Bhanuprasad Deviprasad Munkad vs The State

Shah, C.J.—This is a petition under Article 226 of the Constitution for a writ of certiorari quashing the order of the Petitioner''s dismissal

from service passed by the Inspector Gonoral of Police, Saurashtra State, on 29-12-1953, and for an appropriate dedariwg that the Petitioner still

continues in service and is entitled to the privileges etc., attached to the service. The Petitioner Mr. lilianupinsad Munkad was a Sub-Inspector of

Police stationed at Buddha at the material date and had then been in service for a little less than three years.

The main incident for which he was charged, and which ultimately culminated in his dismissal, took place at village Salpipalia on 28-5-1953, and in

consequence thereof some Kanbi agriculturists of Salpipalia came to Rajkot and contacted one Mr. B.D. Shukla, a member of Saurashtra

Legislative Assembly for That area, and made certain statements which'' were drawn up in the form of affidavits.

They approached the Home Minister, Saurashtra State, complaining of the Petitioner''s conduct and the Home Minister ordered that immediate

action be taken in the matter. The petitignei1 was ordered to return to Racket, which he did on 30-5-1953, and he was suspended from service on

1-6-1953. Thereafter the Deputy Superintendent of Police Mr. Jade recorded the statements of several persons, from 2nd June to 4th June 1953,

which were on the same lines as the earlier stateincuts made before Mr. Shukla.

The Petitioner''s statement was also recorded on 16-6-1953 a charge containing five counts together with the necessary particulars was drawn up

by Mr. Merchantman, the District Superintendent; of Police, and it was served on the Petitioner on 6-7-1953. Ho was also served with a copy of

the order of the District Superintendent of Police dated 2-7-1953 stating, inter and that departmental proceedings will be held against him at

Paddhari on 13-7-1953.

The order reproduced the five counts of'' the charge together with the particulars and stated that 84 witnesses named in the list annexed thereto

would be examined In the course of the proceedings. It also required the Petitioner to produce his witnesses in defence on the said date and also

to file a statement of his defence in writing. The Petitioner submitted a list of 13 witnesses on 16-7-1953, and asked that they should be called. The

District Superintendent of Police Mr. MUH chancteni held the proceedings at Paddhari from, 15th to 17th July & 20th July find it appears that a

part of the proceedings was held at Rajkot of 21.-9-1953. He also recorded dip Petitioner''s statement and received the Petitioner''s detailed

explanation in writing dated 27-9-1953, and then sent his report to the Inspector General of Police.

The Inspector General of Police issued a notice dated 18-10-1953 to the Petitioner stating, inter nil A, that ho had Bona through that papam of the

proceedings and lie agreed with the Hiinimlnff up of the District Superintendent of Police and calling upon the Petitioner to show cause why should

not be dismissed from service for the, defaults.

The Petitioner submitted a lengthy written statement dated 30-10-1953 disputing the findings of the District Superintendent of Police and on- II

tending that the evidence was untrustworthy and inadequate to prove the charges and that on the Contrary the evidence proved innocence. Theo

Inspector General of Police after taking into cry Sideratian the Petitioner''s explanation eventually parsed an order dated 29-12-19.53 giving;

detailed leasons for holding that the charges had been fully established and that in his view the defaults which consisted of extorting money from

innocent Villagers, were so serious that they merited dismissal from service and he therefore ordered that the Petitioner be disused front service.

The Petitioner appealed to the Government a 1-2-I0.H but the appeal was dismissed on li''2:i-11954, and a review application dated 14-6-11154

made, to the Government was also dismissed, That was on 27-7-1954. Petitioner filed thy present petition on Jun.1955. After obtaining copies of

material documents.

At the hearing of this petition, a preliminary objection was taken by the learned Government pleader that the petition suffered from laches, it

having been made alter a long delay, and that it deserved to be dismissed on that short ground. This ground is however not taken by the opponent

State in their return and ordinarily we would not be inclined to punnit a new ground to be taken.

However, the contention being one of delay, we have, of our own accord, examined the position and we are satisfied having regard to the various

material dates to which we need not refer in detail that the petition does not .suffer from laces and that the delay has. been sufficiently accounted

for. This preliminary objection is therefore rejected.

The charges in respect of which the departmental inquiry was held against the Petitioner were Os follows:

(i) That on 28-5-53, while camping at Salpipalia, Le compelled Kaubi Bhima Manji, Jadav Bhura, Jadav Manji, Natliu Kurji and Giva Anba to

provide a feast of sweetmeat balls (Ladoos) lor him,

(ii) Unit, on tillered words fug to their village burnt and their properlies looted, as the villagers of Salpipalia did not entertain Governmerit servants,

(iii) that on 28-5-53 he extorted Us. 25/- from each of the abovementioned live Kanbis,

(iv) that on 28-5-53, he made free use of the bullotkeart of Patel Jadav Manji to go from Salpipalia to Fatehpur,

(v) that on 25-4-53 he,gave a beating to Patel Gova Mawji of Isaria in the Chora of this village.

Now the Bombay Police Manuals hava not been made applicable to the Saurashtra Police, but ii appears that a standing order dated 11-10-

1.951 concerning departmental proceedings, was issued by the Inspector General of Police, and if said among Other tailings that the rules in

Chapter XV of the Bombay Police Manual 1950 (Vol. 1) should be conformed as closely as possible. (See Appendix A to the State''s return).

Rule 541 which occurs in Chapter XV of the it fid Manual provides that when a serious default is reported and a preliminary inquiry is necessary

before a definite charge can be framed, such inquiry is to be carried out by the appropriate officer there, specified and after such preliminary

inquiry has taken place, the Superintendent of Police should, after going through the papers of the inquiry, delude upon the further action.

It was in accordance with this rule that Mr. Jadeja, the Deputy Superintendent of Police, held the preliminary inquiry and in the course thereof

recorded tote statements, of several persons, and it Was thereafter that the District Superintendent of Police framed a definite charge against the

i.e. diner. It was urged for the Petitioner that that statements recorded by Mr. Jadeja were almost (lie those imides by the persons concerned,

betide by studio as toils ivied before Mr. B.D. Shukla, die member of the Legislative Assembly.

It appears from Para 5 of the order of the Inspector General of Police darted 29-12-53 that these settlements were more exhaustive turn the

former ones; but whether that was so or not immaterial, and the fact remains that duly re recorded by the Drifty . Superintendent of folic,,, in (he

course'' o| (he preliminary inquiry. It w. s ah,)., contended for the Petitioner that the stall tennis were recorded by again tins was done inquiry,

which was carried out only for the purpose of deciding whether any further action was required to be taken.

Therefore it did not really matter that the said1 statements were recorded'' in the absence of the Petitioner The relevant rules of the Bombay Police

Manual too do not require that the preliminary inquiry should be made in the presence of the defaulter, and ""no breach of any rule was thus

committed. Another objection raised, in the context of time, was that the order of suspension did not conform to R, 5-J1A of the Bombay Police

Manual which requires that before passive such an order the Police Officer concerned is to lie informed of the charges and/or allegations knelt

against him and to be called upon in writing lid."" show cause why he should not be suspended.

It also requires that a reasonable period exceed ding a week should lust reply. It was given to ice given to the Officer to sub-is alleged that no such

the Petitioner b( fore passing the nut by order of suspension. The short to this objection is that this Rule 341A is not made ''applicable Saurashtra,

in terms, and therefore there was no'' need of going through the procedure peril�s.>ed J under lie said it tit.

But assuming the of the suspensor, was indri without'' observing the formalities, that was at best an irregularity which would not render) the

subsequent proceedings invalid. It was also jugged that the order of suspension was not served on the Petitioner, but this allegation is denied by the

opponent State. It may be observed that the Petitioner has not alleged at any earlier stage the order of suspension was not served upon and all

along his only objection was that the order was illegal as it contravened It. 541-A.

It seeras therefore that the objection on score is an afterthought, But even assuming it was so, the absence of a formal service of order- of

suspension on the Petitioner will a to the fact service, which he himself admits, and it was thereafter that the departmental inquiry was held against

him, to which he was submitted, The Petitioner 1ms filed lengthy written movements and explanations to the authorities, viz., the Superintendent- of

Police and the Inspector General of Police and also to the Government:, but in noun of these he has at any time alleged that the order of suspension

was not served upon him, and ho cannot now be allowed to make any capital cut of it, even supposing that it is true.

