Joseph John v. State — 1952 DIGILAW 91 (KER)

JUDGMENT : P.K. Subramonia Iyer, J. This is as application presented under Articles 226 and 227 of the Constitution of India on behalf of the petitioner Shri. P. Joseph John asking this Court “to issue a writ in the nature of certiorari or any other writ, directions or orders calling the records relating to the said (mentioned in the accompanying affidavit) orders dated 9th October, 1951 and 25th January 1952 and to quash the same; to direct the respondent (the State of Travancore-Cochin) to restore the petitioner to the office he was lawfully entitled to hold; to issue such other orders that may be appropriate in the circumstances of the case and to grant the costs of the petitioner”. 2. The facts may be briefly stated. The petitioner entered the services of the erstwhile Travancore State in the year 1928. By promotion, he in August 1937, became the Executive Engineer, Electricity Department and subsequently “Engineer to Government” in October 1944. After the integration of the States of Travancore and Cochin, he was appointed Officiating Chief Engineer (Electricity) under the following order:- “Proceedings of the Government of the United State of Travancore and Cochin”. Public Works Department. Order No. P. W. 1. 1709 I 49 ; P.W.C. dated 11-8-1949. Government have been pleased to sanction the appointment of Sri. P. Joseph John, acting Electrical Engineer to Government as the Officiating Chief Engineer [Electricity] of the United State of Travancore and Cochin. Orders regarding duties and powers of the Chief Engineer, [Electricity] will be issued separately on receipt of which he will forward proposals for the organisation of the United Department [By Order] Sd/- K. S. Raghavan, Secretary” [Ext. XXX]. 3. On 22-9-1949 the Minister-in-charge made the following note:- “.... I feel that there is a prima facie case against Mr. Joseph John, the E.E. If there is sufficient proof please institute disciplinary proceedings against him” [Ext I] By direction dated 5-10-1949 the Minister ordered the file regarding Mr. Joseph John where disciplinary action had been recommended, to be placed at the next meeting of the Council of Ministers (Ext II). At a meeting of the Council of Ministers held on 13-12-1949 it was resolved as follows:- “A separate officer will be appointed to deal with corruption cases. Reports relating to corruption will be scrutinised by a sub committee of Council consisting of Hon’ble Ministers for Finance, Supplies, Education and Industries. At a meeting of the Council of Ministers held on 13-12-1949 it was resolved as follows:- “A separate officer will be appointed to deal with corruption cases. Reports relating to corruption will be scrutinised by a sub committee of Council consisting of Hon’ble Ministers for Finance, Supplies, Education and Industries. The Chief Secretary will be the Convenor of the sub-committee”. [Ext XXXVI] The sub-committee met on 22-12-1949. The extract of the minutes of that meeting relating to this matter is as follows:- Subject: Joseph John. He will be suspended. Charges will be served on him. Sri C. Kunhi Raman will conduct the enquiry as Special Tribunal. Sd/- K.G. Menon, 22-12-1949. Chief Secretary to Government & Convenor, Special Committee. [Exts. XXXIV and XXXVII] Ext. 35 which is an extract from the minutes of the meeting of the Council of Ministers, records that on 25-12-1949 the minutes of the meeting of the Sub-Committee of the Council of Ministers were read out by the Chief Secretary and approved and shows that “orders were communicated from the Section on the next day, that is, on 26-12-1949. On 26-12-1949 there was a publication in the Travancore-Cochin Information and Listener in the issue for January 1950 as follows:- “ACTION AGAINST OFFICERS, Government have been receiving serious complaints about the conduct and dealings of some of their senior officers; and allegations of corruption, communalism etc., in respect of them have been appearing in the Press and Platform. References to these allegations have been made in the Legislature also. On all the complaints thus received, Government have been conducting prompt and necessary enquiries. The information and evidence accordingly collected were carefully examined by the Council of Ministers; and it has been resolved that action be taken against the following officers on the lines indicated against each. 1. x x x x x 2. Mr. Joseph John, Electrical Engineer. The main charges are:- In 1943 an agreement was entered into with the Aluminium Company for the supply of current at Rs. 85/- per unit of supply. The understanding was that the rate would be reviewed one year after the war in the light of the prevailing economic position. Without consulting Government Mr. John reduced the rate to Rs. 75 even though the economic position had not improved and current was sold at Rs. 85/- per unit of supply. The understanding was that the rate would be reviewed one year after the war in the light of the prevailing economic position. Without consulting Government Mr. John reduced the rate to Rs. 75 even though the economic position had not improved and current was sold at Rs. 110/- to Fertilisers and Chemicals [Travancore] Ltd. In supplying current to the Nagercoil Licensee, formal specific sanction of the Government was not taken. The tariff rates were not also approved by Government. The rate realised by the licensee is 6 annas as against 5 annas charged by other licensees. But the rate realised from Government by the licensee is only 3 annas. Supply was given to this Licensee when the supply position of current was generally inadequate even for the existing distribution areas. Mr. John has put up buildings the value of which exceeds the emoluments he has drawn from the Government. It is also suspected that in the construction of these buildings, he has misused, if not misappropriated Government stores. There are also complaints of partiality and communalism against him. These and other charges will have to be fully investigated. Pending investigation Mr. Joseph John is placed under suspension. The enquiry will be conducted by Sri. C. Kunjuraman. x x x x x Being an important matter relating to the services in general and highly placed officers in particular, Government in giving this information to the Press at the earliest possible opportunity, desire to stress one point in particular. In view of the seriousness of the charges and the nature of the enquiry, any speculation or comment in the Press on the subject may tend to prejudice the interests of these officers who, Government are anxious, should have the benefits of the most impartial investigation. In this, Government invite the sincere co-operation of the Press and the Public. Should however any member of the public find himself in possession of information materially