Judgment

P. K. GOSWAMI, J.:- This appeal by special leave is directed against the judgment of the Division Bench of the High Court of Calcutta of December 13, 1973 reversing the judgment of the learned single Judge who had earlier found no infirmity in the impugned order of dismissal of the first respondent (hereinafter to be described as the respondent).

2. The respondent was a confirmed Appraiser with about eleven years service in the Customs Department in Class II of Gazetted Officers. On December 4, 1961, he was suspended and a charge-sheet was served upon him. The charges related to firstly taking illegal gratification, secondly possession of assets disproportionate to his disclosed income and thirdly purchase of a plot of land without sanction of the appropriate authority. The respondent was found guilty in the course of a departmental enquiry of the second and third charges and was exonerated with regard to the first charge. A second notice was served upon him on December 17, 1962, affording an opportunity to show cause why he should not be dismissed from service. Thereupon the respondent preferred an application under Article 226 of the Constitution in the High Court challenging the show cause notice and obtained a Rule. This Rule was disposed of by the High Court quashing the third charge and the Collector of Customs was directed to reconsider the appropriate penalty to be imposed on the surviving second charge. On February 3, 1964, the Collector of Customs passed an order dismissing the respondent basing on the second charge. The respondent preferred an appeal to the President of India under Rule 23(2)(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 (briefly the Rules). After consulting the Union Public Service Commission under Rule 30 (2) of the Rules, the President of India rejected the respondent s appeal.

3. On November 25, 1966. the respondent filed a petition under Art, 226 of the Constitution in the High Court challenging the validity of the dismissal order as well as the appellate order of the President. The learned single Judge allowed the writ petition on August 29, 1967. holding that the appellate authority decided the appeal without considering whether the drastic punishment of dismissal was excessive or not in violation of the provisions of Rule 30 (2) (c). The learned Judge, however, gave liberty to proceed with the appeal afresh. Thereafter the Minister in the Ministry of Finance, Government of India, heard the appeal on March 28, 1969. Ultimately the respondent s appeal to the President of India was rejected on April 25, 1969 and the Under Secretary to the Government of India in the Finance Ministry communicated the order in the name of the President on May 9, 1969. The communication was in the following terms:

"I am directed to refer to your letter dated 2-4-1968 and 5-6-1969, containing your further submission in reply to the notice issued to you vide this Ministry s No. F-49/1/67-Ad, II dated 23-2-1968, and to say that the President has carefully considered the further submissions made by you in consultation with the Union Public Service Commission. The arguments advanced by you at the time of the hearing granted to you by Shri P. C. Sethi, Minister in the Ministry of Finance, on behalf of the President on 28-3-1969 have also been carefully considered by him. Upon consideration of all the facts and circumstances of the case the President has decided that the penalty of dismissal from service imposed on you by the Disciplinary Authority (viz the Collector of Customs, Calcutta is not excessive or severe and that your appeal should be rejected. The President hereby orders accordingly. A copy of the U. P. S. C s. letter No. F. 3/56/68-61 dated 26-10-1968 and a copy of the order passed by the Minister on behalf of the President are enclosed herewith."

4. The respondent in a third round of litigation challenged the above order in the High Court under Article 226 of the Const