It was next contended for the Petitioner that the charge Ex. 26 was not precise in at it did not contain the particulars of the statements made by

the witnesses. We do not that if was rosary to state these particulars in the charge. The charge mentioned specific instances subsequent

departmental proceeding remains that the Petitioner was suspended from'' that him

details the lime and place of the occurrence, the names of the complainants and the acts alleged against the petitioned and it did contain, statement

of the allegations on which reach count was based and in our opinion it was not defective in any way.

The order of the District Superintendent of Police dated 2-7-53. Ex. 27., was duly communicate d to the Petitioner and this communication recited

all the five count. of the charge in the Maine detail, OH was done in Ex. 26, and it intimated to the Petitioner that the departmental inquiry will be

held by the District Superintendent of Police on the lining of 13-7-53 and that the 34 witnesses named will be examined at the Under.

It also asked the Petitioner to produce his ictuses in defence and it further asked him to file his statement in writing. A copy of the charge, Ex. 20,

was also served on him at the time, It vas urged by Mr. Hathi that the Petitioner should hive been called upon to put in a written .statement of his

defence before the witnesses were examined, bat Ex. 27 did call upon the Petitioner to file his Written statement.

This he could have done prior to the examination of the witnesses, but he did not file any written statement at that stage. As it is, the rules of ''the

departmental proceedings contained in Chapter XV did not require this to be done and'' so far as Rule 55, Bombay Civil Services'' (Conduct,

Discipline and Appeal) Rules is concerned it has been substantially complied with, and there is I hoe-fore really no substance in the above

grievance.

Dealing further with the objection.; urged 0.:i the Petitioner''s behalf, one of them is that the statements which were recorded before Mr. Shukla

were not made available to the Petitioner at the time of the departmental inquiry and copies of the same were given to him very late that is'' on 24-

9-53, Now even according to the Petitioner the statements recorded by Mr. Jadeja from 2-0-53 onwards Vero more or les"" a reproduction of the

statements made earlier, that is, those made on 30-3-5;; before Mr. Shukla.

As it happened, (lie statements leered by J idea were more exhaustive, but apart from it they contained the same lacks, and the omission to supply

the Petitioner copies of the said earlier statements of 30-5-.53 did not in any way affect the inquiry nor did prejudice the Petitioner. They merely

gave rise to the preliminary inquiry.

The statements recorded in the course of the preliminary inquiry were really the material statements and copies of these latter statements were

admittedly given to the Petitioner, and in fact ho ''lid cross-examine the witnesses on the strength of TWO .

It was next urged that the statements recorded by Mr. fedora were read over by (lie Distill Sliporiulenileni of police to (he witnesses at the Tim:;

of the departmental inquiry at Paddhari and they were merely questioned whether the said statements were true and they subscribed to them, sad

that no oral questioning by way of examination-in-chief was made excepting, in the case of very few witnesses.

This is however not quite true because several witnesses have been orally asked in examination-in-fief the number of questions varying according

to ''his nature of the witnesses, evidence and the Petitioner has cross-examined them at length.

The previous statements recorded by Mr. Jadeja writ rend over lit Lahr witnesses who subscribed to tic alter hearing them and alter knowing what

they contained. Under 545 (8) of the Rules, die officer conducting the inquiry is to read out, in the defaulter''s presence, the statements that the

witnesses may have made in the preliminary inquiry; and to record, if necessary, any further statements they have to make and then to give the

defaulter an. opportunity of cross-examining each witness.

This procedure has been followed and there is-no breach of any of the rules 5f the Departmental proceedings. As stated above, the Departmental

I'' proceedings against Police Officers in the Sarasota State are to conform us closely as possible to ""the rules in Chapter XV of the Bombay

Ponce Minuet (Vol. 1) and this has been done in the present case.

Relying upon - State of Bombay Vs. Gajanan Mahadev Badley, , Mr. Hath argued that even in a departmental inquiry rules oft-evidence leave got

to be followed and tilt the-public servant concerned has to be given a reasonable opportunity of hearing what evidence the witness is going to give.

However, in the above Bombay case the facet"" were most dissimilar because there the principal'' witness, one Arcane, was not examined in chief''

at all and the Plaintiff of that case, Gajruan Meade, was asked to cross-examine the witness With the result that lie did not know what Arcane-

actually said against him.

