Choudhary, J.:— The petitioner has moved this Court under Article 226, Constitution of India for quashing the order of dismissal passed against him by the Chief Conservator of Forests, Bihar (Opposite Party No. 2) on 20-7-1954.

2. The petitioner was appointed a forester by the Conservator of Forests in the year 1946, and in December, 1950, was placed in charge of Kodalibad Beat with Head quarters at Thalkobad in the Saranda Division of Forests in the District of Singhbhum. On 14-7-1952, the divisional Forest Officer framed certain charges against him and he was called upon to give his explanation with regard to them. He, accordingly, submitted his explanation on 29-4-1952. In the meantime on 21-4-1952, the Divisional Forest Officer filed a petition of complaint against him and some other persons before the Sub-divisional Officer, Chaibassa, and they were put on trial under Sections 409 and 120B, Penal Code and Section 26 of the Indian Forest Act. On 31-3-1953, the criminal case ended in favour of the petitioner; he was acquitted.

3. Thereafter, on 27-4-1953, he applied for his reinstatement, whereupon he was informed by the Divisional Forest Officer on 4-5-1953, that the enquiry started on the charges framed against him on 14-4-1952, shall proceed and he was directed to attend the same on 21-5-1953. He, therefore, put in an objection that the above charges were dealt with and found not to have been established in the criminal trial and as such, no departmental enquiry could be held on those very charges.

4. This objection was overruled and he was asked to attend the enquiry which was fixed to be held on 23-5-1953. He, thereafter, declined to take part in it and it was held on that date in his absence. From the papers produced before us by the learned Government Pleader it appears that before the above date the petitioner had written to the Divisional Forest Officer that as he was the prosecutor in the criminal case referred to above, he should not assume the role of a Judge in this enquiry.

5. The Divisional Forest Officer, in view of this representation, submitted his findings on the charges levelled against the petitioner to the Conservator of Forests on 12-6-1954, who disagreed with the view taken by him and referred the matter to the Chief Conservator of Forests. The latter agreed with the view taken by the Divisional Forest Officer and provisionally decided to dismiss the petitioner from Government service.

6. On 1-3-1954, therefore, the Conservator of Forests acting under the Orders of the Chief Conservator of Forests asked the petitioner to show cause as to why he should not be dismissed. On the same date it was intimated to the petitioner that certain further charges were framed against him on 19-2-1954 and he was asked to submit his explanation with regard to the same.

7. On 9-3-1954, he showed cause which was forwarded to the Chief Conservator of Forests on 24-3-1954 with comments of the Divisional Forest Officer thereon. The Chief Conservator of Forests found the charges framed against the petitioner on 14-4-1952, and 19-2-1954, established and passed an order dismissing him on 20-7-1954. He has therefore, prayed for issue of a writ in the nature of certiorari for quashing the above order of the Chief Conservator of Forests.

8. The first point taken on behalf of the petitioner is that the order of dismissal in question was based substantially on the allegations which were the subject matters of the charges in the criminal trial in which he was acquitted, but, in law, they could not be valid grounds for his dismissal. In order to appreciate this point, it will be necessary to notice as to what were the charges in the criminal trial and on what charges the order of dismissal was passed. The charges that were originally framed against the petitioner by the Divisional Forest Officer on 14-4-1952, were as follows:

“1. In his diary for 30-12-1951, the Forester has shown his journey to K.P 17 and to have spent the night at Naogaon, returning to his headquarters on the following day at about 1 p.m but he is reported to have been seen at Manoharpur on the same date.

2. Similarly, on 1-1-1952, he has shown in his diary to have gone to Gua from Tholkobad on bicycle, a distance of 27 miles, starting from Tholkobad at 7 a.m and reaching Gua at 2 p.m The Forester has charged T.A for that. But it has been reliably reported that from Tholkobad he went on contractor's truck.

9. The Forester is, therefore, charged for going to Manoharpur without obtaining permission and also for false submission of diary and charging false travelling allowance.