bearing on the issues under investigation he could transmit such information to Government who will promptly make it available to the investigating authorities for their consideration”. On the same day the following order was sent to the petitioner:- “Government have ordered Sir P. Joseph John, Chief Engineer [Electricity] being suspended from service pending enquiry. He is requested to hand over charge to Sri K. P. Sridharan Nair forthwith”. On the same day the following order was sent to the petitioner:- “Government have ordered Sir P. Joseph John, Chief Engineer [Electricity] being suspended from service pending enquiry. He is requested to hand over charge to Sri K. P. Sridharan Nair forthwith”. Sd/- Secretary to Government” [Ext P.] The petitioner complied with this order and handed over charge to Sri K. P. Sridharan Nair forthwith. The place for putting the date is seen left blank in Ext. P. Ext PI which is its office copy gives the date as 26-12-1949. On 17-3.1950 the following notification was issued:- NOTIFICATION Government have been pleased to entrust Sri K. Sankaran, Judge, High Court, with the work of conducting the departmental enquiries against certain officers under suspension. Government Secretariat, Trivandrum, 17th March 1950. Sd. K.G. Menon Chief Secretary to Government”. [Ex. III, Gazette dated 21-3-1950] On 21-4-1950 the charges against the petitioner were drawn up (Ext IV) and the following notification was issued:- NOTIFICATION “Whereas Government are of opinion that there are sufficient grounds for making a formal and public inquiry into the truth of the imputation of misconduct of the officers mentioned below: Government, under section 3 of the Travancore Public Servants [Inquiries] Act, XI of 1122, hereby commit the said inquiry to Sri K. Sankaran, Judge, High Court, appointed Commissioner for the purpose. Government are further pleased under section 4 of the said Act to nominate Sri T.R. Balakrishna Ayyar, Government Pleader, High Court, to prosecute the inquiries on their behalf. The inquiries shall be conducted as early as possible. The officers referred to in para 1 supra are:- 1. x x x x x 2. Sri P. Joseph John, Electrical Engineer [under suspension], Trivandrum. 3. x x x x x The Government Secretariat, Trivandrum, Dated 21st April 1950. [By Order] Sd. K.G. Menon, Chief Secretary to Government”. [Ex. V] On 24-4-1950 the following notice was issued from the Government Secretariat, a copy of which was served on the petitioner on the same day. “EL2. 11743/49/PWC. NOTICE “Under section 3 of the Travancore Public Servants {Enquiries] Act, XI of 1122, you are hereby given notice that Sri. K. Sankaran, Judge, High Court, has been appointed Commissioner under the said section to conduct a formal and public inquiry into the truth of the imputation of misconduct by you. [By Order] Sd. K.S. Raghavan, Secretary to Government”. [Ext IV A] 4. Mr. K. Sankaran, Judge, High Court, has been appointed Commissioner under the said section to conduct a formal and public inquiry into the truth of the imputation of misconduct by you. [By Order] Sd. K.S. Raghavan, Secretary to Government”. [Ext IV A] 4. Mr. Justice Sankaraa took charge as Enquiry Commissioner and on 11-5-1950 forwarded the articles of charges against the petitioner, (Ext. K2), the list of witnesses and the list of documents placed before him on 9-5-1950 (Ext. VI), together with the notice regarding the commencement of the enquiry to Shri K. S. Raghavan, Secretary to Government, for service upon the petitioner (Ext. XB). The enclosures were accordingly served on the petitioner on even date and his acknowledgment taken. (Ext. XC and XA). The enquiry was to commence on 20-5-1950. A few days before that date, that is on 17-5-1950, the petitioner presented an application before the Enquiry Commissioner for a direction to the Prosecutor to produce the files and papers relating to the various charges in the office of the Commissioner and that permission and convenience be given to him and his counsel to inspect them. The Commissioner ordered 011 the very same day that ’the prosecutor will give all reasonable facilities to the officer and his advocate to inspect the relevant files in the office in the presence of the prosecutor or his own deputee”- (Ext. XIV). The reason alleged in the application was that there were a large number of charges relating to transactions extending over a long period of years, that is from 1117 to 1125 and that a reference to the relevant files is necessary for purposes of his protection and defence. On 20-5-1950 when the enquiry commenced, the petitioner pleaded not guilty to the charges by a written statement (Ext- XI). Sri. K. P. Abraham, a leading member of the Bar who conducted the defence of the petitioner at the enquiry raised at its start a preliminary objection to the tribunal’s jurisdiction, based on Article 20 of the Covenant entered into between the Rulers of Travancore and Cochin, and contended that the proceedings before the Commissioner are criminal in nature, to institute which, sanction of the Raj Pramukh is a condition precedent, whose absence was fatal. This objection was deferred to be decided at the conclusion of the enquiry. To the 26 charges contained in Ext. This objection was deferred to be decided at the conclusion of the enquiry. To the 26 charges contained in Ext. K2, another, a 26th was proposed and after objection, ordered to be included (Ext. VII dated 27-9-1950) On 22-11-1950 the petitioner submitted detailed answers in writing to the various charges. (Ext. XIX). The enquiry concluded on 27-12-1950 and the report of the Commissioner is Ext. L dated 17-2-1951. In that report the preliminary objection to jurisdiction was over-ruled, some of the charges were found not to have been made out and the rest of them were held to have been established. On 5-7-1951 the following communication was sent to the petitioner:- “No. S. 5-9214/50/CS. Sub: Enquiry by the Hon’ble Sri Justice K. Sankaran, High Court Judge and Commissioner for Enquiry appointed under section 3 of the Travancore Public Servants [Enquiries] Act, XI of 1122, regarding the conduct of Sri Joseph John. Will follow:- I am to enclose herewith a copy of the above report and to point out that the Government agree with the findings of the Inquiring Commissioner on the several charges against you. Government also agree with the Commissioner that the objections raised by you challenging the validity of the enquiry itself are not tenable. Charges Nos. xiii, xiv, xv, xvi, xvii xviii, xxiii, xxiv & xxv. 2. As against the 26 charges framed against you, the nine charges noted in the margin have not been established and they are accordingly dropped. As regards charge No. IX, in view of the extenuating circumstances, the irregularity is condoned. 