1. This is an application under Article 226 of the Constitution against the order of the Deputy Commissioner, Sambalpur, No. 4134 dated 22-11-56 dismissing the petitioner from Government service. An appeal was filed before the State Government which was unsuccessful.
2. The petitioner entered the office of the Deputy Commissioner, Sambalpur in a clerical capacity and was, in due course confirmed in that post. On 4 7-47 he was appointed Inspector of Supplies (Enforcement) with retrospective effect from 24th March 1947 by an order signed by the Assistant Secretary to the Government of Orissa in the Department of Supply and Transport (See annexure A). He was however attached to the Supply Branch of the Office of the Deputy Commissioner at Sambalpur.
On 28-5-51 proceedings were drawn up against him in respect of 8 charges (Annexure B) and he was called upon to show cause why suitable disciplinary action may not be taken against him. He showed cause but without holding a regular enquiry the Deputy Commissioner passed an order on 30-10-51 dismissing him from service (Annexure E). The petitioner then pointed out to the Deputy Commissioner the irregularity in the conduct of the proceedings and requested him to reconsider his order. But the Deputy Commissioner declined to accede to his prayer (see annexure J). Then the petitioner appealed to Government in the Supply Department on 30-4-52 (annexure K) who noticed the irregularity in the proceedings and suggested to the Deputy Commissioner to regularise the matter by following the departmental rules relating to conduct of disciplinary proceedings against Government servants. The actual order and the date on which the order was passed are not on record. But in the counter affidavit of the Deputy Commissioner of Sambalpur (in paragraph 7) this fact was mentioned and not controverted. Moreover, when on receipt of the Government Order the Deputy Commissioner tried to regularise the matter (see annexure U), he made a reference to Governmentof Orissa Supply Department's letter No. 27044 dated 1-10-53. It may therefore be taken as well established that sometime after October 1953 the Deputy Commissioner, on the advice of the Secretary, Supply Department decided to draw up proceedings afresh against the petitioner. But as the previous order of dismissal had not been formally bet aside by the superior authority and no fresh proceedings could be drawn up against a person already dismissed the Deputy Commissioner by his order dated 20-10-53 (annexure U) modified his previous order of dismissal to one of suspension from 5-11-51.
Against this order also it was pointed out that there could be no retrospective order of suspension. Thereupon, by his subsequent order dated 11-11-54 (annexure Y) he partially modified his earlier order and directed that the petitioner shall be deemed to be absent from duty from 26-10-53 till the completion of the departmental proceeding. It may therefore be taken as unchallenged that the original order of dismissal dated 30-10-51 was modified to one of absence from duty till 25-10-53 and suspension from 25-10-53. Then on 30-11-53 (Ann. W) the Deputy Commissioner enclosed a copy of the charges against the petitioner together with enquiry report of one Mr. K.P. Dutta, Civil Supply Officer, Sambalpur and informed the petitioner that if he wished to be heard in person the Deputy Commissioner would be glad to see him on 10-12-53.
The exact date on which Mr. K.P. Dutta conducted the enquiry against the petitioner is not on record, though the petitioner himself had filed a copy of his report along with Annexure W. But apparently the enquiry must have been held sometime before 30-11-53 and sometime after the receipt of Government Orders asking the Deputy Commissioner to regularise the entire proceeding. It is not alleged either in the application under Article 226 or in the subsequent show cause petition filed by the petitioner before the Deputy Commissioner that Dutta's enquiry was held behind back or that he was not given an opportunity to adduce evidence or to cross examine his witnesses if desired by him. The enquiry by Mr. Dutta has not been challenged anywhere by the petitioner. Mr. Dutta in his enquiry report held that only 4 out of the 8 charges were proved.
On 22-12-54 the Deputy Commissioner (see annexure Z) communicated to the petitioner his own findings on the charges and stated that the charges which had been established were sufficient to warrant his dismissal. Hence he called upon him to show cause why he may not be dismissed from Government service. A copy of his findings was also enclosed along with the second notice. While showing cause against this notice also the petitioner, though he made some grievance of the fact that the S.D.O. Bargarh had made some previous enquiry behind his back (annexure Z.b) did not allege that Mr. Dutta's enquiry was held behind his back. The enquiry by S.D.O. Bargarh took place much earlier on 29-7-1952 see annexure Z a/1. A personal hearing also appears to have been given to the petitioner sometime before 10-2-55 (see annexure Z/C) and eventually, on 22-11-56the Deputy Commissioner dismissed him from service with effect from 18-11-56 (Annexure Z-d).
3. Thus, whatever might have been the irregularities committed in the departmental proceedings prior to October 1953 there can be no doubt that thereafter the requirements of natural justice embodied in Article 311(2) of the Constitution have been followed. The previous order of dismissal dated October 30, 1951 was modified to one of suspension, charges were again communicated to the petitioner (Annexure W) some sort of enquiry was made by Mr. K.P. Dutta, Civil Supplies Officer, Sambalpur, a copy of his findings was forwarded to the petitioner and then he was called upon to show cause why suitable action may not he taken against him. The Deputy Commissioner then tentatively held that he should be dismissed from service and issued the second notice on the petitioner to show cause why that punishment may not be inflicted (see annexure Z); and then, after giving a personal hearing he eventually dismissed him from service.
