P.A. Ahammed Kannu vs Travancore-Cochin State

Subramonia Iyer, J.—This is an application presented by P.A. Ahamed Kannu wherein he prays that the Court be pleased to call for the record connected with his dismissal from service and

(a) set aside the order of dismissal as opposed to the covenant, constitution, law and natural justice;

(b) direct reinstatement of the Petitioner in service with all the privileges attached to his office from the date of his suspension;

(c) and pass such other orders as are necessary in the interest of justice.

The facts are short. The Petitioner was a clerk under the erstwhile Travancore State with 30 years'' service. Towards the latter part of the year 1123 he was deputed to work as clerk in connection with Agricultural Income Tax. A member of the Legislative Assembly in his speech on the floor of the House made allegations of corruption against the Petitioner. (See proceeding dated 12-8-1948).

There were also one or two written complaints making the same imputation against him. It was, therefore, ordered that he be placed under suspension pending an enquiry which was directed to be conducted immediately.

The Division Peishkar, Kottayam who was asked to conduct the enquiry was a relation of the Petitioner and, therefore he (the Division Peishkar) directed the enquiry to be conducted by the Assistant Peishkar, Kottayam. The Assistant Peishkar who conducted the enquiry was transferred from the station before framing charges against and asking for the explanation from the Petitioner. The enquiry was, therefore, conducted by his successor.

On 7-2-1124 the Assistant Peishkar examined certain witnesses including some of the accusers. Information was given to the Petitioner that in respect of certain imputations made against him details of which were not given, the accusers will be examined and he was invited to be present on the occasion. The Petitioner appeared and cross-examined some of the witnesses. The enquiry was continued after a break for a. few days and was concluded oh 13-2-1124.

On 23-3-1124 the Asst. Peishkar framed certain charges against the Petitioner who was asked to submit his explanation thereto which he did on 30-3-1124. On this last date the Petitioner submitted the following before, the Assistant Peishkar:

I beg to submit that I am under suspension for the last 3, months and I am put to vary great difficulties thereby.

Since Mr. P.T. Chacko, the aforesaid M.L.A., has stated that he has no personal or direct information and that his allegation was based on hearsay information, my deplorable situation forces me to apply for closing the enquiry with the records and evidence available at present....

In Vrischikar 1124 the Assistant Peishkar submitted his report to the Division Peishkar recording his findings that the charges against the Petitioner had been established. The Division Peishkar in his turn submitted his report to the Government referring to and relying upon what was done by both the Assistant Peishkars. The order dated 16-9-1949, dismissing the Petitioner from service, which is sought to be quashed in these proceedings, resulted.

Several months before the order was passed, that is, in Dhanu 1124 (corresponding to January 1949), the Petitioner submitted an application to the Hon''ble Prime Minister impeaching the enquiry conducted as illegal and biased and praying for a judicial enquiry being conducted afresh through the Land Revenue Commissioner or the Public Service Commission. This last prayer does not appear to have been attended to or dealt with.

The impugned order reads as follows:

Order R. Dis. 857/49/RD. dated 16-9-1949. Complaints were received by Government making serious allegations of corruption on the part of Sri. P.A. Ahamed Kannu, Clerk, Taluk Office, Changanacherry, who was in charge of the agricultural Income Tax work of that office. Under orders of Government the clerk was placed under suspension pending enquiry, from the 2nd Chingom 1124. The Assistant Peishkar, Kottayam framed charges against the clerk and held the enquiry.

He found that Sri. Ahamed Kannu was receiving or attempting to receive illegal gratification from Assessees and that he manipulated records in certain cases. Government held that the charges of bribery and corruption have been fully proved. They consider that nothing short of dismissal will be an adequate punishment in this case. Sri. P.A. Ahamed Kannu is accordingly dismissed from service.

(By Order)

Sd/- Secretary to Government.

After the close of the enquiry and before the date of the order, there was the integration of the two States of Travancore and Cochin as from 1-7-1949. Article 6 of the Covenant entered into by the Rulers of the two States for the formation of the United State of Travancore and Cochin, provides that

the executive authority of the United State shah be exercised by the Raj Pramukh either directly or through officers subordinate to him.