3. It is evident from the remaining charges, which have been established, that you have misused your official position as Electrical Engineer to Government and shown undue favouritism at the expense of State revenues to private firms and issued materials from Government stores to private companies and individuals in violation of all rules [vide List A], It is also evident that departmental stores and departmental lorries have been diverted for your personal use in a number of cases. [Vide List B], You are also found guilty of having shown defiance and insubordination towards the authority of the Government by your refusal, in connection with the supply of power to the Nagercoil Electric Supply Corporation, to supply certain particulars which were called for and which it was your duty to furnish and by your refusal to withdraw the objectionable statement in your reply to the Government in spite of the Government order directing you to withdraw the same. 4. The Government therefore propose to remove you from service from the date on which you were placed under suspension with permanent bar against future reappointment in service. 5. You are requested to show cause within 15 days of the date of receipt of this notice with enclosures why action should not be taken against you as proposed in paragraph 4 above. Encl: List A. List B. Yours faithfully, Sd. K. Ramunni Nair, For Chief Secretary to Government.” [Ext. B] The report of the Commissioner referred to therein was not sent along with it, but was sent soon after, that is, on 9-7-1951. On 10-7-1951 the petitioner acknowledged their receipt and applied for time till 10-9-1951 for showing cause (Ext. 26C). On 18-7-1951 the order allowing the time asked for was issued to the petitioner (Ext. 27). On 10-9-1951 when the time granted was due to expire, the petitioner again applied for further time till 10-11-1951. (Ext. 28-E). By order dated 10-9-1951 further time till 24-9-1951 was granted. (Ext. F) On 22-9-1951 the petitioner again applied for further time till 31st October 1951 which however was disallowed (Ext. H). Though the petitioner was granted all the time that he first asked for and a part of the extended period for which he applied thereafter, he did nothing by way of submitting any explanation or showing any cause. Afterwards, on 30-9-1951 a draft of the proceedings relating to the enquiry into the charges against the petitioner was submitted to His Highness the Raj Pramukh whereupon the following order was issued:- “S. Vaidyanatha Aiyar, B.A. B.L., Secretary to His Highness the Rajpramukh. No. R. P. O. 516. Rajpramukh’s Secretariat, Trivandrum, 1st October 1951. Dear Sir, Sub:-Sri. Joseph John, Disciplinary action against. With reference to your letter dated the 30th September 1951 forwarding a draft of the proceedings relating to the enquiry into the charges against Sri. No. R. P. O. 516. Rajpramukh’s Secretariat, Trivandrum, 1st October 1951. Dear Sir, Sub:-Sri. Joseph John, Disciplinary action against. With reference to your letter dated the 30th September 1951 forwarding a draft of the proceedings relating to the enquiry into the charges against Sri. Joseph John, Electrical Engineer [under suspension], I write to inform you that, in the circumstanc es stated, His Highness the Rajpramukh has been pleased to sanction the proposal of the Government to remove Sri Joseph John from service as advised by the public Service Commission. The enclosures to your letter under reference are herewith returned”. [Ext. XXXII] On 9-10-1951 the order removing the petitioner from service which In sought to be quashed in these proceedings was passed. It is marked Ext. M in the case and is as follows:. “Proceedings of the Government of Travancore-Cochin. Chief Secretariat-Service Section Sub: Enquiry into the charges against Sri, P. Joseph John, Electrical Engineer under suspension. Read:-[l] Report dated 17-2-1951 of the Commissioner appointed for enquiry into the charges against Sri. Joseph John, Electrical Engineer. [2] Letter No. 3570/51 dated 28-6-1951 from the Secretariat, Public Service Commission. [3] Letter No. S5-9214/50/CS dated 5-7-1951 to Sri. Joseph John. [4] Letter from Sri. Joseph John dated 10-7-1951. [5] Letter No. S.5-9214/50/CS dated 18-7-1951 to Sri. Joseph John. [6] Letter from Sri. Joseph John dated 10-9-1951. [7] Letter to Sri. Joseph John dated 15-9-1951. [8] Letter from Sri. Joseph John dated 26-9-1951. [9] G. P. No. S5-9214/50/CS dated 26-9-1951. ORDER No. S5-9214/50/CS dated 9th October 1951. Sri. P. Joseph John was the Electrical Engineer of the Travancore State at the time of integration of Travancore with Cochin and continued as the head of the Electricity Department until he was placed under suspension in Government Order No. A8-9024M9/SD dated 26-12-49. The suspension was the result of confidential preliminary enquiries which established prima facie certain charges against him. Sri K. Sankaran, Judge, High Court, was appointed as Commissioner under section 3 of the Travancore Public Servants [Inquiries] Act XI of 1122, to conduct a formal and public enquiry into the case. There were 26 charges framed against him. The Commissioner has enquired into all these charges and forwarded his report. Of the 26 charges, charges XIII, XIV, XV, XVI, XVII, XVIII. XXIII, XXIV, and XXV were dropped and the irregularity in charge IX was condoned. There were 26 charges framed against him. The Commissioner has enquired into all these charges and forwarded his report. Of the 26 charges, charges XIII, XIV, XV, XVI, XVII, XVIII. XXIII, XXIV, and XXV were dropped and the irregularity in charge IX was condoned. The articles of charge and a summary of the findings on the various charges are given in the enclosures. After a detailed enquiry the Enquiry Commissioner has found that the remaining 16 charges are established. The Government accepted the findings of the Commissioner and in consultation with the Public Service Commission provisionally decided to remove the delinquent from office from the date of his suspension and to debar him permanently from reappointment in service. This decision was communicated to Sri P. Joseph John and he was asked to show cause within 15 days why the penalty should not be imposed. In reply he wanted 2 months’ time to send his explanation. Although usually not more than a month is allowed in such cases, his request was agreed to. On the day the 2 months time was due to expire he put in a request for further two months’ time. He was given a further fortnight and told that if he failed to give his explanation within that time the case would be disposed of as if he had no explanation. He preferred an appeal against this order to the Hon’ble Chief Minister which was dismissed. 