JUDGMENT AND ORDER : M.R. Pathak, J. Heard Mr. Supu Jamir, learned counsel for the petitioner and Ms. S. Mere, learned Govt. Advocate, Nagaland for the respondents. 2. The Superintendent of Police, Zumheboto, Nagaland by his order dated 19.07.2000 appointed the petitioner as a Constable and accordingly, he joined his service under the said Superintendent of Police, Zumheboto, Nagaland. After completion of his basic training, he was confirmed in his service as an Armed Branch Constable being ABC 2784 and later, he was placed under the Superintendent of Police at Mokokchung, Nagaland. 3. On 11.11.2005, while the petitioner was on his way to Mokokchung from Dimapur, the vehicle in which he was travelling was halted at Tsutapela check gate and on being searched by police, 3 (three) grams of brown sugar, a banned substance, was ceized from the person of the petitioner that was concealed in his socks. Accordingly, he was arrested and the Officer-in-Charge of Mokokchung Police Station-I was informed and on the next day i.e. on 12.11.2005 the concerned Sub-Inspector of the said check gate lodged the FIR before the Officer-in-Charge of Mokokchung Police Station-I which was registered as Mokokchung Police Station-I Case No. 32/2005 corresponding to GR 80/2005 under Section 27 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Later, the SP, Mokokchung, Nagaland by his order dated 28.04.2006 suspended the petitioner from service w.e.f. 11.11.2005 with the direction that without his prior permission the petitioner shall not leave the Headquarter and that he is entitles to draw subsistence allowance as prescribed in the said order. 4. After considering the investigation report submitted by the police and hearing both, the prosecution and the defence including the petitioner herein, and as the petitioner, at the time of framing of charge of the case, admitting his guilt pleaded guilty, learned Special Judge i.e. the Additional Deputy Commissioner (Judicial) by his order dated 29.01.2007 convicted the petitioner under Section 21(a) of the NDPS Act and sentenced him to pay a fine of Rs. 8,000/- and in default to pay the said fine, sentenced him to undergo rigorous imprisonment for four months. 5. 8,000/- and in default to pay the said fine, sentenced him to undergo rigorous imprisonment for four months. 5. As the petitioner was convicted in a criminal case under Section 27 of the NDPS Act by the aforesaid order dated 29.01.2007 passed by Additional Deputy Commissioner (J), Mokokchung in Mokokchung Police Station-I Case No. 32/2005 corresponding to GR 80/2005; the SP, Mokochung by his order No. MDP/RO-8-07-08/148 dated 23.04.2007 exercising his statutory power conferred under Rule 9(10) of the Nagaland Services (Discipline and Appeal) Rules, 1967, dismissed the petitioner from his service with immediate effect and struck off his name from the strength of DEF, Mokokchung with immediate effect with the observation that all sums due to the petitioner are forfeited to the Government of Nagaland. The Superintendent of Police, Mokokchung passed the order on 23.04.2007 as he was convicted under Section 27 of the NDPS Act by the aforesaid order dated 29.01.2007 passed by the learned Additional Deputy Commissioner (J), Mokokchung. 6. Being aggrieved with the same, the petitioner earlier approached this Court in a writ petition being WP(C) No. 118(K) of 2011 praying for amongst others-(i) to quash and set aside the said dismissal order dated 23.04.2007 passed by the SP, Mokokchung, (ii) to direct the respondents to pay all the consequential service benefit from the date of illegal dismissal till his reinstatement in service and (iii) to pass any such further order or directions as the Court deems fit and proper in the facts and circumstances of the case. After hearing the learned counsel for the parties, this Court vide order dated 20.03.2014 disposed of the said WP(C) No. 118(K) 2011 directing the petitioner to file an appeal within a period of 30 days from the date of said order before the concerned appellate authority as per the Nagaland Services (Discipline and Appeal) Rules, seeking revocation of his dismissal order with a petition seeking condonation of the delay in approaching the said forum, with the observation that in the event of filing such petition by the petitioner, the authority concerned shall dispose of the same in accordance with law considering the fact that the petitioner has been pursuing his case before the said Court seeking the aforesaid reliefs. 7. 7. Thereafter the petitioner on 11.04.2014 submitted an appeal before the Director General of Police, Nagaland at Kohima against his dismissal order dated 23.04.2007 passed by the SP, Mokokchung with a prayer to condone the delay in filing the said appeal as he earlier approached the Gauhati High Court at Kohima for redressal of his grievances. The concerned appellate authority i.e. the Director General of Police (Head Quarter), Nagaland, Kohima, after going through the relevant records & documents of the case and the grounds set forth by the petitioner in his said appeal, came to a conclusion that there is no ground to disagree with the decision dated 23.04.2007 of the SP, Mokokchung and accordingly, by his order dated under No. PHQ(B-X)HC/9/2011/154 dated 06.06.2014 rejected the appeal of the petitioner dated 11.04.2014 upholding the dismissal order of the petitioner that was issued by the SP, Mokokchung on 23.04.2007. Hence this writ petition by the petitioner. 8. The contention of the petitioner herein is that the appellate authority while rejecting the appeal of the petitioner did not follow the provisions of Rule 24 of the Nagaland Services (Discipline & Appeal) Rules, 1967 (1967 Rules, in short) without complying with the same rejected the appeal of the petitioner. The petitioner also contended that the concerned disciplinary authority, i.e. the SP, Mokokchung, without following the provisions of Rule 9 of the said 1967 Rules in its proper perspective dismissed the petitioner from service by the impugned order dated 23.04.2007. According to him, before imposing any such order of major penalty like dismissal from the service as in the present case, by the disciplinary authority, the delinquent employee is entitled to a notice to show cause and hearing. The petitioner further contended before imposing any such penalty including major penalty by the disciplinary authority, a delinquent has a right to know the charge(s) on the basis of which such penalty is imposed upon the said delinquent. The petitioner further contended before imposing any such penalty including major penalty by the disciplinary authority, a delinquent has a right to know the charge(s) on the basis of which such penalty is imposed upon the said delinquent. As such the petitioner submitted that since the impugned dismissal order of the petitioner dated 23.04.2007 of the SP, Mokokchung as well as the rejection of the appeal by the DGP (Head Quarter), Nagaland, Kohima on 06.06.2014 are not in conformity with the provisions of said 1967 Rules, therefore, those orders of dismissal dated 23.04.2007 and rejection of appeal dated 06.06.2014 are to be set aside and quashed and he should be reinstated in service with all back wages. 9. The petitioner stated that since he has been dismissed from service under Rule 9(10) of the said 1967 Rules, he ought to have been provided with an opportunity of show cause and hearing as prescribed under the said Rule 9 of 1967 Rules before issuing the impugned dismissal order dated 23.04.2007. Mr. Jamir, learned counsel for the petitioner submitted that as per Rule 9 of 1967 Rules, no penalty can be imposed upon a Government servant without making any enquiry as per the procedure prescribed in the said Rule without prejudice to the provisions of the Public Servant (Enquiry) Act, 1850 and in the present case, the petitioner's service has been dismissed by the impugned order dated 23.04.2007 without any such enquiry and without giving any opportunity of hearing to him. Mr. Jamair further submitted that the impugned dismissal order of the petitioner being very specific that the petitioner has been dismissed from service under sub-Rule 9(10) of 1967 Rules, the established norms and procedures incorporated in the said Rule 9 should have been followed and since the petitioner has been dismissed without any enquiry, without giving him any opportunity of hearing, in violation of the principle of natural justice as such the said dismissal order of the petitioner dated 23.04.2007 needs to be set aside and quashed. Mr. Jamir also submitted that the appellate authority while rejecting the appeal of the petitioner vide communication dated 06.06.2014 did not consider these aspects of the matter and therefore, the said appellate order dated 06.06.2014 is also liable to be set aside and quashed. 