STATE OF WEST BENGAL v. NARENDRA NARAYAN DAS — 1977 DIGILAW 27 (CAL)

SABYASACHI MUKHERJI, M. M. DUTT ( 1 ) NARENDRA Narayan Das joined as a constable in the Calcutta Police Force in a temporary capacity on or about 9th May, 1940. Three years later he became permanent. He became an active member of the Calcutta Police Association which was alleged to have been formed by the Policemen to look after the needs of all ranks of the Calcutta Police. In course of time said Narendra Narayan Das became the Joint Secretary of the said Association in the year 1954-55. When he was the Joint Secretary of the said Association on or about 10th of December, 1954 the police force went on hunger strike on certain alleged demands. Narendra Narayan Das as the joint secretary took an active part in the same. It is alleged by Narendra Narayan Das that he incurred the displeasure of the authorities concerned thereby. He was dismissed from service by virtue of Article 311 (2) (c) of the Constitution. Thereafter, on 8th of February, 1955 Narendra Narayan Das was served with an order of externment from Calcutta under clause (a) of sub-section (1) of section 21 of the West Bengal Security Act, 1950. He moved an application under Article 226 of the Constitution which was ultimately withdrawn on the 11th of July, 1955 and the rule nisi was discharged. In 1967 the United Front Ministry came to power in West Bengal. Narendra Narayan Das preferred a memorial against his order of dismissal. It is alleged that he was assured that his case would be considered sympathetically by the government. Thereafter, the Governor of West Bengal dismissed the said ministry and it was followed by another ministry known as P. D. F. Ministry. Thereupon, on the 23rd of December, 1967 Narayan Das was detained under Preventive Detention Act, 1950. It was alleged in the grounds for the said detention that he had distributed highly inciting Bengali leaflet captioned "police O Shasastra Bahinir Prati Abedan" to different policemen in Calcutta urging them to refrain from taking action against the members and supporters of United Front and thereby inciting them to rise against the Ministry and had also cited the examples of Naval Mutiny of 1949 with a view to tamper with the loyalty of the Police force. Ultimately, the matter came up before the Advisory Board and Narendra Narayan Das was released by the Government because it was stated that there was no ground for detention. In 1969 after the election the United Front Ministry came to power in West Bengal. Thereafter, by an order dated 15th of September, 1969 Narendra Narayan Das was reinstated in the Calcutta Police Force with immediate effect. On 31st of October, 1970, he was dismissed by the Governor on the ground that he was unsuitable for retention in service and it was further stated that the Governor was satisfied that in the interest of the security of the State it was not expedient to hold an enquiry into the charges against him under sub-clause (c) of the proviso to clause (2) of Article 311 of the Constitution. Narendra Narayan Das moved an application under Article 226 of the Constitution challenging the said order of dismissal and on 27th of November, 1976 a rule nisi was issued and certain interim orders were passed. The rule ultimately came up for hearing before Amiya Kumar Mookerji, J. and by an order passed and judgment delivered on the 3rd of May, 1976 the learned Judge has made the rule absolute in view of his judgment dated 30th of April, 1976 in (1) C. R. No. 2329-31 (W) of 1971 (Gouranga Karmakar v. State of West Bengal) and the order of dismissal passed by the Governor was set aside. This appeal arises from the said judgment and order of Amiya Kumar Mookerji, J. dated 3rd of May, 1976. ( 2 ) WHEN the appeal came up for hearing on the 10th of November, 1976 learned Advocate General, who was then the learned Standing Counsel for the State, submitted before us that he should be allowed to place the records upon which the impugned order was passed. It was urged before us that the facts of the instant case were different from the facts in the case of Gouranga Karmakar referred to in the decision of the learned trial Judge. It was, further, urged that in the case of Gouranga Karmakar the learned Judge had proceeded on the basis that the Inspector General of Police had stated that it was not in the public interest to hold the enquiry. It was, further, urged that in the case of Gouranga Karmakar the learned Judge had proceeded on the basis that the Inspector General of Police had stated that it was not in the public interest to hold the enquiry. The learned Judge was of the view that public interest was different from the requirement of sub-clause (c) of proviso to Article 311 (2) of the Constitution. Furthermore, it was urged that the actual grounds referred to in the records in the case of Gouranga Karmakar were different from the grounds in the instant case. We gave the learned Standing Counsel leave to file supplementary affidavit on the 10th of November, 1976 annexing the copies of the records he intended to rely. But inasmuch as the delayed consideration of the materials by the Court was due to the failure on the part of