Article 311(1) of the Constitution prohibits dismissal of a civil servant by an authority subordinate in rank to the appointing authority.

Ramaswami, J.

1. In this case the petitioner Mahadev Prasad Roy has moved this Court for a writ in the nature of certiorari to quash the order of respondent No. 1, Mr. S.N. Chatterjee, Deputy Superintendent of the Bihar Government Press, dated 16-9-1953, dismissing the petitioner from service.

2. The petitioner was appointed as a lino-operator in the Government Printing Press, Gul-zarbagh, on 16-7-1928. The appointment was made by the Superintendent of the Government Printing Press. The petitioner was confirmed in service in 1931. He was promoted to be a lino-foreman in 1942. On 2-10-1951 the Deputy superintendent started proceedings against the petitioner on the allegation that the petitioner committed theft of lino-metal. A report was made to the police by one Lachminarain Lal, an employee of the Press, based upon the same facts. The police submitted charge-sheet against the petitioner under Sec.381, Penal Code. The case was tried before Mr. S.P. Varma, Judicial Magistrate. The defence of the petitioner was that the metal was planted upon him and the allegation of theft was false. By his judgment dated 26-3-1952 the Magistrate acquitted the petitioner of the charge.

Thereafter the petitioner wrote to the Deputy Superintendent stating that he had been acquitted of the charge and that he should be reinstated in service. On 10-7-1952 the Deputy Superintendent initiated a second proceeding against the petitioner based upon the same facts. The petitioner submitted explanation but the Deputy Superintendent considered that the charge of theft was proved against the petitioner and made an order dismissing him from service. The case of the petitioner is that the Deputy Superintendent had no jurisdiction to start the proceeding or to dismiss the petitioner from service. The contention on behalf of the petitioner is that there was a violation of Article 311 (1) of the Constitution which requires that no civil servant shall be dismissed or removed by an authority subordinate to that by which he has been appointed. It is also objected on behalf of the petitioner that there has been a violation of Article 320 (3) of the Constitution which requires that the State Public Service Commission should be consulted on all disciplinary matters affecting a person serving under the Government of the State in a civil capacity.

3. Cause has been shown in this case on behalf of the State of Bihar and the other respondents to whom notice of the rule has been given. The first question to be determined is whether there has been a violation of Article 320 (3) of the Constitution. On behalf of the respondents Government Advocate referred to the proviso to Article 320 (3) which states:

"Provided that the President as respects the all-India services & also as respects other services and posts in connection with the affairs of the Union, and the Governor or Rajpramukh, as the case may be, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted."

Counsel referred also to Rule 3 of the Public Service Commission Rules framed by the Government of Bihar under Sec.266, Government of India Act, 1935. This rule states:

"It shall not be necessary to consult the Commission on any of the matters specified in Clause (a) and (b) of Sub-section (3) of Sec.266 of the Act concerning services and posts to which appointments are made by authorities subordinate to the Provincial Government or by the Chief Justice."

Sec.266 (3), Government of India Act corresponds to Article 320 (3) of the Constitution and reads as follows:

"The Secretary of State as respects services and posts to which appointments are made by him, the Governor-General in his discretion as respects other services and posts in connection with the affairs of the Federati