The co-option of an assessor under Rule 3(4) of the Disciplinary Proceedings (Administrative Tribunal) Rules 1951 was not a mere matter of procedure but affected the jurisdiction of the Tribunal.

NARASIMHAM, C. J.

( 1 ) THIS is a petition under Article 226 of the Constitution by a Sub Deputy Collector and Anchal Adhikari of the Government of Orissa, challenging the validity of the order of the Government, in Revenuedepartment Resolution No. Con-l/58-21-R (C. S.) dated 25-1-1958, dismissing him from Government service.

( 2 ) WHILE the petitioner was working as Anchal Adhikari at Kudala from 16-121952 to 27-8-1954 he was placed under suspension on charges of corruption and misconduct in the discharge of his official duties. His case was referred to the sole member Tribunal (hereinafter referred to as the Tribunal) under the provisions of the Disciplinary Proceedings (Administrative Tribunal) Rules 1951 (hereinafter referred to as the Rules ). The said Tribunal framed six charges against him and proceeded with the enquiry in respect of all these charges. At the commencement of the enquiry a senior officer of the Revenue Department was co-opted by the Tribunal as an assessor to assist in enquiry. The assessor worked with the Tribunal till the recording of the entire evidence against the delinquent public servant, but when the petitioner examined witnesses in his defence the assessor's assistance was dispensed with. The enquiry was therefore completed by the sole member of the Tribunal and his findings were submitted to Government who accepted the same and dismissed the petitioner from service.

( 3 ) THE sole question for consideration in this application is whether, after the Tribunal had once co-opted an assessor to assist it during the departmental enquiry, it was legal for the Tribunal to dispense with the assessor in the middle of the enquiry and complete the same un-aided by such an assessor. The petitioner, while submitting his explanation to the Government, made a grievance of this procedure adopted by the Tribunal, and the Government asked him to show how he was prejudiced by the absence of the assessor at the later stages of the enquiry. The petitioner gave some explanation which was, however, not accepted by the Government.

( 4 ) THE decision of this question depends on a construction of the relevant provisions of the Rules in the light of well-known principles of statutory construction.

( 5 ) THE Rules were made by the Government of Orissa on 21-9-1951 with a view to supplement the existing provisions relating to departmental enquiries against the delinquent Government servants, charged with corruption or other acts of misconduct. The Rules provide for the Constitution of an independent Tribunal to conduct the departmental proceeding and submit its recommendations to the Government which would pass final orders. No appeal was provided against the decision of the Government. Under Rule 2 (b) the expression Tribunal was defined as the "administrative Tribunal to be constituted by the Government under the provisions of Rule 3". Rule 3 as it stood prior to the subsequent amendments was as follows :

"3 (1) The Tribunal shall consist of three members and one of whom shall be a member of the Board of Revenue, another a judicial officer who is or was of the status of a District Judge, and the third the Head of a Department. (2) The members shall be nominated by the Governor for such period and for such classes of cases as the Government may deem proper. (3) The Governor shall nominate one of the three members of the Tribunal as its Chairman. 4. Subject, to the directions of the Governor the Tribunal shall co-opt an assessor to assist it. The assessor shall be a departmental official higher in rank in the Department to the official charged. In no case shall he be an officer below gazetted rank or that of the Head of a District Office in any department : Provided that where in the same transaction more than one delinquent official is involved the status of the assessor shall be determined after consideration of the status of the highest delinquent official whose conduct is under enquiry. " By Notification No. 277-Cab