Lilawati Mutatkar v. State of Madhya Bharat — 1952 DIGILAW 17 (MP)

JUDGEMENT : DIXIT, J. In this application under Art. 226 of the Constitution of India, for the issue of a writ in the nature of certiorari and also for a writ in the nature of mandamus, the petitioner Mrs. Lilawati Mutatkar states that from 18-5-49 until 5-8-50, she was employed as a stenographer in the Health Ministry of the Madhya Bharat State and was working as a stenographer to the Deputy Secretary, Police; that on 5-8-50 she was suddenly suspended pending a departmental inquiry into her conduct and that on 6-11-50 she was served with a notice intimating to her the result of the inquiry and asking her to state within four days whether she accepted or denied the accuracy of the allegation against her, namely that she had contravened rule 21 (1) of the Government Servant's Conduct Rules by associating herself with persons engaged in subversive activities; that on 13-11-50 she made a representation to the Deputy Secretary Police Department denying the allegations and requesting him to furnish her with the details of the charges against her, but no such details were given to her and that on 18-11-50 the Chief Secretary of the Madhya Bharat Government sent her a memo terminating her services "on account of her undesirable antecedents and association with persons engaged in subversive activities". The petitioner proceeds to say that subsequently on 4-12-50 she applied for a review of the order terminating her services; the review petition was rejected and she was informed that as her case was covered by proviso (3) to R. 8 of the Madhya Bharat Civil Services (Punishment and Appeal) Rules, 1950, there had been no irregularity of procedure in her case. The applicant, then, says that on 6-2-51 she appealed to the Chief Minister against the order of the Chief Secretary terminating her services and that while this appeal was pending, she was informed that there was a typing error in the letter dated 20-1-50 of the Under-Secretary Appointment Department communicating to her the rejection of the review petition on the ground that her case was covered by proviso (3) to R. 8 of the Madhya Bharat Civil Services Rules, 1950 and that in fact her case was covered by proviso (c) to R. 8. The petitioner's complaint is that the inquiry following her suspension was held in her absence; that at no time was she informed of the concrete charges against her and the evidence on which they were being put forward, and that she was never told that the termination of her services was the punishment proposed against her and further that she was never given a reasonable opportunity of showing cause why the punishment of termination of her services should not be imposed. 2. The petitioner seeks an order in the nature of a certiorari to quash the decision of the Chief Secretary terminating her services and to declare the termination of her services as "improper, illegal and inoperative and void". An order in the nature of a mandamus is also asked for directing the State to set aside the order of the termination of the applicant's services and to reinstate her in her former post or to provide her with a post of like standing, status and remuneration and to reimburse the petitioner in full for the loss of pay occasioned by her wrongful dismissal from service. 3. In the affidavit in reply filed on behalf of the State, the petition is being opposed inter alia on the grounds, firstly, that a writ of certiorari to quash the order of the Govt. terminating the petitioner's services cannot be issued as it is a purely administrative order; secondly, that the remedy by the issue of a writ of mandamus is not competent as final orders have already been passed by the Government against the petitioner; thirdly, that the petitioner has efficacious remedy by way of a suit; fourthly, that for the alleged wrongful termination of her services, the petitioner cannot invoke the aid of Art. 226 for a relief of damages or for a declaration that the order terminating her services is void and lastly that the petitioner's complaint that she was not aware of the charges against her is not true; that she was "duly appraised of the main allegation against her and to the extent to which the disclosure of the material on the record against her could be made consistently with the interest of the security of the State," and that the order passed against the petitioner was not mala fide. In presenting this affidavit before us, the learned Advocate General stated that in the event of this Court finding it necessary to enter into an examination of the facts and the details of the procedure adopted by the Government in making the order of the termination of the petitioner's services, Government should be given leave to file a further affidavit of the Officer who actually conducted the inquiry against the petitioner. It was said that this affidavit could not be filed immediately as the Officer concerned was on training outside the Madhya Bharat State. The submission of Mr. Daji, the learned Counsel appearing on behalf of the petitioner, is that in the termination of the petitioner's services, the provisions of R. 8 of the Madhya Bharat Civil Services (Punishment and Appeal) Rules, 1950 and of Art. 311 (2) of the Constitution had not been complied with and consequently the order terminating the petitioner's services is wrongful, illegal and ultra vires the State Government. Mr. Daji pointed out that under the aforesaid R. 8, no order of dismissal, removal or reduction in rank can be passed on a member of the service other than an order based on facts found proved by a criminal Court, unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. This rule further provides that : "The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires and if the authority so directs an inquiry shall be conducted as to such of these allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a reasonably sufficient record of evidence and a statement of the findings and the grounds thereof." 