1. This is an application under Article 220 of the Constitution for a writ of prohibition or certiorari for quashing of certain departmental proceedings and criminal proceedings mentioned in the petition.

2. The petitioner held the office of a Head Accountant under the Directorate of the West Bengal Fire Services at Calcutta. On or about 25th March, 1949, the petitioner along with some other officers was suspended under orders of the respondent No. 2, who was the Secretary to the Government of West Bengal, Local Self-Government Department, at the relevant time, on the ground that certain charges of malpractices were brought by the Anti-Corruption Department. On the 1st April, 1949, the petitioner asked for a copy of the charges. On the 22nd June, 1949, the details of certain allegations regarding the charges were communicated to the petitioner by the respondent No. 2, and the petitioner was requested to submit his explanation regarding the said allegations. On the 27th June, 1949, the petitioner submitted his explanations. On the 20th July, 1949, the respondent No. 2 served formal charges in relation to the said allegations and the petitioner was directed to show cause why he should not be dismissed from the Government service or otherwise suitably punished departmentally. The petitioner was also directed to put in a written statement by the 3rd August, 1949, and the date of the departmental enquiry was fixed as 5th August, 1949. Thereafter an enquiry was held on 17th August, 1949, and 8th September, 1949, and it was concluded on the first mentioned date. On the 29th November, 1949, the respondent No. 2 served upon the petitioner a fresh charge which had its origin in some side remarks made by the Subdivisional Magistrate, Serampore in a criminal case being case No. C.R 122 of 1949. It is alleged in the petition that no opportunity was given to the petitioner to refute the allegations on which the said charge was based, but although no explanation was called for, the petitioner submitted a petition to the respondent No. 2 on the 13th December, 1949, refuting the said charge. On or about 11th January, 1950, the departmental enquiry in relation to this fresh charge was commenced by the respondent No. 2 and on or about the 1st May, 1950, the said respondent gave his findings in respect of all the charges together. A copy of the findings was forwarded to the petitioner on the 19th June, 1950. The validity of this departmental enquiry has been challenged in the petition on various grounds set out therein. On the 7th June, 1950, the petitioner received a notice from the respondent No. 1, Harold R. Scott, requiring the petitioner to show cause why ho should not be removed from service, in view of the findings of the enquiring officer. On 13th June, 1950, the petitioner asked for copies of the said findings and all depositions recorded. The respondent No. 1 however sent to the petitioner a copy of the said findings on or about the 19th of June, 1950. The petitioner submitted his answer thereto, but the respondent No. 2 was not satisfied with explanation and on the 23rd June, 1950, he discharged the petitioner from his service. The main point on which the learned Counsel for the petitioner, Mr. R. Chaudhuri, has attacked the validity of the departmental proceedings is that the Public Service Commission of the State was not consulted before initiating the departmental proceedings, as is required by Article 320(3)(c) of the Constitution. This case has, however, not been made in the petition. It is a question of fact and of law but there is not the slightest indication in the petition. The ground is taken for the first time in the affidavit in reply and is clearly the result of an afterthought. The grounds on which Rules are obtained in matters of application for prerogative writs under the Constitution must be stated with sufficient particularity in the petition and if that is not done, they cannot be allowed to be agitated at the hearing. But since this question is raised very often now in this Court, in applications of similar nature, I propose to record my views briefly with regard to this point.

3. Article 320(3)(c) is as follows:—

“The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted—

(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;”

There is a proviso to clause 3 of this Article which states that as respects services and posts in connection with the affairs of a State the Governor may make “regulations specifying the matters in which either generally or in any particular class of case it shall not be necessary for a Public Service Commission to be consulted.”

4. There is another clause 5 which provides that the regulation so made by the Governor under the proviso to clause 3 shall be laid before both Houses of the Legislature of the State.

5. This Article is a reproduction of section 266 of the Government of India Act, 1935, with certain modifications. In section 266 there was no provision like clause 5 of Article 320.