Moreover, the copy of a statement triads by Arcane at a later stage of the departmental inquiry, which statement was vital to the whole ease, was

not sent to tie Plaintiff- until after the departmental inquiry was over and he had no opportunity of knowing what it contained nor of cross oxatniiung

Arcane on the same, and it was therefore held that the procedure adopted was altogether illegal, as the public servant concerned was denied a

reasonable opportunity of defending hire self..

The material faction of Rahman was mad""-behind the back of tin: public servant aid was nifty subsefibed to by him before the Domestic Tribunal

and in the presence of the said public servant. Theft-facts of the instant case are altogether different The statement recorded by Mr. jade was imam

over to each witness in the presence of the per toner and the witness did say that that statement"" was concert and thereby subscribed to it.

The Petitioner knew what that statement watts and in fact he had been supplied with a copy of) the same and he actually cross-examined the

witnesses with reference to it. Then fore there is no comparison whatsoever between this ease and the Bombay case, and the contention that the

Petitioner was denied a reasonable opportunity of defending, himself, based On the above plea, is altogether without substance,

One of the Petitioner''s grievances is that his defence witnesses were not all examined by thin District Superintendent of Police, ''Hoe precise?

allegation is that of the 13 wltnnssoa cited be p.. the District Superintendent of Police called only, 9 of which he examined 5 as prosecution

witnesses, and he did not examine the remaining 4, while Ibo-other 4 were not even called.

It is true that 5 witnesses out cuffs thee Petitioner list, Ex. 28, was examined as prosecution winces and they were cross-examined by the

Petitioner, but the remaining witnesses were not examined because the Petitioner himself did not want then? to be examined. According to the

return filed by the State, the Petitioner wanted only 5 of them to be examined and they have been examined.

This plea of the State is borne out by the fact that the Petitioner did not complain about it in his statement dated 23-9-53 filed before the District.

Superintendent of Police imp did lit commonly Of It in his lengthy statement. Ex. 30, filed before thirInspector General of Police on 50-10-53, and

rather think that he is now hying to make capital of the fact that some of his witnesses were not actually examined, a position for which he himself,

was responsible.

It was next urged that the departmental, inqulfly could have boon held by the Inspector ; General of Police himself and that it was quite improper

that toe evidence should have been heard by the District Superintendent of Police, who was to make u report, and that the Inspector General of

Police, was to act upon the- report without him hearing the witnesses.

The rules of the departmental Inquiry however permit such a procedure, and antler 11. 545 (19) the , officer conducting the inquiry, if is not

component to pass ordeis himself, is to send the papers V)'' the inquiry with an expression of his opinion land any recommendations he may think

fit to make ''to the officer competent to pass the order.

Therefore the Rules contemplate that the inquiring officer and l the punishing authority may be .two different persons, That is also homo out by

Ipara 4 of H. 51, Bombay Civil Services (Conduct, Discipline and Appeal) Rules, to which reference any be made by way of analogy, Then under

Sub-rule (29) of Rule 545, after the inquiry against a defaulter has been completed and after the punishing authority has arrived at a provisional

conclusion in regard to the penalty (punishment) to be imposed, if such punishment is dis1 oneself. removal or reduction in rank, grade or pay, j the

defaulter has to be called upon to show cause against: the particular penalty proposed to be in iliac, and any representation .submitted by in this

behalf is to be duly taken into consideration before final orders are passed.

So that the rule contemplates the giving of an importunity to the defaulter to show cause against proposed punishment. The Petitioner was ser-with

an the dated 18-10-53 to show cause the punishment of'' dismissal should not be irrryosed upon him, and in reply he sent a written explanation

which was considered by the Inspector General of, Police. It was urged that he was not asked, if he desired, to appear in person and to make his

submission against the proposed punishment. , But It. 545 (29), Bombay Police Manual, does j ''not require it nor again does. Rule 55, Bombay

Civil Services (Conduct, Discipline and Appeal) Rules, pacifically provide for it. The Petitioner himself not ask for a. personal hearing at that stage

and even in the lengthy representation, Ex. 30, which lie made, he did not express a desire that he wish- L6 to be heard personally.