4. It was said that it is only when as a result of the findings of such a departmental inquiry, a definite conclusion is reached as to the charges and the actual punishment is provisionally decided upon, and then as required by R. 8 (4) of the Civil Services (Punishment and Appeal) Rules and Art. 311 (2) of the Constitution, the Government servant is given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, that an order of dismissal or removal or reduction in rank can be passed. The substantial matter of complaint against the order dated 18-11-50 of the Chief Secretary terminating the petitioner's services is that in conducting the inquiry which led to that order and in making the order, the Deputy Secretary and the Chief Secretary did not regard themselves, as it was said, they should have done, as persons exercising quasi-Judicial functions and they did not communicate to the petitioner the material suspected to be against her and did not give her a real and effective opportunity of disproving allegations made against her, or of showing cause why the punishment of terminating her services should not be imposed. Learned Counsel for the petitioner stated that the departmental inquiry was held in the absence of the petitioner, and argued that it was not sufficient compliance of the provisions of Art. 311 (2) and R. 8 of the Civil Service Rules to tell the petitioner that the ex parte inquiry showed that she had contravened R. 21 of the Government Servant Conduct Rules associating herself with persons engaged in subversive activities and that consequently she was liable to have her services terminated, and then asking her to state within four days whether she accepted or denied the accuracy of these allegations. It was further contended that after the commencement of an inquiry under R. 8 (1), the Raj Pramukh could not direct under proviso (c) to this clause, that in the interest of the security of the State, it was not expedient to give to the petitioner a reasonable opportunity of showing cause or of defending herself and that in any case the communication to the petitioner while the appeal was pending before the Chief Minister that her case was covered by proviso (c) to R. 8 (1) of the Civil Services Rules was an after-thought, intended to cover the defects in the inquiry and only indicated that the order of the termination of the petitioner's services was mala fide. 5. I need not set out the arguments of the learned Advocate General. In saying this, I do not mean any disrespect to him. It will be sufficient to state that during the course of his arguments, the learned Advocate General forcibly elaborated the objections raised in the affidavit filed on behalf of the State. I have derived considerable assistance from his arguments in formulating my reasons for the conclusion that I have reached that this petition must be rejected. What I propose to state presently is, substantially what the learned Advocate General addressed to us. There are, as it appears to me, a variety of grounds on which this application should be rejected. I have derived considerable assistance from his arguments in formulating my reasons for the conclusion that I have reached that this petition must be rejected. What I propose to state presently is, substantially what the learned Advocate General addressed to us. There are, as it appears to me, a variety of grounds on which this application should be rejected. In order to determine whether the applicant is entitled to the reliefs which she specifically seeks, namely, an order in the nature of a mandamus and an order in the nature of a certiorari, it is first necessary to see whether there is a legal obligation on the State to continue to employ the applicant, and also to consider whether the order dated 18-11-50 of the Chief Secretary terminating the petitioner's services is a quasi-judicial or an administrative act. It is well settled that a writ of mandamus is issued "to direct any person, corporation or inferior Court of jurisdiction requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty." Under Art. 226 of the Constitution, a writ in the nature of mandamus can also be issued in appropriate cases to any Government. But the applicant for an order in the nature of a mandamus must show that the Government or the public authority or official is under an absolute and not a discretionary duty to perform certain functions which it has omitted to do and that the applicant has a demonstrable interest in the performance of that duty. See Halsbury's Laws of England, Volume IX (Hailsham edition) Arts. 1269-1279-1303). It is also equally well established that a writ of certiorari is issue against inferior. Courts or persons or authorities who are required by law to act judicially or quasi-judicially and only in those cases where they act in excess of their jurisdiction. A writ in the nature of certiorari is not issued to correct an administrative act. 6. 