Judgement

This is an application for obtaining a writ of certiorari under Art. 226 of the Constitution of India. The petitioner S. Nodiachand Singh, was Jailor, Imphal from 1-3-1951 to 21-10-1954 and he was placed under suspension from 22-10-1954 and eventually prosecuted in the Court of the Additional District Magistrate, Manipur, on charges of criminal breach of trust and falsification of accounts under Ss. 409 and 477-A, I.P.C.

The charges against the petitioner related to alleged falsification of the accounts maintained in the Jail by causing false entries to be made regarding sale of mustard seeds, mustard oil and oil cakes etc. In the course of the Police investigation which preceded the trial of the said criminal case, the police seized from the custody of the Assistant Jailor, among other papers, a credit note signed by the petitioner which was in the following terms :-

"Assistant Jailor i/c. Store.

Please make entry in stock book.

As I have purchased 50 maunds of mustard oil on credit.

Pay disbursing officer is hereby authorised to deduct Rs. 50/- rupees fifty per month from my salary until it covers the price of the oil.

Sd/- Nodiachand Singh,

Jailor.

1-7-1954."

2. The petitioner, was after a lengthy trial, discharged by the learned Additional District Magistrate on 10-6-1955 under S. 253, Criminal P.C., With the findings that the prosecution was an out and out conspiracy and it had hopelessly failed to produce any materials worth of credit for substantiating the charge; vide annexure-B, Ext. B, dated 10-6-1955.

A Revision Case No. 14 of 1955 was filed in the Court of the Judicial Commissioner against this order of discharge, but the revision application under S. 439, Cr. P.C. was also rejected and it was held by this Court on 17-8-1955 that the prosecution had entirely failed to make out any prima facie case against the petitioner, vide annexure-"C" Ext. 3.

According to the petitioner, he became entitled to be re-instated as Jailor, Manipur Jail and to have the arrears of pay and allowances paid to him, but by means of the order dated 1-9-1955, he was not re-instated to IMS own post, but was appointed to act until further orders as Additional Inspector of Excise on the presumptive pay of his substantive post, vide Ext. 7. The provisions of Art. 311(2) of the Constitution of India were not complied with nor was the petitioner given any opportunity to show cause against the proposed reduction in rank.

Before the petitioner had time to realise his position that he had been made to work on a non-Gazetted post when formerly his post as Jailor of Manipur Jail had the rank of a Gazetted Officer, respondent 2 drew up a charge memo dated 9-9-1955, Ext. 4 (annexure-"D") memo No. CC/333/55 stating among other things that the petitioner had sold to himself on 30-6-1954, 200 maunds of oil cake for Rs. 800/-, and on 1-7-1954, 50 maunds of mustard oil worth Rs. 5,000/- and had issued to himself two bills for Rs. 800/- and Rs. 5,000/- respectively, but he did not pay the value.

It was further stated that on 1-7-54, the petitioner issued a note already referred to above to the Assistant Jailor and so the petitioner was charged for having dishonestly appropriated Government property and for falsification of accounts. The petitioner submitted his explanation on 22-9-1955, vide Ext. 8 and he cited Dr. A.C. Kapoor, former Superintendent of Jail as his witness.

The petitioner contended that 200 maunds of oil cake and 50 maunds of mustard oil had been destroyed under the verbal orders of the Superintendent Dr. A.C. Kapoor, who made the petitioner liable for the loss and the credit note aforesaid and the entries of the bill book were prepared accordingly and the Superintendent accepted the arrangement under which the petitioner agreed to pay a monthly instalment out of his pay to make good the loss; and that in the course of two months, a sum of Rs. 120/- was actually deducted from the petitioners pay and credited into the Treasury.

In spite of the above mentioned defence by the petitioner, Dr. A.C. Kapoor, was not examined and D.O. letter No. PA/323/55 dated 22-9-1955, was sent to him (this letter has not been produced in this case) and Dr. A.C. Kapoor submitted some "remarks" on 4-10-55 vide Ext. 10. The petitioner was asked by means of the endorsement dated 16-10-1955, Ext. 11 to note the remarks offered by Dr. A.C. Kapoor with reference to his explanation.