2. The enquiry before the Commissioner appointed under Sections of the Travancore Public Servants [Inquiries] Act of 1122 was elaborate and Sri. Joseph John was defended by counsel. All possible lines of defence were taken at the enquiry and these were considered both by the Enquiry Commissioner and by Government before the provisional decision was taken to remove Sri. Joseph John from service. He was given more than a reasonable chance to show cause why the punishment proposed should not be inflicted and he has failed to give any explanation. In the circumstances, the Enquiry Commissioner’s findings are confirmed. Sri. P. Joseph John is removed from service from the date of his suspension and is permanently debarred from reappointment in service. By Order of His Highness the Raj Pramukh Sd. K.G. Menon, Chief Secretary to Government”. [Ext. M] On 10-1-1951 the petitioner applied for a review of the said order. (Ext. N) The application for review was rejected on 25-1-1952 (Ext. By Order of His Highness the Raj Pramukh Sd. K.G. Menon, Chief Secretary to Government”. [Ext. M] On 10-1-1951 the petitioner applied for a review of the said order. (Ext. N) The application for review was rejected on 25-1-1952 (Ext. 0). This is the second order that is sought to be quashed by these proceedings. 5. O.P. 51/1952 was presented before this Court on 2-6-1952. It was accompanied by a C.M.P. No. 917/52 for a direction to the respondent to produce in Court six documents scheduled thereto After hearing preliminary arguments the O.P. and the C.M.P. this Court directed notices to be issued to the respondent. At the first hearing the State filed a counter affidavit in answer to the affidavit filed by the petitioner in support of the O.P., but took time to file objections to the C.M.P. At the adjourned date the respondent produced two of the six documents called for but objected to producing documents Nos. 1, 3, 4 and 5 in the schedule. 6. The C.M.P. and the O.P. we posted together for hearing before this Full Bench. The C.M.P. was heard first and we passed the following order:- x x x x x (See 1962 KLT 417) 7. The remaining 4 documents out of the fix called for by the petitioner were immediately produced before Court by the learned Advocate General. Our order was more comprehensive than the items called for by the petitioner and some more papers were produced at the end of the arguments. The respondent first objected to the production of the Rules of Business as forming “unpublished official records” within the meaning of S. 123 of the Indian Evidence Act. At the argument of the petition, however, that objection was not pressed and the Rules were agreed to be made available as stated in our above order. They were accordingly made available to the Court as well as to the petitioner. 8. True to tradition, the Rulers of the erstwhile States of Travancore and Cochin have had the advice and assistance of a Council of Ministers. Both the States were steadily progressing in the direction of democracy. They were accordingly made available to the Court as well as to the petitioner. 8. True to tradition, the Rulers of the erstwhile States of Travancore and Cochin have had the advice and assistance of a Council of Ministers. Both the States were steadily progressing in the direction of democracy. At the time of ‘ the Covenant entered into by the Rulers of Travancore and Cochin for the formation of the United State of Travancore and Cochin” as from the 1st day of July 1949, both of them had Councils of Ministers, responsible to Houses of Legislature. The first article of the Covenant provided that:-. “As from the first day of July, 1949, the States of Travancore and Cochin shall be united in and shall form one State, with a common executive, legislature, and judiciary by the name of the United State of Travancore and Cochin”. The 6th Article provided that- “Subject to the provisions of this Covenant, the executive authority of the United State shall be exercised by the Raj Pramukh either directly or through officers subordinate to him, but nothing in this Article shall prevent any competent Legislature of the United State from conferring functions upon subordinate authorities or be deemed to transfer to the Raj Pramukh any functions conferred by any existing law on any Court, Judge or officer or any local or other authority in either of the Covenanting States”: The 7th Article provided that- “[1] There shall be a Council of Ministers to aid and advise the Raj Pramukh in the exercise of his functions save as provided in Articles 12 and 13. [2] The Ministers shall be chosen by and shall hold office daring the pleasure of the Raj Pramukh.” Articles 19 and 20 are as follows:- “19. [1] The United State hereby guarantees either the continuance in service of the permanent members of the public services of either Covenanting State on conditions which will not be less advantageous than those on which they are serving immediately before the appointed day or the payment of reasonable compensation or retirement on proportionate pension. [1] The United State hereby guarantees either the continuance in service of the permanent members of the public services of either Covenanting State on conditions which will not be less advantageous than those on which they are serving immediately before the appointed day or the payment of reasonable compensation or retirement on proportionate pension. [2] The United State further guarantee the continuance of pensions and leave salaries sanctioned by competent authorities in either Covenanting State to member of the Public Services [civil and military] of that State, who have retired, or proceeded on leave preparatory to retirement, and the compassionate allowances granted to dependents of deceased members of those services before the appointed day. 20. Except with the previous sanction of the Raj Pramukh no proceeding, civil or criminal shall be instituted against any person in respect of any act done purporting to be done in the execution of his duty as a servant of either Covenanting State before the appointed day”. Articles 11 provided that- “Until a Constitution framed or adopted by the Legislature comes into operation, the Raj Pramukh shall have power to make and promulgate Ordinances for the peace and good Government of the United State or any part thereof, and any Ordinance so made shall for the space of not more than six months from its promulgation, have the like force of law as an Act of the Legislature, but any such Ordinance may be controlled or superseded by any such Act.” Pursuant to the powers under this Article, His Highness the Raj Pramukh promulgated several Ordinances of which the first is Ordinance 1 of 1124. The 3rd section of this Ordinance is as follows:- “3. [1] Subject to the provisions of this Ordinance, the existing laws of Travancore shall, until altered amended or repealed by competent authority, continue to be in force mutatis mutandis in that portion of the territories of the United State which before the appointed day formed the territory of the State of Travancore. [2] All references in any of the existing laws of Travancore to His Highness the Maharaja of Travancore or the Government or the Dewan shall be construed as references to the Raj Pramukh or the Government of the United State or the Minister concerned of the United State, as the case may be ‘. [2] All references in any of the existing laws of Travancore to His Highness the Maharaja of Travancore or the Government or the Dewan shall be construed as references to the Raj Pramukh or the Government of the United State or the Minister concerned of the United State, as the case may be ‘. A similar provision was made in the next section 4, as regards the existing laws of Cochin. The 5th section provided that- “5. The Raj Pramukh shall make rules for the more convenient transaction of the business of the Government of the United State and for the allocation among Ministers of the said business.” 