1269-1279-1303). It is also equally well established that a writ of certiorari is issue against inferior. Courts or persons or authorities who are required by law to act judicially or quasi-judicially and only in those cases where they act in excess of their jurisdiction. A writ in the nature of certiorari is not issued to correct an administrative act. 6. Now as regards the tenure of office of persons serving the Union or a State, Art. 310 of the Constitution says that except as expressly provided by the Constitution, every person who is a member of the Civil Service of the Union and every person who is a member of the Civil Service of a state holds office during the pleasure of the President or of the Governor or the Rajpramukh as the case may be. Art. 311 prescribes the conditions which must be fulfilled before a person who is a member of the Civil Service is removed or dismissed or reduced in rank. It provides (1) that a member of the Civil Service shall not be dismissed or removed by an authority subordinate to that which he was appointed and (2) that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The proviso to Cl. 2 of Art. 311 lays down three circumstances under which a member of a civil service can be removed without being given an opportunity to show cause against the action proposed to be taken in regard to him. It is thus clear that persons employed, as the petitioner was in the service of the State, are engaged on the express statutory condition that they hold their employment at the pleasure of the President or the Governor or the Raj Pramukh, as the case may be, and that they can be dismissed, removed, or reduced in rank at the pleasure of these authorities subject to the limitation imposed by Art. 311. It must be noted that Art. 311 does not, in any way, after or affect the principle embodied in Art. 310 that a Government servant holds office during the pleasure of the President or the Governor or the Raj Pramukh as the case may be. It must be noted that Art. 311 does not, in any way, after or affect the principle embodied in Art. 310 that a Government servant holds office during the pleasure of the President or the Governor or the Raj Pramukh as the case may be. It only imposes certain statutory obligations before dismissal or removal or reduction in rank is effected. It is the breach of these statutory obligations that affords a cause of action to a person adversely affected to complain that his employment has been wrongly terminated. The extent of the rights of a Government servant in the matter of tenure of his office must be gathered only from a reading of Articles 310 and 311 of the Constitution. He cannot have any rights apart from these provisions in the Constitution. During the course of his arguments, learned Counsel for the petitioner seemed to suggest that the petitioner has a cause of action as her services were not terminated as provided by the Civil Service Rules, 1950 and in accordance with the procedure laid down in Rule 8. Having regard to this argument, I think it is only right to state that these Rules which prescribe the conditions of the service, that is to say, the circumstances and the manner in which the employment of a Civil Servant can be terminated, though framed by the Raj Pramukh under the power conferred by the proviso to Art. 309 of the Constitution, do not in any way abridge or control the power of the President or the Governor or the Raj Pramukh to dismiss at pleasure a Civil Servant. These Rules are, as Art. 309 itself indicates, subject to the provisions of the Constitution. The subjection of these rules to the provisions of the Constitution and the opening words of Art. 310 (1) "except as expressly provided by this Constitution" leave no doubt that the Civil Services (Punishment and Appeal) Rules, 1950, cannot be regarded as clogs on the right of the President or the Governor or the Raj Pramukh to dismiss a Civil Servant at will after fulfilling the requirements of Art. 311. These rules are merely administrative rules for the guidance of officers of the Govt. in the imposition of penalties and the conduct of departmental inquiries against Government servants. These rules are merely administrative rules for the guidance of officers of the Govt. in the imposition of penalties and the conduct of departmental inquiries against Government servants. The dismissal, removal or reduction in rank of a Civil Servant in violation of the Rules would not by itself entitle him to come to this Court but would leave him to appeal to the administrative authorities. It is only a breach of Art. 311 that furnishes to a civil servant adversely affected to come to this Court or to approach a civil Court for redress. It must not be taken that I am in any way laying down, that in removing, dismissing, or reducing in rank a civil servant, the procedure prescribed by R. 8 of the Civil Service Rules, 1950 need not be followed or that a reasonable opportunity of showing cause against action proposed to be taken in regard to a Civil Servant means an inquiry much more elaborate than that contemplated under the said rule. The question, whether an aggrieved civil servant has in fact been given a reasonable opportunity or not, as required by Art. 311(2) of the Constitution, is a question of fact to be determined in each case on its facts and circumstances. The point I wish to emphasise is that a civil servant holds his appointment at the pleasure of the President or the Governor or the Raj Pramukh, as the case may be, and if in the termination of his employment, there is no contravention of Art. 311, this Court would have no jurisdiction to quash the order terminating the services. 7. It follows, therefore, that as the petitioner in the present case, held her employment at the pleasure of the Raj Pramukh, there is no statutory obligation on the Slate to retain her in the service. That being so, an order in the nature of a mandamus cannot clearly be issued to the State to reinstate the applicant in her former post or to provide her with a post of like standing and status. It has been held in 'REG. v. BODMIN CORPORATION', (1892) 2 QB 21, that a mandamus will not be issued to compel an appointment in the office held at pleasure. It has been held in 'REG. v. BODMIN CORPORATION', (1892) 2 QB 21, that a mandamus will not be issued to compel an appointment in the office held at pleasure. Even if it is assumed that in the termination of the petitioner's services, Art. 311(2) of the Constitution, had not been complied with, on that ground alone this Court would not be justified in giving to the applicant the remedy by a mandamus. For, a mandamus is not granted unless it clearly appears that it will be effectual. If the State had sufficient cause to remove the petitioner from service, it would, undoubtedly, remove her again after complying with the provisions of Art. 311(2), if this Court orders the State by mandamus to reinstate her in the office and thus the State would render the order in the nature of a mandamus inoperative. The petitioner cannot clearly be granted a mandamus to set aside the order of the Government terminating her services though the order may be illegal. A mandamus does not lie for declaring that an act of a person or an authority is illegal and ultra vires. It only lies to compel public officials or bodies to carry out their statutory duties. Accordingly, I think the relief of an order in the nature of mandamus cannot be granted to the applicant. 8. Turning next to the relief of an order in the nature of certiorari and to the question whether the order of the Government terminating the applicant's services is a quasi-judicial or an administrative order, that relief, in my view, cannot be made available to the applicant as in my view, the order made against her is an administrative order. The contention of Mr. Daji on this head is that as the order of the Government terminating the employment of a civil servant is an order affecting her rights, there is a presumption that the Government must in making that order act quasi-judicially. The contention of Mr. Daji on this head is that as the order of the Government terminating the employment of a civil servant is an order affecting her rights, there is a presumption that the Government must in making that order act quasi-judicially. It is also argued that inasmuch as no order of dismissal, removal, or reduction in rank can be passed on a member of the service unless a quasi-judicial inquiry as contemplated by R. 8(1) is held and unless as required by Art. 311 (2) a reasonable opportunity is given to the Government servant of showing cause against the action proposed to be taken in regard to him, it follows that there is a statutory obligation on the authority concerned to act in a quasi-judicial manner in making an order for the removal, dismissal or reduction in rank of a member of the service and that if an order is passed in violation of R. 8(1) and Art. 311(2) then the order being ultra vires and illegal can be a subject of proceedings by way of certiorari. In support of this submission, learned Counsel for the petitioner relied on 'PROVINCE OF BOMBAY v. KHUSHAL DAS ADVANI', AIR (37) 1950 SC 222 and 'FRANKLIN v. MINISTER OF TOWN AND COUNTY PLANNING', (1947) 2 All ER 289. 9. I do not think that the applicant can draw much help to support her petition from these cases. In addition to these cases relied on by the applicant, there are also a number of Indian and English authorities dealing with the question of a quasi-judicial order and an administrative order in relation to such matters as requisitioning of property, grant and cancellation of permits and licences, closing orders, clearance orders and other orders of that kind. But in my opinion, these cases are only illustrative of the general principle stated by Lord Justice Atkin (as he then was) in 'REX v. THE ELECTRICITY COMMISSIONERS, LONDON ELECTRICITY JOINT COMMITTEE', (1924) 1 KB 171, that "the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as Courts of Justice. Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs." 10. It seems to me that the question whether an order made by an authority is a quasi-judicial or an administrative order is not a general or abstract question of principle. It has to be determined on a construction of the relevant provisions of the particular statutes under which the order in question is made by the authority concerned. Some of the tests to find out whether an authority making an order under an Act, acts in quasi-judicial or in an administrative capacity have been indicated in the decision of the Supreme Court in 'PROVINCE OF BOMBAY v. KHUSHAL DAS ADVANI', AIR (37) 1950 SC 222. In that case, Kania, C.J., in Para. 7 of his judgment rejected as unsound the proposition that whenever there is a determination of a fact which affects the rights of parties, the decision is quasi-judicial. He observed : "Every decision of the executive generally is a decision of fact and in most cases affects the rights of some one or the other. Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari ......... it seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed." 11. it seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed." 11. In 'ADVANI'S CASE', (AIR (37) 1950 SC 222), Das, J., emphasised that it is the duty to act judicially which distinguishes a quasi-judicial act from an administrative act, and in support he referred to the observations of Lord Hewart, C.J., in R v. LEGISLATIVE COMMITTEE OF THE CHURCH ASSEMBLY', (1928) 1 KB 411 that "In order that a body may satisfy the required test, it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially." 11a. Das, J., then analysed with reference to the decided cases the circumstances under which a statutory body can be said to be under a duty to act judicially and laid down the following principles. "(i) That if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially." 12. He pointed out that the two kinds of facts, namely, quasi-judicial and administrative acts have many common features, by saying that : "A person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his power. He has to consider facts and circumstances and to weigh pros and cons in his mind before he makes up his mind to exercise his power just as a person exercising a judicial or quasi-judicial function has to do. Both have to act in good faith. A good and valid administrative or executive act binds the subject and affects his rights or imposes liability on him just as effectively as a quasi-judicial act does. The exercise of an administrative or executive act may well be and is frequently made dependent by the Legislature upon a condition of contingency which may involve a question of fact, but the question of fulfilment of which, may, nevertheless, be left to subjective opinion or satisfaction of the executive authority." 