Strict compliance with Article 311 (2) of the Constitution requires that the penalty eventually imposed on a civil servant must be either the same or lesser in degree than the penalty initially proposed.

NARASIMHAM, J.

( 1 ) THIS is a petition under Article 226 Of the Constitution by a ministerial officer of the Orissa Secretariat against an order of dismissal from service passed by Sri b. S. Mohanty, Secretary to the Government, Development Department by his order No. 17886/d. dated 24-10-1952. The petitioner submitted a memorial to the governor against the order of dismissal; but it was rejected.

( 2 ) EARLY in 1952, the petitioner was working as a temporary Grade II Upper division Assistant in the Development Department. On 24-7-1952, the Secretary of that Department (Sri. B. S. Mohanty) framed three specific charges against the petitioner of insubordination, misbehaviour etc. , and directed him by his order (No. 13752) "to show cause why he should not be dismissed or otherwise punished". The petitioner showed cause and the usual depart/ mental enquiry was held. After the termination of the enquiry the Under-secretary of the Development. Department issued the following Memo No. 15833/d. dated 2-9-1952 to the petitioner :

Government of Orissa Development Department.

Memo no. 15833/d. Dated Bhubanswar , 2-9-1952

? To,

? Sri Davanidhi Rath

? Grade II U. D. Assistant (Under suspension), Development Department. With

reference to the explanation dated 26-8-1952, submitted by Sri D. Rath on the charges framed against him a copy of the remarks of the Enquiring Officer on all the charges is forwarded to him and he is informed that in view of the enquiring Officer's findings contained in the report with which Secretary agrees and in consideration of his past records of services it is proposed to remove him from Government service. He is therefore hereby directed to show cause within a week from the date of receipt of this memo why the penalty of dismissal should not be inflicted on him for the charges proved against him. Any representation submitted by him to the Secretary on this behalf in time

will be duly taken into consideration. He is also called upon to say if he

would like to have any personal hearing in the matter by the Secretary

to Government, Development Department.

In this memo the petitioner was informed that in view of the findings arrived at by the Enquiring Officer during the departmental enquiry with which the Secretary agreed, "it was proposed to remove him from Government service". He was, however, called upon to show cause why the penalty of dismissal may not be inflicted on him. He submitted a further representation which was fully considered but eventually the Secretary of the Development Department passed the order of dismissal (No. 17886/d.) dated 24-10-1952.

( 3 ) THE main ground urged on behalf of the petitioner is that the penalty of 'removal from service' is lesser than the penalty of 'dismissal from service' and that having inflicted the first, the Secretary acted in contravention of Article 311 (2) of the Constitution by passing the major penalty of dismissal.

( 4 ) ARTICLE 311 reproduces substantially the provisions of Section 240, Government of India Act, 1935 and the decisions of the Federal Court and the Privy Council regarding the construction of that section of the Government of India Act would therefore, apply with full force. Prior to the passing of the Government of India act, 1935 the Secretary of State had made the rules known as the Civil Services (Classification, Control and Appeal) Rules in which various classes of penalties that may be imposed on a civil servant (Rule 49), the authorities competent to impose such penalties and the procedure to be followed (Rule 55) in a departmental enquiry that may precede the imposition of such penalties were fully described. These rules were kept alive by the Government of India Act, 1935 and also by the constitution, subject of course to certain adaptations which are not material for our present discussion. In Rule 49, seven classes of penalties have been described and the last two which are relevant for our purpose may be quoted: