Ramachandra Rao, J.@mdashIn this writ petition the petitioner who was Deputy Registrar of Co-operative Societies in the State of Andhra Pradesh seeks the issue of a writ of certioari to call for the records relating to G.O. Ms. No. 469. Planning and Co-operation (Co-op. II) Department dated 16-8-1973 dismissing him from service and to quash the same. The petitioner was directly recruited as Deputy Registrar of Co-operative Societies in the Co-operative Service of the State of Andhra Pradesh after selection by the Andhra Pradesh Public Service Commission in 1965. He joined the said post on 5-9-1965 at Guntur. The Government of Andhra Pradesh referred certain allegations of corruption against the petitioner to the Tribunal for Disciplinary Proceedings for enquiry and report. The Tribunal framed the following four charges against the petitioner relating to the period 5th September, 1965 to 12th, September, 1966 when he worked as Deputy Registrar of Co-operative Societies at Guntur.
Charge No 1. That you while working as Deputy Registrar of Co-operative Societies, Guntur, from 5-9-1965, to 12-9-1966 in abuse of your official position and actuated by corrupt motives, demanded and obtained an illegal gratification of Rs. 300/- on 6th or 7th March, 1966 from Sri. M. Veerachari, for appointing him as Junior Inspector of co-operative Societies in your office.
2. That you while working as Deputy Registrar, Co-operative Societies, Guntur, in abuse of your official position and actuated by corrupt motives, demanded and obtained an illegal gratification of Rs. 500/- in April, 1966 for appointing Sri. Veerabhramachari, as lower division clerk in your office.
3. That you while working as Deputy Registrar of Co-operative Societies in abuse of your official position, showed under favour to Kumari Sarojini Devi (whose name was not recommended by the Employment Exchange) by appointing her as a typist, ousting Sri. A.V. Subbaraju, though the latter was appointed only a week earlier without any reasons.
4. That you while working as Deputy Registrar of Co-operative Societies, in abuse of your official position, identified yourself with Sarvasri Godda Venkata Rattayya and Batula Rattayya, Directors of Malkapuram Large Sized Co-operative Society by passing orders on the Election Petitions in their favour, in January and May, 1966 contrary to the rules governing the functioning of Co-operative Societies, outlined in the Andhra Pradesh Co-operative Societies, Act. 1964 and in violation of Rule 3 (1) of Government Servants Conduct Rules, 1964.
2. On these charges, the petitioner submitted his explanation. Sixteen witnesses were examined in support of the charges. The Tribunal on a consideration of the entire evidence held that the charges were proved and submitted its report to the Government. The matter was also referred to the Vigilance Commission which accepted the report of the Tribunal. Thereafter the Secretary to Government issued a provisional show cause notice through Memorandum No. 187/ Co-Operation II/69-4 dated 15-5-1969 why the punishment of dismissal should not be imposed on the petitioner. As the Petitioner was not furnished with a copy of the report of the Vigilance Commission and the recommendations of the Tribunal, he filed Writ Petition No. 3780/1969 for quashing the said notice, and the same was quashed by this court on 10-9-1971 observing that the Government was at liberty to issue a fresh show cause notice in accordance with law. Thereafter the Government issued a fresh show cause notice in its Memorandum No. 4562/ Co-Op. 11/69, 41 dated 11-4-1972 to show cause why the punishment of dismissal should not be imposed on the petitioner, and a copy of the report of the Tribunal, the recommendation made by the Tribunal and the report of the Vigilance Commission containing its recommendations were furnished to him.
3. The petitioner submitted his explanation to the said notice and the Government after considering the report of the Tribunal and the explanation of the petitioner accepted the findings and the report of the Tribunal and passed the impugned order in G.O. Ms. No. 469 Planning and Cooperation (Co-Op. II) Department dated 16-8-1973 dismissing the petitioner from service. It is this order that is now challenged in this writ petition.
4. Four contentions have been urged by Sri, H.S. Gururaja Rao learned counsel for the petitioner.
5. The first contention is that provisional show cause notice issued on 11-4-1972 was signed by the Deputy Secretary to Government, that the authority competent under the rules to impose the penalty of dismissal, is the State Government that the State Government alone was competent to arrive at the provisional conclusion and that it could not be delegated to the Deputy Secretary to Government and therefore the provisional show cause notice dated 11-4-1972 was illegal and without jurisdiction.