3. In the morning of 1-1-1952, the Forester went to K.P 20, Coupe of Babu D.N Singh, with him on his truck. There he along with the contractor, selected six unmarked sal trees or seven feet and above in girth outside the coupe boundary line of the contractor D.N Singh and got the same marked by the Coupe Muharrir Lal Singh Purty with his sale hammer for illicit felling and removal by the contractor.

4. In conspiracy with the contractor he directed the coupe overseer Lal Singh Purty to mark many undamaged trees as ‘damaged’ in that coupe.

5. The Forester never inspected and never checked the damages of that coupe. Neither did he submit any damage list of the coupe to the R.O

6. In disobedience to definite instructions he allowed the contractor to extract all the damaged trees from that coupe before paying the royalty and compensation assessed by the Divisional Forest Officer. In fact, the contractor has not yet paid the assessed sum as yet.

7. Further, he permitted the contractor to extract all those trees which were falsely marked as damaged (as in item no. 4 above) without submitting any damage list to the Divisional Forest Officer and without obtaining final orders from him. In this case too the contractor was allowed to get away with the timber without paying royalty and compensation.”

10. Three charges were framed against the petitioner along with other accused persons in the Criminal trial, namely, (1) under S. 120-B, Penal Code for having agreed to do or cause to be done an illegal act of marking illegally six trees of sal with the intention of illegally extracting timber therefrom and having done the same in pursuance of that agreement, (2) under S. 409, Penal Code for having committed criminal breach of trust with regard to the aforesaid six trees entrusted with him in the capacity of being a servant of the Forest Department and (3) under Section 63 of the Forest Act for having put sale hammer impressed on the aforesaid six trees not sold to Dhudhnath Singh in order to indicate that they were sold to him for the purpose of causing wrongful gain to him.

11. Thus it appears that the charges framed in the criminal trial related only to charge no. 3 of the original charges referred to above framed against the petitioner by the Divisional Forest Officer. The other charges made against him in the departmental enquiry do not appear to be the subject matters of the criminal trial.

12. It may be noted that in the enquiry that was made this charge no. 3 was expunged after his acquittal in the criminal case, and no finding was given on it by the Divisional Forest Officer. Thus, it is incorrect to say that the order of dismissal was based substantially on the same allegations which were the subject-matters of the criminal trial and of which the petitioner was acquitted by the Criminal court. Reliance has been placed on behalf of the petitioner on the case of — ‘Jerome D'Silva v. Regional Transport Authority, South Kanara’, 1952 Mad 853 (AIR V 39) (A).

13. In that case the permit granted to the owner of a lorry was cancelled as the lorry was found to have been engaged in smuggling foodgrains. It appears that the driver of the lorry was charged by the police for having contained smuggled rice. After a full enquiry, the Magistrate discharged the accused driver holding that the accusation was groundless. Even then the permit of the owner was cancelled on the same charge.

14. Their Lordships held that if the criminal prosecution ended in discharge or acquittal of the accused, then the Regional Transport Officer could not go behind the final order of a competent criminal court and cancel the permit by holding contrary to the decision in the criminal case that the lorry was engaged in smuggling foodgrains. That case, however, has no application to the facts of the present case.

15. In the present case, as already observed, the allegations on which the order of dismissal is based were not the subject matters of charges in the criminal trial. Apart from that, the petitioner in the criminal trial, as appears from the certified copy of the judgment in that case produced before us on his behalf was acquitted as the prosecution failed to establish them beyond any reasonable doubt. There is no finding by the Magistrate that the accusation was groundless as was the finding of the Magistrate in the above Madras case. This point, therefore, has no merit and must be rejected.

16. The second contention raised on behalf of the petitioner is that the Chief Conservator of Forests had no authority to dismiss him and, as such, the order of dismissal was void. In support of this contention it has been urged that the appointment of the petitioner was made by the Conservator of Forests and, as such the Chief Conservator of Forests could not dismiss him.

17. Reliance has been placed on Article 311(1), Constitution of India which states that no person who is a member of a civil service of the Union or an all-India service or a civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

18. This Article, has no application to the present case where the order of dismissal has not been passed by an authority subordinate to that which appointed the petitioner rather in this case the Conservator of Forests who appointed the petitioner is subordinate to the Chief Conservator of Forests who passed the order of dismissal. This article does not preclude an authority which is superior to that which has made the appointment to dismiss or remove a person so appointed.