6. Under the said section 266 certain regulations were framed known as Bengal Public Service Commission Regulations, 1937. In the Government Publication of these Regulations (1941 Edition) at page 9 the relevant regulations are set out.

7. Reg. 51 is as follows:—

“It shall not be necessary to consult the Commission with respect to matters specified in clauses (a), (b) and (c) of sub-section 3 of section 266 of the Act in the case of persons whose appointments the Governor is empowered by or under the Act to make either in his discretion or exercising his individual judgment”.

8. Reg. 52 inter alia provides that it shall rot be necessary to consult the Commission prior to the passing of orders by any authority subordinate to the Provincial Government which is competent to pass such orders, or prior to passing an order of suspension for facilitating the investigation of a case against the suspended officer.

9. It is clear from these regulations that it is not necessary to consult the Public Service Commission when an officer is suspended in order to facilitate proper investigation of a case against the suspended officer or for starting departmental proceedings against such officer or for making an order of dismissal by an officer competent to pass such order.

10. These regulations although framed under section 266 of the Government of India Act, 1935, have been continued and kept in force by virtue of Article 313 of the Constitution read with clause 26 of the Adaptation of Laws Order, 1950, issued under the Constitution of India (see 1951 edition published on 1st August, 1951).

11. Clause 26 is as follows:—

“Where any rule, order or other instrument was in force under any provision of the Government of India Act, 1935, or under any Act amending or supplementing that Act, immediately before the appointed day, and such provision is re-enacted with or without modifications in the Constitution, the said Rule, Order or Instrument shall, so far as applicable, remain in force with the necessary modifications as from the appointed date as if it were a Rule, Order or Instrument of the appropriate kind duly made by the appropriate authority under the said provisions of the Constitution, and may be varied or revoked accordingly”.

12. It may be noted that Article 372 of the Constitution provides for continuance of existing laws and their adaptation and in Explanation 1 of that Article the expression “law in force” is explained as a law made by any competent authority.

13. It is thus clear that it was not necessary for the respondent to consult the Public Service Commission in the present case either for the purpose of conducting the departmental proceeding or for passing an order of dismissal against the petitioner. It has been contended by the learned Advocate-General that Article 320 is directory in character and not mandatory and therefore non-compliance with its provisions does not render any action taken in disciplinary matters void. I am unable to accept this contention. It is true that in the matter of consultation contemplated by Article 320 the Public Service Commission functions as an advisory body and has got no mandatory powers, but the proviso in clause 3 makes it quite clear that it was the intention of the framers of the Constitution that it is essential that the Commission has to be consulted in respect of matters specified in the Article unless there are express regulations dispensing with the observance of the, provisions of Article 320 in respect of any particular matter. The Advocate-General has referred to Article 323 for the purpose of showing that an advice given by the Commission may not always be accepted by the authority who has to consult the Commission for such advice. Although, no doubt, there is indication to that effect in Article 323, it is clear from the proviso to clause 3 of Article 320 as also from clause 3 thereof that clause 3 was intended to be mandatory in character, so far as consultation is concerned. The advice however may or may not be accepted.

14. It was submitted by the learned counsel for the petitioner that the adaptation made by clause 26 cannot be of any assistance to the respondents inasmuch as it cannot have the effect of dispensing with the necessity of observing the mandatory provision of clause (5) of Article 320 of the Constitution and if it is intended to have that effect it must be held to be ultra vires inasmuch as an adaptation cannot amend or restrict the operation of any provision of the Constitution. The argument cannot be accepted. The power of adaptation is derived from the Constitution itself and the amendments made by the Adaptation Order cannot be challenged as ultra vires. Art. 372(2) expressly bars such a challenge. Moreover clause (5) of Art. 320 has no application to regulation in force at the time of the commencement of the Constitution but it applies to regulations made after the Constitution. Clause 26 expressly provides that Rules made under a particular provision of the Government of India Act will be deemed to be Rules framed under a corresponding provision in the Constitution even if such corresponding provision has been altered or modified to a certain extent. The contention of the learned Counsel must therefore be rejected.