13. It was then stressed by Das, J., that a mere provision for an inquiry as a preliminary step in coming to a decision will not necessarily make the decision a quasi-judicial act, for the purpose of inquiry may only be to enable the deciding authority to make up its mind to do what may be a purely administrative act. 14. In this connection, it is instructive and helpful to refer to the opinion expressed by the Committee on Ministers' Powers (Appointed in England in 1929 under the Chairmanship of the Earl of Donoughmore) on the distinction between administrative and judicial decisions. The Committee observed at p. 81 of the Report (Cmd 4060 of 1932) as follows : "Decisions which are purely administrative stand on a wholly different footing from quasi-judicial as well as from judicial decisions and must be distinguished accordingly. Indeed, the very word "decision" has a different meaning in the one sphere of activity and the other. When a person resolves to act in a particular way, the mental step may be described as a decision. Again when a Judge determines an issue of fact upon conflicting evidence, or a question of law upon forensic argument, he gives a "decision". But the two mental acts differ. When a person resolves to act in a particular way, the mental step may be described as a decision. Again when a Judge determines an issue of fact upon conflicting evidence, or a question of law upon forensic argument, he gives a "decision". But the two mental acts differ. In the case of the administrative decision, there is no legal obligation upon the person charged with the duty of reaching the decision to consider and weigh submission and arguments, or to collate any evidence, or to solve any issue. The grounds upon which he acts, and the means which he takes to inform himself before acting, are left entirely to his discretion." 15. It would seem, accordingly that a quasi-judicial decision is nothing but an administrative decision, some stage or some element of which possesses judicial characteristics. Whether the decision is quasi-judicial or administrative, it is one taken by the competent authority in the exercise of its discretion. But the feature which separates a quasi-judicial act from an administrative act is, the mode or manner in which the opinion on the basis of which the act is done by the authority in the exercise of its discretion, is formed. The decision of the authority is quasi-judicial if in reaching that decision the authority is required first to ascertain certain facts by means of evidence and is then free to take such action as it may think fit on the facts so ascertained. In such a case, the authority must consider the representations of the parties and give them an opportunity to adduce and examine the evidence. On the other hand, the decision would be purely administrative if in taking the decision the authority has the freedom to base its opinion on whatever material it thinks fit, whether obtained in the ordinary course of its executive functions or derived from the evidence at an inquiry, if there is any. The answer, therefore, to the question whether an authority in the discharge of its statutory duties acts in an administrative or quasi-judicial capacity must necessarily depend on the particular provisions of the statute in their application to the particular subject-matter. 16. Applying these principles here, it is evident on the language of Arts. 310 and 311 of the Constitution that an order of dismissal, removal or reduction of a Civil Servant is an administrative order. 16. Applying these principles here, it is evident on the language of Arts. 310 and 311 of the Constitution that an order of dismissal, removal or reduction of a Civil Servant is an administrative order. There is nothing in the language of these articles to suggest that in making such an order the competent authority is obliged to act judicially. As I have already pointed out, these articles recognise the principle that a Civil Servant holds his employment at the pleasure of the President, Governor, or the Raj Pramukh, as the case may be, and they may put an end to the employment at any time for any reason stated or unstated, if in their opinion, the continued employment of the Civil servant is detrimental to the interests of the State and the service. It is, no doubt, true that Art. 311 (2) prohibits the dismissal, removal or reduction of a Civil servant until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. But this provision of "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him" cannot be treated as a condition imposing a quasi-judicial duty on the competent authority in passing an order of dismissal, removal or reduction of a Civil servant. Articles 310 and 311 of the Constitution reproduce in substance the provisions of S. 240 of the Government of India Act, 1935. Sub-section 3 of S. 240 embodied the same provisions which are today contained in Art. 311 (2). In 'SECY. OF STATE v. I.M. LALL', AIR (32) 1945 FC 47, the Federal Court explained that the real point of sub-section 3 of S. 240 of the Government of India Act, 1935 was : "that the person who is to be dismissed or removed or reduced must know that, that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed." 17. This case went up to the Privy Council 'HIGH COMMR. This case went up to the Privy Council 'HIGH COMMR. FOR INDIA v. I.M. LALL', AIR (35) 1948 PC 121 and while approving the view of the majority of the Federal Court, their Lordships of the Privy Council observed that : "No action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the Civil servant the opportunity for which sub-section (3) makes provisions." 