6. The second contention urged is that after the promulgation of the President''s rule by the proclamation dated 18-1-1973 by the President of India, it is the Governor to whom the powers were delegatey by the President that could exercise the powers of the Government with regard to dismissal of the petitioner from service, that the order of dismissal was passed by the Secretary to Government and confirmed by Sri. V. K. Rao, Adviser to the Governor and that they were not competent in law to pass the impugned order of dismissal and therefore it is illegal and without jurisdiction.
7. The third contention is that the petitioner was not given a reasonable opportunity of making his representation and therefore the provisions of Article 311 of the Constitution are violated.
8. The fourth contention is that on the evidence before it, the Tribunal should have held that the charges were not proved.
9. So far as the first contention is concerned, the learned Government Pleader has produced the record before us. It shows that the provisional show cause notice dated 11-4-1972 was issued after the same was approved by the concerned Minister. The learned counsel for the petitioner therefore did not press the contention that the provisional show cause notice was not valid.
10. The third and fourth contentions, that the petitioner was not afforded reasonable opportunity to make his representation or to adduce necessary evidence and that the evidence on record does not prove the charges, cannot be accepted.
11. The record shows that the petitioner has been afforded full and reasonable opportunity to adduce necessary evidence and that earlier, when the provisional show cause notice was quashed on the ground that the report of the Vigilance Commission was not furnished to the petitioner this Court quashed the said notice giving liberty to the Government to take proceedings afresh from that stage in accordance with law. Thereafter the petitioner was furnished with the report of the Tribunal and its recommendations and also the report of the Vigilance Commission. The petitioner submitted his explanation. This he has been afforded adequate and ample opportunity to make his representations and also to adduce necessary evidence. It is not the case of the petitioner that any statutory rule has been violated in conducting the enquiry. There is therefore no merit in the contention that the petitioner was not given a reasonable opportunity. Further the Tribunal''s findings on the charges are based on the relevant evidence and supported by the said evidence and they were accepted by the Government. This Court cannot sit as a Court of appeal and reweigh or reassess the evidence in a proceeding under Article 226 of the Constitution. The contentions that the petitioner was not given a reasonable opportunity or that the evidence does not establish the charges, have to be rejected.
12. Now we shall take up the second of the contentions which was strongly pressed by the learned Counsel Sri. H. S. Gururaja Rao, before us. The argument of the learned Counsel ran thus :-- The petitioner having been appointed by the State Government, it is only that authority that could impose the punishment of dismissal by reason of Article 311 (1) of the Constitution. The order of dismissal was passed by Sri. V. K. Rao, Adviser to the Governor who was an authority subordinate to the Government and therefore it violated Article 311 (1) of the Constitution. Further the State of Andhra Pradesh came under President''s rule by the Proclamation made by the President in G.S.R. 13 (E) dated 18-1-1973, in and by which the President had assumed all the powers of the State Government and the Governor and by the Presidential notification GSR. 14 (E) dated 18-1-1973 the President delegated all the powers assumed by him to the Governor and therefore the Governor could not have further delegated the power by making a rule under Article 166 (3) of the Constitution and hence the impugned order passed by the Adviser is unconstitutional illegal and void.
13. This argument was met by the learned Advocate-General appearing for the State Government in two ways. Firstly, he submits that though the President had assumed all the powers of the State Government and the Governor by the proclamation made under Article 356 of the Constitution, he had by a further notification directed that all functions of the Government of the State and all the powers vested in or exercisable by the Governor of the state under the Constitution or under any law in force in the State, should be exercised by the Governor subject to the superintendence, direction and control by the President and therefore the Governor could validly make a rule in exercise of the constitutional power conferred on him by the first part of Article 166 (3) of the Constitution and confer power on the Advisor to transact the business of the Government of the State. The order passed by the Adviser in exercise of such a power constitutes the order of the Government and therefore it cannot be said that the impugned order of dismissal was passed by an authority subordinate to the Government.
14. Secondly it is submitted by the learned Advocate-General that when once the order of dismissal was expressed to be passed in the name of the Governor and is duly authenticated in accordance with the provisions of Article 166 (1) and (2) of the Constitution, its validity cannot be questioned on the ground it was not passed by the Governor personally.