In spite of the fact that the petitioner could not cross-examine Dr. A.C. Kapoor and he examined 2 jail Warders still in the service of the Government and two ex-convicts who had personal knowledge of the transaction regarding the destruction of oil cake and mustard oil in question, respondent 2 passed an order dated 18-10-1955, Ext. 15 intimating that it was proposed to dismiss the petitioner from Government service and the petitioner should show cause why this punishment be not inflicted on him.

The petitioner again submitted his explanation on 22-10-1955, Ext. 12, in which he urged that he did not sell Government property to himself and Dr. A.C. Kapoor forced him to sign the credit note and as Dr. Kapoor had not been examined and cross-examined as witness, and his report could not be used in evidence against him, there could not arise any question of misconduct on his part and so he was not liable to any punishment.

On 24-10-1955, the petitioner was asked to give written reference to the particular entries or other portions of the document mentioned in Ext. 13. In reply to Ext. 13, the petitioner submitted that the order book contained only 13 orders in 1953 and 34 orders in 1954 and so it became clear that Dr. Kapoor used to run the Jail on oral orders and so his evidence was absolutely necessary vide, Ext. 14.

After taking into consideration the explanation of the petitioner, respondent 2 passed the final order, Ext. 1 and dismissed him from Government service on 27-10-1955. The petitioner, throughout contended that he was the victim of a conspiracy. With the result that the materials before respondent were twisted to the prejudice of the petitioner and the facts which favoured him were not taken into consideration at all.

As there was a complete disregard of the provision of Art. 320(3)(c) of the Constitution and the Union Public Service Commission was not consulted and as respondent 2 was acting in this matter in the quasi-judicial capacity, vide Avadhesh Pratap Singh v. State of Uttar Pradesh, 1952 All. 63 (AIR V 39) (A), the proceedings before him were vitiated by illegalities which had seriously prejudiced the petitioner.

The petitioner, therefore, prayed that a writ of certiorari or other appropriate writ be issued on the respondents and the order of dismissal D/-27-10-1955 be quashed and he be reinstated as Jailor, Manipur Jail and a direction be issued that he may be paid his salary and allowances for the suspension period as well as for the subsequent period.

3. The respondents have contended that the petition is utterly misconceived and it is not at all maintainable in law and there is no scope for interference under Art. 226 of the Constitution in this matter. According to the respondents, the subject-matter of the criminal charge against the petitioner was totally different from the subject-matter of the departmental proceedings, and as the cause shown by the petitioner against the charges was carefully considered and the petitioner was found guilty of the charges and unfit for retention in the Government service, he was properly dismissed.

Regarding the petitioners appointment as Additional Inspector of Excise, it is contended that this post was higher than that of the Jailor and as the petitioner accepted this appointment willingly, this question could not be reopened. Regarding Dr. Kapoors remarks, it is contended that Dr. Kapoor had left Manipur and he has since been posted as Chief Medical Officer, Andaman and as his remarks had been shown to the petitioner, he was not prejudiced in his defence in any manner and that this fact also does not materially affect the case of the petitioner.

The procedure laid down for departmental enquiries is stated to have been fully followed in this case and as the appointment in the post of Jailor or (in the post of Additional Inspector of Excise was not required to be made on the recommendation of the Union Public Service Commission, Art. 320(3) of the Constitution is stated to have no application to the present case, vide Home Department, Notification No. F/322/II/35-Ests. dated New Delhi, 1-4-1937.

4. The first question which deserves consideration in this case is whether the petitioner was promoted to higher post by means of the order dated 1-9-1955, Ext. 7 or he was actually reduced in rank. It has not been disputed before me that as Jailor, he was getting Rs. 104- per mensem as pay plus Rs. 17/- as D.A. and he was also getting some Jail allowances, kit allowance, etc., and his rank was that of a Gazetted Officer and as Additional Inspector of Excise also his emoluments were to be restricted to the presumptive pay of his substantive post.