The rest of the Article is immaterial for the present purpose. By Ordinance I of 1124 passed by His Highness the Raj Pramukh, it was enacted in Section 3(1) that :

...The existing laws of Travancore shall until altered, amended or repealed by competent authority, continue to be in force mutatis mutandis in that portion of the territories of the United State which before the appointed day formed the territory of the State of Travancore.

The term ''existing law of Travancore'' is defined in that Ordinance in Section 2(b) as meaning any Proclamation, law, order, bye-law, rule or regulation in force in the State of Travancore immediately prior to the appointed day, except the Travancore Interim Constitution Act 1123, Clause 2 of Section 3 indicates that:

All reference in any of the existing laws of Travancore to His Highness the Maharaja of Travancore or the Government or the Dewan shall be construed as references to the Raj Pramukh or the Government of the United State or the Minister concerned of the United State, as the case may be.

Existing law of Travancore relevant in regard to this case consists of :

Rules regulating enquiries into the conduct of public servants passed by His Highness the Maharaja under date 12-12-1896 corresponding with the 29th Vrischigom 1072 (printed at Appendix C in the Regulation and Proclamations of Travancore, Vol. VI, at p. 1527).

Travancore Act, 6 of 1073.

Do 11 of 1122.

The Travancore Service Regulations.

Ordinance 1 of 1124 was replaced by Act 6 of 1125 making the same provisions in the same number of sections except the last and Section 10 of the Act which is the one repealing the Ordinance.

The Constitution of India which came into force on 26-1-1950 is relied upon in the petition. Its applicability to the present case is disputed on behalf of the State, the order in question having been parsed before. At the time of the argument learned Counsel for the Petitioner did not rely upon the provisions of the Constitution and the case was argued on the basis that those provisions would not apply and are not to be availed of by either of the parties for purposes of the present case.

The legality of the impugned order, therefore, fails to be adjudged with reference to the aforesaid existing law of Travancore and on general principles. Rule 252, Travancore Service Regulations reads thus :

Inferior Service includes all service in the following appointments unless declared by the Government to be Superior:

(a) Service as peons, head peons, attenders, mutchies, daffadars and all other menial service.

(b) Service in posts the pay or maximum pay of which does not exceed Rs. 15/- All other service is Superior.

Note : Service in the following appointments has been declared to be Superior:

(i) School masters and all officers doing clerical work, whatever their pay.

(ii) Police Constables, Jail Warders, Excise Peons and Forest Guards on pay not less than Rs. 12/- per mensem.

(iii) Attendrs in Bhakthivilas.

The Petitioner being an officer doing clerical work comes under Clause (1) of the Note and belongs to the superior service. No superior civil servant is removable from service without the sanction of His Highness the Maharaja. The rules of 1972 for regulating enquiries into the conduct of public servants enact in Rule 2 that:

No superior public servant shall be dismissed without a formal and public enquiry in the manner hereinafter described.

Rule 3 provides that:

Whenever on a complaint or otherwise it is found necessary to enquire into the conduct of a Superior Public Servant, the Head of the Department or office in which such public servant is employed may make a preliminary enquiry to determine whether there are grounds for a formal and public enquiry. The officer holding the preliminary enquiry may examine such records, and such persons as may be necessary to find out the truth of the charge or allegation against the public servant concerned and may also take statement from such public servant.

He may, if necessary and if specially empowered in this behalf, summon any person to give evidence or produce any document in his possession or custody. No formal examination of witnesses is, however, necessary; but a note of the evidence shall be taken by the officer holding the enquiry.

Rule 4 wants the officer making the preliminary enquiry to make a report (sic) a public enquiry should be (sic) such a course. Rule 5 provides that the Government may, upon the said report or otherwise order a formal and public enquiry into the conduct of a superior public servant and appoint a commission for the purpose. Rule 3 provides that:

The accused shall, before the commencement of the enquiry be furnished with a list of the charges against him. He shall have the right of cress-examining all the witnesses against him and of examining his own witnesses. He shall be furnished with copies of all evidence against him and shall have the right of putting in a statement of his defence and any documents relevant to the enquiry. He may also engage a Vakil to deferred him.

