Law Maker

Union of India v. Tulsiram Patel

Supreme Court of India · 11 July 1985 · 5 judges · 1985 AIR 1416; 1985 SCR Supl. (2) 131; 1985 SCC (3) 398

The majority held that when a clause of the second proviso to Article 311(2) applies, no inquiry or opportunity of hearing need be given, that Article 14 cannot reintroduce it, and overruled Challappan on hearing before penalty.

Facts

Many government servants were dismissed or removed without any inquiry under one of the three clauses of the second proviso to Article 311(2) or analogous service rules, including railway servants after an all-India strike, members of the Central Industrial Security Force and members of Madhya Pradesh police forces. High Courts allowed several writ petitions relying on Divisional Personnel Officer v. T.R. Challappan, which required a hearing on penalty. A conflict with an earlier decision led to a reference to a Constitution Bench. In the lead appeal the respondent, an auditor convicted under Section 332 IPC for striking his superior officer with an iron rod and released on probation, was compulsorily retired under Rule 19(i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 without a hearing. The Madhya Pradesh High Court set the order aside.

Questions before the Court

  1. When a clause of the second proviso to Article 311(2) applies, must the government servant still be given some opportunity of hearing, for example on the penalty?
  2. Can Article 14 and the principles of natural justice bring back the hearing that the second proviso excludes?
  3. Was Challappan correctly decided on Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968?
  4. What are the conditions for, and the scope of judicial review under, clauses (a), (b) and (c) of the second proviso?

What the Court held

  • The words 'this clause shall not apply' in the second proviso are mandatory. Once a clause applies, no inquiry and no opportunity of any kind, including a hearing on penalty, need be given. The proviso applies only where the conduct deserves dismissal, removal or reduction in rank and the condition of the relevant clause is met.
  • The pleasure doctrine in Article 310(1), the safeguards in Article 311(1) and (2) and their withdrawal by the second proviso all rest on public policy. Article 14 cannot bring back the audi alteram partem rule the Constitution expressly excludes; it bites only where a clause is invoked on an extraneous ground, making the action mala fide and void.
  • Challappan was wrong in reading Rule 14 of the Railway Servants Rules in isolation and holding that a hearing must precede the penalty. Under clause (a) the authority must itself consider the criminal court's judgment and the circumstances; conviction does not automatically mean dismissal, and an arbitrary or grossly excessive penalty can be corrected in appeal or on judicial review.
  • Clause (b) needs not absolute impracticability but that a reasonable man, in the prevailing situation, would think an inquiry not reasonably practicable. The reason must be recorded in writing before the penalty order, or both orders are void. Article 311(3) finality does not bind the court, which tests the relevance of reasons without sitting in appeal.
  • Under clause (c), the President's or Governor's satisfaction that an inquiry is inexpedient in the interest of the security of the State is subjective and not a fit matter for judicial review; whether mala fides could be examined was left open.
  • The lead appeal was allowed and the respondent's compulsory retirement upheld. The other petitions were dismissed or appeals allowed, with time given to file departmental appeals and directions to hear them on merits.

Why it matters

On the second proviso to Article 311(2), the majority holds that the Constitution itself may exclude natural justice and that Article 14 cannot override that exclusion, overrules Challappan, and lays down the tests and the limits of judicial review for each of clauses (a), (b) and (c). It also points to departmental appeal and judicial review as the remedies left to a government servant.

In the Court's words

Copied from the official judgment; each passage links to its page.

“The position which emerges from the above discussion is that the key-words of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase "this clause shall not apply" is mandatory and not directory. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned government servant.”
Madon, J.Page 59 of the judgment
“This principle of natural justice having been expressly excluded by a Constitutional provision, namely, the second proviso to clause (2) of Article 311, there is no scope for reintroducing it by a side-door to provide once again the same inquiry which the Constitutional provision has expressly prohibited.”
Madon, J.Page 77 of the judgment
“The Decision in Challappan's case is, therefore not correct with respect to the interpretation placed by it upon Rule 14 of the Railway Servants Rules and particularly upon the word "consider" occurring in the last part of that rule and interpreting Rule 14 by itself and not in conjunction with the second proviso to Article 311(2).”
Madon, J.Page 90 of the judgment
“It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.”
Madon, J.Page 99 of the judgment

Provisions interpreted

Related judgments

  • Explains Rustom Cavasjee Cooper v. Union of India (1970)“The decisions in R.C.Cooper's case and the other cases which followed it, however, will not apply where a Fundamental Rights (including the audi alteram partem rule comprehended within the guarantee of Article 14) is expressly excluded by the Constitution itself.” (page 80)
  • Follows Maneka Gandhi v. Union of India (1978)“or the urgency of taking action so demands, as pointed out in Maneka Gandhi's case at page 681.” (page 77)

Case and bench

Parties
Union of India and Another v. Tulsiram Patel and Others
Case
Civil Appeal No. 6814 of 1983 etc., with connected writ petitions, transferred cases and civil appeals
Decided
11 July 1985
Bench
Madon, D.P., Chandrachud, Y.V. (CJ), Tulzapurkar, V.D., Pathak, R.S., Thakkar, M.P.
Opinions
Majority 4:1. Majority judgment by Madon, J.; Thakkar, J. dissented on overruling Challappan and on the scope of the pleasure doctrine, but agreed with the majority on the matters under Article 311(2)(c).

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