19. It has then been argued that even according to the rules of the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935, the Chief Conservator of Forests was not the authority which could dismiss the petitioner. Rule 2 of the above rules prescribes penalties that may be imposed upon any member of a Subordinate Service and the order of dismissal is one of those penalties.

20. Rule 3(a) provides that any of the penalties mentioned in rule 2 may be imposed on a member of a Subordinate Service by the authority empowered to impose such penalty by any rule or order in force at the time when these rules come into operation or by any rule or order made after the time when these rules come into operation. Rule 29 of the Bihar and Orissa Forest Manual, Vol. 2, provides that the reduction and dismissal of Foresters and Forest guards and other officers below the rank of Deputy Rangers may be ordered, by the Divisional Forest Officer.

21. On the basis of these rules it has been argued that the petitioner could have been dismissed only by the Divisional Forest Officer and not by the Chief Conservator of Forests. These rules were made under the Government of India Act, 1935, and their validity has been recognised under Article 313, Constitution of India. They are, therefore, undoubtedly applicable to the case under consideration.

22. According to these rules, the Divisional Forest Officer could have imposed the punishment of dismissal on the petitioner. There is nothing, however, in these rules to show that the Chief Conservator of Forests, who is undoubtedly the Head of the Office which appointed the petitioner, could not himself impose that penalty. Rule 29 referred to above empowers (1) the Conservator to impose certain punishment on Rangers and Deputy Rangers and (2) the Divisional Forest Officers to impose the same on Foresters and other such officers who are below in rank of Deputy Rangers.

23. It would be absurd to think that a Conservator, though empowered to punish Rangers and Deputy Rangers, could not impose punishment on those who are below them in rank. In my opinion, the above rule has been made for facilitating the disciplinary action to be taken against a member of a Subordinate Service of the Forest Department and to lessen the pressure of work of the Conservator or the Chief Conservator by authorising their subordinates to deal with certain cases. The rule cannot be read to have taken away their power to impose penalties on the Foresters, which, as being the Head of the Office, they ordinarily have.

24. In the present case, however, the facts disclose that the Chief Conservator of Forests, and not the Divisional Forest Officer, was the proper authority which could have passed the order of dismissal. As already stated, the petitioner made a representation to the Divisional Forest Officer requesting him not to assume the role of a judge in his case inasmuch as he was the prosecutor in the criminal trial.

25. This representation was accepted by the Divisional Forest Officer and, as such, he, instead of exercising his power of dismissing the petitioner, under the above rule, referred the matter to the higher authorities which passed the order of dismissal. That being so, he cannot be permitted to urge that he could have been dismissed only by the Divisional Forest Officer and by no other officer.

26. Rule 3(b) of the Bihar and Orissa Subordinate Services Discipline and Appeal Rules provides that if no authority has been empowered to impose the penalties referred to above, they may be imposed by the Head of the Department or the Head of the office having the power to appoint the member of the Subordinate Service on whom the penalty is to be imposed.

27. In view of the fact that the order of the Divisional Forest Officer imposing any penalty on the petitioner would have been unjustified on the ground of prejudice as he had prosecuted him by lodging a petition of complaint before the Sub-divisional Officer at Chaibassa, there was no other authority except the Head of the Office, namely, the Chief Conservator of Forests, which could have imposed any penalty on the petitioner. The validity of the order of dismissal, therefore, cannot be challenged on this ground and the second contention has also to fail.

28. The next contention is also based on the rules quoted above. It is submitted that under those rules the Divisional Forest Officer could set up enquiry, as he did in this case, and he could have passed an order of punishment Against his order the petitioner had a right of appeal to the Conservator of Forests.

29. Since, however, the Divisional Forest Officer referred the matter with his report to the Conservator of Forests who having differed from him submitted his report to the Chief Conservator of Forests and the latter agreeing with the report of the Divisional Forest Officer dismissed the petitioner, he could not go up in appeal to any authority against the order of dismissal. It has been contended that such procedure was unknown to the rules and by following it the petitioner's right of appeal has been taken away and he has thus been prejudiced.

30. The argument put forward is that if the Divisional Forest Officer had himself imposed the punishment, the petitioner would have gone in appeal to the Conservator of Forests and his decision that the petitioner was guilty of none of the charges would have exonerated him and the Chief Conservator of Forests could not have passed the order of dismissal as there was no provision for any appeal by the Department before him.

31. It has also been contended that the Chief Conservator of Forests had only an appellate authority and not any original authority to deal with this matter and since there was no appeal before him, the order of dismissal passed by him is void. All these contentions have to be overruled on the simple ground that they were never raised in the petition filed by the petitioner for issue of a writ.

32. The learned Government Pleader is unable to throw any light on the points raised for want of materials on the record. He has, however, pointed out that the procedure laid down in this case might have been adopted on the representation of the petitioner himself who definitely prayed that the Divisional Forest Officer should not deal with his case.

33. Be that as it may, the points not having been raised in the application cannot be permitted to be raised for the first time at the hearing as the State has no opportunity to meet them, and place on record materials to support the procedure adopted in the case. It has been submitted on behalf of the petitioner that he had no knowledge or information of the procedure so adopted and the points raised arise out of the counter-affidavit filed by the State.

34. Even assuming it to be so, there could be no justification for the petitioner to have kept quiet over this matter till the actual hearing of the case: he could have taken those points by supplementary affidavit so as to enable the State to meet them if it could. This contention has, therefore, to be overruled on this very ground.

35. The fourth contention is that no second notice has been given to the petitioner in respect of the additional charges framed against him and, as such, the order of dismissal is bad. It has already been stated that certain charges were framed against the petitioner on 14-4-1952, which, except one, which was given up as being the subject-matter of the criminal trial, were found to have keen established on enquiry and notice to show case as to why he should not be dismissed was given to him on 1-3-1954.

36. On 13-2-1954, however, some additional charges were framed against the petitioner with regard to matters that cropped up in course of the correspondence after he had filed his explanation on 29-4-1952. These charges are:

“(i) Using intemperate and indisciplined language in his petition dated the 5th, 15th and 18th May, 1953, to the Divisional Forest Officer, Saranda Division.

(ii) Committing a breach of discipline in sending advance copies of these petitions to this office.

(iii) Disobeying the orders of his superior officer, the Divisional Forest Officer, Saranda Division, by not attending to an enquiry at Manoharpur as ordered on 23-5-1952.”

37. A notice of these additional charges was issued to be served on him on 1-3-1954, calling upon him to explain why disciplinary action should not be taken against him for those charges. On 9-3-1954, he submitted his explanation with regard to these charges and represented that they should be withdrawn. The Divisional Forest Officer, however, found the above charges to have been proved and submitted his report to the Conservator of Forests, Southern Circle, Ranchi, on 24-3-1954, who entirely agreed with him.

38. Ultimately, the petitioner was dismissed on 20-7-1954, as the charges which were originally framed against him on 14-4-1952, except the one which had been expunged, and those which were subsequently framed on 19-4-1954, were found to have been proved. Notice to show cause as laid down in Article 311(2) of the Constitution against the action of dismissal proposed to be taken in regard to the petitioner for the charges framed originally, as stated above, was served on him on 1-3-1954.

39. No such notice appears to have been served on him for the additional charges framed subsequently as referred to above. It is, therefore, contended that the order of dismissal passed against the petitioner violates the provision of Article 311(2) of the Constitution inasmuch as no opportunity was given to the petitioner to show cause against the action proposed to be taken in regard to him for the additional charges.

40. In support of this contention, reliance has been placed on the Privy Council case of the — ‘High Commissioner for India v. I.M Lall’, 1948 P.C 121, (AIR V 35) (B), according to which, it is mandatory to give reasonable opportunity to a civil servant to show cause against the action proposed to be taken against him as well as with regard to the grounds on which such action is proposed to be taken. There has, no doubt, been a non-compliance of this provision, so far as the additional charges are concerned.