Rule 10 provide for the (sic) finding. Rule 13 provides that upon the said report, it is competent for the Dewan to suspend such officer for a period not, exceeding three months or fine him in any amount not exceeding a month�s salary. If a higher punishment is deemed necessary, the Dewan shall submit tho case with his opinion to His Highness the Maharaja.

Part II of the Rules relate to inferior public servants and Consists of Rules 15 to 19. Rule 15 provides that "no inferior public servant shall be dismissed except on good and someout grounds such as fraud, dishonesty, continued and wilful negligence, gross insubordination, offences involving moral disgrace and proved incompetency." The remaining Rules 4 in that Part refer to the details of the enquiry against inferior public servants, the last of which provides, that:

It is not enough that the public servant accused should be told of the charge he has to meet, he should be told also of the evidence and arguments in support of the charge before he is required to defend himself. The accused persons may be examined in the form of questions and answers. But this does not deprive him of his right to place on record a full written statement of his defence.

Part III is general and contains in Section 20 the general directions which should be borne in mind in dealing with public servants. The direction contained in B is important and should be read.

B. As a rule no old servants - especially those who have earned or nearly earned their pensions - shall be dismissed except upon very strong proof of serious misconduct. It should be borne in mind that the sudden beggary of a man whose working days are drawing to a close is as serious an exercise of power as a penal sentence of a Court of justice and should not be inflicted on haphazard principles.

It is thus clear that however high be the position of the accuser, wherever the place at and whichever the manner in which the accusation is made, no public servant, how humble-soever is liable to be dismissed from service except on good and sufficient grounds established in an open and public enquiry in the manner envisaged in the Rules. Act 6 of 1073 sets up an efficient and effective machinery for the conduct of the enquiry under the Rules.

Act 11 of 1122 is a law for regulating enquiries into the conduct of public servants not removeable from their appointments without the sanction of the Government that is, superior public servants. The following sections of the Act are relevant for this case.

Section 2 provides that:

If (sic) a preliminary enquiry or otherwise our Government are of opinion (sic) there are sufficient ground for making a formal and public enquiry into the truth of any imputation of misconduct by any person in the service of our Government not removable from office without their sanction, our Government shall cause she substance of the imputation to be drawn up into distinct articles of change and shall order a formal and public inquiry to be made into the truth thereof.

Section 10 enacts that:

A copy of the article of charge and the list of the documents and witnesses by which each charge is to be sustained shall be delivered to the person accused at least three days before the (sic)

Section 15 is to the effect that:

When the case for the prosecution is closed, the person accused shall be required to make his defence, orally or in writing, as he shall prefer. If made orally, it shall not be recorded; if made in writing it shall be recorded after being openly read and in that case a copy shall be given at the same time to the prosecutor.

The next Section 16 is as follows:

The evidence for the defence shall then be produced and the witness examined, who shall be liable to crass-examination and re-examination and to examination by the Commissioner according to the like rules us the witnesses for the prosecution.

Section 20 provides for a report to be submitted by the Commissioner to the Government after the close of the enquiry together with the record of the enquiry and the opinion of the Commission upon each of the articles of charge separately with such observations as he thinks fit on the whole case. Section 21 provides that:

Our Government on consideration of the report of the Commissioner, may order him to take further evidence or give further explanation of his opinion. Our Government may also order additional articles of charge to be framed, in which case the inquiry into the truth of such additional articles shall be made in the same manner as is herein directed with respect to the original charges.

When any special Commissioner has been appointed our Government may also if they think fit, refer to the report of the Commissioner to the Court or other authority to which the person accused is subordinate, for their opinion on the case; and snail finally pass such orders thereon as they shall consider just and proper.

Section 22 reads as follows:

Nothing in this Act shall be construed to affect the authority of our Government for suspending or removing any public servant for any cause without any inquiry under this Act.

There was not in this case (and it was not, nor could it have been, contended on behalf of the State that there was) an enquiry as contemplated in Act 11 of 1122. The provisions contained in that Act cover the same ground as part I of the aforesaid Rules of the year 1072, relating to the condition that should precede the dismissal of superior public servants.