the government to produce relevant records at the proper time we were of the opinion that in the interest of justice the respondent Narendra Narayan Das should be entitled to the benefit that the respondent had received and was receiving under the orders of the Court irrespective of the result of the appeal. We ordered accordingly. We also gave leave to the respondent to file supplementary counter-affidavit dealing with the allegations made by the State in this case. Before we deal with the merits of the contentions urged in this appeal we have to note that learned Advocate on behalf of the respondent has urged that we should not permit the appellant to rely on the additional materials sought to be placed by the supplementary affidavit. Learned Advocate submitted that the appellants took a chance and did not produce the relevant materials before the learned trial Judge and proceeded before the learned trial Judge on the basis that the facts of the instant case were similar to the facts in the case of Gouranga Karmakar. Furthermore, it was urged on behalf of the respondent that in the instant case the State had already filed an affidavit-in-opposition indicating the materials on which the impugned action had been taken. Therefore, it was submitted that there was no scope for permitting additional evidence at this stage. It was argued that no grounds had been made out for admission of additional evidence. Therefore, it was submitted that there was no scope for permitting additional evidence at this stage. It was argued that no grounds had been made out for admission of additional evidence. In this connection reliance was placed on the observations of the Supreme Court in the case (2) Sundarlal and Son v. Bharat Handicrafts Pvt. Ltd. , AIR 1968 SC page 406. We are, however, of the opinion that in the instant case such additional materials which have been sought to be placed before the Court by the supplementary affidavit pursuant to the leave granted on the 10th of November, 1976 should be allowed in evidence. It appears to us that the decision of the learned trial Judge proceeded without examination of the facts and circumstances of the case. This must have been due to the failure on the part of the State to bring the facts circumstances of the case to the notice of the learned Trial Judge. In the application under Article 226 of the Constitution the records were called for and the records of this case were not examined or placed before the learned trial Judge. The records of this case are relevant materials as are apparent from the facts of the instant case. From the records produced as it appears that in the instant case the Governor did not proceed as it appears that in the instant case the Governor did not proceed on the basis of public interest. The Supreme Court in the case of (3) K. Venkatramiah v. Seethurama Reddy, AIR 1963 SC page 1526 observed that under Rule 27 (1) of Order 41 of the Code of Civil Procedure the appellate court had the power to allow additional evidence not only if it required such evidence to enable it to pronounce judgment, but also for any other substantial cause. There might well be cases where even though the Court found it possible to pronounce judgment on the state of record as it was and so it could not be strictly said that it required additional evidence to enable it to pronounce judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for other substantial cause under rule 27 (1) (b) of Order 41 of the Code of Civil Procedure. Such requirement of the Court is not likely to arise unless some inherent lacuna or defect becomes apparent by an examination of the evidence. It may well be that the defect may be pointed out by a party or that a party may move the Court to cure the defect but the requirement must be of the Court upon its appreciation of the evidence as it stands. In the instant case the main challenge is to the order of the Governor holding that it was not expedient in the interest of the security of the State to hold an enquiry as contemplated by Clause (2) of Article 311 of the Constitution. It is, therefore necessary in order to satisfactorily examine this contention to consider the materials upon which the Governor had acted. For the aforesaid reasons, we are of the opinion, that such additional materials should admitted in evidence, in the fact and circumstances of this case. ( 3 ) ON behalf of the respondent it was contended that the impugned order in question was bad because in order to be a valid order under sub-clause (c) of the proviso to clause (2) of the Article 311 of the Constitution the Governor was required to act on the advice of the Council of Ministers. Reliance in this connection was placed on the observations of the Supreme Court in the case of (4) Shamsher Singh v. State of Punjab, AIR 1974 SC page 2192 and reliance was placed on the observations of the Court at page 2198, paragraph 30 of the report. It was, further, urged that as the Governor was acting as the delegate of the President in view of the proclamation issued under Article 356 of the Constitution the Governor was obliged to act, in exercise of his power under sub-clause (c) of the proviso to clause (2) of