There is no doubt that the scale of pay for the post of Additional Inspector of Excise, was Rs. 100-10-120-Con-10-200-EB-10-250-EB-10-300/-, which was higher than the scale of pay of the Jailor, but the petitioners pay was restricted to the presumptive pay of his substantive post by means of the order dated 1-9-1955. The petitioner, was, thus, a loser both in rank and financially as he was deprived of allowances when he was made to work on that new post after he was exonerated by the criminal Courts of all the charges.

The order Ext. 7 also suggests that even though the petitioner was appointed to act until further orders as Additional Inspector of Excise, his substantive post was different and his pay on the new post even though it carried a higher scale of pay was restricted to the presumptive pay of his substantive post of Jailor. When the petitioners rank was reduced, his emoluments were reduced, and he was made to retain his substantive post of a Jailor, it cannot be inferred by any stretch of imagination that by being made to act until further orders as Additional Inspector of Excise, he was promoted to a higher post.

If he was really reduced in rank, as obviously he was, the new posting clearly amounted to reduction and if it was intended to reduce Him in rank it was mandatory that the provision of Art. 311(2) should have been followed. This was admittedly not done and so the order appointing him as Additional Inspector of Excise on the restricted pay must be deemed to be illegal and in contravention of the provisions of Art. 311(2) of the Constitution which runs as follows :-

"No such person as aforesaid, who is a member of civil service or of the Union service or civil service of a State or person holding a civil post, under the Union or a State shall be dismissed or removed or reduced in rank until he has been given an reasonable opportunity of showing cause against the action proposed to be taken in regard to him :

Provided .... .... .... "

Even if it be assumed for a moment that the petitioner agreed to work as an Additional Inspector of Excise, his substantive post, according to the order, Ex. 7, remained that of a Jailor.

5. Section IV of Chap. VIII of the Assam Jail Manual, which is applicable to this State provided for punishment of Jail Officers. Rule 111 provides that for the following offences a prosecution shall be instituted unless the Inspector General otherwise orders, in which case the offender shall be punished departmentally :

(1) Wilfully or negligently permitting an escape.

(2) Committing any offence punishable under S. 42, Prisons Act, 1894.

(3) Immoral conduct with regard to any prisoner.

(4) Any offence punishable under Chap. IX of the Penal Code.

6. Rule 112 clearly provides that a Jail Officer acquitted of a charge by a criminal Court shall be reinstated in the service, unless the Inspector General, for reasons to be recorded in writing, otherwise directs.

7. Under Notification No. DD/HJ/10/55, dated 4-6-1955, the Deputy Commissioner of Manipur exercises the functions of the Inspector General of Prisons for the State of Manipur as provided by the Prisons Act and the Assam Jail Manual is in force in Manipur. It has not been contended by the respondents that the District Magistrate, Manipur passed any order against the petitioner reducing his rank after the decision of the criminal case and so under R. 112, the petitioner was entitled to be reinstated as a Jailor.

It has been urged by the learned Government Advocate that as no charge was framed against the petitioner by the learned Additional District Magistrate and the petitioner was discharged under S. 253, Cr. P.C., R. 112 of the Jail Manual, which applies only in the case of acquittal cannot be of any benefit to the present petitioner.

There is no doubt that under S. 258(1), Cr. P.C., it has been laid down that if any case under Chap. XXI in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. But from this fact alone, it cannot be inferred that there cannot be any acquittal in case in which no charge has been framed.

In S. 245, Cr. P.C., it has been provided that if the Magistrate upon taking the evidence referred to in S. 244 and such further evidence (if any) as he may of his own motion, cause to be produced, and (if he thinks fit) after examining the accused, finds the accused not guilty, he shall record on order of acquittal. This Section is in Chap. XX, which relates to summons cases in which no charge is framed.