15. We think both the submissions made by the learned Advocate-General have to be accepted for the following reasons. With effect from 18-1-1973, the State of Andhra Pradesh came under President''s rule. The relevant portions of the proclamation made by the President in G.S.R. No. 13(E) dated 18-1-1973 read as follows :--
Whereas I. V. V. Giri, President of India have received a report from the Government of the State of Andhra Pradesh and after considering the report and other information received by me, am satisfied that a situation has arisen in which the Government of the state cannot be carried on in accordance with the provisions of the Constitution of India hereinafter referred to as ''the Constitution''
16. Now, therefore, in exercise of the powers conferred by Article 356 of the Constitution and of all other powers enabling me in that behalf, I hereby proclam that, I.
(a) assume to myself as President of India all functions of the Government of the said State and all powers vested in, or exercisable by, the Governor of that State ;
(b) declare that the powers of the Legislature of the said State shall be exercisable by or under the authority of Parliament and
(c) make the following incidental and consequential provisions which appear to me to be necessary or desirable for giving effect to the objects of this proclamation, namely:
i) in the exercise of the functions and powers assumed to myself by virtue of clause (a) of this proclamation as aforesaid, it shall be lawful for me as President of India to act to such extent as I think fit through the Governor of the said State.
ii) the operation of the following provisions of the Constitution, in relation to that State is hereby suspended, namely:
xx xx xx
Articles 163 and 164: --
So much of clause (3) of Article 166 as relates to the allocation among the Ministers of the business of the Government of the State.
xx xx xx
17. Under clause (a) of this Proclamation, the President assumed all functions of the Government of the Andhra Pradesh State and all powers vested in, or exercisable by the Governor of the State. Under clause (c), certain incidental and consequential provisions which appeared to the President to be necessary or desirable for giving effect to the objects of the Proclamation, were made. Sub-Clause (i) of Clause (c) provides that in the exercise of the functions and Powers assumed by him by virtue of clause (a) of the said proclamation, it shall be lawful for him as President to act to such extent as be thought fit though the Governor of the State. Further under sub-clause (ii) of Clause (c), the operation of several Articles including Articles 163 and 164 and so much of clause (3) of Article 166 as related to the allocation among the Ministers of the business of the Government of the State, was suspended. It has to be noticed that Article 154 (1) which provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution, was not suspended.
18. In the further Notification made in GSR. 14 (E) dated 18-1-1973 by the president in pursuance of sub-clause (1) of clause (c) of the Proclamation in GSR. No. 13 (E) 18-1-1973, the extent to which the President would exercise the functions and the powers assumed by him by virtue of clause (a) of the Proclamation was indicated. The said notification reads as follows:-
In pursuance of sub-clause (1) of clause (c) of the proclamation issued on this the 18th day of January, 1973, by me under Article 356 of the Constitution of India. I hereby direct that all the functions of Government of the State of Andhra Pradesh and all the powers vested in or exercisable by the Governor of that State under the Constitution or under any law in force in that State, which have "been assumed by the President by virtue of clause (a) of the said Proclamation shall, subject to the superintendence, direction and control of the President, be exercisable also by the Governor of the said State."
19. By this Notification, the Governor is empowered to exercise all the powers of the Governor vested in him under the Constitution or under any law in force in the State, but subject to the superintendence, direction and control of the President. While under the Proclamation, all the functions of the Government of the State and all the powers vested in the Governor were assumed by the President, by the Notification in GSR. No. 14 (E) dated 18-1-1973, the powers so assumed by him were re-conferred on the Governor. Thus the Governor could exercise all the functions of the Government and all the powers exercisable by him as the Governor of the State under the Constitution or under any law in force in the State. As the first part of Article 166 (3) of the Constitution which empowers the Governor to make rules for the more convenient transaction of the business of the Government of the State, was not suspended, the Governor had the requisite power to make rule for the convenient transaction of the business of the Government of the State.
20. In G.O. Ms. No. 29 General Administration (Special) Department dated 24-1-1973, the President created two posts of Advisers to the Governor for the period during which the President''s Proclamation would remain in force, and appointed Sri. V.K. Rao, ICS and Sri. H. C. Sarin ICS. as Advisers to the Governor of Andhra Pradesh with effect from 19-1-1973.