The Inspector General of Police has duly considered his representation and has made a detailed ovcler giving reasons for holding that the charges

severe true and had been properly proved against him and for imposing the punishment of dismissal.

The question of the scope of Section 240 (3), of India Act, 193.1, read with H. 55.Bombay Civil Services (Conduct, Discipline and Appeal)

Rules, has been considered by the Privy Council in - AIR 1948 121 (Privy Council) , and their Lordships have quoted with'' approval a passage

from the judgment of the learned Chief. Justice of the Federal Court to the following effect:

In our judgment each case will have turn on Its, own facts, but die real point of the sub officer if in our judgment that the person who is as be

dismissed or reduced must know that that punishment- is proposed as the punishment for certain acts or omissions/on his part and must be told

(the groundless. on which it is proposed to bike such action and must be given a reasonable opportunity of showing cause why such punishment

should not , be imposed.

Their Lordships of Privy Council then observe;

In their opinion, ""sub-section (3) of Section 240 was not } intended to'' be, and was m t, a reproduction of II, do which was left unaffected as an

administrative rule. Rule 55 is concerned that the civil servant shall be informed ""of the grounds on which it is proposed to take action"", and to

afford him (an adequate opportunity of defending himself I against charges which have to be reduced to f writing; tin''s is in marked contrast to the

statutory f provisions of ""n reasonable opposite (unity of wing cause against the .action proposed to be taken in regard to him.

In the opinion of their ""Lordships, no action is propped within the meaning of the Sub-section until a definite'' conclusion has been come to on the

charges, and the actual punishment to follow is provisionally determined en. Prior to that stage, the charges are unproved and the suggested punish

moist also merely hypothetical.

It is on that stage being readied that the salute gives the civil servant the opportunity for which Sub-section (3) makes provision. Their Lordships

would only add that they see no difficulty In the statutory opportunity being reasonably afforded at more than one stage.

If the civil servant has been through an enquiry under Rule 55. it would not be: reasonable that ho should ask for a repetition of that stage of duly ,

carried out, but that would not exhaust his statutory right, and he would still be enticed to represent against the punishment proposed as the remit of

the findings of the enquiry.

Now here the Petitioner has been given an opportunity to represent against the punishment proposed as a result of the findings of the inquiry. Their

Lordships do not say that such opportunity must necessarily be in the form of personal hearing, and all. that is required is that a sufficient

opportunity is given to the person concerned to make his representation against the proposed punishment.

It may be pointed out that in the - ''State of Bombay v. Gajanan Mahadev'',(A) no hearing was given at the second stage and the order was not

challenged on that ground, nor did , the learned Judges of the Bombay High Court think that the failure to require the person to state I if he desired

to be heard in person was fatal to the final order. In - Lakshmi Narain Gupta Vs. A.N. Puri and Another, , the facts bearing on I this particular part

of the case were similar, and | there also the notice to show cause against the pro- J posed punishment did not intimate to the party f concerned if

he wished to be heard in person, and no objection was taken On this score, and this learned Judge himself did not refer to it as being in any way a

vital defect of procedure. In our opinion the Petitioner did have a reasonable uppercut nifty of showing cause against the proposed punishment.

Mr. Ilathl has urged that the inquiry at! the second stage has also to be a full-fledged inquiry in the sense that the witnesses should also be

examined before the punishing authority. In AIR 1918 PC 121 (B) their Lordships of the Privy Council no doubt observe that ""they see no

difficulty in the statutory opportunity being reason ably afforded at more than one stage, at the same lime their Lordships also say that if a civil

ser/ant has been through an inquiry under Rule 55, it would j not be reasonable that he should ask for a repetition 4 of that stage, if duly carried

out, but that would 1 not exhaust his statutory right, and he would still a be entitled to represent against the proposed put intent.