18. It follows from the decisions of the Federal Court and the Privy Council in the case of 'I. M. LALL', (AIR (32) 1945 FC 47 and AIR (35) 1948 PC 121), that the provision of "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him" in Art. 311 (2) does not imply that a Civil servant can be dismissed, removed or reduced only if certain facts are found against him by a process analogous to judicial process. It does not make the charges against a Civil servant and the material in support of it a matter of issue between the Civil servant affected and the competent authority. The fact that R. 8 of the Madhya Bharat Civil Services (Punishment and Appeal) Rules, 1950 contemplates an inquiry into such of the allegations as are not admitted by the Civil servant and entitles him to cross-examine witnesses, and to lead his own evidence, does not, in my opinion, import an obligation of acting quasi-judicially in the making of an order for the dismissal, removal, or reduction of the Civil servant. Quite apart from the fact that the inquiry into such of the allegations as are denied by the Civil servant is optional with the authority, it is obvious from the wording of R. 8 that the scope of the inquiry is very limited. The Rule does not cast on the authority the duty to call evidence before the inquiry and justify the charges against the Civil servant and prove them. The rule simply gives an opportunity to the Civil servant to state his objections and call such evidence as he might be advised. The Rule does not cast on the authority the duty to call evidence before the inquiry and justify the charges against the Civil servant and prove them. The rule simply gives an opportunity to the Civil servant to state his objections and call such evidence as he might be advised. It seems clear that the purpose of having an inquiry and of giving an opportunity to a Civil servant to call evidence is further to inform the mind of the authority and not to consider any issue between the authority and the Civil servant. In this connection, it is pertinent to refer to the observations of Lord Greene M.R. in 'ROBINSON v. MINISTER OF TOWN and COUNTY PLANNING', ((1947) 1 All ER 851, quoted with approval by Das, J., in 'PROVINCE OF BOMBAY v. KHUSHALDAS', AIR (37) 1950 SC 222 to emphasise the point that the holding of an inquiry as a preliminary step in coming to a decision, does not necessarily make the decision a quasi-judicial act. Lord Greene said : "To say that, in coming to his decision, he is in any sense acting in a quasi-judicial capacity is to misunderstand the nature of the process altogether. I am not concerned to dispute that the inquiry itself must be conducted on what may be described as quasi-judicial principles, but this is quite a different thing from saying that any such principles are applicable to the doing of the executive act itself, i.e., the making of the order. The enquiry is only a step in the process which leads to the result, and there is, in my opinion, no justification for saying that the executive decision to make the order can be controlled by the Courts by reference to the evidence or lack of evidence at the inquiry which is here relied on." 19. It seems to me that all service under the State being public service and for the public benefit, in making a decision, about the removal, dismissal, or reduction of a Civil servant the authority must obviously be guided by its own views as to what is expedient in the interests of the State and the Service. The authority can base its opinion on whatever material it may think fit. This cannot be affected by the fact that the authority decides to hold an inquiry. The authority can base its opinion on whatever material it may think fit. This cannot be affected by the fact that the authority decides to hold an inquiry. The object of such an inquiry can only be to clear matters upon which the authority may like to be better informed. The inquiry cannot bind the discretion of the authority as to the material on which it may take action, although it may have some bearing on the question of bona fides. 20. That the decision of the authority to dismiss, remove or reduce a Civil servant is purely administrative and that the authority cannot be compelled to reveal matters of fact and opinion, and the use it has made of them in coming to the decision, is confirmed by Cls. (b) and (c) of the Proviso to Art. 311 (2) and clause 3 of Art. 311. Under clause (b) a Civil servant is not entitled to a reasonable opportunity of showing cause against the action proposed to be taken in regard to him if the authority empowered to dismiss or remove or reduce him, is satisfied that for some reason to be recorded it is not reasonably practicable to give to that person such an opportunity. Clause 3 of Art. 311 makes final the decision of the authority on the question whether it is reasonably practicable to give to the Civil servant such an opportunity. Again, a Civil servant is not entitled to such an opportunity under Clause (c) of the Proviso to Art. 311 (2) if the President, Governor or Raj Pramukh, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to give to that person such an opportunity. These provisos appear to me to be the strongest possible indications that the act of the competent authority in making an order of removal, dismissal or reduction of a Civil servant is purely an administrative act - an act of policy, expediency, conscience and judgment. 21. Learned Counsel for the petitioner suggested that the order in question is a quasi-judicial order as under Rules 10 and 11 of the Civil Services Rules, it is open to review and appeal. I am not quite sure how far Counsel for the applicant desired to lay emphasis on the words "review" and "appeal". 