15. The next contention of the learned Counsel for the petitioner is that Rule 55 of the Civil Service (Classification, Control and Appeal) Rules has been violated, and so the proceedings are without jurisdiction. Rule 55 requires inter alia that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The learned Counsel submits that although a statement of the allegations was served with respect to the first set of charges, no such statement has been served with regard to the fresh charge framed subsequently. It appears to me that there is no substance in this contention. It is true that a separate statement described as allegations was served with regard to the first set of charges but the language of such statement and the statement of charges was practically the same with the wordings differently arranged. There is nothing in the Rule to suggest that a separate statement of allegations has to be served in each case before charges are served. A combination of the allegations and the charges in one statement or document is sufficient compliance with the Rules. The only thing necessary is that the allegations must be there. There is no doubt that such allegations appear sufficiently in the charge-sheet. So this contention also fails.

16. The learned Counsel for the petitioner also drew my attention to the Report of the Enquiring Officer and submitted that his finding is not supported by any reliable evidence.

17. But this matter whether there was sufficient evidence or not or for the matter of that whether there was any evidence or not cannot be enquired into by this Court in applications under Article 226 of the Constitution because while dealing with such applications the Court does not function as a Court of Appeal. As pointed out by Lord Goddard, C.J, in Rex v. Northumberland Compensation Appeal Tribunal [(1951) 1 K.B 711 at 719], relying on the observations of Lord Sumner in Rex v. Nat Bell Liquors Ltd. [(1922) 2 Appeal Cases 128]:—

“The Superior Court could only examine the order and could not consider evidence to show that the order was come to by some process of reasoning which was incorrect or by the admission of evidence that was not admissible or even on the ground that there was no evidence at all, because all those were matters of appeal”.

18. The other question raised in this application is that the petitioner had an alternative remedy by way of suit and so this application is not maintainable. It may be noted that in the present case the petitioner has moved this Court seven months after the order of dismissal. It was quite open to the petitioner to file a suit in this case and ask for comprehensive reliefs in such suit. Mr. Chaudhuri has submitted that a suit would not lie because of the decision in the case of Venkat Rao v. Secretary of State (3) (64 I.A 55 : 41 C.W.N 554). It may be that so far as the very minor and unsubstantial complaint of the petitioner about breach of Rule 55 of Civil Services Classification Rules is concerned there might be difficulty in maintaining an action on that ground alone but certainly it would have been open to the petitioner to maintain a suit for infringement of the provisions of the Constitution or on the ground that the charges are unfounded and remain unproved. Mr. Chaudhuri relied on Raleigh Investment's case (4) (75 I.A at 240) for showing that for infringements of the provisions of the Constitution, application under Article 226 is the proper remedy. But it may be pointed out that what the Judicial Committee laid down in that case was that the Income-tax is the creature of Statute and for the purpose of modifying or setting aside an assessment of Income-tax the machinery provided in the Statute itself for modifying or setting aside the assessment should be had recourse to, especially as suit to modify or set aside an assessment is expressly barred by the provisions of section 67 of the Indian Income-Tax Act. However as an alternative remedy is not an absolute bar to the Court exercising its jurisdiction under Article 226 of the Constitution, the existence of a remedy by way of suit does not prevent the Court from granting reliefs in appropriate cases. No hard and fast rule can be laid down as to cases in which the Court will grant reliefs under Art. 226 and cases in which it will not grant reliefs notwithstanding the fact that there is an alternative remedy available to the petitioner. Each case will depend upon its special circumstances. Having regard to the nature of contentions raised in this case and having regard to the fact that the decision of this case does not depend upon the decision of any question of fact I would have been disposed to interfere in the present case if the petitioner had made out any ground for interference. But it appears to me that no ground has been made out and so this petition must fail. The Rule is accordingly discharged. The petitioner must pay the cost of the present proceedings.

P.S