10. However, Mr. Mr. Jamir also submitted that the appellate authority while rejecting the appeal of the petitioner vide communication dated 06.06.2014 did not consider these aspects of the matter and therefore, the said appellate order dated 06.06.2014 is also liable to be set aside and quashed. 10. However, Mr. Jamir, learned counsel for the petitioner admitted the fact that the impugned dismissal order of service of the petitioner dated 23.04.2007 reveals that he was dismissed from service because of his conviction by the criminal Court vide order dated 29.01.2007 under Section 27(b) of the NDPS Act and that the provisions of Rule 11 of said 1967 Rules, keeps the provisions of Rule 9 at bay and as per said Rule 11 of 1967 Rules no departmental proceeding would have been required before imposing penalties prescribed under the Rule 7 of 1967 Rules. But as the impugned dismissal order of the petitioner has been issued by the concerned disciplinary authority under Rule 9 (10) of said 1967 Rules, Mr. Jamir submitted that the provisions of Rule 11 of said 1967 Rules is not applicable to the petitioner in the present case. It is also submitted that in terms of his conviction order & sentence dated 29.01.2007 passed by the Additional Deputy Commissioner (J), Mokokchung in the said Mokokchung Police Station-I Case No. 32/2005 corresponding to GR 80/2005, the petitioner has already deposited the fine/penalty imposed upon him amounting to Rs. 8,000/-. Therefore, Mr. Jamir submitted that the concerned disciplinary authority should have either warned him or imposed a lighter punishment upon him and the major punishment of dismissal from service imposed upon the petitioner because of said conviction is disproportionate and excessive in comparison to the conviction & punishment imposed upon him by the Criminal Court. 11. Mr. Jamir, on behalf of the petitioner, placed reliance in the cases of Mohinder Singh Gill v. Chief Election Commr., reported in (1978) 1 SCC 405 , B.C. Chaturvedi v. Union of India, reported in (1995) 6 SCC 749 , State of Punjab v. Krishan Niwas, reported in (1997) 9 SCC 31 , Dipak Babaria v. State of Gujarat, reported in (2014) 3 SCC 502 and Bidhan Ch. Dey v. State of Tripura & Ors. reported in (2001) 2 GLT 335. The Judgments cited by Mr. Jamir have been perused and considered. 12. The State respondents have contested the case by filing their affidavit. Ms. Dey v. State of Tripura & Ors. reported in (2001) 2 GLT 335. The Judgments cited by Mr. Jamir have been perused and considered. 12. The State respondents have contested the case by filing their affidavit. Ms. S. Mere, learned Government Advocate, Nagaland defending the order of dismissal dated 23.04.2007 passed by the disciplinary authority the SP, Mokokchung and the rejection of the appeal of the petitioner passed by the appellate authority, the DGP (Head Quarter) Nagaland, Kohima on 06.06.2014 submitted that on receipt of the conviction order of the accused petitioner dated 29.01.2007 passed by the concerned Criminal Court in Mokokchung Police Station-I Case No. 32/2005 corresponding to GR 80/2005 under Section 27(b) of the NDPS Act, the disciplinary authority thoroughly examined the matter and came to the finding that the accused petitioner, being a Government servant from uniform service of the State, it would not be prudent to retain such a person in the service, since it is his duty to maintain absolute integrity and to live a discipline life and not to indulge in consumption or sale of any banned substances like brown sugar and for the said reasons, the disciplinary authority being satisfied came to a conclusion that there is no reasonable ground to conduct a departmental enquiry against the petitioner and accordingly, the said disciplinary authority took recourse to Rule 11 of the 1967 Rules and imposed the penalty of dismissal from service upon the petitioner by the impugned dismissal order dated 23.04.2007. Ms. Mere further submitted that Rule 24 of the said 1967 Rules provides for an appeal against any order of punishment including dismissal from service and pursuant to this Court's order dated 20.03.2014 passed in WP(C) 118(K) 2011, the accused petitioner has already preferred the appeal before the concerned appellate authority on 11.04.2014 and the said appellate authority, after examining all the relevant records and documents of the case, the grounds of appeal submitted by the petitioner and considering all aspects of the case, materials on records etc. came to the conclusion that there is no ground to disagree with the findings of the disciplinary authority dated 23.04.2007 with regard to the imposition of punishment of dismissal of the petitioner from police service of the state and accordingly, rejected his appeal. Ms. came to the conclusion that there is no ground to disagree with the findings of the disciplinary authority dated 23.04.2007 with regard to the imposition of punishment of dismissal of the petitioner from police service of the state and accordingly, rejected his appeal. Ms. Mere placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India v. Tulsiram Patel reported in (1985) 3 SCC 398 . 13. The petitioner herein being a Constable of Nagaland Police, Govt. of Nagaland belongs to a discipline and uniform service. It is not denied by the petitioner that he is a convict in Mokokchung PS Case No. 32/2005 corresponding to GR 80/2005 under Section 27(b) of the NDPS Act, 1985 and that earlier he was placed under suspension by the SP, Mokokchung vide order dated 28.04.2006 w.e.f. 11.11.2005 from the date of his arrest, during the trial of said Criminal case. It is also not denied by the petitioner that he admitted his guilt before the concerned Criminal Court with regard to the seized banned substance, 'brown sugar' that was recovered from his possession and because of his own plea of guilty, the learned Criminal Court sentenced him under Section 21(a) of the NDPS Act sentencing him to pay fine of Rs. 8,000/- in default, to undergo rigorous imprisonment for four months. 14. Rule 7 of the said 1967 Rules provides for nature of penalties which includes both (i) minor penalties and (ii) major penalties including dismissal from service. Rule 9 of the said 1967 Rules provides for procedure for imposing penalty and as per said Rule 9, the disciplinary authority is required to frame definite charges on the basis of the allegations on which the enquiry is proposed to be held against the delinquent and such charges together with a statement of the allegation on which they are based, needs to be communicated in writing to the delinquent Government servant who is required to submit his written reply within the time specified before the concerned disciplinary authority in his defence and after proper enquiry, the disciplinary authority is required to pass the appropriate order. Sub Rule 10 of the Rule 9 of 1967 Rules provides for imposing of major penalty upon such Government servant by the disciplinary authority which reads as follows: Rule 9(10) Major Penalties– (i) If the Disciplinary Authority having regard to its findings on all or any of the articles of charges and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (v) to (ix) of rule 7 should be imposed on the Government servant it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on penalty proposed to be imposed. Provided that in every case in which it is necessary to consult the Commission, report of Inquiry shall be forwarded in Form No. VII specified in the Schedule by the Disciplinary Authority to the Commission for its advice and on receipt of the advice of the Commission, the Disciplinary Authority shall pass appropriate orders in the case taking into consideration the advice given by the Commission. Provided further that in cases involving the integrity of the delinquent Government servants, the record of the enquiry shall be forwarded by the Disciplinary Authority to the Vigilance Commission, for its advice and on receipt of the advice of the vigilance Commission, the Disciplinary Authority shall pass appropriate orders in the case taking into consideration the advice given by the Vigilance Commission and in such cases the Commission need not be consulted. (ii) In any case in which it is not necessary to consult the Commission, the Disciplinary Authority shall determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders. (iii) Orders passed by the Disciplinary Authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority and also a copy of the Advice, if any, given by the Public Service Commission or Vigilance Commission as the case may be and where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance. 15. 