Hon'ble Suneet Kumar,J.
(Delivered by Hon'ble Suneet Kumar, J.) This special appeal arises out of judgment and order dated 05.01.2012 passed in Writ Petition No. 2346 (SS) of 2011, Constable 3105 Mahangi Ram Versus State of U.P. and others.
The petitioner/appellant was appointed Constable in Provincial Armed Constabulary (P.A.C.). In 1973, the jawans in P.A.C. revolted against the Government, as a result of which, the services of a large number of personnel of P.A.C. was dispensed with. The petitioner was dismissed vide order dated 23.08.1973 made under the proviso to Article 311(2)(c) of the Constitution of India. The petitioner had assailed the order dated 19.09.1998 passed by Commandant, 27th Battalion, P.A.C., Sitapur, rejecting the petitioner's representation claiming reinstatement and to set aside the order of dismissal dated 23.08.1973.
Learned Single Judge after appreciating the facts narrated in the writ petition, dismissed the writ petition on the ground of unexplained latches i.e. the petitioner approached this Court after a delay of 23 years firstly in 1997 and thereafter against the order dated 19.09.1998, rejecting the representation the petitioner, after lapse of 13 years.
Learned Single Judge also rejected the claim of the petitioner on merits. The order of dismissal dated 23.08.1973, reproduced in the judgment, clearly stated that the petitioner's services has been dispensed with by the Hon'ble Governor as he was satisfied that "in the interest of security of the State", it was not expedient to hold enquiry. The pleadings in the writ petition refer to criminal case being registered against the petitioner at Police Station Mahanagar, District Lucknow, under Sections 147, 148, 149, 307, 409, 332 and 152 of I.P.C., Section 6 of P.A.C. Act, Rule 47 of the Defence of India Rules and Section 7 Arms Act which is the basis of his termination.
It was pleaded, as well as contended, by the learned counsel for the petitioner that the petitioner's service was dispensed with after lodging the F.I.R., and the petitioner after his acquittal by the Sessions Court in the said criminal case, by judgment and order dated 19.01.1996, was entitled to be reinstated with all consequential benefits.
The order of dismissal no where stated that the petitioner's services has been dispensed with on lodging of the F.I.R. or pending of criminal case. The petitioner's services were dispensed with under the proviso to Article 311(2) of the Constitution of India in the interest of Security of State.
The petitioner has no where pleaded or shown as to how the pleasure of Hon'ble Governor was bad and further no material has been placed on record to demonstrate that there was no threat to the security of the State or that the Government had relied on malafides or extraneous consideration. The pleadings only pertain to the F.I.R. lodged against the petitioner as well as other constables and their subsequent acquittal in the criminal case.
Under the proviso to Article 311(2), three grounds are mentioned for dispensing with enquiry; (i) the enquiry can be dispensed with on conviction of criminal charge or, (ii) it is not reasonably practicable to hold such enquiry, and; (iii) it is in the interest of security of the State.
The allegations in the F.I.R. could not be the grounds under proviso to Article 311 (2) to dispense with the petitioner's services, and therefore, the entire foundation and argument of learned counsel for the petitioner is that the impugned order of dismissal was only on the basis of lodging of F.I.R., is unsustainable.
Learned counsel for the appellant/petitioner has relied upon Basanti Prasad v. The Chairman, Bihar School Examination Board & Ors., AIR 2009 Supreme Court 3162, wherein, the Hon'ble Supreme Court held that where the dismissal is mainly on the ground of conviction in criminal cases and subsequently conviction is set aside in appeal then in that case the petitioner is entitled to be reinstated with consequential benefits.
In Lt. Governor of Delhi and others v. Const. Dharampal and others, AIR 1990 Supreme Court 2059, the Constables were terminated on the ground that they had participated in the agitation along with other police constables in April 1967. A larger number of agitating constables were taken back in service as fresh recruits. Later, in view of the assurance given in the Parliament by the then Home Minister, prosecutions were withdrawn. The Hon'ble Supreme Court directed that the petitioner/respondent is entitled to reinstatement with all consequential benefits even if he had approached the Court after 15 years.
