The government's discretion to choose which set of rules to apply was arbitrary and discriminatory, violating Article 14 of the Constitution.

Judgment

SHAH, J. : Dhirendranath Das - respondent to this appeal - was appointed a lower Division Assistant in the Secretariat of the Government of Orissa. Later, the respondent was promoted as an Upper Division Grade I Assistant and was posted in the Commerce Department, and was at all material times a non-gazetted servant of the State. On November 27, 1953, by order of the Secretary to the Government of Orissa, Commerce Department, the respondent was placed under suspension pending an enquiry conducted by the S. P. Enforcement into cases of alleged manipulation of figures in the receipt registers maintained by certain employees in the commerce Department. By order of the Governor of Orissa, the case of the respondent along with the cases of certain other persons was referred for enquiry on January 23, 1954, to an Administrative Tribunal consisting of one P. K. Kapila, as sole member of the Tribunal, The Tribunal framed charges against the respondent and called upon him to show cause why he should not be dismissed from service. The respondent submitted his reply to the notice. The Tribunal held an enquiry and on September 28, 1954, recorded a finding that it was proved on the evidence that the respondent was guilty of the charges against him and recommended that he be dismissed from service. Notice was then issued to the respondent to show cause why the punishment proposed by the Tribunal should not be inflicted upon him. After considering the explanation submitted by the respondent, the Government of Orissa by order dated August 3, 1955, dismissed the respondent from service.

2. The respondent submitted a petition under Art. 226 of the Constitution of India to the High Court of Judicature, Orissa praying for a writ declaring illegal the order of dismissal passed against him and further declaring that he continued to remain "in the service of" the Government of Orissa. The High Court held that in directing the enquiry under the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 - hereinafter referred to for the sake of brevity as the "Tribunal Rules" instead of an enquiry under the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935 - hereinafter referred to as the "Service Rules" discrimination was practised against the respondent, and accordingly declared that cls. (a) and (b) of sub-r. (1) of R. 4 of the Tribunal Rules, 1951 in their application to non-gazetted Government servants infringed the guarantee under Art. 14 of the Constitution, and directed that the entire departmental proceedings against the respondent held by the Tribunal and the orders of punishment passed by the Government be declared inoperative, and further directed that the disciplinary proceedings against the respondent be restored to the stage which they had reached on November 27, 1953, before the case was referred to the Tribunal. Against the order passed by the High Court, this appeal has been preferred.

3. It is evident that under the Tribunal Rules, the enquiry is made by the Tribunal to whom the case is referred by the Governor. The findings of the Tribunal are merely in the nature of recommendations, which the Government may, but is not bound to, accept. The Government is however bound before passing final orders to consult the Public Service Commission. Under the Service Rules which apply to non-gazetted Government servants, an enquiry is held by the departmental head of the public servant concerned and there is a right of appeal to the authority immediately superior to the authority who imposes a penalty upon the public servant. The High Court on the materials placed before it held that at the material time, the Tribunal Rules and the Service Rules were simultaneously in operation and it was open to the Government to direct an enquiry against a non-gazetted public servant charged with misdemeanour under either set of rules, and that the Tribunal Rules were "less advantageous and more drastic than" the Service Rules