Bachhittar Singh vs The State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 155 of 1961

Decision Date: 7 March 1962

Coram: J.R. Mudholkar, Bhuvneshwar P. Sinha, N. Rajagopala Ayyangar

In this case, the Court recorded that the petitioner, Bachhittar Singh, had originally been appointed as a qanungo in the erstwhile state of Patiala and East Punjab States Union (Pepsu) and later as an Assistant Consolidation Officer. After complaints were lodged against him, an enquiry was conducted, and the Revenue Secretary dismissed him from service. The petitioner appealed the dismissal to the State Government of Pepsu. The Revenue Minister of Pepsu wrote a note on the file stating that a dismissal would be too severe and that the petitioner should instead be reinstated as qanungo; however, no formal written order effecting that reinstatement was ever served on the petitioner. Following the merger of Pepsu with the State of Punjab, the Revenue Minister of Punjab forwarded the file to the Chief Minister with the remark “C.M. may kindly advise.” The Chief Minister then issued an order confirming the dismissal, and that order was duly communicated to the petitioner. The petitioner challenged the Chief Minister’s order, contending that the Chief Minister could not review the Revenue Minister’s earlier note and that the Chief Minister lacked competence to decide a matter that fell within the portfolio of the Revenue Minister. The Court held that the Revenue Minister’s note could not be regarded as an order of the State Government unless it was executed in the name of the Rajpramukh as required by Article 166(1) of the Constitution and subsequently communicated to the petitioner. Until such communication occurred, the note remained only of a provisional character and could be reconsidered at any time; consequently, before communication it was binding on neither the petitioner nor the State Government. The Court referred to the earlier decision in State of Punjab v. Sodhi Sukdev Singh, A.I.R. (1961) 2 S.C.R. 371, for support. Further, the Court concluded that the Chief Minister of Punjab was competent to consider the appeal and to pass the final order, which he duly did. Although Rule 25 of the Punjab Government’s Rules of Business indicated that the matter related to the Revenue Minister’s portfolio, the Court observed that under Rule 28(1)(ii) and (xix) cases involving policy questions or administrative importance could be referred to the Chief Minister, and thus the referral was proper. Consequently, the order passed by the Chief Minister, even though it pertained to the Revenue portfolio, was deemed an order of the Council of Ministers under Rule 4, representing the Chief Minister’s advice to the Governor, for which the Council of Ministers would be collectively responsible. The Court also emphasized that departmental proceedings against a public servant constitute a single continuous proceeding, not divisible into separate enquiry and action stages, and that any order imposing disciplinary action is a judicial order that cannot be varied arbitrarily by an authority.

Rule 28(1)(ii) and (xix) of the Rules of Business state that any matter that raises a question of policy, any matter of administrative importance, or any other class of cases that the Chief Minister considers necessary must be referred to the Chief Minister. In view of that provision, the present matter was correctly referred to the Chief Minister. Rule 4 further provides that an order issued by the Chief Minister, even when it relates to the subject matter of another minister’s portfolio, is to be treated as an order of the Council of Ministers. Consequently, the order made by the Chief Minister was the advice of the Chief Minister to the Governor, for which the entire Council of Ministers was collectively responsible, and any action taken on the basis of that advice was deemed the action of the Government. The Court also observed that departmental proceedings cannot be split into two separate parts, namely an enquiry and a subsequent action; rather, they constitute a single continuous proceeding that proceeds through two stages. When a public servant is found guilty of misconduct and an action is decided against him, that action constitutes a judicial order, and such an order cannot be altered arbitrarily by the authority concerned.