the Article 311 of the Constitution, on the advice of the Central Council of Ministers. It was, therefore, urged that the action of the Governor was invalid in the instant case. We are, however, unable to accept this contention on three grounds. It was, therefore, urged that the action of the Governor was invalid in the instant case. We are, however, unable to accept this contention on three grounds. Firstly, it has not been alleged as a matter of fact that no advice was sought for or obtained from the Central Council of Ministers by the Governor who was acting in the instant case. Therefore, the factual basis for urging this contention is not there in this case. Secondly, it appears that in the case of (5) Mrinal Kanti Das Burman v. State of West Bengal and Ors. , 1976 (1) Calcutta Law Journal Page 571 it has been held that the Governor of West Bengal was competent to arrive at the satisfaction where in the interest of the security of the State it was not expedient to hold any enquiry under Article 311 (2) of the Constitution. It is true that this argument was not considered and was not urged in the case of Mrinal Kanti Das Burman v. State of West Bengal (supra) but the binding effect of a decision depend upon whether a particular argument was considered therein or not provided the point with reference to which an argument was subsequently advanced was actually decided. See the decision of the Supreme Court in the case of (6) Sonawanti v. State of Punjab, AIR 1963 SC page 151 at page 160, paragraph 22 of the report. Thirdly, we are unable to accept the contention on merits. As have been noticed before the impugned order was passed on 31st of October, 1970. On the 19th of March, 1970 the President of India in exercise of the power conferred by Article 356 of the Constitution had issued a proclamation stating that he was satisfied that a situation had arisen in the State of West Bengal in which the Government of the State could not be carried on in accordance with the provisions of the Constitution of India. By virtue of that proclamation the President had assumed to himself as the President of India all the function of the Government of the State and all powers vested in or exercisable by the Governor of the State. The President had also made certain incidental and consequential provisions for giving effect to the proclamation. By virtue of that proclamation the President had assumed to himself as the President of India all the function of the Government of the State and all powers vested in or exercisable by the Governor of the State. The President had also made certain incidental and consequential provisions for giving effect to the proclamation. The President had on the same date issued another order directing that all the functions of the Government of the State of West Bengal and all the powers vested in or exercisable by the Governor of that State under the Constitution or under any law in force in the State would subject to the superintendence, direction and control of the President of India be exercisable also by the Governor of that State. In issuing the Proclamation under Article 356 of the Constitution and in making incidental and consequential provision and in delegating the functions the President acts on the advice of the Central Council of Ministers. This position is well established by the decision of the Supreme Court in the case of (4) Samser Singh v. State of Punjab, AIR 1974 SC page 2192. Therefore when the President under Article 356 of the Constitution assumed to himself all the functions of the Government of the State and all the powers exercisable by the Governor of the State and thereafter delegated those functions and power to the Governor the President was acting on the advice of the Council of Ministers. Therefore, the Governor in discharging his functions under sub-clause (c) of the Proviso to clause (2) of Article 311 on the advice of the Council of Ministers. Actions taken by the Governor further were subject to the superintendence, direction and control of the President and such superintendence direction and control by the President had to be on the advice of the Council of Ministers. In such circumstance there was, in our opinion, no further scope for the Governor, in exercising his functions under sub-clause (c) of the proviso to clause (2) of Article 311 of the Constitution to obtain the advice of the Council of Ministers. In the aforesaid view of the matter we must reject the contention that the impugned order passed by the Governor was bad because he had not obtained the advice of the Council of Ministers. In the aforesaid view of the matter we must reject the contention that the impugned order passed by the Governor was bad because he had not obtained the advice of the Council of Ministers. ( 4 ) THE main contention that requires consideration in the instant appeal, is, whether there were materials upon which the Governor could have been satisfied that it was inexpedient in the interest of the security of the State to hold an enquiry as contemplated under clause (2) of Article 311 of the Constitution. Article 310 (1) of the Constitution enjoins that except as provided by the Constitution the tenure