A civil servant cannot be dismissed by an authority subordinate in rank to the authority that appointed them, reaffirming Article 311(1) of the Constitution.

1. The petitioner in this case was appointed sometime in 1950, as an Upper Division Clerk in the Income Tax Department, West Bengal, by the Commissioner of Income Tax, West Bengal. Thereafter, his services were transferred to Calcutta and he was posted under the Inspecting Assistant Commissioner of Income Tax, Range II, who is under the Commissioner of Income Tax, Calcutta. On or about 20th March 1957, he was served with a charge - sheet containing two charges. The first charge was that while working as an assessment clerk attached to the 5th A.I.T.D. C.D.II, he alone or in collusion with the notice - server of that office, with a view to helping the assessee, Narsi Purusottam and Co., recorded the issue of notice under S.34(1) (a) relating to the assessment year 1945-46 on 27-3-54, both in his Issue Register and in the order sheet of the assessee's file, but refrained from effecting its service. With the same object, he also failed to report the non - service of the notice to his I.T.O. before 31-3-54, thereby allowing the assessee to escape assessment for the year 1945-46. The second charge was that when S.34 (1 - A) of the Income - tax Act was introduced in 1954, the petitioner, with the object of helping the said Narsi Purusottam and Co. to escape action under the new provisions in respect of 1945-46, alone or in collusion with others removed the assessment records of the case from the office and made them over to the assessee. The petitioner gave his explanation and an enquiry was held by Sri K.D. Banerjee, the Inspecting Assistant Commissioner of Income Tax, Head Quarters, Calcutta. The Enquiring Officer held that the first charge had been proved but the second charge had not been established, although a strong suspicion was raised. On or about 3rd January, 1958 the petitioner was served with a second show - cause notice by Sri M.N. Wagh, the Commissioner of Income Tax, Calcutta, and the petitioner was asked to show cause why he should not be dismissed from service. It was stated therein that the offence was a grave one and merited dismissal. The petitioner showed cause. On the 3rd April, 1958 the said Commissioner of Income Tax, Calcutta, passed an order dismissing the petitioner from service. Against this order, the petitioner preferred an appeal to the Central Board of Revenue. By an order dated 30th March, 1960 the appeal was rejected. Thereafter, this application has been made.

2. Mr. Chatterjee, appearing on behalf on the petitioner, has taken two points. The first point is that the evidence of one Rajani Kanta Sen, now posted as I.T.O. in District V - A Calcutta, was taken behind the back of the petitioner without giving him an opportunity to cross - examine him. The second point taken is that the order of dismissal by the Commissioner of Income Tax, Calcutta, is bad inasmuch as it violates the provisions of Art.311 (1) of the Constitution, the Commissioner of Income Tax Calcutta being an officer subordinate in rank to the Commissioner of Income Tax, West Bengal.

3. With regard to the first point, I am unable to allow this to be agitated in this application, because no mention of it has been made in the petition. In the petition, a general ground has been taken that the procedure adopted in the enquiry was against the rules of natural justice, but no mention was made about the evidence of Sri Rajani Kanta Sen being taken behind the back of the petitioner, or that the petitioner had no opportunity to cross - examine him. Therefore, the respondents had no opportunity to contest this point. Obviously, this point is a question of fact, and until that fact is stated, the respondents have no opportunity of denying the sam