1. Government servant dismissed for misconduct — Appeal to State Government — Minister's file note suggesting leniency — Subsequent order by Chief Minister upholding dismissal. (Para 2 , 3 , 5 )
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1962 Supreme(SC) 95
SUPREME COURT OF INDIA
7th March 1962
B.P. SINHA, C.J.I., K. SUBBA RAO, N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR, AND T.L. VENKATARAMA AYYAR, JJ.
Bachhittar Singh, Appellant
Versus
State of Punjab and another Respondents.
Civil Appeal No. 155 of 1961.
Advocates appeared
M/s. I. M. Lal and M. L. Agarwal, Advocates for Appellant; Mr. S. M. Sikri, Advocate General, for State of Punjab and Mr. N. S. Bindra, Senior Advocate, (Mr. P. D. Menon, Advocate, with them ) for Respondents.
Writ Appln. No. 460 of 1957, D/-5-1-1959-Punj.
Advocates:
I.M.LAL, M.L.AGRAWAL, N.S.BINDRA, P.D.MENON, S.M.Sikri
I.M.LAL, M.L.AGRAWAL, N.S.BINDRA, P.D.MENON, S.M.Sikri
An executive action of the State Government is binding only if expressed in the name of the Governor and communicated to the affected person; internal file notes are provisional. Additionally, both the enquiry and punishment stages of departmental proceedings are judicial in nature.
Headnote:(A) Constitution of India - Art. 311(2) - Departmental proceedings - Nature of proceedings - Departmental proceedings against a government servant are not divisible into judicial and administrative parts - Both the stage of concluding whether charges are established and the stage of determining the punishment are judicial in nature, as both require notice and an opportunity to be heard - Any action decided to be taken against a government servant found guilty of misconduct is a judicial order and cannot be varied at the will of the authority empowered to impose the punishment. (Para 7)
(B) Constitution of India - Art. 166(1) - Executive action of State Government - Validity of orders - For an action to be regarded as an order of the State Government, it must be expressed in the name of the Governor and communicated to the person affected - Mere remarks or notes recorded on a file do not amount to an order of the State Government and are provisional in character until a formal order is drawn up and communicated. (Paras 9, 10)
(C) Rules of Business - Jurisdiction of Chief Minister - The Chief Minister is entitled to call for files and pass orders on matters raising questions of policy, cases of administrative importance, or such other cases as the Chief Minister may consider necessary - Such orders, even if pertaining to the portfolio of another Minister, are deemed to be orders of the Council of Ministers. (Paras 12, 13)
Facts of the case:
A government official was dismissed from service following a departmental enquiry into the tampering of official records. Upon appeal, the Revenue Minister of a former state recorded a note on the file suggesting that the punishment be reduced from dismissal to reversion to a lower post. Following the merger of the former state into another state, the Chief Minister of the merged state reviewed the file and ordered that the original dismissal should stand. The official challenged this, contending that the previous Minister's note was a binding order of the State Government and that the Chief Minister lacked the jurisdiction to review it.
Findings of Court:
The court found that the note on the file was not expressed in the name of the Governor nor communicated to the official, and therefore did not constitute a binding order of the State Government. It further held that the Chief Minister had the authority under the Rules of Business to decide on matters involving questions of policy or administrative importance.
Issues: Whether a note recorded on a file by a Minister constitutes a binding order of the State Government and whether the Chief Minister has the jurisdiction to pass orders on matters pertaining to a specific Minister's portfolio.
Ratio Decidendi: An executive action of the State Government must be expressed in the name of the Governor and communicated to the affected party to be binding; internal file notes are merely provisional. Furthermore, departmental proceedings are judicial in nature at both the enquiry and punishment stages. The Chief Minister possesses the authority to intervene in departmental matters involving policy or administrative importance under the Rules of Business.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether a Minister's file note constitutes a binding government order and whether the Chief Minister has jurisdiction to decide matters within another Minister's portfolio. (Para 6 )
3. Departmental proceedings for punishment are judicial; file notes are provisional until formally expressed in the Governor's name and communicated to the affected person. (Para 7 , 9 , 10 )
4. Executive orders must be expressed in the Governor's name and communicated to be binding; file notes are provisional and not binding government orders. (Para 9 , 10 )