9. The Rules of Business above mentioned were the rules made by His Highness the Raj Pramukh under this section. On January 26, 1950, that is the date on which the Constitution of India came into force which, by virtue of Article 238 is applicable to the States in Part B of the First Schedule whereof the State of Travancore Cochin is one. His Highness the Raj Pramukh issued a notification in a Gazette Extraordinary which stated as follows:- “Under Article 166 read with Article 238 of the Constitution of India, His Highness the Raj Pramukh is pleased to direct that the Rules of Business in force immediately prior to the commencement of the Constitution shall be the rules under Article 166 [3] of the said Constitution. By Order of His Highness the Raj Pramukh, K.G. Menon, Chief Secretary to Government-” The Rules of Business as first made, thus continued in force. 10. On 16th July 1949, His Highness the Raj Pramukh promulgated the United State of Travancore-Cochin Pubic Service Commission Ordinance, VI of 1124, section 4(2) of which provided that- “4. [l] x x x x x [2] The Raj Pramukh after consultation with the Commission may make rules specifying the matters on which either generally or in any particular class of cases or in particular circumstances, it shall not be necessary for the Commission to be consulted but subject to the rules so made and to the provisions of the next succeeding sub-section, the Commission shall be consulted: [a] x x x x x [b] x x x x x [c] on all disciplinary matter affecting the persons serving under the Government of the United State in a civil capacity, including “memorials or petitions relating to such matters. x x x x x” 11. Of the two orders sought to be quashed the second, as already stated, is the proper order dated 25-1-1952, dismissing the petitioner’s application for review of the order removing him from service. The petitioner challenge the validity of the order rejecting his application for review on the ground that it was passed without consulting the Public Service Commission as enjoined by Article 320, clause (3)(c) of the Constitution of India which provides that- “320. x x x x x [3] The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted- [a] x x x x x [b] x x x x x [c] on all disciplinary matters affecting a person serving under the Government of India or the Government of a State is a civil capacity, including memorials or petitions relating to such matters.” 12. The order sought to be reviewed was one removing the petitioner from service. If that is a good order then, he stood removed from service as on its date. The petitioner, therefore, would not be “a person serving under the Government of a State” within the meaning of clause (3) (c) of Article 320, because a person who has been removed from service can hardly be said to be serving thereafter. Assuming without deciding that the term ‘memorials or petitions’ contemplated by clause (c) would comprise applications for review, in view of the nature of the order sought to be reviewed, the petitioner is not a person, any matter affecting whom has to form the subject of any consultation with the Public Service Commission. This will be the result if the order removing him from service, which was sought to be reviewed, is good. If, on the other hand, the said order is not good and the petitioner succeeds in his prayer to have it quashed, there is no need to have the order passed in review, also quashed. In either view, the prayer for quashing the order passed rejecting the application for review cannot be granted. 13. The question then is whether the order dated 9-10-1951, (Ext. M) removing him from service is liable to be quashed or not. 14. In either view, the prayer for quashing the order passed rejecting the application for review cannot be granted. 13. The question then is whether the order dated 9-10-1951, (Ext. M) removing him from service is liable to be quashed or not. 14. Learned Counsel Sri K.T. Thomas on behalf of the petitioner and the learned Advocate General on behalf of the respondent State addressed before us elaborate, and erudite arguments at very great length. Mr, Thomas fought every inch and canvassed every conceivable position. 15. The provisions regarding the dismissal or removal of a member of the civil service are contained in Article 311 of the Constitution which is as follows:- “311 [1] No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. [2] No such person as aforesaid shall 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: Provided that this clause shall not apply- [a] where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; [b] where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or [c] where the President or Governor or Rajpramukh 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. [3] If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause [2], the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.” 16. The order is marked as Ext. M and has been read already. The order is marked as Ext. M and has been read already. It satisfies the requirements of clause (1) of Article 311 and of clause (1) of Article 166 which is to the same effect as Rule 7 in the Rules of Business. It is expressed to be taken in the name of His Highness the Raj Pramukh and is authenticated by the Chief Secretary to Government who, under rule 8 of the Rules of Business, is competent to authenticate it. The order is thus immune from being called in question under clause (2) of Article 166. His Highness the Raj Pramukh being the highest executive authority in the State, no objection could possibly be raised under clause (1) of Article 311 as regards the status of the authority ordering removal. 