21. Learned Counsel for the petitioner suggested that the order in question is a quasi-judicial order as under Rules 10 and 11 of the Civil Services Rules, it is open to review and appeal. I am not quite sure how far Counsel for the applicant desired to lay emphasis on the words "review" and "appeal". But I think it is entirely erroneous to say that an order is quasi-judicial because it can be reviewed or is appealable. An administrative order ran be subject to review or appeal by the appropriate administrative authority in much the same way as a judicial order is, by judicial authorities. It seems to me quite impossible to suggest that the nature of an order which is purely administrative and of the proceedings leading to it, is entirely changed when it comes up before the reviewing or the appellate authority. The functions and powers of the reviewing or the appellate authority can at the most be only those which the authority, passing the order sought to be reviewed or appealed from, would have itself exercised. The reviewing or the appellate authority would generally be guided by principles which should in its opinion have governed the proceedings under review or appeal It cannot, therefore, be maintained with any degree of force that if an order is open to review or appeal, the proceedings in review or appeal become quasi-judicial proceedings and that, therefore, the order is a quasi-judicial order. 22. For the above reasons I am disposed to think that the order dated 18-11-50 of the Chief Secretary terminating the petitioner's services is an administrative and not a quasi-judicial order. That being the position, the order cannot be quashed on certiorari. It is to be observed that the petitioner has asked that she be granted "such further and other relief as the nature of the petition may require." If it be right to say that the order in question cannot be dealt with by an order of mandamus and cannot be touched by an order of certiorari, I fail to see what other form of remedy under Article 226 could be granted to the petitioner for the purpose of reviewing or avoiding the order of termination of her services. A mere declaratory relief that the removal of the applicant from service was illegal cannot be given under Article 226. 23. A mere declaratory relief that the removal of the applicant from service was illegal cannot be given under Article 226. 23. Counsel for the applicant then contended that although an order of certiorari could not be issued to correct an administrative order, yet the High Court could under the wide powers conferred by Article 226 issue an order for quashing or reviewing an administrative order in order to safeguard the rights of a citizen. The contention is to a certain extent supported by the decision of the Bombay High Court in 'JESHING BHAI v. EMPEROR', AIR (37) 1950 Bom 363 (FB) where it was held that High Court has under Article 226 the jurisdiction to issue an order against even an executive officer who had issued an administrative order in order to safeguard the fundamental rights of a citizen although a writ of certiorari cannot be granted to correct such an administrative order. The learned Judges of the Bombay High Court were, however, careful to add that the Court will of its own motion put limitations upon its own powers under Article 226 (1) and that it will not exercise this power "in a matter which it cannot deal with judicially, nor would it take notice of anything which it cannot take notice of judicially, nor would it interfere with the action of an executive officer unless it is satisfied that the executive officer is under an obligation to do something or forbear from doing something." There are also observations in the judgment of Kaul, C.J., in 'VALLABHDAS v. REGIONAL TRANSPORT AUTHORITY INDORE Civil Misc. Case No. 22 of 1951 (Indore Bench) which seem to support the contention that under Article 226, the High Court can interfere with administrative or executive acts if they are proved to have caused injustice to the rights of a citizen. It must be remembered that these observations were made by the learned Chief Justice while considering the question whether the grant of a permit by the Regional Transport Authority under the Motor Vehicles Act for plying a bus is an administrative or quasi-judicial act. The learned Chief Justice held following 'PROVINCE OF BOMBAY v. KRUSHAL DAS', AIR (37) 1950 SC 222, that the Motor Vehicles Act requires a judicial approach in making a decision about the grant of a permit. The learned Chief Justice held following 'PROVINCE OF BOMBAY v. KRUSHAL DAS', AIR (37) 1950 SC 222, that the Motor Vehicles Act requires a judicial approach in making a decision about the grant of a permit. In my opinion, these decisions cannot be regarded as laying down any such proposition that whenever a purely administrative order interferes with the rights of a citizen, the High Court should in every case make an appropriate order under Art. 226 to redress the wrong and injustice done to the citizen. 24. The powers of the High Court under Art. 226 are, no doubt, wide. But that does not mean that the High Courts have unlimited powers to do anything by their writs, orders or directions. I had occasion to consider the scope of Art. 226 in 'HARENDRANATH v. STATE OF M.B.' AIR (37) 1950 MB 46, which was subsequently affirmed in 'DAYA BHAI v. REGIONAL TRANSPORT AUTHORITY', AIR (38) 1951 MB 121. As I pointed out in those cases, the object of Art. 226, in giving to the High Court the discretionary jurisdiction to issue certain directions or writs or orders, is to secure the protection of the rights of the public and to ampliate justice and redress grievances in any matter which the ordinary course of law is too defective to reach. I further stated that in the exercise of its supervisory or corrective jurisdiction, the High Court will have to evolve limitations upon its powers under Art. 226 and indicated that the Court would be loath to make an order in the nature of mandamus or certiorari where there is an alternative remedy which is equally appropriate, efficacious and convenient unless there has been a denial of natural justice. 