15. Rule 11 of the said 1967 Rules is a special procedure in certain cases which is equivalent to the second proviso of article 311(2) of the Constitution of India which reads as follows: Rule-11 Special procedure in certain cases:- Notwithstanding anything contained in Rule 9- i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charges; or ii) where the Disciplinary authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rule; or iii) where the Governor is satisfied that in the interest of the security of the state, it is not expedient to follow such procedure- The Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit: Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary. 16. Rule 24 of the 1967 Rules provides for appeal before the appropriate authority against any such penalty imposed upon delinquent Government employee by the disciplinary authority. As per said Rule 24 while considering such appeal the appellate authority is required to look into as to (a) whether the procedure prescribed in these rules has been complied with and, if not whether such non compliance has resulted in violation of any provisions of the Constitution or in failure of justice, (b) whether the findings are justified; and (c) whether the penalty imposed is excessive adequate or inadequate and after consultation with the Commission, if such consultation is necessary in the case, shall pass orders-(i) setting aside, reducing, confirming or enhancing the penalty; or remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. However the appellate authority, as per the Rules shall not enhance the penalty without giving an opportunity to the delinquent to make a representation which he may wish to make against such enhanced penalty. Moreover, while considering an appeal the appellate authority is not required to hear the officer in person. 17. However the appellate authority, as per the Rules shall not enhance the penalty without giving an opportunity to the delinquent to make a representation which he may wish to make against such enhanced penalty. Moreover, while considering an appeal the appellate authority is not required to hear the officer in person. 17. In the case of Union of India v. M.M. Sharma, reported in (2011) 11 SCC 293 the Hon'ble Supreme Court have held that – "For taking action in due discharge of its responsibility for exercising powers under sub-clause (a) or (b) or (c) of the second proviso to Article 311 (2), it is nowhere provided that the disciplinary authority must provide the reasons indicating application of mind for awarding punishment of dismissal. The order passed against the delinquent Government servant should not mandatorily disclose the reasons for taking action of dismissal of his/her service and not any other penalty. In terms of the mandate of the Constitution there is no necessity of communicating the reasons for arriving at the satisfaction as to why the extreme penalty of dismissal is imposed on the delinquent officer." 18. The Hon'ble Apex Court in the case of Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera, reported in (1995) 3 SCC 377 observed that– "Once a Government servant is convicted of a criminal charge, authority is to take action under clause (a) of the second proviso to Article 311(2) and not to wait for the appeal or revision, as the case may be and if, however, the Government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the Government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. To wait till the appeal, revision and other remedies are over with regard to the conviction of the Criminal Court, is not advisable, since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. To wait till the appeal, revision and other remedies are over with regard to the conviction of the Criminal Court, is not advisable, since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2) and it is the conduct of the Government servant which has led to his conviction on a criminal charge is really relevant." 19. In a similar situation where a Government employee was dismissed from service under sub-clause (a) of the proviso to Article 311(2) of the Constitution (Article 311 as originally enacted) submitted before the Court that the order of his discharge from service by the authorities was issued without giving him an opportunity of being heard, which was in violation of Article 311 of the Constitution and also in infringement of other provisions of the Constitution and Service Rules in force, a Division Bench of this High Court in the case of Jagadindra Nath Gupta v. Inspector General of Assam Rifles & Others decided on 02.09.1958, reported in AIR 1959 Gauhati 134 have held that - "The whole object of the proviso to Article 311(2) of the Constitution is to avoid duplication of enquiry in the matter where already there has been a regular trial by a competent court and the person has had ample chance of defending himself and if the contention of the petitioner is accepted, it would follow that the person, who has actually been convicted of a serious criminal charge involving moral turpitude, if he successfully conceals the fact from the knowledge of the authorities and gets an employment, he would be entitled to claim that he cannot be discharged on that account or that he is at least entitled to the protection of Article 311 of the Constitution. In either event the assumption would be both unfair and unreasonable. In these circumstances, it was open to the authorities to dispense with the Procedure under Article 311. In either event the assumption would be both unfair and unreasonable. In these circumstances, it was open to the authorities to dispense with the Procedure under Article 311. It was not necessary for them to call upon the petitioner to show cause as to why he should not be dismissed or discharged from service on the same grounds on which he was tried by a court of law and convicted on a criminal charge." 20. The question as to whether a Government servant who was convicted for a criminal offence should have been heard or not or some opportunity at least should be afforded or not by the disciplinary authority before imposing the punishment so that the said employee is not left wholly without protection has already been settled by a Full Bench (consisting of five Judges) of the Hon'ble Supreme Court in the case of Union of India v. Tulsiram Patel reported in (1985) 3 SCC 398 . The Hon'ble Supreme Court in the said case have settled the law that if the disciplinary authority imposes any penalty by following the provisions of second proviso to Article 311(2) of the Constitution of India no such prior show cause notice or any hearing or any intimation regarding the charge on the basis of which said employee is going to be punished are not necessary and it will not amount to violation of any natural justice or Article 14 of the Constitution, holding that – where the second proviso applies, though there is no prior opportunity to a Government servant to defend himself against the charges made against him, he has the opportunity to show in an appeal filed by him that the charges made against him are not true and this would be a sufficient compliance with the requirements of natural justice. 