Them ore a repetition of the inquiry at rlie second stage is'' not incumbent and it is not asouahI in tin''s case that the Petitioner should for such a

repetition at the second stage, that is, before the Inspector General of Police. The above Privy Council decision has been followed by the Supremo

Court in - P. Joseph John Vs. The State of Travancore-Cochin, . Mr. Hathj has invited our attention to some of the observations in ''AIR 1954

Bombay, 351 (A)'', where ChagJa C, T., after quoting the observations of the Chief Justice of the Federal Court In I. M. Lars case, (13), says:

It is perfectly true, as argued by the Advocate-General, that it would depend upon the facts of each case whether reasonable opportunity as

contemplated by the Privy Council was or was not afforded to the dismissed servant. When an inquiry against a dismissed servant is, first, a

departmental inquiry and then a notice to show cause is served him by the authority which proposes to dismiss him, the Court has got to look at

both parts of (lie inquiry in order to come to the conclusion whether a reasonable opportunity was afforded to the servant to show cause against

die action proposed to be taken against him.

We quite agree with these observations, but the question whether the person has been given a reasonable opportunity at the second stage depends

upon the facts of each particular case. Chagla, C.J., himself observes:

It may not be necessary to duplicate what has already been done in the departmental inquiry. It may be said that if in fact the dismissed servant has

been given a full and proper opportunity to show cause against the allegations made against him, then it may not be necessary, again to require

from him practically the explanation. It may also be said that it may our be necessary in every ease lo issue a no ice in terms calling upon the

servant of show cause not only against the quantum of punishment but also against the grounds on which the proposed action is based.

In though as in this case, the erotica may be defective, if in fact the servant has been given the opportunity and has availed himself of the

opportunity of showing row against the grounds, then the mere fact that ''there is an irregularity about the notice may not lead to the Court holding

that the Government servant did not have the opportunity required u/s 240 (3).

But we think that there can be no doubt that the Court must be satisfied on a review of all the facts of a particular catch that the statutory obligation

east upon the Stale has been properly discharge by the State and the obligation is to reasonable opportunity to the dismissed servant.

There re the inquiry in the, shape, of examination;of witnesses etc., need not ''necessarily be gene (through over again at the second sale if found

that the public Servant had sufficient opportunity at the first stage. We may observe that along with the notice dated 18-10-19,5.3 issued by the

Inspector General of Police to show cause against the proposed punishment of dismissal, copy of the .summing up of Mr. Mirehandani-(District

Superintendent of Police) was. sent to the Petitioner ant'' the Petitioner was thus made aware of the grounds on which the proposed action was

eased, the Petitioner therefore did have an opal unity in an ample measure.

The question has been considered in a recent case reported as - ''Siar Kumar Da-, v, Slate of West: Bengal'', (S) AIR 1935 Cal 183 (E), in

which the Petitioner was also a Sub-Inspector of Police in the Bengal Police Force. It was held that if a charge-sheet has been drawn up an

enquiry held in which die alleged Defendant has been given every opportunity defend himself the subsequent proposal to punish him in any the

ways which would attract die provisions of Article 311 be proceeded with upon the Plaintiffs of that inquiry.

The delinquent must know what he is chaird with and must have the amplest opportunity meet that charge. In such a case, Article Shrwouh only

require that he should be given a reason, opportunity to show cause why a, certain sebum should not be taken upon such of the charge us have

been already brought home. A second inquiry into the charges would in such a case be not necessary.

It was also held that where at first there Is i a charge sheet but not the proposed punishmeflt and when the charges are adequately investigated.] it

is on posed to inflict the punishment of duskily and at that stage the Petitioner is given u second opportunity to show cause why upon the proved]

charges he should not be dismissed, and he fully avails himself of it, the provisions of Article 311 aria Rule 55, Civil Services (Classification,

Control aaa1 Appeal Rules, are amply satisfied.

This principle applies to the present case, is the facts here are almost similar. Therefore the contention made by Mr. Hathi that the inquiry should

have been held over again by the Inspector General of Police is unsustainable and must be rejected. In the was which we are taking, it is

unnecessary to refer to some other decisions cited to us by Mr. Hathi and we need only say that the rate two enunciated is, in principle, the same

as is found in the above quoted eases.

Finally it was urged that in accordance with Article 320 (3) (c) the Saurashtra State Public Service Commission ought to have been consulted

on the matter of the disciplinary action act in against the Petitioner and this, not having been do the order of dismissal is bad. Reliance is placed en

Rule 5 of the Saurashtra Public Service Commission (Functions) Rules, 1949, which says that in disciplinary matters including memorials and

elitism relating to such matters, the Commission shall moves in regard to the order to be passed, and it ""s argued that, by virtue of this rule, the

Public Service Cora-mission should have been consulted in the present case.