of office of persons serving the Union or the State shall be during the pleasure of the President or the Governor respectively. But this pleasure doctrine is subject to the rules and laws made under Article 309 as well as to the conditions prescribed under Article 311 of the Constitution. Reference in this connection may be made to the decision of the Supreme Court in the case of (7) Union of India v. J. N. Sinha and Ors. , AIR 1971 SC page 40 Clause (2) of Article 31 deals with the manner in which a person holding the civil post shall be given reasonable opportunity of being heard before he is dismissed, removed or reduced in rank. The provisos to clause (2) deals with certain exceptions. In cases covered by the provisos a government servant may be dismissed, removed or reduced in rank without informing him of the charges against him or giving him reasonable opportunity of being heard or of making any representation on the penalty proposed. We are concerned in this case with clause (c) of the proviso to clause (2) of Article 311 of the Constitution. In our opinion an order under Article 311 (2) proviso (c) is an exercise of the administrative power by the executive and, therefore, must be subject to judicial review in the manner as other discretionary powers of the executive authorities. See in this connection (8) Barium Chemical v. Company Law Board, AIR 1967 SC 295 : (9) Rohtas Industries v. S. D. Agarwal, AIR 1969 SC. page 707, (10) M. A. Rasheed and others v. State of Kerala, AIR 1974 SC 2349 and (11) Calcutta Discount Co. Ltd. v. Income-tax Officer, 41 ITR page 191. See in this connection (8) Barium Chemical v. Company Law Board, AIR 1967 SC 295 : (9) Rohtas Industries v. S. D. Agarwal, AIR 1969 SC. page 707, (10) M. A. Rasheed and others v. State of Kerala, AIR 1974 SC 2349 and (11) Calcutta Discount Co. Ltd. v. Income-tax Officer, 41 ITR page 191. Where powers are conferred on public authorities to exercise the same on certain conditions the courts will not readily defer to the conclusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. Administrative decisions in exercise of powers even if conferred in subjective terms must be made in good faith and on relevant consideration. The courts can enquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in any material respect. It is necessary for the courts to find out whether conditions precedent to the exercise of the powers have any factual basis. (See in this connection the observations of the Supreme Court in the case of (10) M. A Rasheed and ors. v. State of Kerala, AIR 1974 C page 2249 ). On behalf of the appellants it was contended by the Advocate General that the exercise of constitutional power such as the power under proviso (c) of clause (2) of Article 311 of the Constitution was not subject to judicial review. It was submitted that the ratio of the aforesaid decision must be confined to the question of exercise of statutory power. We are unable to accept his contention. In a society aspiring to be governed by the rule of law the scope and extent of judicial review would depend not on the question whether the power is statutory or constitutional but on the terms of the grant of the power. If the power conferred is exercisable on fulfillment of certain conditions the exercise of such power is subject to judicial review to the extent indicated above. In the instant case the impugned order was passed because the Governor was satisfied that in the interest of the security of the State it was not expedient to hold an enquiry as enjoined by clause (2) of Article 311 of the Constitution. In the instant case the impugned order was passed because the Governor was satisfied that in the interest of the security of the State it was not expedient to hold an enquiry as enjoined by clause (2) of Article 311 of the Constitution. It is, therefore, necessary to find out whether in fact the Governor had formed that opinion. That requirement is fulfilled in the instant case. The order impugned states that the Governor was satisfied. It is, furthermore, not in dispute in the instant case that the Governor was satisfied. ( 5 ) THE next question, is, whether there were any materials relevant or germane, available to the Governor because of which he could have been satisfied that in the interest of security of State it was not expedient to hold an enquiry as contemplated under clause (2) of Article 311 of the Constitution. The scope of judicial review in respect of administrative or executive order of this nature is well settled. The Court must examine whether the opinion or satisfaction in question was formed bonafide. Secondly the court must examine whether there were any materials relevant or germane to the question at issue. The court however, is not concerned with the sufficiency of the materials or with the question whether on the materials available the court would have formed the same decision or the same opinion. It has been emphasized that there must be factual basis for the decision taken or the satisfaction arrive at. By this requirement it is not obligatory to examine the truth or otherwise of the materials upon which the executive or the administrative authority acts. But