21. However, the Court thinks it necessary to place & quote some of the relevant paragraphs of the said Judgment of the Hon'ble Supreme Court passed in the case of Union of India v. Tulsiram Patel, (supra) specifying the reasons for such decision of the Hon'ble Court, which are as follows: 44. Ministers frame policies and Legislatures enact laws and lay down the mode in which such policies are to be carried out and the object of the legislation achieved. Ministers frame policies and Legislatures enact laws and lay down the mode in which such policies are to be carried out and the object of the legislation achieved. In many cases, in a Welfare State such as ours, such policies and statutes are intended to bring about socio-economic reforms and the uplift of the poor and disadvantaged classes. From the nature of things the task of efficiently and effectively implementing these policies and enactments, however, rests with the civil services. The public is, therefore, vitally interested in the efficiency and integrity of such services. Government servants are after all paid from the public exchequer to which everyone contributes either by way of direct or indirect taxes. Those who are paid by the public and are charged with public administration for public good must, therefore, in their turn bring to the discharge of their duties a sense of responsibility. The efficiency of public administration does not depend only upon the top echelons of these services. It depends as much upon all the other members of such services, even on those in the most subordinate posts. For instance, railways do not run because of the members of the Railway Board or the General Managers of different railways or the heads of different departments of the railway administration. They run also because of engine-drivers, firemen, signalmen, booking clerks and those holding hundred other similar posts. Similarly, it is not the administrative heads who alone can see to the proper functioning of the post and telegraph service. For a service to run efficiently there must, therefore, be a collective sense of responsibility. But for a Government servant to discharge his duties faithfully and conscientiously, he must have a feeling of security of tenure. Under our Constitution, this is provided for by the Acts and rules made under Article 309 as also by the safeguards in respect of the punishments of dismissal, removal or reduction in rank provided in clauses (1) and (2) of Article 311. It is, however, as much in public interest and for public good that Government servants who are inefficient, dishonest or corrupt or have become a security risk should not continue in service and that the protection afforded to them by the Acts and rules made under Article 309 and by Article 311 be not abused by them to the detriment of public interest and public good. When a situation as envisaged in one of the three clauses of the second proviso to clause (2) of Article 311 arises and the relevant clause is properly applied and the disciplinary inquiry dispensed with, the concerned Government servant cannot be heard to complain that he is deprived of his livelihood. The livelihood of an individual is a matter of great concern to him and his family but his livelihood is a matter of his private interest and where such livelihood is provided by the public exchequer and the taking away of such livelihood is in the public interest and for public good, the former must yield to the latter. These consequences follow not because the pleasure doctrine is a special prerogative of the British Crown which has been inherited by India and transposed into our Constitution adapted to suit the constitutional set-up of our Republic but because public policy requires, public interest needs and public good demands that there should be such a doctrine. 45. It is thus clear that the pleasure doctrine embodied in Article 310(1), the protection afforded to civil servants by clauses (1) and (2) of Article 311 and the withdrawal of the protection under clause (2) of Article 311 by the second proviso thereto are all provided in the Constitution on the ground of public policy and in the public interest and are for public good. 54. ....... Clauses (1) and (2) of Article 311 expressly restrict the manner in which a Government servant can be dismissed, removed or reduced in rank and unless an Act made or rule framed under Article 309 also conforms to these restrictions, it would be void. The restriction placed by clauses (1) and (2) of Article 311 are two: (1) with respect to the authority empowered to dismiss or remove a Government servant provided for in clause (1) of Article 311; and (2) with respect to the procedure for dismissal, removal or reduction in rank of a Government servant provided for in clause (2). The second proviso to Article 311(2), which is the central point of controversy in these appeals and writ petitions, lifts the restriction imposed by Article 311(2) in the cases specified in the three clauses of that proviso. 55. The second proviso to Article 311(2), which is the central point of controversy in these appeals and writ petitions, lifts the restriction imposed by Article 311(2) in the cases specified in the three clauses of that proviso. 55. None of these three articles (namely Articles 309, 310 and 311) sets out the grounds for dismissal, removal or reduction in rank of a Government servant or for imposition of any other penalty upon him or states what those other penalties are. These are matters which are left to be dealt with by Acts and rules made under Article 309. There are two classes of penalties in service jurisprudence, namely, minor penalties and major penalties. Amongst minor penalties are censure, withholding of promotion and withholding of increments of pay. Amongst major penalties are dismissal or removal from service, compulsory retirement and reduction in rank, Minor penalties do not affect the tenure of a Government servant but the penalty of dismissal or removal does because these two penalties bring to an end the service of a Government servant. It is also now well established that compulsory retirement by way of penalty amounts to removal from service. So this penalty also affects the tenure of a Government servant. Reduction in rank does not terminate the employment of a Government servant, and it would, therefore, be difficult to say that it affects the tenure of a Government servant. It may, however, be argued that it does bring to an end the holding of office in a particular rank and from that point of view it affects the Government servant's tenure in the rank from which he is reduced. It is unnecessary to decide this point because Article 311(2) expressly gives protection as against the penalty of reduction in rank also. 60. Clause (2) of Article 311 gives a constitutional mandate to the principles of natural justice and the audi alteram partem rule by providing that a person employed in a civil capacity under the Union or a State shall not be dismissed or removed from service or reduced in rank until after an inquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. To this extent, the pleasure doctrine enacted in Article 310(1) is abridged because Article 311(2) is an express provision of the Constitution. To this extent, the pleasure doctrine enacted in Article 310(1) is abridged because Article 311(2) is an express provision of the Constitution. This safeguard provided for a Government servant by clause (2) of Article 311 is, however, taken away when the second proviso to that clause becomes applicable. The safeguard provided by clause (1) of Article 311, however, remains intact and continues to be available to the Government servant. The second proviso to Article 311(2) becomes applicable in the three cases mentioned in clauses (a) to (c) of that proviso. These cases are: "(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; or (b) where the 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 hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry." ......................... 61. The language of the second proviso is plain and unambiguous. The keywords in the second proviso are "this clause shall not apply". By "this clause" is meant clause (2). As clause (2) requires an inquiry to be held against a Government servant, the only meaning attributable to these words is that this inquiry shall not be held. There is no scope for any ambiguity in these words and there is no reason to give them any meaning different from the plain and ordinary meaning which they bear. The resultant effect of these words is that when a situation envisaged in any of the three clauses of the proviso arises and that clause becomes applicable, the safeguard provided to a Government servant by clause (2) is taken away. As pointed out earlier, this provision is as much in public interest and for public good and a matter of public policy as the pleasure doctrine and the safeguards with respect to security of tenure contained in clauses (1) and (2) of Article 311. 