25. The same opinion has been expressed by the Bombay High Court in 'ABDUL MAZID HAZI MOHAMMAD v. P.R. NAIK', AIR 1951 Bom 440 and by the Nagpur High Court in 'AHMAD HOSSAIN v. STATE OF MADHYA PRADESH', AIR (38) 1951 Nag 138. 26. Recently in cases Nos. 25. The same opinion has been expressed by the Bombay High Court in 'ABDUL MAZID HAZI MOHAMMAD v. P.R. NAIK', AIR 1951 Bom 440 and by the Nagpur High Court in 'AHMAD HOSSAIN v. STATE OF MADHYA PRADESH', AIR (38) 1951 Nag 138. 26. Recently in cases Nos. 300 to 304 of 1951, 25th October, 1951 STATE OF ORISSA v. MADAN GOPAL RUNGATA' AIR (39) 1952 SC 12, the Supreme Court considered the power conferred on a High Court under Article 226(1) with reference to the question whether directions in the nature of interim relief only could be granted under Art. 226, where the Court expressly stated that it refrained from determining the rights of the parties on which a writ of mandamus or directions of a like nature could be issued. Their Lordships of the Supreme Court after stressing the point that the existence of the right is the foundation of the exercise of the jurisdiction under Art. 226 (1) observed that "An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party in final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such a suit, issue directions in the nature of temporary injunction, under Art. 226 of the Constitution." 27. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such a suit, issue directions in the nature of temporary injunction, under Art. 226 of the Constitution." 27. The observation of the Supreme Court which is material here is that "if the Court was of opinion that there was no other convenient or adequate remedy open to the petitioner, it might have proceeded to investigate the case on its merits." It clearly shows that ordinarily the power under Art. 226 should not be exercised by the High Court if the petitioner has other convenient or adequate remedy. 28. The burden lies on the applicant to show that she has no other specific and adequate legal remedy. It is not disputed on behalf of the petitioner that she has an alternative remedy of instituting a suit against the State challenging the validity of the order by which her services were terminated and for a declaration that her removal from the service was void and inoperative. But she has failed to state in her petition or place before us the special circumstances which would operate against her in a suit in obtaining the relief which she seeks by this petition. It is not her case that as a result of the termination of her services she is in immediate danger of being without any means of subsistence. Nor does she state that if the order terminating her services is not set aside immediately she would irretrievably lose all chances of promotion in the service, which are imminent. There is thus nothing to show that the question of the determination of the validity of the applicant's removal from the service is a matter one of urgency and that, therefore, the ordinary process of law would not be equally adequate or effective in safeguarding the rights of the petitioner. 29. There is also a further difficulty in this particular case in the applicant's way. 29. There is also a further difficulty in this particular case in the applicant's way. The difficulty is, that the allegations of the applicant that she was not made aware of the charges against her, that the enquiry against her was held ex parte and that she was never given a reasonable opportunity of showing cause against the action taken against her, are denied on behalf of the State. As I have said before, the petitioner's right to come to this Court depends on the question whether there has been a contravention of Art. 311(2). The question whether the applicant has been given a reasonable opportunity of showing cause as required by this Article is a question of fact or a question of law arising out of interpretation of facts proved. If, therefore, the applicant's right to come to this Court depends on certain facts which have to be proved the remedy under Art. 226 of the Constitution would in my opinion be inappropriate. For, this Court cannot clearly enter into an investigation of the facts on which the petitioner bases her claim. They can conveniently be proved by the petitioner in a regular suit in civil Court having the jurisdiction. In certiorari proceedings, the Court only considers the question whether the order which is challenged is on the face of it and on the material as it appears on the record returned and brought into the Court, was made by the authority acting within its jurisdiction. If, therefore, there is a dispute as to the facts constituting the material on the record, it cannot be said that the error, if any, in the order appears on the record. Again, as stated in Halsbury's Laws of England (Hailsham edition) Volume IX p. 791 para 1342 "A mandamus which is peremptory in the first instance is not an appropriate procedure where questions of fact remain in issue." 30. Having regard to the above view I have taken it becomes unnecessary and indeed it would not be proper to consider the question whether the petitioner has or has not been given a reasonable opportunity of showing cause within the meaning of Art. 311 (2) or whether the clause was validly made inapplicable to her case, and the questions of fact relative thereto. 31. 31. For the above reasons, I cannot find any ground on which an order of certiorari or mandamus could be made in this case. The petitioner's application must, therefore, be refused. In my opinion, considering the questions raised in this petition, there should be no order as regards the costs of this petition. 32. SHINDE, J. :- I agree. Application dismissed.