The order of the learned Additional District Magistrate, Ex. 2 shows that the prosecution examined as many as 17 witnesses against the present petitioner and after the evidence was considered by the Court, the finding was that no prima facie case was made out against the accused and the petitioner was being prosecuted because of conspiracy against him. As a result of this finding, no charge could be framed and was consequently not framed.

The prosecution filed a revision petition against this order and by means of the judgment. Ex. 3, the order of the learned Additional District Magistrate was confirmed, which means that the prosecution case could not be established at all. If the petitioner had been discharged under S. 203, Cr. P.C., the position might have been different.

In a case in which the entire prosecution evidence was recorded against the petitioner in a protracted trial and after it had been fully gone into, it was held that the prosecution case had no substance, the order exonerating the petitioner from liability cannot be deemed to be only a preliminary order of discharge and in my opinion such an order tantamounts to an order of acquittal for the purpose of R. 112 of the Jail Manual.

If an acquittal under this rule is deemed to be merely an acquitted under S. 258(1), Cr. P.C. then these words which are not in the rule will have to be added to it. If the framers of the rules intended that only officers acquitted under S. 258(1), Cr. P.C., should be given its benefit then they would have not omitted to mention these words in the rule.

8. Again, Art. 14 of the Constitution guarantees equality before the law or the equal protection of the laws. Rule 112, if it is interpreted to mean that the finding of not guilty by a Court after full and prolonged trial will not afford protection to the petitioner, but if the words "under S. 258(1)" are added after the word "acquitted" then only that protection would be available, can the argument advanced by the learned Government Advocate be deemed to be of any force.

If these words are not added, even then the order of the learned Additional District Magistrate dated 10-6-1955 tantamounts to an order of acquittal as used in S. 245, Cr. P.C., as it completely exonerates him of the liability regarding the charges of embezzlement and falsification of accounts; vide also Art. 16 of the Constitution which provides for equality of opportunity relating to appointment to any office under the State.

9. As the post of the Jailor was throughout regarded as the petitioners substantive appointment, vide order Ex. 7 and as in para 4 of the cause shown, the respondents contended that the post of the Additional Inspector of Excise cannot be deemed to have the effect of reduction in rank, it becomes clear that the appointment of the petitioner as Additional Inspector of Excise was really reduction in rank. The word "deemed" has been explained as follows (in Roland Burrows, Words and Phrases Judicially Defined Vol. 2, 1943 Edn., p. 47) :

"The word "deemed"........ is more commonly used for the purpose of creating........... a, statutory fiction........that is, for the purpose of extending the meaning of some term to a subject-matter which it does not properly designate. When used in that sense, it becomes very important to consider the purpose for which the statutory fiction is introduced."

10. As the Inspector General of Prisons did not pass any order against the petitioner under R. 112 of the Assam Jail Manual and as in Ex. 7 also the petitioners substantive appointment was considered to be that of a Jailor, his reduction could not be made unless the relevant rules "The Civil Service (Classification, Control and Appeal) Rules" and also Art. 311(2) were complied with, vide High Commr. for India v. I.M. Lall, 1948 PC 121 (126) (AIR V 35) (B); R.T. Rangachari v. Secy., of State, 1937 PC 27 (AIR V 24) (C); at P. 30, 2nd Para. North West Frontier Province v. Suraj Narain Anand, 1949 PC 112 (AIR V 36) (D) and P. Joseph John v. State Of Travancore-Cochin ., 1955 PC 160 ( (S) AIR V 42) (E), in which it has been observed at p. 164 by Mahajan, C.J. :

"A legal position regarding a reasonable opportunity of showing cause against the action proposed to be taken and the nature of opportunity to be granted was stated by the Privy Council in 1948 PC 121 (AIR V 35) (B) and it was held that when a stage is reached when definite conclusions have been come to as to the charges, and the actual punishment to be followed is provisionally determined on, the civil servant should be given an opportunity for which Sub-S. (3) of S. 240, Government of India Act, 1935 (S. 96(b), Government of India Act 1 of 1919), which corresponds to Art. 311 of the Constitution makes provisions and at that stage a reasonable opportunity is to be offered to the civil servants concerned."