62. Before, however, any clause of the second proviso can come into play the condition laid down in it must be satisfied. 62. Before, however, any clause of the second proviso can come into play the condition laid down in it must be satisfied. The condition for the application of each of these clauses is different. In the case of clause (a) a Government servant must be guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which conduct has led to him being convicted on a criminal charge. In the case of clause (b) the disciplinary authority must be satisfied that it is not reasonably practicable to hold an inquiry. In the case of clause (c) the President or the Governor of a State, as the case may be, must be, satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry...... The paramount thing, however, to bear in mind is that the second proviso will apply only where the conduct of a Government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all, because Article 311(2) is itself confined only to these three penalties. Therefore, before denying a Government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned Government servant is such as justifies the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the Government servant is not entitled to an inquiry....... 65. The language of the second proviso to Article 311(2) read in the light of the interpretation placed upon clause (2) of Article 311 as originally enacted and the legislative history of that clause wholly rule out the giving of any opportunity. 67. ........ 65. The language of the second proviso to Article 311(2) read in the light of the interpretation placed upon clause (2) of Article 311 as originally enacted and the legislative history of that clause wholly rule out the giving of any opportunity. 67. ........ Even assuming for the sake of argument that because Article 311(2), as substituted by the Constitution (Fifteenth Amendment) Act, spoke of a reasonable opportunity of making representation on the penalty proposed in a case where it is proposed, after such inquiry, to impose on him any such penalty", the show-cause notice with respect to penalty was not a part of the inquiry, the opening words of the proviso to clause (2) (now the second proviso to that clause) namely, "Provided further that this clause shall not apply would, where any of the three clauses of the said proviso applies, take away both the right to have an inquiry held in which the Government servant would be entitled to a charge-sheet as also the right to make a representation on the proposed penalty. As mentioned above, the words "this clause shall not apply are the keywords in the second proviso and govern each and every clause thereof and by reason of these words not only the holding of an inquiry but all the provisions of clause (2) have been dispensed with. 68. ........ It should be borne in mind that the show-cause notice at the punishment stage was originally there as a result of the interpretation placed by the Judicial Committee in Lall case and by this Court in Khem Chand case upon the phrase "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him". Clause (2) as substituted by the Constitution (Fifteenth Amendment) Act merely reproduced the substance of what was held in Khem Chand case. The words which originally found a place in clause (2), "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him", do not any more feature in clause (2). All that clause (2) now provides is an inquiry in which the Government servant is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. All that clause (2) now provides is an inquiry in which the Government servant is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Clause (2) taken by itself even without the first proviso does not provide, expressly or impliedly, for any opportunity to make a representation against the proposed penalty. After the Constitution (Fifteenth Amendment) Act this second opportunity formed a separate part of clause (2), which part was deleted by the Constitution (Forty-second Amendment) Act. Thus, when the second proviso states in its opening words that "Provided further that this clause shall not apply", it means that whatever safeguards are to be found in clause (2) are wholly taken away in a case where any of the three clauses of the second proviso is attracted. ........ In Associated Cement Companies Ltd. v. T.C. Shrivastava this Court held that "neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary". Since a right to such opportunity does not exist in law, it follows that the only right which the Government servant had to make a representation on the proposed penalty was to be found in clause (2) of Article 311 prior to its amendment by the Constitution (Forty-second Amendment) Act. This right having been taken away by the Constitution (Forty-second Amendment) Act, there is no provision of law under which a Government servant can claim this right. 69. As for the argument that in a case under clause (a) of the second proviso a Government servant could be wrongly dismissed, removed or reduced in rank mistaking him for another with the same name unless he is given an opportunity of bringing to the notice of the disciplinary authority that he is not the individual who has been convicted, it can only be described as being too fanciful and far-fetched for though such a case of mistaken identity may be hypothetically possible, it is highly improbable. ........ Assuming such a case occurs, the Government servant is not without any remedy. He can prove in a departmental appeal which service rules provide for, save in exceptional cases, that he has been wrongly mistaken for another. ........ Assuming such a case occurs, the Government servant is not without any remedy. He can prove in a departmental appeal which service rules provide for, save in exceptional cases, that he has been wrongly mistaken for another. Similarly, it is not possible to accept the argument that unless a written explanation with respect to the charges is asked for from a Government servant and his side of the case known, the penalty which would be imposed upon him, could be grossly out of proportion to his actual misconduct. The disciplinary authorities are expected to act justly and fairly after taking into account all the facts and circumstances of the case and if they act arbitrarily and impose a penalty which is unduly excessive, capricious or vindictive, it can be set aside in a departmental appeal. In any event, the remedy by way of judicial review is always open to a Government servant. 70. The position which emerges from the above discussion is that the keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a Government servant. The phrase "this clause shall not apply" is mandatory and not directory. It is in the nature of a constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned Government servant. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity by a process of inference or implication. The maxim "expressum facit cessare tacitum" ("when there is express mention of certain things, then anything not mentioned is excluded") applies to the case. As pointed out by this Court in B. Shankara Rao Badami v. State of Mysore this well-known maxim is a principle of logic and common sense and not merely a technical rule of construction. The second proviso expressly mentions that clause (2) shall not apply where one of the clauses of that proviso becomes applicable. This express mention excludes everything that clause (2) contains and there can be no scope for once again introducing the opportunities provided by clause (2) or any one of them into the second proviso. ............. The conclusion which flows from the express language of the second proviso is inevitable and there is no escape from it. This express mention excludes everything that clause (2) contains and there can be no scope for once again introducing the opportunities provided by clause (2) or any one of them into the second proviso. ............. The conclusion which flows from the express language of the second proviso is inevitable and there is no escape from it. It may appear harsh but, as mentioned earlier, the second proviso has been inserted in the Constitution as a matter of public