17. The further point raised by Mr. Thomas is that clause (2) of Article 311 has not been complied with. If is contended that Ext. B which is the notice to show cause why the action proposed to be taken against the petitioner shall not be taken, is not expressed to be made in the name of the Raj Pramukh nor is it properly authenticated. It was first contended by Mr. Thomas that on account of this defect in form the order is altogether void and must be regarded as though there was a complete non-compliance with clause (2) of that Article which is a condition precedent to the propriety of the action under clause (1). On his attention being drawn to the decision of the Supreme Court in Dattatraya Moreshwar v. The State of Bombay and others (1952 S.C.J. 235: A.I.R. 1952 Supreme Court 181) which held that the consequence of an order of the Government of a State not being expressed to be in the name of the Governor and authenticated in the manner specified in the rules is merely to deprive the order of its immunity from being called in question as not being an order passed by the Governor under clause (2) of Article 166 and not to render the order void, Mr. Thomas confined his arguments to contending that even according to that decision, it is competent for the party to canvass the existence of an order by the proper executive authority and the court to find whether there was or there was not such an order. Thomas confined his arguments to contending that even according to that decision, it is competent for the party to canvass the existence of an order by the proper executive authority and the court to find whether there was or there was not such an order. Attention was therefore directed towards the existence or otherwise of an order of the executive authority. Mr. Thomas contended that there was none. The argument was that the Raj Pramukh was the person to exercise the executive authority which he might exercise either directly or through officers subordinate to him under Article 6 of the Covenant. It was contended that the Council of Ministers are not officers subordinate to him within the meaning of that clause as there was no delegation of any authority to them by the Raj Pramukh. It was also contended that the decision taken was not communicated to the Raj Pramukh and that even though the Council of Ministers might take a decision their function being merely to aid and advise the Raj Pramukh, unless the advice is in fact tendered to, accepted and acted upon by the Raj Pramukh, it would not have the force of an order of the executive authority which vests in the Raj Pramukh. It was further contended that the ‘ consultation with the Public Service Commission having been before and not after his being asked to show cause, another condition precedent to the validity of an order of removal under clause (1) of Article 311 is also not complied with. Ext. 32 dated 1-10-1951 shows that His Highness the Raj Pramukh was informed and that he approved of the action proposed to be taken against the petitioner. There is thus no conflict between the Council of Ministers and His Highness the Raj Pramukh in this regard. Article 163(3) provides that- “163[3] The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.” Though Article 167, provides that- “It shall be the duty of the Chief Minister of each State- [a] to communicate to the Governor of the State all derisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation. [b] x x x x x [c] x x x x x” The two Articles read together would show that the question as to the tendering of advice is a matter purely between His Highness the Raj Pramukh and his Council of Ministers. If there is a failure to communicate as provided in Article 167 the Governor has his remedies under Art. 164(1) which provides that “the Ministers shall hold office during the pleasure of the Governor”. If the Governor who owes his existence to the Constitution does not accept the advice tendered by his Council of Ministers, the Ministers will have their remedy by way of resignation. The Governor may have a right to send back a recommendation for reconsideration. The communication under Art. 167 is not provided to be in any particular form or manner. All these will show that whether there is or there is not a communication of the decisions and if so what the advice tendered was, is not justiciable as Art. 163 clause (3), already mentioned, clearly provides. No party is therefore free to challenge an order of the executive on the ground that it has not had the assent of the Raj Pramukh. In this case, it is clear that His Highness the Raj Pramukh in fact had intimation of the decision of the Council of Ministers and the action proposed to be taken against the petitioner and that in fact His Highness approved of the proposed action. The precise date when and the particular manner in which the communication was made to His Highness the Raj Pramukh is beyond the jurisdiction of the Court to consider as it comes within the prohibition contained in clause (3) of Art. 163. 18. Mr. Thomas also contended that the Council of Ministers are not competent to decide upon the removal of the petitioner as that function has not been delegated to the Council of Ministers and had to be performed by His Highness the Raj Pramukh directly within the meaning of the relevant article of the Covenant and Art. 154 of the Constitution. The exercise of the executive power directly by the Raj Pramukh is as regards the function or functions which he can exercise in his discretion under Art. 163(1) whichever it or they may be. 19. The exercise of the executive power directly by the Raj Pramukh is as regards the function or functions which he can exercise in his discretion under Art. 163(1) whichever it or they may be. 19. The Rules of Business made by the Raj Pramukh are relied upon by the petitioner to sustain his argument that there has been no delegation of the power to remove a member of a civil service to the Council of Ministers. The attitude of the respondent State as regards these Rules was, as already stated, that it is immune from examination as an “unpublished official record” under section 123 of the Evidence Act. This attitude became less strict at the time of the argument on the application filed by the petitioner for directions to produce documents. At the third stage that is at the time of the arguments in reply addressed by the Advocate General, he took the stand that the Rules may not merely be looked into, but they ought to be looked into and in fact the State is depending upon them. The petitioner as already stated also depends upon these Rules and does not contend that any part of the Rules is ultra vires. If, therefore, the Rules do provide for a decision being taken by the Council of Ministers or any of them, there will be no defect attaching to the order issued to the petitioner to show cause why action should not be taken against him by way of his being removed from service. Rules 3, 4 and 5 provide for the distribution and