11. The present petitioner was not given any such opportunity and in fact no enquiry was held before his reduction and he was not given any opportunity of giving his defence which is a substantive right, vide Robindra Kumar v. Forest Officer, Govt. of Manipur, 1955 Manipur 49 (54) (AIR V 42) (F) and T. S. R. Sarma v. Nagendra Bala Devi, 1952 Cal 879 (AIR V 39) (FB) (G), in which it has been clearly laid down that the right of a defendant to file his defence and to have it considered is a right under the general law and such right is a substantive right.

As the petitioner is entitled to be reinstated as Jailor forthwith, he would be legally considered to have been appointed a Jailor at the time of his reinstatement as the subsequent reduction without complying the mandatory provision of Art. 311(2) of the Constitution was illegal, vide Shiva Nandan v. State of West Bengal, 1954 Cal 60 (AIR V 41) (H), in which it was observed by Das, J. at pp. 62-63 :

"Article 311 is intended to provide constitutional safeguards against executive action which has a permanent disabling effect on the holder of a civil post."

12. Again under R. 115 of the Jail Manual, if the Inspector General of Prisons had decided that the petitioner should be reduced in rank, the latter would have a right to appeal to the local Government, but the order Ex. 7 was passed by the local Government which means that the petitioners right to appeal was taken away without any good cause. It is laid down in Union of India v. Satyendra Nath Banerjee 1955 Cal 581 (585) (AIR V 42) (I) :

"In the present case we find that under S. 51 a clear right of appeal has been given in respect of every order made under the Act by a Certificate Officer. This right could not be taken away or modified by any rule or regulation, made under rule-making power by a non-legislative body"

13. The Chief Commissioner, Manipur is non-legislative body and so by means of the executive, order the petitioners right of appeal could not properly be taken away.

14. I, therefore, see no force in the contention of the learned Government Advocate that simply because the prosecution after having exhausted all its resources could not succeed in making out a prima facie case for framing of the charge before the criminal Court, the present petitioner cannot take advantage of the provision of R. 112 of the Jail Manual.

15. The next contention of the learned Government Advocate, in this connection is that the petitioner voluntarily accepted this promotion to the post of Additional Inspector of Excise and so he should not be allowed to contend that he continued to retention of the post of a Jailor.

16. The petitioner has contended in para 11 of the petition that before he had time to realise his position (appointment of Additional Inspector of Excise), respondent 2 drew up a charge memo, Ex. 4 against him. I have already shown above that the petitioner was absolutely no gainer in working as an Additional Inspector of Excise on the restricted pay and his status had certainly been lowered as he was ranked as non-Gazetted Government servant while formerly as a Jailor he was a Gazetted Officer.

It is further not disputed that financially also the petitioner was not a gainer as he could not draw a number of allowances which he used to draw as a Jailor. Under these circumstances, I believe the petitioners allegations that he had no option but to work as an Additional Inspector of Excise and he never worked on that post willingly.

The mere fact that the petitioner had to work on the new post for about seven days will not be, in any way, sufficient to create any estoppel against him nor Will the doctrine of acquiescence or waiver operate against him, vide Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish, 1935 PC 79 (83) (AIR V 22) (J), where it is clearly laid down that there is no such thing as estoppel by waiver.

As it is established that even after his being exonerated by the criminal Court, he was not given his substantive post, but another post temporarily and he had no other option but to work under the new conditions imposed on him as he could not afford to lose his Government service, no question of estoppel, waiver or acquiescence can arise in this case and the contention of the respondents regarding waiver or estoppel must be held to be without force.