The proviso to Article 320 (3) however lays down, inter alias, that the Governor or Pajpramukn, as the case may be, as respects other senesce

and in connection with the affairs of a State, may intake regulations specifying the matters in which generally or in any particular class of case or any

particular circumstances, it shall not be necessary for the Public Service Commission.

Regulations have been made by the Saurashtra Shito in exercise of the powers conferred by Section 5 of the Saurashtra State Regulation of

Government Ordinance, 1948 (.1 of 1948), (published at page 844 of the State, 1949, Vol. 2) and Regulation No, 5 says that it snail _ not be

necessary for the Public Service Commission to be consulted on it disciplinary matter by any authority other than the Government.

By virtue of Article 313 of the Constitution flue regulations continue to remain in force, and since in the present case the disciplinary action is taken

by an nit other limn Mie Government, viz.,, the Inspector General of Police, and not by that Government itself, the Public Service Commission, we

TI rot have been consulted by virtue of regulation No 5. Mr. Ilaihi hay drawn our attention to Clause (5) of Article 320, which requires Unit thy

Coalitions made under the proviso to Clause (3) by the luvrnmmkh of a State are to be laid before the house of the Legislature of the Stale, and lie

has argued that it has not been proved that this procedure had been gone throima.

The Regulations here have not been made under the proviso to Clause (3) of Art 320 by ho but they have been had prior to the Constitution,

under Section5 of Ordinance I of 94b, and Clause 5 of Article 3-20 will not apply to them, But if it was otherwise, then in fairness to the opponent

Stale, the objection ought to have why"" take,, in the petition itself so that the opponent could have been in a position to reply to it and not havimi

been so taken it cannot lie permitted to be taken now The position therefore is that by virtue of KegoJatiorv 5 the Public Service Commission was

not: required to be consulted on the matter or the disciplinary unto against the Petitioner, I Ms view is in accord with authority and we may refer to

''Mahler Prasad v. S. N. Chattered, AIR 954 Pat 280 (F), where the Public Servant costumed was a lion-operator employed in the Government

Printing Press by the Superintendent of After considerinir the provisions of Article 320(3) anal of Rule 3, Public Service Commission Pues, framed

by the Government of Bihar u/s 266(3), Government of India Act, which corresponds to Article 320(3) of die Constitution, it was held by the

learned Judges that the proviso to Article 320(3) of the Constitution applied to that case and it was not necessary on the part of the Deputy

Superintendent to consult the Public Service Commission before passing an order of suspension or dismissal against the Petitioner.

The learned Government Pleader has cited a riding of a Division Bench of the Calcutta High Out in - Shiva Nandan Sinha and Others Vs. State of

West Bengal, , where it-has been held that though Article S20(3)(c) is widely worded, the sub-article was intended to apply only to the five

servants referred to in sub-article (1) of Article 329 viz., those civil servants for whose appointment ""n examination has to be held by -the. Public

Service Commission, and further that a menial servant of the humblest category cannot claim the privileges conferred by Article 320(3).

This view has been dissented from in a later case (S) Sisir Kumar Das Vs. State of West Bengal and Others, , and the learned Judge Sunhat J.,

has followed the decision simply because it was a Pencil decision of the same High Court. According to the learned judge the observation in ''Shiva

Mandan''s ease (G)\ viz., that a mica servant cannot claim the privileges con-furred by Article 320(3) did not ramset the correct legal position.

We are inclined to agree with the view of Sunhat J., but inasmuch as this precise question is not material to the decision of the present petition, we

do not express a considered opinion upon it. The fact remains that regulation 5 of the Regulations does not require the Public, Service Commission

to be consulted on a disciplinary matter by an authority other than the Government, which in Other words means that if iv only where; the

Government is the authority taking the disciplinary action that the Public Service Commission requires to be consulted.

Therefore omission to consult the Public Service Commission in the present case in no way rends the order of dismissal illegal.

For the aforesaid reasons, therefore, we hold that the order of dismissal of the Petitioner is legal and valid, and they he is not entitled to any

relief. The petition tails and is dismissed but in the circumstances of the case we direct the parties to hear thick own costs.

Baxi, J.

I agree