Though these rules have not been repealed, as a subsequent legislation overlaps them, the overlapping subsequent, legislation which is Act 11 of 1122 in law prevails and applies to this case. The enquiry that was made by the Assistant Peishkar was only a preliminary enquiry, the result of which cannot be anything more or other than the holding of a formal and public enquiry according to Rule 3 in the Rules of 1072 and Section 2 of Act 11 of 1122. An order as a consequence of a preliminary enquiry and without the intervention of a formal and public enquiry, imposing a punishment upon a delinquent officer is not contemplated by the Rules or the Act.

That there are two enquiries, one preliminary and the other formal and public differing in their purpose, nature and result does not appear to have been adverted to by any of those concerned. The enquiry that there was is seen assumed to have been an open and public enquiry leading to a report on which action by way of punishment could be taken. Para 4 of the counter-affidavit filed on behalf or the State says that "the Assistant Peishkar ''after'' issuing notice to the Petitioner and framing charges, held the enquiry."

This is an obvious error because it is apparent no the face of the record that the entire enquiry that there was, preceded the framing of the charges and there was no enquiry at all subsequently. The charges were framed on 28-3-1949 and nothing was done thereafter by way of an enquiry as what followed was the report of the officer.

This Court on 4-3-1952, directed that

the State will file a statement whether witnesses were examined after the framing of charges, that is on 28-3-1949 and if so, whether the Petitioner was given an opportunity to cross-examine them. Time two weeks.

A statement was accordingly filed on behalf of the State on 20-3-1952 which does not show either that any witness was examined or any cross-examination done after the charges were framed.

The Rules of 1072 and the Act 11 of 1122 alike require that a copy of the articles of charge with a list of witnesses and documents to prove them, should be given to the person complained against as a preliminary to the enquiry. That has not been done. The order dismissing the Petitioner which has been read, contains a statement to the effect that "the Assistant Peishkar, Kottayam, framed the charges against him and held the enquiry" which is the first sentence in the counter-affidavit read above and need not be further dealt with as necessary comments have already been made above.

There was no enquiry after the charges were framed. The sole foundation of the order being the result of an enquiry made, which enquiry as already stated, cannot lead to any order imposing a punishment upon a delinquent officer, the order impugned is unsustainable on the only ground on which it is based.

Article 19 of the Covenant

guarantees either the continuance in service of the permanent members of the public service of either Covenanting State on conditions which will not be less advantageous than those on which they are serving immediately before the appointed day (that is, 1-7-1949) or the payment of reasonable compensation or retirement on proportionate pension.

The Petitioner having served for over 30 years had earned his pension, that is, half of his salary for which service for a period of 25 years would be sufficient under Article 309, Travancore Service Regulations and the Direction B in Rule 20 of 1072 already read, applies to him which contains a prohibition against dismissal of old servants especially those who have earned or nearly earned their pensions except upon very strong proof of serious misconduct.

Learned Government Pleader sought to support the impugned order urging that all public servants hold office under the pleasure of His Highness the Raj Pramukh after the integration and that before the integration, public servants in the erstwhile Travancore State held their offices at the pleasure of His Highness the Maharaja.

He referred to the English Law according to which public servants hold their office during tins pleasure of the sovereign. It was, contended than that rule applies with greater force in the case of the erstwhile Travancore State. Reliance was also-placed upon Section 22 of Act 11 of 1122 which reserves the authority of the Government "for suspending or removing any public servant for any cause without any inquiry under this Act." There were historical and other reasons in England which led to the evolution of the rule that public officers there hold office during the pleasure of the Crown. No such reason is shown to have existed here.

It is no doubt true that His Highness the Maharaja as the sovereign of his State had supreme, absolute and unlimited powers and to say that "that sovereign power may be legally controlled within its own province is a self-contradictory proposition". (Salmond on Jurisprudence, Edn. 10 (1947) Appendix I, The Theory of Sovereignty, p. 494). It is equally true to say, as Salmond continues "that its province may have legally appointed bounds is a distinct and valid principle."

Whether the Maharaja of Travancore ever functioned without such legally appointed bounds does not appear, but it is clear that from the date of the enactment of the Rules of 1072, which though termed as Rules, are not Rules made under the rule-making power in any statute but themselves constitute a primary and independent legislative measure. His Highness did not and so long as the Rules existed, could not so function in the matter of dismissal of public servants. (See - AIR 1937 27 (Privy Council) ).