The cases cited do not help the petitioner. The second proviso to Art. 311(2), in clause (a), (b) and (c) ; lays down three situations where Art. 311(2) does not apply. An inquiry by informing the government servant of the charges and giving reasonable opportunity of being heard is the rule, the dispensation of which is an exception. Sub-clause (1) provides that a civil servant can be proceeded against on the ground of conduct which has led to his conviction on a criminal charge. The disciplinary authority is to regard the conviction of the concerned civil servant as sufficient proof of misconduct on his part. The authority has to decide whether conviction demands the imposition of any penalty and, if so, what penalty. For this purpose, the authority has to take into consideration the judgment of the criminal court, the entire conduct of the civil servant, the gravity of the offence was a technical or trivial nature, and the extenuating circumstances, if any. The disciplinary authority has to do this exercise ex parte, without giving a hearing to the concerned civil servant. (Vide Shankar Dass Versus Union of India, AIR 1985 SC 772, Union of India Versus Tulsi Ram Patel, AIR 1995, SC 1416, Deputy Director of Collegiate Education (Administration) Madras Versus Nagoor Meera, AIR 1995 SC 1364).
Article 311 (2)(a) speaks of "conduct which has led to his conviction of a criminal charge". It does not speak of sentence or punishment awarded or pendency of appeal against the conviction or enlargement on bail or suspension of the punishment will not come in the way of the authority to pass appropriate orders on the basis of civil servants conduct leading to his conviction. The Supreme Court disapproved the suggestion that government servant ought not to be dismissed till the appeal, revision or other remedies are over as that would mean to continue in service a person who has been convicted of serious offences by a criminal court.
A similar view was expressed in Union of India Versus Ramesh Kumar, 1997 SC 3531, namely that suspension of sentence does not wipe out conviction which continues and is not obliterated.
In Article 311(2)(c)- the President or Governor, as the case may be, is to be satisfied that in the interest of the Security of the State, it is not expedient to give the civil servant such an opportunity. Under Clause (b), the satisfaction has to be of the disciplinary authority whereas under Clause (c), it is that of the President or Governor as the case may be. The satisfaction of the President or the Governor must be with respect to the expediency or inexpediency of holding an inquiry in the interest of Security of the State. The security of the State being paramount, all other interests are subordinated to it. The satisfaction of the President must be the satisfaction of the President himself and not of any delegated authority by reason of the GOI (Allocation of Business) Rules 1961 made under Article 17(3) of the Constitution. (Vide Jayanti Lal case reported in AIR 1964 SC 648, Sardari Lal v. Union of India, AIR 1971 SC 1547). This view was however over ruled in Shamsher Singh & Anr Versus State Of Punjab AIR 1974 SCC 2192. Thus, 'personal satisfaction' of the President or the Governor is not necessary to dispense with the inquiry. Such satisfaction may be arrived at by any one authorized under the Rules of Business. It is thus the satisfaction of the President or the Governor in the Constitutional sense where he has to be guided by the advice of the Council of Minsters.
The 'Security of State' may comprise a situation of disobedience and insubordination on the part of members of the police force. The Supreme Court in Tulsiram Patel (supra) clarified, that the question is not whether the security of the state has been affected or not, for the expression used in Clause (c) is "in the interest of the security of the State" which may be affected by actual act, or even the likelihood of such acts taking place. "What is required under clause (c) is not the satisfaction of the President or the Governor that the interest of the security of the state is or will be affected but his satisfaction that in the interest of security of the state, it is not expedient to hold an enquiry as contemplated by Article 311(2). This means that the satisfaction of the President/Governor must be with respect to the expediency or inexpediency of holding an inquiry "in the interest of the security of the state".
The scope of judicial review under Clause (c) is much more restrictive than under Clause (b). The scope of such a judicial review under Clause (c) has been explained by the Supreme Court in A.K. Gaur versus Union of India, AIR 1995 SC 1403 in the following words:
"............ an order passed under Cl. (c) of the second proviso to Art. 311(2) is subject to judicial review and its validity can be examined by the Court on the ground that the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds..........."