The judgment concerned Civil Appeal No. 155 of 1961, which was filed by special leave against the judgment and order dated 5 January 1959 of the Punjab High Court in Civil Writ Application No. 460 of 1957. Counsel for the appellant were I. M. Lal and M. L. Aggarwal, while the State of Punjab was represented by counsel for the State. The appeal was heard on 7 March 1962, and the judgment was delivered by Justice Mudholkar. The appellant had been appointed as a qanungo in the former State of PEPSU in 1950 and was promoted to Assistant Consolidation Officer on 1 December 1953. After complaints were received alleging tampering with official records, the appellant was suspended and an enquiry was conducted by the Revenue Secretary of the PEPSU Government. The enquiry concluded that the appellant was not trustworthy and was unfit for continued service, and the Revenue Secretary dismissed him by order dated 30 August 1956. That order was communicated to the appellant, who then filed an appeal before the State Government. The appellant apparently submitted an advance copy of his appeal to the Revenue Minister of PEPSU, who immediately called for the case records. After reviewing the records, the Revenue Minister entered a note on the file stating that the charges against the appellant were serious and proved, and that a strong response was necessary. However, the Minister also expressed the view that, because the appellant was a refugee with a family to support, dismissing him outright would be unduly harsh; instead, the Minister suggested reinstating him to his original post of qanungo and issuing a warning that further misconduct would be dealt with severely.

On the next day the State of PEPSU merged into the State of Punjab. The appellant asserted that the comments recorded by the Revenue Minister of PEPSU constituted an order of the State Government and that those comments had been communicated to him orally by the Minister. The State denied that any such oral communication took place. Both parties agreed, however, that the remarks or order, whichever they were, had never been formally communicated to the appellant. After the merger, the case file was placed before the Revenue Minister of Punjab, Mr. Darbara Singh. On 1 December 1956, Mr. Darbara Singh entered a note on the file stating, “Serious charges have been proved by the Revenue Secretary and Shri Bachhittar Singh was dismissed. I would like the Secretary in charge to discuss the case personally on 5 December 1956.” Later, on 2 April 1957, the Minister added the comment, “C.M. may kindly advise.” Following this entry, the file was forwarded to the Chief Minister of Punjab, who, on 16 April 1957, issued an order whose concluding portion read: “Having regard to the gravity of the charges proved against this official, I am definitely of the opinion that his dismissal from service is a correct punishment and no leniency should be shown to him merely on the ground of his being a displaced person or having a large family to support. In the circumstances, the order of dismissal should stand.” This order was communicated to the appellant on 1 May 1957. Subsequently, the appellant filed a petition under Article 226 of the Constitution, which was dismissed by the Punjab High Court. The validity of the Revenue Secretary’s dismissal order was not questioned before this Court. The issue raised before us is whether the Chief Minister of Punjab could review the order of the Revenue Minister of PEPSU, which had reduced the punishment from dismissal to reversion. Two grounds support the contention. The first ground argues that the Revenue Minister’s order was an order of the State Government and therefore was not subject to review. The second ground contends that, even if review were permissible, the Chief Minister lacked jurisdiction because the matter fell within the Revenue Minister’s portfolio. Before addressing these grounds, it is appropriate to note that the High Court held that the proceedings against the appellant comprised two distinct parts: (a) the enquiry, which involved determining whether the allegations against the appellant were true, and (b) the subsequent action, which involved deciding what punishment, if any, should be imposed once the allegations were found to be true. According to the High Court, the first part dealt with evidence and could be described as a judicial determination, whereas the second part was an administrative decision.

It was observed that the portion of the proceeding described by the High Court as purely administrative was, in fact, not separate from the judicial component, and there was no justification for holding that the State Government lacked competence to modify its decision “if it thought administratively advisable to do so.” The view expressed by the High Court concerning the nature of the second part of the proceedings could not be accepted. Departmental proceedings against a Government servant were held not to be divisible in the manner suggested by the High Court; rather, they constitute a single continuous proceeding that proceeds through two stages. The first stage involves reaching a conclusion on the evidence to determine whether the charges alleged against the Government servant are established. The second stage follows only when the charges are found to be established and concerns the action to be taken against the servant. While the High Court correctly recognized that the first stage is a judicial proceeding, this must be so because charges must be framed, notice must be issued, and the individual must be given an opportunity to be heard. Even with respect to the second stage, Article 311(2) of the Constitution mandates that a notice and an opportunity of being heard be provided to the person concerned, rendering this stage no less judicial than the first. Consequently, any action decided against a Government servant found guilty of misconduct is a judicial order and cannot be varied at the will of the authority empowered to impose punishment. The purpose of requiring notice on the question of punishment is to ensure that any penalty imposed is justified by the established charges and the attendant circumstances of the case. Accordingly, it is wholly erroneous to characterize the taking of action against a person found guilty of any chargo at a departmental enquiry as an administrative order. The matter now before the Court was the effect of the note recorded by the Revenue Minister of PEPSU on the file, which is assumed for the purposes of this case to be an order. The remaining question was whether that note could be regarded as an order of the State Government, which alone, as admitted by the appellant, was competent to hear and decide an appeal from the order of the Revenue Secretary. Article 166(1) of the Constitution requires that all executive action of a State Government be expressed in the name of the Governor. Clause (2) of Article 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor, and Clause (3) empowers the Governor to make rules for the more convenient transaction of Government business and for the allocation of functions among Ministers.

