Back
MADHYA BHARAT HIGH COURT, INDORE BENCH
NEVASKAR, SAMVATSAR, JJ.
Abid Mohommad Khan, son of Aziz Mohommad Khan, Ex-Sub-Inspector, Excise and Customs, of Juna Risala, Indore - Petitioner
Versus
The State of Madhya Bharat - Opponent
Civil Misc. Case No. 17 of 1955
Decided On : 16-11-1955
CONSTITUTIONAL LAW - ARTICLE 311 - DISMISSAL OF CIVIL SERVANT - AUTHORITY COMPETENT TO DISMISS - MUST BE NOT SUBORDINATE TO APPOINTING AUTHORITY - DELEGATION OF POWER TO SUBORDINATE AUTHORITY INVALID - DISMISSAL BY SUBORDINATE AUTHORITY ILLEGAL AND INOPERATIVE.
Fact of the Case:
The petitioner, a former employee of the Holker State, was appointed in the State Service in 1948. After the merger of that State in Madhya Bharat, the petitioner was absorbed in the service of the integrating State and was confirmed in the cadre of 75-5-125. In 1954, he was posted as a Sub-Inspector in Customs and Excise Department. On 11-1-1954, the petitioner was suspended from service and was ultimately dismissed under orders of the Commissioner, Customs and Excise, Madhya Bharat, with effect from 7-7-1954. The petitioner challenged the validity of his dismissal on the grounds that it was illegal and in violation of the provisions of Art. 311 of the Constitution.
Finding of the Court:
The court held that the dismissal of the petitioner from service was illegal and inoperative as it was in contravention of the provisions of Art. 311(1) of the Constitution. The court held that the Commissioner, who dismissed the petitioner, was an authority subordinate to the Government, which had appointed the petitioner. The court further held that the delegation of the power of dismissal to the Commissioner was invalid and could not deprive the petitioner of the statutory safeguards contained in Art. 311.
Issues: 1. Whether the order of the Commissioner dismissing the petitioner from service is illegal because having been appointed by the Ruler of the Holker State, his dismissal by the Commissioner during the year 1954 was in breach of Art. 311 of the Constitution. 2. Whether the petitioner having been absorbed in the Madhya Bharat service under orders of the Government with effect from 1-4-1952 he could not be dismissed under orders of the Commissioner even if it was assumed that the Commissioner had power to appoint a person in the petitioner's grade. 3. Whether on the material placed on record the Commissioner was an authority empowered to appoint parsons upto the grade of Rs. 150/- per month; and if so, from what date ? 4. Whether the petitioner was afforded reasonable opportunity to explain the circumstances against him during the departmental inquiry and whether the notice to show cause against the proposed action was proper ?
Ratio Decidendi: The court relied on the decisions of the Privy Council in R.T. Rangachari v. Secretary of State and North-West Frontier Province v. Suraj Narain Anand to hold that the dismissal of a civil servant by an authority subordinate to that which appointed him is invalid and inoperative. The court held that the provisions of Art. 311, cl. (1) are similar to those contained in S. 96-B, Government of India Act of 1919 and S. 240(2) of the Act of 1935 and that there is no provision in the present Constitution of India analogous to that contained in S. 243, Government of India Act of 1935. Hence, the Government cannot by delegation of the power of dismissal of a civil servant to an authority subordinate to that which appointed him, deprive the Civil servant of the statutory safeguards contained In Art. 311.
Final Decision: The petition was allowed, the order dated 7-7-1954 dismissing the petitioner from service was declared illegal and in operative and was hereby quashed.
SAMVATSAR, J.
1. This is a petition for a writ of mandamus under Art. 226 of the Constitution.
2. The petitioner was an employee of the former Holker State and was appointed in the State Service under Huaur Shree Shankar Order No. 353 dated 29-5-1948. After the merger of that State in Madhya Bharat, the petitioner was absorbed in the service of the integrating Mate and was confirmed in the cadre of 75-5-125. In 1954 he was posted at Bhatnagar as a Sub-Inspector in Customs and Excise Department.
3. On 11-1-1954 the petitioner was suspended from service and he was ultimately dismissed under orders of the Commissioner, Customs and Excise, Madhya Bharat, with effect from 7-7-1954.
4. The petitioner contended that his dismissal from service by the Commissioner was illegal. He also complained that he had not been, given reasonable opportunities to explain the circumstances against him, both during the inquiry and before his dismissal. He made a representation to the State Government in which he raised various grounds and requested the Government to reconsider his case and to give him redress by ordering him to be reinstated.
5. On 15-3-1955 the State Government rejected the representation and intimated to his Counsel Mr. Daji, that the Government was unable to reconsider the matter. The petitioner has therefore filed this petition.
6. It is alleged in the petition that the termination of the petitioner's services by the Commissioner, Customs and Excise, was illegal and was in violation of the provisions of Art. 311 of the Constitution. The validity of the Commissioner's, order was challenged on the following grounds :
(1) That the petitioner was appointed by the Holker, but was dismissed from service under orders of the Commissioner, who was a subordinate, authority.
(2) That during the inquiry held by the Department, the petitioner was not given any reasonable opportunity to explain the circumstances which are used against him; nor was he given a notice to show cause against the action proposed to be taken against him.
(3) That the inquiry was vitiated because the Civil Service (Punishment and Appeal) Rules which prescribe how a departmental inquiry should be conducted, were not duly followed and the inquiry itself was held by the Superintendent, Customs and Excise, who was himself concerned with, subject-matter of the inquiry.
(4) That no proper charge-sheet was given to the petitioner before he was dismissed from service. The charges against him were the result of an afterthought and were at variance with the facts set out in the suspension order.
7. It was therefore prayed that : (a) appropriate direction or order should be issued by this Court declaring the dismissal of the petitioner illegal and void; (b) a mandamus should be issued to the State Government directing it to reinstate the petitioner or to treat him as still in service; and (c) such other order, direction or writ as may be necessary for protection of the petitioner's constitutional rights, be issued.
8. The petition was opposed by the State of Madhya Bharat.
9. It was not disputed that the petitioner was appointed by the Maharaja Holker in the year 1948, nor was it disputed that his services were terminated under orders of the Commissioner, Customs and Excise, Madhya Bharat. The State justified its action on the grounds set out in the affidavit filed by the Commissioner which may briefly be summarized as follows :
(1) That in a surprise inspection by the superintendent, Customs and Excise, the petitioner was found guilty of serious irregularities in accounts and lack of supervision and was suspected of himself being involved in defalcations and implicated in and abetting and aiding abscondence of a person who had misappropriated Government money. It is stated that the matter was inquired into departmentally and the petitioner was further found guilty of insubordination, negligence and defiance of superior officers. He was therefore suspended on 11-1-1954 and was dismi
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
A valid signature must be in the candidate's own handwriting, as emphasized by the General Clauses Act and relevant case law.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