21. In G.O. Ms. No. 30 General Administration (Services-C) Department, dated 24-1-1973, the Governor made rules in pursuance of the Presidential Order GSR. 14 (E) read with Article 166 (3) of the Constitution. The relevant portion of the rules reads as follows :--
During the period the proclamation issued on the 18th January, 1973 by the President of India under Article 356 of the Constitution is in force in the State of Andhra Pradesh, the Business Rules and the Secretariat Instructions of the Government of Andhra Pradesh shall be adopted subject to the following modifications, namely:-
(i) that cases which require circulation to the Ministers concerned, shall be circulated to the Governor''s advisers in accordance with the allocation of subjects indicated in the appendix.
(other portion of the rules omitted as not relevant).
22. By this rule, the Advisers are conferred the power to dispose of cases which were hitherto circulated to the Ministers. As the State had come under President''s rule and as there was no Council of Ministers, Articles 163 and 164 of the Constitution were also suspended by the Presidential Proclamation; and in order to arrange for the convenient transaction of the business of the Government, the relevant business rules had to be suitably amended by the Governor in exercise of the powers conferred on him by the Presidential Notification GSR. No. 14 (E) dated 18-1-1973, read with Article 166 (3) of the Constitution. The Governor further made a rule in exercise of the said power in G.O. Ms. No. 170 General Administration (Services C) Department dated. 10-4-1973 inserting Rule (1-A) in the rules made in G.O.Ms. No. 30 dated 24-1-1973. The said Rule (1-A) reads as follows:-
(1-A) that powers exercisable by the Minister concerned shall be exercised by the Governor''s Adviser concerned.
23. This rule expressly conferred power on the Adviser to exercise all the powers exercisable by the Minister concerned. It is in pursuance of this power that Sri. V.K. Rao, as Advisor to the Governor passed the impugned order. The order passed by the Adviser in exercise of a valid rule made by the Governor under Article 166 (3) of the Constitution read with the Presidential Notification GSR. 14 (E) dated 18-1-1973, is the order of the Governor in whom all the functions of the State Government were also vested by reason of the Presidential Proclamation GSR. 13 (E) and Article 166 of the Constitution of India. Therefore there is no force in the contention of the learned counsel for the petitioner that the impugned order of dismissal was passed by an authority subordinate to the Government and that the provisions of Article 311 (1) of the Constitution were not complied with.
24. The contention of Sri. H.S. Gururaja Rao, is that under the Presidential Proclamation, the President had assumed all the powers of the Government of the State and also of the Governor, that by the subsequent notification, the President constituted the Governor, as his delegate and that the Governor acted only as the Agent of the President and therefore the Governor could not have sub-delegated the said power to an officer subordinate to him.
25. But this argument is based on a fallacy inasmuch as it is based on a wrong assumption that the Governor acted as a delagate of the President. It has to be noticed that by the Proclamation, the President assumed all the functions of the Government and of the Governor ; but under Clause (c), the President could make incidental or consequential Provisions including suspending in whole or in part the operation of any provisions of the Constitution relating to any body or authority in the State. Thus for giving effect to the Proclamation, the President could make incidental and consequential provisions, the legality or validity of which could not be challenged.
26. By the Presidential order G.S.R. 14 (E) dated 18-1-1973, the President directed that all the functions of the Government and all the powers vested in and exercisable by the Governor under the Constitution or under any law in force in the State, shall also be exercisable by the Governor subject to the superintendence, direction and control by the President. In exercise of the Constitutional power vested in the Governor under Article 154 and first part of Article 166 (3) of the Constitution, the Governor could validly make rules for the convenient transaction of the business of the Government of the State. There is therefore no question of delegation of any powers by the President to the Governor. But the Governor exercised the constitutional power vested in him under the provisions of the Constitution, which were not suspended. In other words, the Governor exercised the powers both under the Presidential Proclamation read with the notification, and also under the provisions of the Constitution which had not been suspended. There is no force in the submission of the learned counsel for the petitioner that the Governor acted as a delegate when exercising the powers and functions of the State Government and the Governor under the Presidential Notification G.S.R. 14 (E) read with Articles 154 and 166 (3) of the Constitution. If so, it follows that the Governor can in valid exercise of the power under the first part of Article 166 (3) of the Constitution, make rules for the transaction of the business of the Government of the State, and duly empower officers subordinate to him for discharging his executive or statutory functions which constitute the business of the Government of the State.