The Court observed that the appellant’s characterization of the note recorded by the Revenue Minister as an order of the State Government was not expressed in the name of the Governor, a point that would be addressed subsequently. The first issue to be resolved, the Court said, was whether the note of the Revenue Minister could be treated as an order of the State Government, that is, an order issued in the name of the Governor. In examining this question, the Court referred to rule 25 of the Rules of Business of the Government of PEPSU, which provided that, except as otherwise provided by any other rule, cases were ordinarily to be disposed of by or under the authority of the minister in charge, who could, by means of standing orders, give such directions as he thought fit for the disposal of cases in the department, and that copies of such standing orders were to be sent to the Rajpramukh and the Chief Minister. Counsel for the appellant submitted that the appeal concerned a department placed under the Revenue Minister, and therefore the Revenue Minister was competent to deal with it, and that any decision and order of the Revenue Minister would consequently be a decision and order of the State Government. On the other side, the State relied upon rule 34, which required certain classes of cases to be submitted to the Rajpramukh and the Chief Minister before the issuance of orders. It was, however, conceded during argument that the case presently before the Court did not fall within the ambit of rule 34. No other provision bearing on the point was brought to the Court’s notice, and consequently the Court held that the Revenue Minister could, in principle, make an order on behalf of the State Government. The next question, the Court continued, was whether the Revenue Minister actually made such an order. The Court explained that merely writing something on the file did not amount to an order. For a writing to constitute an order of the State Government, two conditions were necessary: the order had to be expressed in the name of the Governor as required by clause (1) of Article 166 of the Constitution, and the order had to be communicated. The Court noted that no formal order modifying the decision of the Revenue Secretary had ever been made, and until such an order was drawn up, the State Government could not be regarded as bound by the statement recorded in the file. While the matter remained with the Revenue Minister, the Court observed, the minister could merely score out remarks or minutes on the file and could write fresh notes. The Court further explained that the business of the State was complex and necessarily conducted through the agency of a large number of officials and authorities. Accordingly, the Constitution, and the Rules of Business framed by the Rajpramukh of PEPSU, required that action be taken by the authority concerned in the name of the Rajpramukh. Only after this formality was observed could the action be regarded as that of the State or, in this context, of the Rajpramukh.

In this case, the Court observed that the head of a State, whether the Governor or the Rajpramukh, functions only as an adviser and must act on the aid and advice of the Council of Ministers. Consequently, any statement made by a Minister or by the Council of Ministers does not become the official action of the State until that advice is accepted, or is deemed to have been accepted, by the Governor or the Rajpramukh. The Court pointed out that a Minister or the Council of Ministers may at one stage express a particular view and later express a completely opposite view on the same matter; such a shift raises the question of which view can be regarded as the “order” of the State Government. The Court therefore held that an opinion can amount to a decision of the Government only when it is communicated to the person concerned. To illustrate this principle, the Court quoted from the judgment in State of Punjab v. Sodhi Sukhdev Singh, where it was observed that even if the Council of Ministers had provisionally decided to reinstate a respondent, that provisional decision would not bind the Council from reconsidering the matter and reaching a contrary conclusion later. A final decision must be communicated to the Rajpramukh in the form of advice and must be acted upon by the Rajpramukh by issuing an order to the respondent. The Court stressed that the essential requirement is that an order must be communicated to the person who will be affected before the State can be bound by that order. Until such communication occurs, the matter remains open to repeated consideration by the Council of Ministers and any purported order remains merely provisional.