41. These additional charges, however, were, in comparison with the original charges, only minor charges, and on the original charges themselves the authority had provisionally proposed to pass an order of dismissal. A notice of this proposed action was given to the petitioner with regard to them, which alone were enough to persuade the authority to dismiss the petitioner. The failure to give notice of the proposed action with respect to these additional charges, therefore, could not, in my opinion, invalidate the order of dismissal.

42. The last submission made on behalf of the petitioner is that there has been a violation of Article 320(3)(c) of the Constitution inasmuch as the order of dismissal was passed without consulting the State Public Service Commission.

43. The proviso to Article 320(3) states 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 not be necessary for a Public Service Commission to be consulted. It is conceded that no such regulations have yet been made.

44. Article 313 of the Constitution further provides that until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.

45. Before this Constitution the matter in question was governed by Section 266(3) of the Government of India Act, 1935, which, so far as is relevant for the present purpose, runs as follows:

“The Secretary of State as respects services and posts to which appointments are made-by him, the Governor-General in his discretion as respects other services and posts in connection with the affairs of the Federation, and the Governor in his discretion as respects other services and posts in connection with the affairs of a Province, may make regulations specifying the matters on which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted but, subject to regulations so made and to the provisions of the next succeeding sub-section, the Federal Commission or, as the case may be, the Provincial Commission shall be consulted.

(a) ……

(b) ……

(c) on all disciplinary matters affecting, a person serving His Majesty in a civil capacity in India, including memorials or petitions relating to such matters;………”

46. In exercise of the powers conferred under the above section, the Governor of Bihar made certain regulations which are called the Bihar Public-Service Commission (Limitation of Functions) Regulations, 1944. Regulation 11(1) states that it shall not be necessary for any authority subordinate to the Provincial Government or for the Chief Justice of the High Court to consult the Commission before passing a disciplinary order.

47. Reading the above regulation along with Article 313 of the Constitution it is clear that, the proviso to Article 320(3) has full application to the case before us and it was not necessary for the Chief Conservator of Forests to consult the Public Service Commission before passing the order of dismissal against the petitioner. Exactly a similar question was dealt with in a Bench decision of this Court in — ‘M.P Roy v. S.N Chatterjee*, 1954 Pat. 285,’ (AIR V 41) (C), to which I was a member.

48. In similar circumstances it was held that, lit view of the proviso to Article 320(3) of the Constitution consultation with the Public Service Commission was not necessary. In that case, however, it appears that by oversight instead of regulation 11(1) referred to above, reference was made to regulation 3 (which has inadvertently been stated therein as rule 3).

49. That regulation, on its own terms, has no application to clause (c) of sub-section (3) of S. 266 of that Act as it refers only to matters specified in clauses (a) and (b) of that sub-section. The matters covered under clause (c) of that sub-section, which corresponds to clause (c) of Article 320(3) of the Constitution and with which we are concerned in the present case, are dealt with under regulation 11(1) referred to above.

50. The decision in that case is, therefore, fully supported by the above regulation. It has, however, been argued on behalf of the petitioner that, according to Article 313 of the Constitution, the above regulation cannot be applied to the present case inasmuch as it is inconsistent with the provisions of this Constitution. I am unable to agree with this argument.

51. The proviso to Article 320(3) has itself made a provision for regulations to be made with respect to matters where it shall not be necessary for a Public Service Commission to be consulted, and, till those regulations are made, Article 313 makes such regulations which were in force immediately before the commencement of this Constitution applicable to such matters. It is, therefore, wrong to say that the regulation referred to above is inconsistent with the provisions of this Constitution.

52. In this connection reference may also be made to Article 372(1) which states that notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

53. Article 366(10) defines ‘existing law’ to mean any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation.

54. Thus Regulation 11(1) referred to above is an existing law within the meaning of this article and continues to be in force until it is altered, repealed or amended by a competent Legislature or other competent authority. In view of these provisions, it manifest that the Public Service Commission was not required to be consulted by the Chief Conservator of Forests for passing an order of dismissal against the petitioner. This point, therefore, also fails. The result is that there is no merit in this application and the petitioner has failed to make out a case for issue of a writ. The application is, therefore, dismissed with costs. Hearing fee is assessed at Rs. 100/-.

Banerji, J.:— I agree.

D.H.Z

55. Application dismissed.