what is required to be scrutinized is to see that there are in fact some materials relevant to the question upon which the authority concerned has acted. In the instant case as mentioned hereinbefore originally an affidavit was filed on behalf of the respondent. The said affidavit was affirmed by Subhas Chandra Goshain who was the Deputy Commissioner of Police, Enforcement Branch at the relevant time. In the instant case as mentioned hereinbefore originally an affidavit was filed on behalf of the respondent. The said affidavit was affirmed by Subhas Chandra Goshain who was the Deputy Commissioner of Police, Enforcement Branch at the relevant time. After referring to the facts of the respondent joining the police force and the termination of his services in 1955 and reinstatement in 1969, the deponent has stated in paragraph 18 of the affidavit that the Governor had called for the entire record of the services of the respondent and had carefully perused the whole record and he was satisfied that in the interest of the security of the State it would not be expedient to hold an enquiry. As mentioned hereinbefore pursuant to the leave granted by 10th of November, 1976 Sm. Leena Chakraborty, Deputy Secretary (Home, Police Department) has affirmed a supplementary affidavit on 18th November 1976. In the said affidavit she has annexed (i) a communication dated 22nd of November, 1970 from Sri R. K. Gupta the then Commissioner of Police, Calcutta, (ii) Sri B. R. Gupta, the then Secretary, Home Department along with the reference note. She has also annexed a note dated 23rd of October, 1970 recorded by Sri K. G. Basu, the then joint Secretary, Home Department. In the letter dated 22nd October, 1970 the Commissioner of Police, Calcutta wrote to the Secretary, Home Department, Government of West Bengal that during the proceeding few months 10 officers and men of the Calcutta Police had been murdered by Naxalites. He has referred to the fact that subversive and anti-national elements were in the police force who should be weeded out. He referred to three police personnel and one of them was constable Narendra Naryan Das, respondent herein. He accordingly recommended dismissal of the said three persons under Article 311 (2) (c) of the Constitution. In the reference note annexed to the letter the part records were referred to as we have set out hereinbefore and thereafter it was mentioned that in June, 1970 the respondent was learnt to be maintaining a secret link with one Swades Mitra, a known Naxalite leader of Ashit Sen's Group and a dismissed Constable of the Calcutta Police Force. In the reference note annexed to the letter the part records were referred to as we have set out hereinbefore and thereafter it was mentioned that in June, 1970 the respondent was learnt to be maintaining a secret link with one Swades Mitra, a known Naxalite leader of Ashit Sen's Group and a dismissed Constable of the Calcutta Police Force. In the note of Sri K. G. Basu dated 23rd October, 1970 more or less the same facts re-iterated and he recommended that under proviso (c) of clause (2) of Article 311 of the Constitution it was inexpedient to hold an enquiry under clause (2) of Article 311 of the Constitution. Learned Advocate for the respondent contended that it was necessary before any action under proviso (c) to clause (2) of Article 311 of the Constitution was taken that there should be materials for dismissal of a government servant and, secondly, there should be materials for which should indicate that it was inexpedient to hold an enquiry in the interest of the security of the State and there should be further indication by the appropriate authority as on which materials and on what grounds he considered that in was inexpedient to hold an enquiry in the interest of the security of the State. The true position, in our opinion, is that there should be materials for dismissal. Such materials need not be concerned with the question of the security of the State. It was not argued before us that there were no materials for dismissal of the respondent. There must, further, be materials germane to the question that an enquiry as contemplated under clause (2) of Article 311 of the Constitution was inexpedient and such inexpediency was in the interest of the security of the State. Therefore there must be some materials to indicate that in the interest of the security of the State it is inexpedient to hold an enquiry; more than this is not required to be fulfilled. Therefore there must be some materials to indicate that in the interest of the security of the State it is inexpedient to hold an enquiry; more than this is not required to be fulfilled. If there are materials which have relevant or rational connection with the question of holding an enquiry as contemplated by clause (2) of Article 311 of the Constitution in the interest of the security of the State and if in fact the Governor or the appropriate authority has expressed the satisfaction or the opinion then it is not further required that he should indicate why he considers that it was inexpedient in the interest of the security of the State to hold an enquiry as contemplated under clause (2) of Article 311 of