A.D. Sundaram vs State

T.K. Joseph, J.—This is an application "to call up the records and to issue a writ of certiorari or other appropriate writ to declare that the order of dismissal of the Petitioner is illegal and void and in particular to quash the order of the Government of Travancore-Cochin Cl-6126/t1/DD, dated 3-5-1955". The Petitioner was a clerk in the Co-operative Department of the State and on 30-10-1951 he was placed under suspension as he was suspected to have misappropriated a sum of Rs. 327-2-8.

Subsequently he was served with a notice Ex. A dated 16-11-1951 stating the charges against him and asking him to file his statement of defence and to face an enquiry regarding the same. Exhibit B dated 30-11-1951 is the statement filed by him in pursuance to the notice. The enquiry was conducted by a Commissioner appointed under the "Travancore Public Servants'' (Euquiry) Act 12 of 1122".

The Commissioner conducted an elaborate enquiry and reported to the Government that the charges against the Petitioner were proved. A copy of the report was produced at the time of final hearing and the same was admitted in evidence and marked as Ex. D, by consent. Thereafter be was served with a notice dated 20-4-1953 asking him to show cause why he should not be dismissed from Government service. He was also furnished with a copy of the report of the Commissioner. He showed pause but the Government dismissed him from service by order Ex. C, dated 3-5-1955 and it is this order that is sought to be quashed.

The grounds urged on behalf of the Petitioner at the hearing were : (1) that Article 320 of the Constitution was violated inasmuch an the Public Service Commission was not consulted before dismissing him from service; (2) that the enquiry before the Commissioner was not conducted in accordance with the provisions of the Travancore Public Servants'' (Enquiry) Act, and (3) that he was not given reasonable opportunity to defend himself. The Deputy Registrar, of the Co-operative Societies has filled an affidavit on behalf of the State denying the main averments in the petition.

The main ground urged on behalf of the Petitioner is that the order of dismissal was bad since the Public Service Commission was not consulted before the order of dismissal. The position taken by the State is that the Public Service Commission was actually consulted, but that they did not tender any evidence as the Petitioner''s case came within the purview of Regulation 7 and Clause 6 of the Annexure III of the Public Service Commission Consultation Regulation of 1952.

It was not contended that under this Regulation such consultation was necessary, but it was urged that the Regulation was ''ultra vires'' of the powers of the Rajpramukh under the proviso to Article 320 of the Constitution, Article 320(3) reads as follows:

(3) The Union Public Service Commission or she State Public Service Commission, as the case may be shall be consulted-

(a) on all matters relating to methods of recruitment to civil services and for civil posts;

(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to Anr. and on the suitability of candidates for such appointments, promotions or transfers;

(c) on all disciplinary matters affecting a person serving, under the Government of India or the Government, of a State in a civil capacity, including memorials or petitions relating to such matters;

(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government, of a State on under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;

(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government, of a State under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public, Service Commission to advise on any matter so referred to them and on any ether matter which the President, or, as the case may be, the Governor or Rajpramukh of the State, may refer to them:

Provided that the President as respects the all-India Services and also as respects other services and posts in connection with the affairs of the Union and the Governor or Rajpramukh, as the case may be, as respects other services and posts in connection with the, affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall net be necessary for a Public Service Commission to be consulted.

(4) Nothing in Clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect may be given to the provisions of Article 335.

(5) All regulations made under the proviso to Clause (3) by the president or the Governor or Rajpramukh of a State shall be laid for not lees than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid.

According to Shri T.N. Subramonia Iyer, learned Counsel for the Petitioner, the power given to the Rajpramukh under the proviso to make regulation (sic) only (sic) in respect of disciplinary matters affecting persons other than those serving the State Government in a civil capacity.

In my opinion, this argument is quite unsubstantial. If the proviso refers to persons other than those serving in a civil capacity there was no need for adding such a proviso to the Article because it was only in respect of persons serving in a civil capacity under the State Government that consultation with the. Public Service Commission was made obligatory by Clause (3) of Article 320.

The proviso was intended to exclude from the operation of Clause (3) certain categories of Government servants serving the Government in a civil capacity. The proviso can only relate to the persons mentioned in Clause (3). The expression ''other services and posts'' cannot, mean services and posts other than civil services. The proviso enables the President to make such regulations in respect of all-India Services and posts and also as respects other services and posts in connection with the affairs of the Union.

Since all-India Services as well as other services and posts in connection with the affairs of the Union do not come under the Governor or the Rajpramukh for purpose of disciplinary action, the power given to them is only in respect of other services and posts, that is, services and posts other than all-India Services and other services and posts in connection with the affairs of the Union. The expression "other services and posts in connection with the affairs of the State" is therefore incapable of the construction contended for by the learned Counsel for the Petitioner.

Another argument advanced in this connection was that these regulations had not come into force at the time of the commencement of the enquiry against the Petitioner, and that, the consultation with the Commission was therefore necessary. There is no force in this contention because it is only when the Government is satisfied that disciplinary action is necessary that consultation has to be made. In this case that stage was reached long after the Public Service Commission Consultation Regulations were promulgated. These regulations must therefore govern the Petitioner''s case.

The second point raised is that the enquiry by the commissioner was not conducted in conformity with the provisions of Act 12 of 1122. It was stated that the State was bound to appoint a prosecutor to conduct the enquiry. The Petitioner was represented by counsel during the enquiry. He was not an officer coming within the purview of Act 12 of 1122 and the enquiry happened to be conducted under the Act only because a commissioner was appointed to enquire into the conduct of some other officers whose conduct had to be enquired into under the Act.

It was only as a matter of administrative convenience that the same commissioner was asked to conduct this enquiry also. It was also argued that the statement of the Petitioner was not recorded by the commissioner on the termination of the enquiry. Apart from the fact that Act 12 of 1122 was not applicable to the Petitioner, there is the further fact, that the Petitioner stated in his written statement, that he wanted an oral enquiry.

The commissioner was not bound to record his statement u/s 15 of the Act. Again as pointed out in - ''Joseph John v. State of Travancore Cochin'' AIR 1953 Ker 130 ( V 40) (A), if the provisions of Article 311 of the Constitution are complied with, then the violation of any of the rules in regard to any antecedent enquiry or otherwise would not be material.

In taking this view, the Full Bench followed the decision of the Madras High Court in - Dr. M. Krishnamoorthy Vs. The State of Madras and Another, . There is no case that Article 311 was violated in taking action against the Petitioner. The second point also must be overruled.

The last point urged is that the Petitioner was not given reasonable opportunity to defend himself. He was furnished with a copy of the statement of charges as early as 16-11-1951. He was also given a copy of the commissioner''s findings before he was asked to show cause why the same should not be accepted and he be dismissed from service. He was represented by counsel throughout, and all except one of the witnesses in his written statement were examined on behalf of the State.

At the close of the evidence for the State he examined one witness on his behalf. But it was not stated that he moved for the examination of the other witnesses mentioned in the written statement of his defence or for the production of additional records. In the circumstances I am unable to hold that the Petitioner did not get reasonable opportunity to defend himself at any stage.

The Petitioner is not entitled to any relief. The Original Petition is, therefore, dismissed with costs, including Advocate''s fee of Rs. 100 (one hundred).