Having established the need for communication, the Court expressed the opinion that the remarks or the order issued by the Revenue Minister of PEPSU were of no avail to the appellant because they had not been communicated as a final order. The Court then turned to the appellant’s next contention, which argued that the appeal had not been decided by the Revenue Minister of Punjab, Mr. Darbara Singh, but by the Chief Minister, Mr. Pratap Singh Kairon, who allegedly lacked jurisdiction to decide it, and therefore the appeal should be considered still pending. The appellant relied upon rule 18 of the Rules of Business framed by the Governor of Punjab, which the appellant submitted corresponded to a similar provision in the PEPSU rules. The Court noted this reliance and prepared to examine whether the invocation of rule 18 altered the jurisdictional analysis, keeping in mind the earlier principle that a final decision must be communicated to the appropriate authority and the person affected before it can bind the State.

The rule numbered 25 of the PEPSU Rules provided that, except where any other rule stipulated otherwise, cases should ordinarily be disposed of by or under the authority of the minister in charge, who could, by means of standing orders, give such directions as he thought fit for the disposal of cases in the department, and that copies of such standing orders were to be sent to the Chief Minister and the Governor. It was undisputed that the matter in question fell within the portfolio of the Revenue Minister. Nevertheless, the Revenue Minister, after reviewing the file, forwarded it to the Chief Minister for advice. Counsel for the appellant argued that the Chief Minister could therefore only advise the Revenue Minister and could not usurp the Revenue Minister’s jurisdiction by deciding the case himself. That argument, however, overlooked rule 28(1) of the Punjab Rules of Business, part of which read that the following classes of cases were to be submitted to the Chief Minister before the issue of orders: (ii) cases raising questions of policy and cases of administrative importance not already covered by the Schedule; (vii) proposals for the prosecution, dismissal, removal or compulsory retirement of any gazetted officer; and (xix) such other cases or classes of cases as the Chief Minister might consider necessary. The learned Advocate‑General submitted that the present case fell within every one of those clauses. In the view of the Court, clause (vii) did not apply because the State did not contend that the appellant was a gazetted officer. Clause (ii), however, clearly entitled the Chief Minister to make an order of the nature he had made here, since the question to be considered was whether, despite the grave charges proven against an official, the official should be removed from service immediately or merely reduced in rank. This question undeniably raised a policy issue that would affect many cases and the various departments of the State, and therefore the Chief Minister was within his rights to call up the file of his own accord and pass orders thereon. Although the rule did not expressly state that the Chief Minister could pass orders, the permission to call for the file before the issue of orders implied that the Chief Minister possessed the authority to interfere and to make such an order as he deemed appropriate. Clause (xix) further conferred a wide discretion on the Chief Minister to call for any file and deal with it himself. In addition, rule 4 of the Rules of Business of the Punjab Government provided that the Council was collectively responsible for all executive orders issued in the name of the Governor in accordance with those rules, whether such orders were authorised by an individual minister on a matter pertaining to his portfolio or were the result of discussion in a meeting of the Council, or otherwise.

In the judgment, the Court explained that an order issued by the Chief Minister, even though it related to a subject within the Revenue Minister’s portfolio, is treated as an order of the Council of Ministers. Consequently, the substance of that order is regarded as the Chief Minister’s advice to the Governor, and the entire Council of Ministers bears collective responsibility for it. The Court further observed that any action taken under rule eight of the Rules of Business by the Governor, pursuant to Article 166(3) of the Constitution, is consequently deemed to be the action of the Government itself. The Court then turned to the material placed before it, noting that the Under Secretaries to the Government of Punjab had written to the appellant on 1 May 1957, informing him that his representation had been considered and rejected by the State Government. This communication demonstrated that the appropriate procedural step under the relevant rule had been completed. On the basis of this finding, the Court concluded that the appellant’s appeal lacked any substantive ground and therefore dismissed it. Recognising that the appellant was a displaced individual carrying heavy responsibilities and possessing little or no financial means, the Court directed that the costs of the proceedings be borne by the parties concerned. The appeal was consequently dismissed.