5. Appeal dismissed; order of dismissal upheld. (Para 14 )
6. Are the stages of a departmental enquiry against a government servant administrative or judicial?
Both the enquiry and punishment stages are judicial. Article 311(2) requires notice and an opportunity to be heard regarding punishment, ensuring the action is a judicial order that cannot be varied at will by the authority empowered to impose punishment. (Para 7 )
7. Does a Minister's note on a file constitute a binding order of the State Government?
No. Under Article 166(1), executive action must be expressed in the name of the Governor and communicated to the affected person to be binding; until these formalities are observed, the action is merely provisional. (Para 9 , 10 )
8. Can a Chief Minister decide a matter that falls within the portfolio of another Minister?
Yes, if the Rules of Business permit the Chief Minister to call for files on questions of policy or administrative importance; such decisions are deemed orders of the Council of Ministers and advice to the Governor. (Para 12 , 13 )
Judgment
MUDHOLKAR, J.: This is an appeal by special leave against the judgment of the Punjab High Court dismissing the appellants petition under Art. 226 of the Constitution.
2. The appellant was appointed a qanungo in the former State of Pepsu in the year 1950. On December 1,1953 he was appointed Assistant Consolidation Officer. Certain complaints having been received regarding tampering with official records he was suspended and an enquiry was held against him by the Revenue Secretary of Pepsu Government. As a result of that enquiry the Revenue Secretary dismissed him by order dated August 30,1956 on the ground that the appellant was not above board and was not fit to be retained in service. This order was duly communicated to the appellant. Thereupon the appellant preferred an appeal before the State Government.
3. It would appear that he had submitted an advance copy of his appeal to the Revenue Minister of Pepsu who called for the records of the case immediately. After perusing them he wrote on the file that the charges against the appellant were serious and that they were prayed. He also observed that it was necessary to stop the evil with a strong hand. He however, expressed the opinion that as the appellant was a refugee and had a large family to support his dismissal would be too hard and that instead of dismissing him outright he should be reverted to his original post of qanungo and warned that if he does not behave properly in future he will be dealt with severely. On the next day the State of Pepsu merged in the State of Punjab.
4. According to the appellant the aforesaid remarks amounts to an order of the State Government and that they were orally communicated to him by the Revenue Minister. This is denied on behalf of the State. It is however, common ground that the aforesaid remarks or order, whatever they be were never communicated officially to the appellant.
5. After the merger of Pepsu with State of Punjab the file was put before the Revenue Minister of Punjab, Mr. Darbara Singh. On December 1/4,1956 Mr. Darbara Singh remarked on the file "Serious Charges have been proved by the Revenue Secretary and Shri Bachittar Singh was dismissed. I would like the Secretary I/c to discuss the case personally on 5th December, 1956." Then on April 2/8,1957 the Minister noted on the file "C; M. may kindly advise". With this remark the file went up before the Chief Minister, Punjab, who on April 16/18, 1957, passed an order, the concluding portion of which reads thus :
"Having regard to the gravity of the charges proved against this official, I am definitely of the opinion that his dismissal from service is a correct punishment and no leniency should be shown to him merely on the ground of his being a displaced person or having a large family to support. In the circumstances the order of dismissal should stand."
The order was communicated to the appellant on May 1,1957. Thereafter he preferred a position under Art. 226 of the Constitution which as already stated was dismissed by the Punjab High Court.
6. The validity of the order of the Revenue Secretary dismissing the appellant was not challenged before us. The point urged before us is that the order of the Revenue Minister of Pepsu having reduced the punishment from dismissal to reversion, the Chief Minister of Punjab could not sit in review over that order and set it aside. Two grounds are urged in support of this point. The first is that the order of the Revenue Minister of Pepsu was the order of the State Government and was not open to review. The second ground is that in any case it was not within the competence of the Chief Minister of Punjab to deal with the matter inasmuch as it pertained to the portfolio of the Revenue Minister.
7. Before we deal with the grounds we may state that the High Court was of the opinion that the proceedings taken against the appellant were made up of two parts : (a) the enquiry (which involved a decision of the question whether the allegation