classification of the business of the Government among the Departments of the Secretariat according to the schedule appended to the Rules and for the assignment of the business of the Government in one or more department to the charge of a Minister and for the collective responsibility of the Council of Ministers even if one of them be in charge of a particular portfolio Rules 7 and 8 provide for orders made or executed on behalf of the Government to be expressed to be made by or by order of the Raj Pramukh. Rule 8 provides for the authentication of the said orders by the various officers detailed therein including the Chief Secretary, the Secretary, Additional, Joint, Deputy, Under or Assistant Secretaries etc. Rule 8 provides for the authentication of the said orders by the various officers detailed therein including the Chief Secretary, the Secretary, Additional, Joint, Deputy, Under or Assistant Secretaries etc. Rule 16 provides for the various matters which are to be submitted to the Raj Pramukh before the issue of orders. Clause (g) of this Rule reads thus: “[g] Proposals to take action otherwise than as recommended by the Public Service Commission in the case of gazetted officers; and clause (k) (l) read as follows:- “[k] cases involving any important question of guarantees to the Public Services under Article 19 of the Covenant; [1] proposals under Article 20 of the Covenant to institute civil or criminal proceedings against any person “in respect of any act done or purporting to be done in the execution of his duty as a servant of either Covenanting State before July 1, 1949.” Rule 17 is in these terms:- “In making appointments of Collectors of Divisions and Heads of Departments the Ministers concerned shall consult and obtain the concurrence of the Premier:” 20. It is clear from these Rules that there is no part of the business of the Government of the State which has in fact been reserved by the Raj Pramukh to be exercised by him directly. It is seen from Rule 16 what the matters which are reserved to be referred to him before the issue of orders, are. The matter of the removal of a member of a civil service agreed to by the Public Service Commission is not one of those so reserved. The next rule 17 would make the matter clear because, as regards appointments, the Ministers concerned are directed to obtain the concurrence of the Premier and not of the Raj Pramukh. Though section 15 of the Travancore and Cochin Interpretation and General Clauses Act, VII of 1125, corresponding to section 16 of the Indian Act may not apply to the construction of these Rules, the principle thereof can be applied even apart from any statutory provision The intention gatherable from the Rules of Business is clearly that as for appointment even so for removal or any other kind of dealing with the appointees, the order could be passed by the Minister concerned with the concurrence of the Prime Minister. The Raj Pramukh does not and need come on the scene at all in this matter though in this as in every other case the decision of the Council of Ministers would have to be communicated to the Raj Pramukh. The result is that the non-existence of a record indicating communication of the decision of the Ministry to remove the petitioner to the Raj Pramukh and his concurrence therewith before the petitioner was requested to show cause against the action proposed to be taken against him is of no moment. Indeed it is a matter which really falls beyond the scope of the jurisdiction of the Court to enquire into. There is thus a decision taken by the proper executive authority in the matter of removing the petitioner from service. 21. The Public Service Commission was in fact consulted in the matter of the action proposed against the petitioner by removing him. The Public Service Commission did agree to the proposed action The consultation and the agreement was before the petitioner was asked to show cause why he should not be removed from service. The complaint of the petitioner is that the consultation with the Public Service Commission should have been after he was asked to show cause. The petitioner did not show cause. That being so, no question arose of consulting the Public Service Commission after cause is shown by a delinquent civil servant after notice to show cause against the proposed action. The question as to whether the consultation with the Public Service Commission should be after the notice to show cause and cause is shown does not fall to be decided in the facts of this case, 22. Another argument urged by Mr. Thomas is that a reasonable opportunity “for showing cause against the action proposed to be taken in regard to him” has not been given to the petitioner in this case. The argument is that the time asked for by him on the second occasion should also have been fully granted. From the facts stated above, it is clear that at first he wanted only time till 10-9-1951. That was allowed. After the expiry of that period he applied for further time, a part of which alone was granted. The argument is that the time asked for by him on the second occasion should also have been fully granted. From the facts stated above, it is clear that at first he wanted only time till 10-9-1951. That was allowed. After the expiry of that period he applied for further time, a part of which alone was granted. Assuming the question as to whether in a particular case the time granted is reasonable or not is justiciable, it is obvious in the facts of this case that the complaint that he has had m reasonable opportunity to show cause is altogether unfounded. Before the Commissioner started the enquiry the petitioner applied for and obtained access to all the papers and files relating to the various charges brought against him. The enquiry was a long drawn out one wherein the petitioner was defended by able counsel and the witnesses were cross-examined and the petitioner filed a detailed written answer to the various charges that were brought against him. Under the circumstances, except that the report is voluminous which had to be perused, there does not appear to be nor has it been stated before us that there was any fresh matter for investigation before tendering his answer to the action proposed to be taken against him. Under the circumstances it is not possible to accept the contention that the petitioner has not had a reasonable opportunity to show cause. 