Learned Government Pleader relied upon - AIR 1937 31 (Privy Council) and - Dr. M. Krishnamoorthy Vs. The State of Madras and Another, and contended that non-compliance with the Rules will not render an order of dismissal of a servant illegal or void. The cases cited no doubt say that violation of the Rules may not render an order otherwise good any the less so.

The validity of the orders in those cases was established as they were in conformity with the law governing the matter and the only complaint related to irregularities in the matter of non-compliance with certain rules made regulating the minor details of procedure which are in the nature of mere directions subject to change from time to time and which did not have the force of law so as to circumscribe the authority of the person dealing with the matter or to create any right in the servant.

The Rules in question here are, as already stated, a part of the statute law of the State and are binding on the sovereign as well as on the subject. In other words, public servants could not have been dismissed at His Highness''s pleasure.

Assuming for the sake of argument that public servants hold office at the pleasure of His Highness the Maharaja, the exercise of such pleasure must be made by him and he could not delegate that power because, if he could, the pleasure would be not of His Highness but of the person to whom the delegation is made and I do not understand learned Government Pleader contending that there was any such delegation in this case.

His Highness the Maharaja before the integration or His Highness the Raj Pramukh thereafter, is nowhere in evidence in the proceedings connected with and ending in the order dismissing the Petitioner from service, the complete file whereof has been placed before Court which is taken as and should be deemed to be, entire and complete as the writ applied for and the rule issued is one in certiorari for quashing the order of dismissal of the Petitioner in which the said proceedings terminated.

Dismissal from service, is and in this case the order in clear, express and explicit terms makes it, a punishment for a guilt stated brought home to the Petitioner. If there be no guilt there could be no dismissal either. Dismissal for established delinquency entails a bar to re-entertainment of the dismissed servant in service. It creates a taint on his reputation which would stand in his way of seeking employment elsewhere and would even affect his position in society.

A servant holding office under the pleasure of His Highness who ceases to hold it on account of His Highness being pleased so to order, will not be subject to any of the aforesaid disabilities. A servant directed to retire on account of a policy of the State regarding age of superannuation or otherwise would also not be subject to any such disability.

Neither the pleasure nor the policy can justify a punishment by an order of dismissal. Natural Justice requires that no person should be condemned unheard. In a matter where the servant has to cease to hold office on account of the exercise of pleasure or policy pursued by an authority, the servant''s mouth is shut as he has no right to be heard in opposition thereto. To punish a person at pleasure or on account of a policy regardless of any guilt of his, would be condemn him unheard which is obnoxious to natural justice.

Therefore, to say that the order dismissing the Petitioner in this case which, as already stated, is one passed and purporting to have been passed on account of a guilt stated to have been brought home to him can be sustained apart from that guilt relying upon His Highness''s jurisdiction to exercise his pleasure and bring about a cessation of his service, is a proposition hardly statable and the attempt to sustain the impugned order on such a proposition is one that ought not to have been made.

This would be the position if the attempt to sustain the order is to sustain it by relying upon His Highness''s pleasure as at the present moment. If, however, the argument is meant also to sustain the order as having been in fact one made on its date in exercise of His Highness''s pleasure then, the argument would destroy its purpose because the orders on its face deliberately states something as its ground contrary to the reality which would render it void for ''bona fides'' because ''bona fides'' is essential for the effectiveness of the exercise of any power albeit discretionary.

Learned Government Pleader on behalf of the State urged that public servants drawing a salary of not more than Rs. 100/- per mensem could be dismissed by the Chief Secretary to Government pursuant to the authority conferred upon him in that behalf by Proceedings dated 10-5-1938, No. 1 in the schedule attached to which is as follows.

Designation of Officer. Existing powers of appointment.

Chief Secretary to Government.

(a) Power exercised on behalf of Government.

Appointment, grant of leave, promotion, punishment etc., of all officers drawing up to Rs. 100/- in accordance with the recommendation of Heads of Departments subject to re-examination by the Dewan.

These proceedings have no bearing upon the issue in this case because, the Chief Secretary did not pass the impugned order nor does he appear to have had anything material to do with it.