policy and in public interest and for public good just as the pleasure doctrine and the safeguards for a Government servant provided in clauses (1) and (2) of Article 311 have been. It is in public interest and for public good that a Government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. It is equally in public interest and for public good that where his offence is such that he should not be permitted to continue to hold the same rank, that he should be reduced in rank. Equally, where a public servant by himself or in concert with others has brought about a situation in which it is not reasonably practicable to hold an inquiry and his conduct is such as to justify his dismissal, removal or reduction in rank, both public interest and public good demand that such penalty should forthwith and summarily be imposed upon him; and similarly, where in the interest of the security of the State it is not expedient to hold an inquiry, it is in the public interest and for public good that where one of the three punishments of dismissal, removal or reduction in rank is called for, it should be summarily imposed upon the concerned Government servant. It was argued that in a case falling under clause (b)or (c), a Government servant ought to be placed under suspension until the situation improves or the danger to the security of the State has passed, as the case may be, and it becomes possible to hold an inquiry. It was argued that in a case falling under clause (b)or (c), a Government servant ought to be placed under suspension until the situation improves or the danger to the security of the State has passed, as the case may be, and it becomes possible to hold an inquiry. This argument overlooks the fact that suspension involves the payment at least of subsistence allowance and such allowance is paid at public expense, and that neither public interest would be benefited nor public good served by placing such Government servant under suspension because it may take a considerable time for the situation to improve or the danger to be over. Much as this may seem harsh and oppressive to a Government servant, this Court must not forget that the object underlying the second proviso is public policy, public interest and public good and the Court must, therefore, repel the temptation to be carried away by feelings of commiseration and sympathy for those Government servants who have been dismissed, removed or reduced in rank by applying the second proviso. Sympathy and commiseration cannot be allowed to outweigh considerations of public policy, concern for public interest, regard for public good and the peremptory dictate of a constitutional prohibition. The Court must bear in mind that the second proviso has been in the Constitution since it was originally enacted. It was not blindly or slavishly copied from Section 240(3) of the Government of India Act, 1935. Article 311 was Article 282-B of the draft Constitution of India and the draft Article 282-B was discussed and a considerable debate took place on it in the Constituent Assembly (see the Official Report of the Constituent Assembly Debates, Vol. IX, pp. 1099 to 1116). The greater part of this debate centred upon the proviso to clause (2) of the draft Article 282-B, which is now the second proviso to Article 311. Further, the Court should also bear in mind that clause (c) of the second proviso and clause (3) of Article 311 did not feature in Section 240 of the Government of India Act, 1935, but were new provisions consciously introduced by the Constituent Assembly in Article 311. Those who formed the Constituent Assembly were not the advocates of a despotic or dictatorial form of government. They were the persons who enacted into our Constitution the Chapter on Fundamental Rights. Those who formed the Constituent Assembly were not the advocates of a despotic or dictatorial form of government. They were the persons who enacted into our Constitution the Chapter on Fundamental Rights. The majority of them had fought for freedom and had suffered imprisonment in the cause of liberty and they, therefore, were not likely to introduce into our Constitution any provision from the earlier Government of India Acts which had been intended purely for the benefit of a foreign imperialistic power. After all, it is not as if a Government servant is without any remedy when the second proviso has been applied to him. There are two remedies open to him, namely, departmental appeal and judicial review. The scope and extent of these remedies will be considered later in the course of this judgment. 96. The rule of natural justice with which we are concerned in these appeals and writ petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence. The process of a fair hearing need not, however, conform to the judicial process in a Court of law, because judicial adjudication of causes involves a number of technical rules of procedure and evidence which are unnecessary and not required for the purpose of a fair hearing within the meaning of audi alteram partem rule in a quasi-judicial or administrative inquiry. If we look at clause (2) of Article 311 in the light of what is stated above, it will be apparent that clause is merely an express statement of the audi alteram partem rule which is implicitly made part of the guarantee contained in Article 14 as a result of the interpretation placed upon that article by recent decisions of this Court. Clause (2) of Article 311 requires that before a Government servant is dismissed, removed or reduced in rank, an inquiry must be held in which he is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The nature of the hearing to be given to a Government servant under clause (2) of Article 311 has been elaborately set out by this Court in Khem Chand case in the passages from the judgment extracted above. Though that case related to the original clause (2) of Article 311, the same applies to the present clause (2) of Article 311 except for the fact that now a Government servant has no right to make any representation against the penalty proposed to be imposed upon him but, as pointed out earlier, in the case of Suresh Koshy George v. University of Kerala such an opportunity is not the requirement of the principles of natural justice and as held in Associated Cement Companies Ltd. v. T.C. Shrivastava neither the ordinary law of t he land nor industrial law requires such an opportunity to be given. The opportunity of showing cause against the proposed penalty was only the result of the interpretation placed by the Judicial Committee of the Privy Council in Lall case upon Section 240(3) of the Government of India Act, 1935, which was accepted by this Court in Khem Chand case. If, therefore, an inquiry held against a Government servant under clause (2) of Article 311 is unfair or biased or has been conducted in such a manner as not to give him a fair or reasonable opportunity to defend himself, undoubtedly, the principles of natural justice would be violated, but in such a case the order of dismissal, removal or reduction in rank would be held to be bad as contravening the express provisions of clause (2) of Article 311 and there will be no scope for having recourse to Article 14 for the purpose of invalidating it. 101. Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. 101. Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra & Co. v. State of Orissa. So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi case at p. 681. If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution, for a constitutional provision has a far greater and all-pervading sanctity than a statutory provision. In the present case, clause (2) of Article 311 is expressly excluded by the opening words of the second proviso and particularly its keywords "this clause shall not apply". As pointed out above, clause (2) of Article 311 embodies in express words the audi alteram partem rule. This principle of natural justice having been expressly excluded by a constitutional provision, namely, the second proviso to clause (2) of Article 311, there is no scope for reintroducing it by a side-door to provide once again the same inquiry which the constitutional provision has expressly prohibited. Where a clause of the second proviso is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action in so applying it would be mala fide, and, therefore, void. In such a case the invalidating factor may be referable to Article 14. Where a clause of the second proviso is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action in so applying it would be mala fide, and, therefore, void. In such a case the invalidating factor may be referable to Article 14. This is, however, the only scope which Article 14 can have in relation to the second proviso, but to hold that once the second proviso is properly applied and clause (2) of Article 311 excluded. Article 14 will step in to take the place of clause (2) would be to nullify the effect of the opening words of the second proviso and thus frustrate the intention of the makers of the Constitution. The second proviso is based on public policy and is in public interest and for public good and the Constitution makers who inserted it in Article 311(2) were the best persons to decide whether such an exclusionary provision should be there and the situations in which this provision should apply. 