Where the satisfaction under clause (c) of Article 311(2) is challenged, the Government should disclose to the Court the nature of the activities of the employee on the basis of which the satisfaction of the President or the Governor was arrived at for the purpose of passing an order under Art. 311(2)(c) "so that the Court or tribunal may be able to determine whether the said activities could be regarded as having a reasonable nexus with the interest of the security of the State." The government in such a case is obliged to place before the Court relevant material on the basis of which the satisfaction was arrived at subject to a claim of privilege under sections 123 and 124 of the Evidence Act. There is no scope to imply natural justice therein because it is expressly excluded by the opening words of the second proviso. Article 14 cannot be invoked to imply natural justice to any of these three situations because Article 311 (2) has expressly excluded it by the opening words of the second proviso. Even the service rules made under the proviso to Article 309 cannot liberlise the exclusionary effect of the second proviso to Article 311(2). The rule making power under Article 309 is subject to Article 311. Any rule contravening Article 311 (1) or 311 (2) may attract its vice. The earlier decision in Divisional Personnel officers, Sadar Railway v. T.R. Chellappam, (1976) 1 SCR 783, provided that a limited enquiry ought to be held on the question of nature and extent of penalty to be imposed has since been overruled. The rules cannot restrict the exclusionary impact of the second proviso to Art. 311 (2) "because that would be to impose a restriction upon the pleasure under Article 310(1) which has become free of the restrictions placed upon it by Article 311(2) by reason of the operation of the second proviso to that clause.
The Supreme Court has upheld the orders passed under Article 311(2)(c) inter alia in the following situations. In A.K. Kaul v. Union of India, AIR 1995 SC 1403, the employees in the Intelligence Bureau formed an Association and the appellant was its general secretary. He was dismissed from service without holding an enquiry under Article 311(2)(c). The Court upheld the order, and refused to go into the question as to whether the order was malafide or based on extraneous grounds.
In Union of India Versus Balbir Singh, AIR 1998 SC 2043, the respondent was accused in the assassination of the Prime Minister was dismissed from Delhi Police. The dismissal was based on recommendations of a High-Powered Committee. The Court upheld the dismissal though the respondent was acquitted in criminal trial against him, yet the material placed before the committee was not confined to the assassination only; it related to various other activities of the respondent as well, which the authorities considered as prejudicial to the security of the state and, therefore, acquittal did not make any difference to the order which was passed by the President on the material which was before the authorities long prior to the conclusion of the criminal trial.
The finality clause under Article 311(3) refers mainly to the situation covered by Article 311(2). The Supreme Court has however ruled that Article 311 (3) does not completely bar judicial review of the action taken under Clause 2(b) or 2(c). The Supreme Court reiterated the proposition in Jaswant Singh v. State of Punjab, AIR 1991 SC 385, that inspite of Article 311(3) the "finality can certainly be tested in a Court of law and interfered, with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the enquiry. The President/Governor's satisfaction under Clause (c), can be examined by the Court on grounds such as mala fides, or based wholly on extraneous and/or irrelevant grounds. The court while examining the material will not interfere with the satisfaction so long as there is some relevant material sustaining action, nor will the court question the truth or correctness of the material or will it go into the adequacy of the material. The court is not required to substitute its own opinion for that of the President/Governor.
Applying the law, in the facts and circumstances of the present case, we find the petitioner had neither pleaded or setup a case regarding the Governor's satisfaction being vitiated by malafides or based on extraneous consideration or that there was no material, that warranted dismissal under Article 311(2)(c).
It is a settled proposition of law that a party raising a point has to plead the case and produce/adduce sufficient evidence to substantiate his submissions. In case the pleadings are not sufficient, the Court is under no obligation to entertain the pleas. The Bharat Singh and Ors. v. State of Haryana and Ors., the Hon'ble Apex Court has observed as follows:-
"In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.."
In M/s. Atul Castings Ltd. V. Bawa Gurvachan Singh, AIR, 2001 SC 1684, this Court observed as under:
"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law." (Refer Devasahayam (Dead) by L.Rs. v. P. Savithramma & Ors., (2005) 7 SCC 653; Sait Nagjee Purushotam & Co. Ltd. v. Vimalabai Prabhulal & Ors., (2005) 8 SCC 252."
The pleadings have to be read as a whole, otherwise it would not serve any purpose of ascertaining the real issue between the parties and to narrow down the area of conflict or examine issues when the parties differ.
Learned counsel for the petitioner has not sufficiently explained the latches of more than 34 years in approaching the Court. The petitioner thus cannot be granted any relief at this stage. There is no illegality in the order passed by the learned Single Judge. The appeal is devoid of merit and is accordingly dismissed.
Order Date :- 2/5/2014 kkm/