17. The question which now remains for determination is whether the departmental enquiry in which the order of dismissal dated 27-10-1955 passed was conducted in accordance with the established principles of natural justice : Ebrahim Aboobaker v. Custodian General of Evacuee Property, New Delhi, 1952 SC 319 (AIR V 39) (K) and G. Veerappa Pillai v. Raman and Raman Ltd., 1952 SC 192 (AIR V 39) (L).

The learned Government Advocate, urged that the petitioner should not be allowed to challenge the facts and he relied on 1954 Cal 60 (AIR V 41) (H), in which it has been held that the questions involving inquiry into facts cannot be gone into in a petition under Art. 226. But this ruling does not lay down that an order in departmental inquiry in which the principles of natural justice have been sacrificed would not be called in question by means of a writ petition.

If the petitioner was a Jailor or held the substantive post of Jailor at the time when this departmental inquiry was made, the inquiry should have been made by the Inspector General of Prisons and not by the Chief Commissioner, Manipur and this error is apparent on the face of the record.

The collateral fact which really did not exist was assumed during the course of this departmental inquiry and it was that respondent 2 had jurisdiction to make this inquiry, because the petitioner did not hold the post of the Jailor and had legally been appointed as Additional Inspector of Excise. I have already shown above that this fact did not exist at all. It has been laid down by Mukherjea, J. in T.C. Basappa v. T. Nagappa, 1954 SC 440 (AIR V 41) (M) :

"One of the fundamental principles in regard to the issuing of a writ of certiorari, is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression "judicial acts" includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts.

The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity........

Certiorari may and is generally granted when a Court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the Court depends upon the existence of some collateral fact, it is well settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess.

A tribunal may be competent to enter upon an enquiry but making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases.

An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."

18. In Hari Vishnu Kamath v. Syed Ahmad Ishaque, 1955 SC 233 ( (S) AIR V 42) (N), it was held that certiorari is only available to quash a decision for error of law, if the error appears on the face of the record.

19. It thus becomes clear that the order of dismissal was passed in departmental proceeding on the wrong assumption of a collateral fact and so the preliminary conditions subject to which alone the notice to show cause under Art. 311(2) could be issued were not satisfied and it follows that the resultant order of dismissal is in violation of Art. 311(2) of the Constitution of India, vide C.S. Rajagopala Ayyar v. State of Madras, 1955 Mad 182 ( (S) AIR V 42) (O).

20. There is another very serious flaw in the present departmental proceedings which has resulted in the dismissal of the petitioner. I have already pointed out above that the petitioner urged in this departmental inquiry that 200 maunds of oil cake and 50 maunds of mustard oil had been actually destroyed under the verbal orders of the Superintendent, Dr. A.C. Kapoor, who made the petitioner liable for the loss, and the credit note aforesaid and the entries in the bill book were prepared accordingly and the Superintendent accepted the arrangement under which the petitioner agreed to pay a monthly instalment out of his pay to make good the loss and that in the course of two months, a sum of Rs. 120/- was actually deducted from the petitioners pay and credited into the Treasury.

In spite of this contention of the petitioner no effort was made to examine Dr. A.C. Kapoor during the course of this inquiry and no opportunity was given to the petitioner to cross-examine him. What appears to have been done was that certain letter D.O. No. PA/323/55 was sent to Dr. A.C. Kapoor for making "remarks" thereon and these remarks w-ere read in evidence. The letter referred to above was never shown to the petitioner and it has not been produced in this case either.

It has been held in Shyam Lal v. State of Uttar Pradesh, 1954 All 235 (AIR V 41) (P) that the expression "showing cause" as used in Art. 311 does not imply that a mere opportunity of submitting an explanation is enough. It implies that adequate opportunity of leading evidence in support of the contentions of the person concerned and controverting the contentions raised against him must be given; and where necessary, opportunity of cross-examining witnesses of the other side and of addressing arguments should also be afforded, vide also 1952 All 63 (All V 39) (A), already referred to above and Ravi Pratab Narain Singh v. State of Uttar Pradesh, 1952 All 99 (AIR V 39) (Q).