102. In this connection, it must be remembered that a Government servant is not wholly without any opportunity. Rules made under the proviso to Article 309 or under Acts referable to that article generally provide for a right of appeal except in those cases where the order of dismissal, removal or reduction in rank is passed by the President or the Governor of a State because they being the highest constitutional functionaries, there can be no higher authority to which an appeal can lie from an order passed by one of them. Thus, where the second proviso applies, though there is no prior opportunity to a Government servant to defend himself against the charges made against him, he has the opportunity to show in an appeal filed by him that the charges made against him are not true. This would be a sufficient compliance with the requirements of natural justice. In Maneka Gandhi case and in Liberty Oil Mills v. Union of India the right to make a representation after an action was taken was held to be a sufficient remedy, and an appeal is a much wider and more effective remedy than a right of making a representation. 103. ....... In Maneka Gandhi case and in Liberty Oil Mills v. Union of India the right to make a representation after an action was taken was held to be a sufficient remedy, and an appeal is a much wider and more effective remedy than a right of making a representation. 103. ....... Clause (2) of Article 311 is an express statement of what the right of a fair hearing guaranteed by Article 14 would require and by the opening words of the second proviso to that clause that right is expressly taken away, If the contention of the petitioner that in all cases there must be a right of hearing before an order is made to a person's prejudice were correct, the result would be startling and anomalous. For instance, in spite of Articles 21 and 22 no person can be taken in preventive detention unless he has been first given an opportunity of showing cause against the proposed action. Results such as these would make a mockery of the provisions of the Constitution. 106. ....... It is, however, a well-settled rule of construction of statutes that where two interpretations are possible, one of which would preserve and save the constitutionality of the particular statutory provision while the other would render it unconstitutional and void, the one which saves and preserves its constitutionality should be adopted and the other rejected. Such constitutionality can be preserved by interpreting that statutory provision as directory and not mandatory. It is equally well-settled that where a statutory provision is directory, the courts cannot interfere to compel the performance or punish breach of the duty created by such provision and disobedience of such provision would not entail any invalidity. In such a case breach of such statutory provision would not furnish any cause of action or ground of challenge to a Government servant for at the very threshold, such cause of action or ground of challenge would be barred by the second proviso to Article 311(2). 113. In such a case breach of such statutory provision would not furnish any cause of action or ground of challenge to a Government servant for at the very threshold, such cause of action or ground of challenge would be barred by the second proviso to Article 311(2). 113. ........considerations of fair play and justice requiring a hearing to be given to a Government servant with respect to the penalty proposed to be imposed upon him do not enter into the picture when the second proviso to Article 311(2) comes into play and the same would be the position in the case of a service rule reproducing the second proviso in whole or in part and whether the language used is identical with that used in the second proviso or not. There are a number of orders which are of necessity passed without hearing the party who may be affected by them. For instance, courts of law can and often do pass ex parte ad interim orders on the application of a plaintiff, petitioner or appellant without issuing any notice to the other side or hearing him. Can it, therefore, be contended that the judge or judges, as the case may be, did not apply his or their mind while passing such an order? 114. ....... Where a situation envisaged in one of the three clauses of the second proviso to Article 311(2) or of an analogous service rule arises, it is not mandatory that the major penalty of dismissal, removal or reduction in rank should be imposed upon the concerned Government servant. The penalty which can be imposed may be some other major penalty or even a minor penalty depending upon the facts and circumstances of the case. The authority of a particular officer to act as a disciplinary authority and to impose a penalty upon a Government servant is derived from rules made under the proviso to Article 309 or under an Act referable to that article. As pointed out earlier, these rules cannot impinge upon the pleasure of the President or the Governor of a State, as the case may be, because they are subject to Article 310(1). Equally, they cannot restrict the safeguards provided by clauses (1) and (2) of Article 311 as such a restriction would be in violation of the provisions of those clauses. Equally, they cannot restrict the safeguards provided by clauses (1) and (2) of Article 311 as such a restriction would be in violation of the provisions of those clauses. In the same way, they cannot restrict the exclusionary impact of the second proviso to Article 311(2) because that would be to impose a restriction upon the exercise of pleasure under Article 310(1) which has become free of the restrictions placed upon it by clause (2) of Article 311 by reason of the operation of the second proviso to that clause. The only cases in which a Government servant can be dismissed, removed or reduced in rank by way of punishment without holding an inquiry contemplated by clause (2) of Article 311 are the three cases mentioned in the second proviso to that clause. A rule which provides for any other case in which any of these three penalties can be imposed would be unconstitutional. Service rules may reproduce the provisions of the second proviso authorising the disciplinary authority to dispense with the inquiry contemplated by clause (2) of Article 311 in the three cases mentioned in the second proviso to that clause or any one or more of them. Such a rule, however, cannot be valid and constitutional without reference to the second proviso to Article 311 (2) and cannot be read apart from it. Thus, while the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules, the source of his power to dispense with the inquiry is derived from the second proviso to Article 311(2) and not from any service rules. There is a well-established distinction between the source of authority to exercise a power and the source of such power. ..... what penalty should be imposed upon a delinquent railway servant must, therefore, be ex parte and where the disciplinary authority comes to the conclusion that the penalty which the facts and circumstances of the case warrant is either of dismissal or removal or reduction in rank, no opportunity of showing cause against such penalty proposed to be imposed upon him can be afforded to the delinquent Government servant. Undoubtedly, the disciplinary authority must have regard to all the facts and circumstances of the case considerations of fair play and justice requiring a hearing to be given to a Government servant with respect to the penalty proposed to be imposed upon him do not enter into the picture when the second proviso to Article 311(2) comes into play and the same would be the position in the case of a service rule reproducing the second proviso in whole or in part and whether the language used is identical with that used in the second proviso or not. There are a number of orders which are of necessity passed without hearing the party who may be affected by them. For instance, courts of law can and often do pass ex parte ad interim orders on the application of a plaintiff, petitioner or appellant without issuing any notice to the other side or hearing him. Can it, therefore, be contended that the judge or judges, as the case may be, did not apply his or their mind while passing such an order? 