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HIGH COURT OF CALCUTTA
Bose
SUBODH RANJAN - Appellant
Versus
MAJOR N. A. Ocallaghan - Respondent
Matter 88 Of 1952
Decided On : JANUARY 6, 1953
CONSTITUTIONAL LAW - ARTICLE 311 (2) - GOVERNMENT OF INDIA ACT, 1935, SECTION 175 (3) - VALIDITY OF APPOINTMENT - TERMINATION OF SERVICE - NOTICE - OPPORTUNITY OF SHOWING CAUSE - ESTOPPEL - MANDATORY OR DIRECTORY PROVISIONS.
Fact of the Case:
The petitioner, an Overseer in the Military Engineering Service, challenged the validity of an order terminating his service on the ground that it violated Article 311 (2) of the Constitution of India, which requires a reasonable opportunity to show cause before dismissal. The petitioner also argued that the order was mala fide and in violation of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.
Finding of the Court:
The court held that the petitioner was not a validly appointed servant of the Government because his service agreement did not comply with the requirements of Section 175 (3) of the Government of India Act, 1935, or Article 299 of the Constitution. Therefore, he could not take advantage of Article 311 (2) of the Constitution. The court also held that Section 175 (3) was mandatory and not directory, and that the equitable doctrine of estoppel could not override the provisions of a Statute.
Issues: 1. Whether the petitioner was a validly appointed servant of the Government. 2. Whether the termination of service order violated Article 311 (2) of the Constitution of India. 3. Whether Section 175 (3) of the Government of India Act, 1935, was mandatory or directory. 4. Whether the equitable doctrine of estoppel could override the provisions of a Statute.
Ratio Decidendi: 1. The court held that the petitioner was not a validly appointed servant of the Government because his service agreement did not comply with the requirements of Section 175 (3) of the Government of India Act, 1935, or Article 299 of the Constitution. 2. The court held that the petitioner could not take advantage of Article 311 (2) of the Constitution because he was not a validly appointed servant of the Government. 3. The court held that Section 175 (3) of the Government of India Act, 1935, was mandatory and not directory. 4. The court held that the equitable doctrine of estoppel could not override the provisions of a Statute.
Final Decision: The petition was dismissed.
( 1 ) THIS is an application under Article 226 of the Constitution for an appropriate writ for cancellation of certain orders passed against the petitioner in March 1951 and on 25-4-1952 imposing certain punishments for misconduct in the discharge of his duties as an Overseer in the Military Engineering Service and also for quashing of an order D/- 10-4-1952 by which the petitioner was discharged from service with effect from 10-7-1952.
( 2 ) THE petitioner's case is that he was appointed as Overseer in the Military Engineering Service in 1940 under the Government of India. In 1942 he was promoted to the post of Sub-Divisional Officer which was re-designated as Superintendent, Grade I, with effect from January 1947. On 16-6-1949 a departmental enquiry was started against the petitioner on a charge of throwing away certain stores which were the property of Fort William. As a result, of the enquiry a warning order was made against the petitioner in or about March 1951. As the authorities were not satisfied with merely passing a warning order against the petitioner, a charge-sheet was given to the petitioner on or about 28-2-1952, and it appears that the petitioner was held guilty of the said charge and it was directed that Rs. 50/- would be deducted from the pay and allowance due to the petitioner. The petitioner challenges the orders as mala fide. It further appears that prior to the said orders the petitioner had also been charged with absence from duty without leave and for disobeying an order of transfer made by the authorities in the department in which he was serving and the petitioner was found guilty of the charge of disobedience of the transfer order and it is alleged that he was reverted to the post of Superintendent, Grade II. The petitioner preferred an appeal against the order of reversion but the same was rejected. The petitioner then gave notice under Section 80, Civil P. C. and has filed a suit in this Court being suit No. 975 of 1952 which is still pending. It is alleged that after the service of notice under Section 80, the petitioner was falsely and maliciously charged with neglect of duty regarding the recording of sizes and lengths of certain wooden beams handed over to a contractor for sawing and for failing to obtain the cut pieces from the contractor and to record measurements of sawing made by the contractor. The petitioner submitted his defence to the said charges on or about 24-10-1951. On or about 10-4-1952 notice was served upon the petitioner intimating that his service would stand terminated after three months with effect from 10-7-1952. The petitioner challenges the validity of this order on the ground that it is mala fide and also as being made in contravention of Article 311 (2) of the Constitution of India.
( 3 ) IN the affidavit in opposition affirmed by respondent 1 it is denied that the orders in question were passed mala fide and some facts are set out explaining the circumstances under which the impugned orders were made.
( 4 ) IN the course of the hearing it was indicated by me that as there was considerable dispute with regard to the issue of mala fide, the question cannot be decided in a proceeding under Article 226 of the Constitution and the petitioner should take appropriate proceedings for determination of that question, if he was really inclined to press the charge of mala fide against the respondent in respect of the orders in question. Mr. B. C. Dutt realized the force of the observation and asked the Court to keep the matter open for the purpose of being agitated in other appropriate proceeding if his client will be so advised. I have acceded to the request of Mr. Dutt and it may be noted that this issue as to the orders being made mala fide is left open.
( 5 ) MR. Dutt has in this application, therefore, confined his attack to the validity of the notice or order dated 10-4-1952 on the ground that it is made in violation of the provision of Article 311 (2) of the C
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