27. This view is well - settled by two recent judgments of the Supreme Court. In
28. The learned Judge referred to the following ruling in
The cabinet is responsible to the legislature for every action taken in any of the ministers. "That is the essence of joint responsibility. That does not mean that each and every decision roust be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the ministers to discharge all or any of the Governmental functions. Similarly an individual minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard working minister cannot attend to every business in his department. If he attempts to do it, he is bound to make a mess of his department. In every well planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as delegate of his minister. He does it on behalf of the Government, It is always open to a minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the ''Rules'' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates.
29. Again at page 1107, the learned Judge observed as follows :-
As mentioned earlier in the very nature of things, neither the Council of Ministers nor an individual minister can attend to the numerous matters that come up before the Government. Those matters have to be attended to and decisions taken by various officials at various levels. When those officials discharge the functions allotted to them, they are doing so as limbs of Government and not as persons to whom the power of the Government had been delegated. In Halsbury Laws of England Vol. 1 3rd Edn. at p. 170, it is observed :-
Where functions entrusted to a minister are performed by an official employed in the minister''s department, there is in law no delegation because constitutionally the act or decision of the official is that of the minister.
30. The learned Chief Justice also referred to one of the earliest authorities in
31. These rulings clearly establish that when the Governor allocates the business of the Government by making appropriate rules under Article 166 (3) of the Constitution and designates an official to exercise the executive power the officer so empowered acts only as a limb of the Government and the order made by him is an order made on behalf of the Governor or the Government as the case may be and therefore it cannot be said that there is any delegation of power.
32. Sri. Gururaja Rao, relies upon the decision of Obul Reddi, J. as he then was reported in Ramachandra Naidu v. Government of A.P. 1974 (I) An. W.R. 333.
33. But in that case, the Adviser to the Governor further delegated the power to the Secretary to Government by making a rule and therefore it was held to be bad. Moreover there is no question of conferring on the Adviser any powers which are vested in the Council of Ministers under the Constitution. Under Article 154 (1) of the Constitution, the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution, where there is no Council of Ministers and the Governor has to exercise the executive power which includes the statutory power, that power has to be exercised by him or by empowering an officer subordinate to him by making a business rule in exercise of the power under the first part of Article 166 (3). The Government did not purport to confer any Constitutional power vested in the Council of Ministers under the Constitution but only certain statutory powers which also constitute executive power.
34. In the Judgment of the Division Bench of this Court consisting of Gopal Rao Ekpote C.J., and Lakshmaiah, J. (W.P. No. 4193/73 etc., batch dt. 20-8-1973), it was contended that the Governor could not have allocated power to make enquiries u/s 68-D of the Motor Vehicles Act, by making a rule under Article 166 (3) of the Constitution while Presidential Proclamation was in force.
35. That contention was repelled by the learned Judges, observing as follows :--
It is evident that the Governor under the Proclamation and under this Article can make rules. Such rules can require the Home Secretary to make inquiries u/s 68Dof the Motor Vehicles Act. There is therefore, in fact, no question of any allocation of any business. The Governor''s power is of legislative character. In the discharge of his legislative function, he can validly make a rule by and under which the Home Secretary is to carry on the inquiries. It would be a statutory obligation on the part of the Home Secretary to conduct inquiries. There is no question of any delegation of any function of the Governor nor the Home Secretary can be said to be an agent of the Governor. He is part of the Government machinery. He is alter ego of the Governor. He is discharging his statutory duty cast on him under the validly made rule. That the Governor can make such a rule was neither doubted nor disputed before us. If that is so, then no question of allocation of any business can really arise.
We have no doubt that even otherwise rules allocating business of the Government amongst Government Officers can validly be made by the Governor under the Proclamation read with first part of Article 163 of the Constitution.
36. These authorities clearly show that the rule made by the Governor empowering the Adviser to exercise the powers which were hither to exercised by the Minister concerned, is valid and that the order made by the Adviser in exercise of such powers is an order of the Governor himself in whom the powers of the State Government and of the Governor were vested by virtue of the Presidential Proclamation, and also the Constitutional provisions which were not suspended, and that therefore the impugned order does not infringe the provisions of Article 311 (1) of the Constitution.
37. Further as rightly submitted by the learned Advocate General the impugned order of dismissal is properly expressed to be issued in the name of the Governor and duly authenticated by the Secretary to Government empowered in that behalf, and therefore the Constitutional requirements of Clauses (1) and (2) of Article 166 are satisfied and its validity cannot be challenged on the ground that it was not made by the Governor vide