23. A comparison of the language used in the several sub-clauses of Art. 311 leads to the subjoined consideration a and yields the following results. Proviso (c) to clause (2) expressly mentions the President or Governor or Raj Pramukh as the person to decide the expediency of giving the opportunity in the interest of security of the State indicating that the other portions of the Article are more comprehensive. A hierarchy of authorities is essential to conduct the executive business of the Government and is envisaged in the Rules of Business. The first clause of the Article must and can only, be understood with reference to such a hierarchy- The prohibition contained in the first clause is only against an authority subordinate to that which made the appointment dealing with the appointee by dismissing, removing or reducing him in rank. The first clause of the Article must and can only, be understood with reference to such a hierarchy- The prohibition contained in the first clause is only against an authority subordinate to that which made the appointment dealing with the appointee by dismissing, removing or reducing him in rank. That the authority who made the appointment and any higher authority can dismiss, remove or reduce in rank the appointee, is clear as that idea is implicit in the words used in clause (1). The result is that the Governor or Raj Pramukh who is the highest executive authority can unquestionably act under the first clause but he need not; because any authority subordinate to him down to and inclusive of the authority which made the appointment can do so. The second clause does not mention the authority that should ask the delinquent officer to show cause why the action proposed should not be taken against him. In the absence of such mention, it must be taken to mean that whoever can take the action proposed is the authority to whom cause has to be shown and therefore the one competent to give the opportunity to show cause, the expediency of giving the opportunity in the interest of the security of the State alone being reserved exclusively to the Governor or Raj Pramukh. The petitioner was appointed by the Government as Chief Engineer (Electricity) by order dated 11th August 1949 which has been read. He was asked to show cause against the action proposed to be taken against him by removal from service by order dated 5th July 1951 which has also been read. A comparison of these two makes it obvious that the identical authority is the author of both or in other words that there has been not merely substantial but strict compliance with the requirements of the second clause. 24. If the provisions contained in Article 311 of the Constitution have been satisfied as we find in this case they all have been, violation of any of the rules in regard to any antecedent enquiry or otherwise would not be material. (See Krishnamoorthi v The State of Madras, AIR 1951 Mad 881). The court may not even have jurisdiction to consider the violation of any such rules which would be incidental, ancillary and ‘unessential. 25. (See Krishnamoorthi v The State of Madras, AIR 1951 Mad 881). The court may not even have jurisdiction to consider the violation of any such rules which would be incidental, ancillary and ‘unessential. 25. In the view that we take on the questions considered above the petitioner would not be entitled to any relief in this application and the other questions around which the arguments at the Bar revolved do not fall to be decided. We may, however, refer to the more important of them. 26. Mr. Thomas raised the point that the earliest record Ex. A, is an unauthenticated and unowned publication in the Travancore-Cochin Information and Listener- It was contended that the order appointing Shri C. Kunhi Raman to take disciplinary action against the petitioner as also the one appointing Mr. Justice K-Sankaran as an officer for taking the same disciplinary action against the petitioner are bad in law. This criticism is not altogether unfounded. That circumstance will not, however, render the enquiry made by Mr. Justice Sankaran invalid or improper because, besides the said order challenged as bad, there is one Ext. V against which no such challenge could be or has been made. The only argument raised about that document is that it operated only as a committal of the enquiry to Mr. Justice Sankaran and not as an order appointing him as the Commissioner to conduct the enquiry. We are not inclined to accept this interpretation of the document.- We consider that document can be construed as at once containing an order appointing Mr. Justice Sankaran as Commissioner and committing the enquiry to him, 27. Another argument of Mr. Thomas was that the enquiry before Mr. Justice Sankaran was criminal in nature and that it was one that could not be instituted without the sanction of the Raj Pramukh. He contends that Article 20 of the Covenant which has been read applies and there not having been the sanction of the Raj Pramukh which is a condition precedent to all proper institution of proceedings, the enquiry is altogether bad. We are unable to accept this argument. Article 20 refers to the institution of civil and criminal proceedings, two well-known expressions which are terms of art and clearly relate to civil and criminal proceedings before civil and criminal courts. We are unable to accept this argument. Article 20 refers to the institution of civil and criminal proceedings, two well-known expressions which are terms of art and clearly relate to civil and criminal proceedings before civil and criminal courts. The said two kinds of proceedings do not exhaust the totality of matters which can be called proceedings. Proceedings before the Revenue authorities, Land Acquisition proceedings, proceedings before arbitrators, before Court Martial, etc. may be cited as instances besides proceedings which are quasi-civil, quasi-criminal or otherwise. It is only in respect of civil and criminal proceedings that the sanction of the Raj Pramukh is required under Article 20 of the Covenant. It is not contended on behalf of the petitioner that the proceedings before the Commissioner are criminal proceedings. The only contention is that they partake of the nature of criminal proceedings. In our judgment, Article 20 of the Covenant does not apply to proceedings which are not criminal but merely partake of that character. Assuming, therefore, the proceedings before the Commissioner were criminal in nature, that will not render the antecedent assent of the Raj Pramukh to their institution necessary and the proceedings are not bad on account of the absence of such assent. 28. Article 227 of the Constitution has no application at all to the facts of this case and does not fall to be discussed. 29. In the result we dismiss the petition but direct that the respondent do bear their costs, regard being had to the irregularities in respect of the initial orders and to the attitude taken on behalf of the State in the matter of production and use of the Rules of Business to which, as it transpires, they partly owe their success Dismissed. We certify that the case involves substantial questions of law as to the interpretation of the Constitution and accordingly grant the leave sought for. Leave granted.