The impugned order purports to be and to be only consequential on the finding of ''guilty'' recorded against the Petitioner by the officer who conducted the enquiry. If the enquiry is such as to lead to such a consequence, there can be no question about it. If on the other hand, the consequence attributed to it does not and cannot in law follow the finding recorded, the State cannot seek to support the result by relying upon the circumstance that the same could have been brought about by the exercise of their powers and jurisdiction, say for instance, by exercising the pleasure of His Highness or pursuing a policy.

Dismissing a public servant for his delinquency found as a result of an enquiry and as a punishment is one thing, termination of his office by the exercise of His Highness''s pleasure is Anr. thing, determination of his office by pursuing a policy say of not retaining servants in service for more than 30 years, is yet Anr. thing. These are three different varieties of jurisdiction, the exercise of any one of which in cases where such exercise is legal may bring about the same result.

Pursuit of the one would amount to an election of that one mode in preference to the Ors. and if the pursuit of the mode chosen fails in law to bring about the object sought to be achieved as not leading up to a valid order, that order should stand or fall on its merits based upon the proceedings leading up to it and cannot be supported by relying upon the possibility that the State could have passed the same order had in exercised any other available jurisdiction which, if done, such act might even have been immune from assailment in a, Court of Law.

Learned Government Pleader laid stress upon the application presented by the Petitioner on 30-3-1124 praying for the closure of the enquiry on the evidence already on record and contended that the enquiry having been concluded on the strength of that application, the Petitioner is not competent to complain, as he does, that the failure to give him an opportunity to cross-examine the witnesses for the accuser and adduce his own evidence is opposed to natural justice.

The reason stated in the application for closing the enquiry at that stage is that there is no evidence against, him, a position which would stand justified by the record because there was no evidence worth the name at the first second enquiry and the officer conducting it relied upon the evidence collected at the enquiry where rejection occasioned the second.

Whatever might be the vicissitudes in matters like this, the Petitioner could hardly have expected that after an enquiry is discarded as illegal and a new one ordered, anything done of found at the discarded enquiry would be made use of to found a report upon at the new enquiry as ,was done in this case. Had the prayer for closure of the enquiry made by the Petitioner led only to an open and public enquiry, he may perhaps have had no ground of complaint.

It is impossible to accept the contention if not to raise it that the consequence of the Petitioner praying that the preliminary enquiry which was on foot may be closed on the evidence on record, would estop the Petitioner from not merely challenging the conclusion reached by the officer at that enquiry, which would only lead to the next step of an open and public enquiry, but also from challenging an order paused without that other enquiry as though such a one was made and ended adversely to him, though no such thing ever happened.

Learned Government Pleader also contended that the Petitioner is guilty of laches as one year and eight months elapsed before he resorted to this Court for redress. It was not contended that on account of the delay the State has been prejudiced in any manner, in the absence of any such plea, mere deny cannot be and has not been considered a bar to the entertainment an application of this description by the Court.

Learned Government Pleader also contended that there is other remedy available to the Petitioner and for that reason too, this petition ought not to be entertained. It is not clear to me nor was it explained what other equally adequate and effective remedy the Petitioner has. Assuming any other remedy is available, none can be so effective as the one that is sought in these proceedings. The existence of other remedy is also not a bar to the High Coust''s entertaining an application in certiorari.

The Petitioner presented an additional affidavit on 7-3-1951 challenging the impugned, order on the ground that it is not valid as it is not expressed in the name of His Highness the Raj Pramukh. The admissibility of additional affidavits raising new grounds in applications for certiorari was questioned in behalf of the Respondents. Additional affidavits raising new grounds to sustain a prayer for relief, in an application for a writ are permitted in England.

In O.P. 32 of 1953 (TC) (D), a Division, Bench of this Court took the view that additional affidavits can be entertained and leave to amend given. Order 19, CPC pertaining to trial of original suits no doubt does not apply as such to the trial of original petitions for writs in the High Court but there is no reason why the salutary provisions contained therein, except as regards the cross-examination of deponents, should not be followed in the enquiries in the High Court connected with petitions for writs.

Reserving decision on that question, the State was directed to file their answer to the additional ground taken which was filed by the State on 22-7-1952 as follows:

Till 11-7-1950 the practice was that all orders and other instruments made and executed in the name of His Highness the Raj Pramukh were being authenticated as merely ''By Order''. But since the Circular Order M3-10864/50/CS dated 11-7-1950 all orders and instruments of Government are being authenticated as ''By Order of His Highness the Raj Pramukh''.

