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HIGH COURT OF ORISSA
NARASIMHAM,G.C.DAS, JJ.
Dhirendranath Das
Versus
State of Orissa
O. J. C. No. 391 of 1956.
Decided On : 21-11-1957
CONSTITUTIONAL LAW - ART. 14 - DISCIPLINARY PROCEEDINGS (ADMINISTRATIVE TRIBUNAL) RULES 1951 - CLASSIFICATION RULES - NON-GAZETTED GOVERNMENT SERVANTS - DISCRIMINATION - UNCONSTITUTIONALITY.
Fact of the Case:
The petitioner, a Grade I Upper Division Assistant of the Commerce Department of the Orissa Secretariat, was dismissed from service by the Government of Orissa after an enquiry conducted by the Administrative Tribunal under the Disciplinary Proceedings (Administrative Tribunal) Rules 1951. The petitioner challenged the order of dismissal on the grounds that the notice issued to him under Art. 311 (2) of the Constitution was defective and that the provisions of the Tribunal Rules, in their application to non-gazetted Government servants, were unconstitutional.
Finding of the Court:
The court held that the notice issued to the petitioner under Art. 311 (2) was defective, but that the defect was a mere irregularity. The court also held that the provisions of Cls. (a) and (b) of sub-r. (1) of R. 4 of the Tribunal Rules, in their application to non-gazetted Government servants, were unconstitutional as they violated Art. 14 of the Constitution.
Issues: 1. Whether the notice issued to the petitioner under Art. 311 (2) was defective? 2. Whether the provisions of Cls. (a) and (b) of sub-r. (1) of R. 4 of the Tribunal Rules, in their application to non-gazetted Government servants, were unconstitutional?
Ratio Decidendi: 1. The court held that the notice issued to the petitioner under Art. 311 (2) was defective because it did not expressly state that the Government had accepted the findings of the Tribunal and had tentatively decided that the petitioner should be dismissed from service. However, the court held that the defect was a mere irregularity as the Government had filed an affidavit stating that the findings of the Tribunal were placed before the Chief Minister and approved by him, and that the Government accepted the recommendation of the Tribunal about the proposed punishment to be inflicted. 2. The court held that the provisions of Cls. (a) and (b) of sub-r. (1) of R. 4 of the Tribunal Rules, in their application to non-gazetted Government servants, were unconstitutional because they conferred an unfettered discretion on the Government to apply either the Tribunal Rules or the Classification Rules for the purpose of taking disciplinary action against a non-gazetted Government servant. The court held that this discretion was arbitrary, unfettered and unguided, and that it authorized gross discrimination between non-gazetted Government servants who may have committed identical acts of misconduct.
Final Decision: The court allowed the application and declared Cls. (a) and (b) of sub-r. (1) of R. 4 of the Disciplinary Proceedings (Administrative Tribunal) Rules 1951, in their application to non-gazetted Government servants, to be ultra vires the Constitution and invalid. The court also restored the disciplinary proceedings against the petitioner to the stage at which they were on 27-11-1953 before the case was referred to the Tribunal, and directed the Government to dispose of it according to law.
Judgement
R. L. NARASIMHAM, C. J. :-
This is an application under Art. 226 of the Constitution by a Grade I Upper Division Assistant of the commerce Department of the Orissa Secretariat, against the order of the Government of Orissa No. 8307-Com, dated 3-9-1955, dismissing him from service.
2. On 27-11-1953, the Government of Orissa placed the petitioner under suspension and referred his case to the Tribunal constituted under the Disciplinary Proceedings (Administrative Tribunal) Rules 1951, in consequence of a report submitted by the Superintendent of Police, Enforcement, after confidential enquiry, to the effect that the petitioner and some other members of the ministerial staff of the commerce department had manipulated the figures in the Receipts Register so as to justify an increase in the staff.
The sole member of the Administrative Tribunal Shri P. K. Kapila, framed specific charges against the petitioner, called upon him to submit his explanation, and held a regular enquiry under the said rules. The enquiry appears to have been held in conformity with the principles of equity and natural justice, the witnesses were examined in his presence, and he was given an opportunity to cross-examine them.
Shri Kapila submitted his finding to the Government on 28-9-1954, stating that the charges were proved, and recommending that the petitioner should be dismissed from service. Then, Shri Kapila, in his capacity as Additional Secretary to Government in the Cabinet Department, sent a copy of his finding to the petitioner on 21-10-1954, and called upon him to show cause why the punishment proposed (meaning of course the punishment of dismissal) may not be passed against him.
This notice was apparently issued in compliance with the requirements of Art. 311 (2) of the Constitution. The petitioner showed cause against the proposed punishment, but it was held to be unsatisfactory and Government eventually dismissed him from service on 3-9-1955. Before passing the order of dismissal Government consulted the Public Service Commission also, as required by Regulation 3 (a) (i) of the Orissa Public Service Commission (Limitation of Functions) Regulations.
3. In this application under Art. 226 the petitioner first challenged the findings of Shri Kapila and urged that the charges against him were not proved. This challenge is not open to him, inasmuch as there was some evidence to support the findings of Shri Kapila and in exercise of our extraordinary jurisdiction under Art. 226, we cannot sit in iudgment over his finding like an appellate Court.
4. The main points of constitutional law, raised by Shri Srinivasa Misra on behalf of the petitioner are these:
(i) In the notice dated 21-10-1954 issued by the Government to the petitioner, in purported compliance with the requirements of Art. 311 (2) it was not expressly stated that the Government had accepted the findings of Shri Kapila and had tentatively come to the conclusion that the petitioner should be dismissed from service; and that consequently the notice is defective.
(ii) The provisions of Cls. (a) and (b) of sub-r. (1) of R. 4 of the Disciplinary Proceedings (Administrative Tribunal) Rules 1951 (hereinafter referred to as the Tribunal Rules) - are unconstitutional in their application to non-gazetted Governments servants as violative of Art. 14.
5. The notice issued under Art. 311 (2) on 21-10-1954 is as follows:
"I am directed to enclose herewith a copy of the findings of the Member, Administrative Tribunal, Orissa in the proceeding against you, and you are hereby called upon to explain by the forenoon of 21-11-1954, as to why the punishment proposed should not be inflicted."
This notice is clearly defective inasmuch as it does not expressly say that Government have accepted the finding of the Tribunal or else that they have tentatively decided that the punishment of dismissal should be inflicted on the petitioner. In paragraph 11 of my judgment, in Baishnab Charan Das v. State of Orissa, ILR (195
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