22. With regard to the question regarding the omission to mention the relevant or particular clause of the second proviso to Article 311(2) or the relevant service rule in the impugned order of penalty imposed upon the said employee by the disciplinary authority whether makes any difference, the Full Bench of the Hon'ble Supreme Court in the said case of Union of India v. Tulsiram Patel, (supra) have held that– 126. As pointed out earlier, the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules while the source of his power to dispense with the disciplinary inquiry is derived from the second proviso to Article 311(2). There cannot be an exercise of a power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The exercise of a power is, therefore, always referable to the source of such power and must be considered in conjunction with it. ...... If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The exercise of a power is, therefore, always referable to the source of such power and must be considered in conjunction with it. ...... It is also well settled that where a source of power exists, the exercise of such power is referable only to that source and not to some other source under which were that power exercised, the exercise of such power would be invalid and without jurisdiction. Similarly, if a source of power exists by reading together two provisions, whether statutory or constitutional, and the order refers to only one of them, the validity of the order should be upheld by construing it as an order passed under both those provisions. Further, even the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists. .......... The omission to mention in the impugned orders the relevant clause of the second proviso or the relevant service rule will not, therefore, have the effect of invalidating the orders and the orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule. 127. Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a Government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan case. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the Government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the Government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned Government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned Government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A Government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the Government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular Government service the court will also strike down the impugned order. ....... 23. In the present case the petitioner was police personnel of the State. He was prosecuted for offence under Section 27(b) of the NDPS Act. He admitted his guilt before the Criminal Court and accordingly the Trial Court finding him guilty convicted him under the said provision and sentenced him under Section 21 of the NDPS Act to pay a certain amount of fine and in default to undergo Rigorous Imprisonment for certain period. He admitted his guilt before the Criminal Court and accordingly the Trial Court finding him guilty convicted him under the said provision and sentenced him under Section 21 of the NDPS Act to pay a certain amount of fine and in default to undergo Rigorous Imprisonment for certain period. His contention is that the disciplinary authority should have issued with a notice to him prior to his dismissal from service on the basis of the conduct that led to his conviction stated above and that his punishment of dismissal with comparison to his conviction by the criminal court is too severe, excessive and disproportionate. 24. The police are the guardians of law and order. They guards the valleys of law & order and the rough terrain of lawlessness & public disorder and in the present case the guardian of law, the petitioner herein who being a police personnel, on search found possessing banned substances like 'brown sugar' for which he has been convicted for the offence/crime under the provisions of Narcotic Drugs & Psychotropic Substances Act, 1985. 25. It is not the case of the petitioner that he was not convicted by the Criminal Court for the offence under NDPS Act. By the impugned order dated 23.04.2007 issued by the disciplinary authority, the Superintendent of Police, Mokokchung dismissing the petitioner from service was because of his said conduct that led to his conviction on a criminal charge and the appellate authority, the Director General of Police (Headquarter), Nagaland after verification of records, relevant documents and careful consideration duly uphold such dismissal of the petitioner. 26. Since the petitioner has been imposed with the impugned penalty of dismissal from service solely on the ground of his conviction on criminal charge for the offence under NDPS Act, as noted above. Though in the impugned dismissal order of the petitioner dated 23.04.2007 the provisions of said 1967 Rules have been wrongly quoted as Rule 9(10) but from the reading of the order it can be seen that the said order has been passed by the concerned disciplinary authority as per the provisions of Rule 11 of said 1967 Rules. Though in the impugned dismissal order of the petitioner dated 23.04.2007 the provisions of said 1967 Rules have been wrongly quoted as Rule 9(10) but from the reading of the order it can be seen that the said order has been passed by the concerned disciplinary authority as per the provisions of Rule 11 of said 1967 Rules. As it has been settled by the Full Bench of the Hon'ble Supreme Court, in the case of Union of India v. Tulsiram Patel, (supra) and as provided by the Rule 11 of the said 1967 Rules, applicable in the present case equivalent to the second proviso to Article 311(2) of the Constitution, the petitioner is not entitled to any show cause notice prior to his such penalty imposed by the concerned disciplinary authority. Moreover, the appeal preferred by the petitioner under Rule 24 of the said 1967 Rules against the impugned punishment, with all his grounds have been found to be duly considered by the appellate authority. 27. It is already seen that Rule 11 of the 1967 Rules pertaining to special procedure in certain cases notwithstanding anything contained in Rule 9 of the said Rules incorporates the principle contained in the second proviso to Article 311(2) of the Constitution and as per the same it is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with otherwise required as per Rule 9 of 1967 Rules equivalent to Article 311(2) and the disciplinary authority, after considering the circumstances of the case, has the undoubted power to inflict any major penalty on the convicted Government employee without any further departmental inquiry, if the said authority is of the opinion that it is not desirable or conducive in the interests of administration to retain such an employee in service since the said employee has been found to be guilty and convicted for criminal offence for a serious offence involving banned substances like brown sugar in the presence. 28. Here, the petitioner was convicted for possessing banned substance like brown sugar and being a police personnel from discipline & uniform service; in the opinion of the Court there can be nothing short of dismissal in such cases and no other lesser punishment can be contemplated in such cases. 29. In view of the above, this writ petition being devoid of merit stands dismissed. 29. In view of the above, this writ petition being devoid of merit stands dismissed. No order as to cost. Petition dismissed.