the Constitution. The expressions "security of state" and "in the interest of the security of state" have different connotations. The expression used under proviso (c) to clause (2) of Article 311 is the expression "in the interest of the security of state" and not "for the security of the State". The meaning of the words "in the interest of" are wider than simply the expression "security of the state". The expressions "in the interest of" include everything that even indirectly be made to the observations of Mr. Justice Desai and Mr. Justice Gurtu in the Full Bench decision in the case of 912) Ramnandan v. State, AIR 1959 Allahabad, page 101. Though the aforesaid decision was reversed by the Supreme Court in the case of (13) Kedar Nath v. State of Bihar, AIR 1962 SC, 955, the aforesaid observations were not dissented from. See also in this connection the observation of the Supreme Court in the case of (14) Ramji Lal Modi v. State of U. P. , AIR 91957) SC 620. Actions which may not be for the security of State can still be "in the interest" of the security of State. Security of State is different from law and order or public order but maintenance of law and order as well as maintenance of public order may be in the interest of the security of State. Therefore, it can be said that failure to maintain law and order or failure to maintain public order might endanger not so much the security of the State but the "interest of" the security of the State. Therefore, it can be said that failure to maintain law and order or failure to maintain public order might endanger not so much the security of the State but the "interest of" the security of the State. Attempt to change the government or to attack the persons who occupy the governmental positions need not necessarily create any problem for the security of the State but attempt to undermine the forces who are charged with responsibility of maintaining the integrity of the State might endanger the interest of the security of the State. It is apparent from the facts placed before us that the respondent was alleged to be maintaining a secret link with the Naxalites. The expression "naxalites" has come in vogue recently and it connotes not those who only believe theoretically in extreme revolutionary social, political or economic theories but who are believers in the over-throw of the government by violence and by extra-constitutional methods. As a matter of fact it is in this light that the expression 'naxalite' has been used in the instant case. If one bears in mind the statement that 10 police officers and men of the police force were killed by these Naxalities it is that sense that the concerned authorities have used the expression "naxalities". The respondent was alleged to have maintained secret link with these people. By the use of the expression "secret link" it is apparent that the respondent is alleged to be maintaining clandestine and improper contact. An enquiry into the conduct of such a person might well require revealing informations about the method of obtaining informations about the respondent and would perhaps lead to the revelation of the sources of contracts through which informations about the respondent was obtained and would perhaps also reveal the state of discipline in the police force. Such revelations would adversely affect the morale of the police force. Such revelations, which would be necessary if an enquiry under Article 311 (2) of the Constitution is held, would not be in the interest of the security of the State. Such revelations might undermine the efficiency and discipline of the forces charged with maintenance of the security of the State. It cannot be doubted that police force is concerned with the security of the State because the security of the State can be threatened both by external as well as internal factors. Such revelations might undermine the efficiency and discipline of the forces charged with maintenance of the security of the State. It cannot be doubted that police force is concerned with the security of the State because the security of the State can be threatened both by external as well as internal factors. If in those circumstances, the Governor has formed the opinion that it was not expedient to hold an enquiry as contemplated under clause (2) of Article 311 of the Constitution, in our opinion, it cannot be said that the Governor has acted without any materials or without any relevant or germane materials. As mentioned hereinbefore we are not concerned with the propriety of the decision as such nor with the sufficiency of the materials. ( 6 ) IN the aforesaid view of the matter, we are of the opinion, that the challenge to the impugned order cannot, therefore, be sustained. In the premises, this appeal is allowed and the judgment and order of A. K. Mookerji, J. dated 3rd of May, 1976 are hereby set aside and the rule nisi issued in this case is discharged. All interim orders are vacated without prejudice to the benefits already received by the respondent. In the facts and circumstances of this case there will be no order as to costs. Operation of this order is stayed for a period of four weeks from date. Dutt, J. : I agree. Appeal allowed.