B. C. DAS ETC. versus STATE OF ASSAM & ORS.

Citation: [1971] SUPP. 1 S.C.R. 477 · Decided: 23-04-1971 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed

Judgment (excerpt)

B. C. DAS ETC. 
v. 
STATE OF ASSAM & ORS. 
April 23, 1971. 
[J. M. SHELAT, I. 0 DUA AND V. BliARGAVA, JJ.] 
Constitution of India, Arts. 311(2) (c) and 320 (3) (2}--Governor pass-
ing order of dismissal-Order reciting Governor's satisfaction that it was 
not expedient to give opportunity to show cause against action proposP.d 
-Recital must be held to imply that Governor was also satisfied that il 
was not expedient to hold inquiry-Article 311(2) as amended in 1963 only 
clarifies what was judicially held to be implied in original article-Consu~ 
ltation with Public Service Commission by Governor before passing order 
of dismissal not necessary-Chief Secretary's authentication of Governor's 
order does not show that Governor was influenCed by Chief Secretary-
Mala tides not estaOlished. 
The appellants were dismissed from the service of the Government of 
Assam by two separate orders passed by the Governor on April 1, 1965. 
The orders recited that the appellants were unfit to be retained in the 
public service, that they ought to be dismissed from service and that. the 
Governor was satisfied in terms of Art. 311(2) (c) of the Constitution that 
it was not expedient to give them opportunity to show cause against the 
action proposed to be taken in regard to them as stated above. The ap-
pellants challenged the orders of dismissal in writ petitions under Art. 226 
of the Constitution which were dismissed by the High Court. In appeals 
by certificate the contentions of the appellants were: (i) that the impugned 
orders were not in compliance with the terms of Art. 311 (2) as amended 
by the Constitution Fifteenth Amendment Act which had come into force 
on October 6, 1963; (ii) that the orders were bad because they were passed 
without consulting the Public Service Commission ; (iii) that the orders 
were passed mala fide at.the instance of the Chief Secretary and the Finance 
Minister who were annoyed with the appellants. 
B 
c 
D 
E 
HELD: (i) Per Shelat and Dua, JJ. According to the decisions of this 
F 
Court the expression "reasonable opportunity of showing cause against 
the action proposed to be taken" in the unamended Art. 311(2) included 
an opportunity to show cause against the guilt of the government servant 
concerned. This opportunity to show cause against the guilt seems to cor-
respond to the reasonable opportunity of being beard in respect of the 
charges in the course of the inquiry contemplated by the amended sub-
article. The amendment in 1963 was made principally to put in clearer 
language the result of the judicial decisions construing s. 240(3) of the 
G 
Government of India Act, 1935 and unamended Art. 311(2~ of the Con-
stitution. It could not be doubted that the Governor in the present case 
was fully alive to the interest of the security of the State when he express-
ed his satisfaction about the inexpediency of giving an opportunity to the 
appellants to show cause against their guilt as contemplated by cl. (2) 
of Art. 311 and intended that this clause shall not apply to their cases. 
Merely because the form of the order was expressed in the language used 
in the unamended Art. 311 (2) it did not detract from its effectivelli!ss as 
H 
operating to exclude the applicability of the amended .cl. (2) of Art. 311 
as a whole. The use of the words in conformity with the unamended 
article served to convey the same intention as was contemplated by tho 
478 
SUPREME COURT REPORTS 
[!971] SUPP. S.C.R· 
.A 
B 
c 
D 
E 
F 
G 
H 
amended article and the difference in the language which seemed to be iu· 
consequential did not have the effect of nullifying the impugned orders. 
The words 'as gated above' in the orders did not have the effect of restrict-
ing the ambit of the show cause notice to the question of penalty which 
may be imposed after the inquity into the unfitness of the appellants 
to be retained in the public service. [482C-H ; 483E-G] 
Khem Chand v._ Union of lildia & Ors. [1958] S.C.R. 1 Secretary of 
State for India v. J.M. Lall, [1945] F.C.R. 10 and High Commissioner for 
India v. J.M. Lall, LR. (1948) 75 I.A. 225, referred to. 
Per Bhargava, J. (dissenting) The '"action proposed as stated aoove'' 
in the impugned orders clearly was the order in1posing the penalty of dis~ 
missal from service. ln the order itself preceding the recording of the 
satisfaction there was no other action proposed, except the action of dis-
missal from service. The satisf:.:i.ctian recorded by the Governor

Excerpt shown. Read the full judgment & AI analysis in Lexace.