitioners contention before the Supreme Court that they were deprived of their right under Article 32 of the Constitution was negatived. But the above observations of the Supreme Court support the view that an administrative order which affects the rights of an individual should be a speaking one.
87. In Swadeshi Cotton Mills' cases, (supra), the question arose before the Supreme Court was, that Section 3 of Industrial Disputes Act, 1947, was unconstitutional as it delegated essential legislative function to the Government so far as Clauses (c), (d) & (g) were concerned. The Supreme Court held that delegation is not excessive and does not go beyond the prescribed limit. My attention was drawn to page 1396 of that decision wherein the Supreme Court said that the power to pass an order under Section 3 arises as soon as necessary required opinion thereunder is formed. This opinion naturally is formed before the order is made. If, therefore, such an opinion was formed and an order was passed thereafter, the subsequent order would be valid exercise of the powers conferred by the section. The validity of the order, therefore, does not depend, upon the recitals of the formation of the opinion in the order but upon the actual formation of the opinion and making of the order in consequence, it would, therefore, follow that if by in advertance or otherwise the recitals of the formation of the opinion is not mentioned in the preamble to the order, the defect can be remedied by showing by other evidence in the proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed, and was thus a valid exercise of power conferred by the law. The only exception to this course would be where the statute requires that there will be recitals in the order itself, before it can be validly made.
88. Section 3 of the Act reads as follows:
If in the opinion of the State Government it is necessary or expedient so to do for securing the public, safety or convenience, or the maintenance of public order, or supplies and services essential to the life of the community or for maintaining employment, it may by the said order make provision....
89. "Where an "opinion" of "satisfaction" is to be founded on existence of certain facts, in that case recitals in the order is not an absolute necessity because conditions precedent for exercise of powers are fulfilled on the very existence of those facts specified in the statute. In such cases the burden is on the person who challenges that those facts did not actually happened on existence of which such satisfaction or opinion was formed. The Courts are entitled to know whether the grounds or circumstances actually existed on which the opinion of the authority could by based though the sufficiency of the grounds would not be justiciable. In such cases, that defects of recitals in the order can be cured by affidavits filed in proceedings challenging the validity of the order. This principle is well-settled.
90. The difference between those cases and the present one is, that in those cases there is no provision in the Acts for recording such satisfaction in writing. In Rule 14(ii) it is not specified that in existence of such and such conditions, there shall be ho enquiry. In which circumstances and under what conditions there shall be no enquiry, that have left entirely to the discretion of the disciplinary authority, the recorded reasons are the only safeguards against arbitrary exercise of powers conferred by the said Rule. In such cases, the infirmity in the order cannot be supplemented by any affidavit.
91. An unreported decision of Sinha, J., (as he then was), was placed before me, (Suit No. 117 of 1952 decided on August 6, 1953, Promangau Sokhar Gupta v. K.B. Afqtkru), but I find these points were not raised before the learned Judge and he. decided the matter mainly relying upon the word "final" as provided in Article 311(3) of the Constitution. Moreover, in my view, the subsequent decisions of the Supreme Court do not support the view by the learned Judge in the year 1953. What was considered to be an administrative power some years back, is now being considered as a quasi-judicial power. Notwithstanding the finality impressed in Clause (3) of Article 311, the Court is not powerless to set aside such a decision where requirements of statute have not been complied with.
92. Mr. Banerjee, next contended that the proceedings in the Constituent Assembly was binding on the Courts and in support of his contentions he relied upon the judgment of Bhagwati, J., in Fagu Shaw v. State of West Bengal .
93. In Fagu Shaw's case the point for determination before the Supreme Court, was, whether Parliament was bound to prescribe the maximum period of detention under Article 22(7)(b) of the Constitution in order that proviso to Article 22(4)(a) might operate. The majority of the learned Judges of the Supreme Court held that Parliament is not bound to prescribe the maximum period of detention. Bhagawati, J., did not agree with the majority view. The learned Judge referred to the Constituent Assembly debates for the purpose of ascertaining what was the object which the Constitution makers had in view and what was the purpose which they intended to achieve when they enacted the particular provision. Dr. Amedkar's speech was relied upon wherein he said in every case, whether it is a case which is required to be placed before the judicial Board or not. Parliament shall prescribe the maximum period of detention so that no person can be detained indefinitely There shall always be a maximum period of detention which Parliament is required to prescribe by law. Bhagwat, J., was of the opinion that as Parliament has not prescribed the maximum, period of detention, as contemplated under Sub-clause (b) of Clause (7) of Article 22, no person can be detained under the provision of the Act for a period longer than three months.
94. Mr. Binerjee produced a copy of Dr. Amedkar's speech in the Constituent Assembly delivered on 8-7-49 which reads as follows:
Coming to cl.(3), this has been deliberately introduced. Suppose, this Clause (3) was not true there, what would be the position. The position would be that any person, who has. not been given notice under Sub-clause (a) or (b) or (c) would be entitled to goto Court of law and say that he has been dismissed without giving him an opportunity to show cause. Now, Courts have taken two different views with regard to the word 'satisfaction', is it a subjective state of mind of the officer himself or an objective state, that is to say, depending upon the circumstances. It has been felt in a matter of this sort, it is better to oust out the jurisdiction... of the Court and to make the decision of the officer final. That is the reason why this Clause (3) had to be introduced that no Court shall be able to call in question if the officer feels that it is impracticable to give reasonable or the President thinks that under certain circumstances notice need not be given....
95. In Gopalan v. State of Madras A.I.R. 1950 S.C.2 Kania, C.J., Fazal Ali, J., Mukerhjee, J., considered the question whether resort to such extrinsic aid to interpretation was premissible. Two propositions emerge from that judgment : (a) where the words of provisions are unambiguous, such extrinsic aids are not admissible to control their plain meaning, (b) while it is not proper to take into consideration the individual opinion of members of Parliament, when a question is raised, whether a certain phrase or expression was up for consideration at all or not, a reference to the debate is permissiable. Mukherjee, J., (as he then was) said "in interpreting Constitution it will be better if such extrinsic evidence is left out of account. In matters like this, different numbers act upon different impulses and from different motives and it is quite possible that some members accepted certain words in a particular sense, While others take them in a different light".
96. Krishna Iyer, J., in State of Mysore v. R.V. Bidap 1973-II L.LJ. 418 : A.I.R. 1973, SC. 555, observed, that where there is obscurity or lack of harmony with other provisions and in other special circumstances it may be legitimate to take external assistance such as the object of the provisions, the mischief sought to be remedied, the social context, the words of the authors and other allied matters. In my view, there is no ambiguity in the word "final", as referred to in Article 311(3) of the Constitution. So it is not necessary to take any extrinsic aid of the debate of the Constituent Assembly to interpret that Article. The decision referred to by Mr. Banerjee does not support his contentions that proceedings of the Constituent Assembly are binding on the Courts.
97. In the result these Rules are made absolute. The impugned order of removal and dismissal are quashed by a writ of certiorari. This judgment shall govern 4035-43(W) 74.
98. This order, however, shall not prevent the railway authorities from taking any disciplinary proceedings against the petitioners in all these Rules.
99. There will be no order for costs in all these Rules.
N.B. The date of the above judgment may be published in the ensuing issue as. soon as we get from the relevant authority.