This statement does not meet the point raised in the additional affidavit. The point was that the order was not expressed in the name of the Raj Pramukh, which is a different thing from saying that it was not authenticated expressly stating as "By Order of His Highness the Raj Pramukh".

This statement would have been an answer to the second point had objection been raised regarding it. That orders were expressed to be made in the name of the Raj Pramukh are seen published in the Gazette dated 31-1-1950. Part I.P. 61, as follows :

C.J. 4-No. 2125/50/CS Chief Secretariat,

25th January 1950. His Highness the Raj Pramukh has been pleased to order that the following Temporary Judges of the High Court be confirmed as Puisne Judges, High Court, with effect from 20th January 1950:

Sri. K.T. Koshi

Sri. K. Sankaran

Sri. K.S. Govinda Pillai

Sri. S. Govinda Menon.

By Order K.G. Menon Chief Secretary to Government.

Similar orders are seen published in the Gazette dated 7-2-1950, Part I, p. 79 as under:

No. S.3-20079/49/CS, 25th January 1950. His Highness the Raj Pramukh has been pleased to reappoint Sri. Rama Varma Tampuran and Sri. R.V. Thomas as members of the State Public Service Commission, on their existing salary for a term of six years with effect from 26-1-1950 or until they attain the age of sixty, whichever is earlier.

By Order K.G.Menon Chief Secretary to Government.

The decision of the Supreme Court in Dattatreya Moreshwar Pangarkar Vs. The State of Bombay and Others, to the effect that the consequence of an order not being expressed to be in the name of the Governor or the Raj Pramukh is not to invalidate it but render it open to investigation whether there was or there was not an order really passed.

If an order is expressed to be in the name of the Governor or Raj Pramukh and is authenticated properly then it is immune from being called in question in any Court of law under Article 166(2) of the Constitution. Non-compliance with the aforesaid formality has the only result of depriving the order of its immunity and does rot render it Invalid. If on enquiry it is found that there was an order passed by the proper authority it would be valid even though it is not issued in a particular form.

It was also contended by the learned Government Pleader that jurisdiction in the matter of writs was conferred upon the High Court only by the Constitution and that the order impugned in the case having been passed before the coming into force of the Constitution, ''certiorari'' does not lie. The erstwhile High Court of Travancore was exercising jurisdiction in certiorari (See - ''P.K. Kunju v. Moideen Kunju'' 1949 Trav LR 132 (FB) (F) ) on the ground that the said jurisdiction is inherent in the High Court as a Court of record.

A Full Bench of this Court has also held in favour of and exercised jurisdiction in ''certiorari'' even before the coming into force of the Constitution of India (See - ''Subramania Iyer v. Chief Minister'' 1949 Ker LT 77 (FB) (G)). This contention has therefore to be repelled.

Poverty and inability to maintain his family were stated by the Petitioner to have prompted his application dated 30-3-1124 for closure of the enquiry. It is not seen that the situation has since improved. This petition has been pending in this Court for over a year. Learned Government Pleader invites me to desist from granting relief to the Petitioner even if I find him entitled to it and to direct him to pursue his remedies in Anr. Court because interference in applications of this description is discretionary with the High Court.

I consider that unless there is an impediment which I find there is not, this case is preeminently one fit for interference. The order dismissing the Petitioner from service is ultra vires and void and it would be unjust if not cruel, to deny the Petitioner the benefit of that adjudication even now as pursuit of the remedy in Anr. Court means further expenses and delay.

In the result I hold that the order dated 16-9-1949 purporting to dismiss the Petitioner from service is ''ultra vires'', void and inoperative and I hereby quash it. I also hold that the Petitioner is entitled to be treated by the Respondents as if that order had not been passed. The relief for an order of reinstatement asked for in the petition cannot be granted as the Respondents are at liberty to deal with the Petitioner in any manner that is right and they cannot, in law, be compelled to reinstate him.

The original petition is allowed to the extent and in the manner indicated above. The Respondents will pay the costs of the Petitioner including Advocate''s fee which I fix at Rs. 100/-.