21. The petitioner had prayed in the departmental proceeding to summon Dr. A.C. Kapoor, but this prayer was also not accepted and he was not allowed to cross-examine this most important witness. This naturally resulted in the petitioner not being able to substantiate his plea and so the principle of natural justice that every party should be given a hearing and an opportunity to substantiate his case was sacrificed. Under similar circumstances, the report of an Engineer was received in Errington v. Minister of Health, reported in 1935-1 KB 249 (264) (R) and Lord Greer, L.J. observed :

"Now it seems to me that if, as I think, the Ministry were acting in a quasi-judicial capacity they were doing what a semi-judicial body cannot do, namely, hearing evidence from one side in the absence of the other side, and viewing the property and forming their own views about the property without giving the owners of the property the opportunity of arguing that the views which the Ministry were inclined to take were such as could be readily dealt with by means of repair and alterations to the buildings.

Whether the surveyor was one of the officials, or whether the borough engineer was one of the officials, we do not know; but we do know this, that by a letter of 24-2-1934, which was sent by the Town Clerk to the Ministry of Health, the views of the borough engineer were put before the Minister, before the Minister gave his decision. The borough engineer had not been called at the Public inquiry. Those who represented the owners had not had the opportunity of cross-examining him, testing the value of his opinion, and representing to the Minister through the Inspector that no weight should be attached to his view."

In my opinion, this observation fully applies to the present case also, and the order of dismissal passed against the petitioner is vitiated on account of sacrifice of the principles of natural justice.

22. The learned Government Advocate has contended that as the petitioner did not file any appeal to the Central Government, the present petition is legally not maintainable. He has relied on the Civil Service (Classification, Control and Appeal) Rules. Rule 57(4), which runs as follows :

"A member of a Central Service appointed by an authority subordinate to the Governor-General in Council may appeal to such authority from an order passed by an authority subordinate to it, and to the Governor-General in Council from an original order passed by the authority which appointed him."

23. In the present case, I have already shown above that respondent 2 had no jurisdiction to dismiss the petitioner in the departmental inquiry in question as the petitioner continued to be the Jailor and it was only the Inspector General of Prisons, who could take any such action against the petitioner and then the petitioner would have got a right of appeal. As respondent 2 acted without jurisdiction against the petitioner, no question of appeal under R. 57(4) can arise and the present petition cannot be deemed to be barred on this account.

24. Lastly, it has been contended by the petitioner that as Union Public Service Commission was not consulted, the order of dismissal in question is bad under Art. 320(3) of the Constitution of India, which runs as follows :

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

(a) ........................

(b) ........................

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

25. As under the Act of 1935, the status of the Public Service Commission is advisory under the Constitution. The Public Service Commission gives its opinion which may or may not be accepted, but there is a provision under Art. 323 of the Constitution, which was not to be found in the Act of 1935, viz., that annually the President or the Governor or Rajpramukh shall have to explain to the Legislature the reasons why in any particular cases the advice of the Commission could not be accepted and this is a safeguard against the arbitrary action by the executive in disregard of the Commissions advice.

26. The learned Government Advocate relied on Sisir Kumar Das v. State of West Bengal, 1955 Cal 183 ((S) AIR V 42) (S), but in the later case reported in 1955 SC 160 ((S) AIR V 42) (E), idea of consulting the Public Service Commission was not disapproved although it was laid down that Art. 320 did not mean that the State should consult the Public Service Commission as many times as the Government servant against whom disciplinary action was taken might choose to file review petitions. As such, this is also serious defect and the order of dismissal in question cannot be deemed to be valid.

27. The result is that the petition succeeds. A writ of certiorari is issued and the order of dismissal of the petitioner dated 27-10-1955 passed by respondent 2 is set aside and the petitioner will legally be deemed to have acted throughout as Jailor, Manipur Jail. In view of the fact that a number of difficult legal questions were involved in this case, the parties will bear their own costs.

Writ petition allowed.