Though the actual details connected with the enquiry made by Sri K.P. Dutta and the exact dates of that enquiry are not on record, nevertheless as the petitioner had on no previous occasion, alleged that the enquiry was held against the rules of natural justice or else that he was not given any opportunity to cross examine witnesses or to adduce evidence on his behalf, I must hold, so far as the proceeding is concerned, that the enquiry was held in accordance with the rules. Two notices were also sent to the petitioner as required by law. Hence there was no violation of the rules of natural justice or of the provisions of Article 311(2) of the Constitution when the Deputy Commissioner finally dismissed him from service in 1956. Mr. R. Mohanty, however, urged that the Deputy Commissioner must have been very much influenced? by the ex-parte enquiry made by the S.D.O., Bargarh in July 1952 (annexure Z-a/1) before coming to his findings. The findings of the Deputy Commissioner do not show that he was in any way influenced by the opinion expressed by the S.D.O. Bargarh. On the other hand the later enquiry held by Mr. Dutta was on record and was duly considered by him. It is true that the Deputy Commissioner eventually did not accept all the findings of Mr. Dutta, but he was not bound, in law, to accept those findings.
4. The only substantial question raised by Mr. Mohanty for the petitioner is that Article 311(1) of the Constitution has been contravened. He urged that as the petitioner was appointed as Inspector of Supplies (Annexure A) by the Government of Orissa in the Department of Supply and Transport, Government alone had the power to dismiss him and that the Deputy Commissioner, Sambalpur who is an authority subordinate to Government had no such power. To meet this argument the learned Advocate General filed a supplementary affidavit from the Deputy Secretary, Supply Department Government of Orissa, stating certain facts which have not been controverted by the petitioner. From this supplementary affidavit it appears that the Secretary to the Government in the Department of Supply has dual functions to perform. Heis, first, Secretary to Government and to that capacity he is authorised to issue orders on behalf of Government. But he is also a Head of a Department in his capacity as Controller of Supplies and Transport and any order passed by him in that capacity will not be an order of Government but merely an order passed by a Head of a Department. The same dual functions are exercised by his subordinate officers. Thus the Deputy Secretary to Government in the Department of Supply is also the Deputy Controller and the Assistant Secretary in that Department. It is further stated that non-gazetted Government servants are never appointed by Government but by Heads of Departments or the Deputy Commissioner in their respective jurisdictions. Hence though the original order appointing the petitioner as Inspector of Supplies (Annexure A) was signed by the Assistant Secretary to Government in the Supply Department nevertheless according to the aforesaid supplementary affidavit of the Deputy Secretary that appointment was made by the Assistant Secretary in his capacity as Assistant Controller acting on behalf of the Controller of Supplies as Head of a Department. It is also stated that the Department of Supply was a Temporary Department till 1957 and sanction used to be given annually for extendingthe life of the Department from year to year.
As the facts stated in the supplementary affidavit have not been challenged it may be taken as well established that the petitioner was appointed as Inspector of Supplies not by the Government of Orissa but by the Controller of Supplies. The Controller of Supplies is an Officer of the Indian Administration Service in the senior scale. The petitioner was dismissed from service in 1956 by the Deputy Commissioner Sambalpur and that officer was also an officer of the Indian Administrative service, in the senior scale. Thus both theofficers were of the same grade though the Controller of Supplies in his capacity as a Head of Department may have some powers to issue directions from time to time to the Deputy Commissioner in respect of the management of the Supply branch of the Deputy Commissioner's office. It appears that from 1948 there was some delegationof functions by which the power to appoint Inspectors of Supplies was conferred on the Deputy Commissioner (sec annexure 3 to the supplementary affidavit of the Deputy Secretary). The Controller reserved to himself the powers to appoint only Supervisors and other officers. But here admittedly the appointment took place in 1947 and it may be assumed without deciding that the said order of delegation wilt not apply to the facts of the present case. Hence, the constitutional question for decision is whether when the appointing authority of the Civil servant concerned is the Controller of Supplies, the Deputy Commissioner could validly dismiss him from service. The answer to this question depends on a true construction of the words 'by an authority subordinate to that bywhich he was appointed' occurring in Clause (1) of Article 311 of the Constitution. These words have been construed in Sobhagmal v. State, AIR 1954 Raj 207; Mahadev Prasad Roy v. S. N. Chatterjee, ATR 1954 Pat 285 and Anukul Chandra Mondal v.Commissioner of Income Tax, West Bangal, AIR 1962 Cal 3. In all these decisions it was held that the word 'subordinate' occurring in the aforesaid clause of Article 311, has reference to subordination in rank and not subordination in respect of powers and duties. This point has been clarified in a decision of the Supreme Court reported in Mahesh Prasad v. Stats of Uttar Pradesh, (S) AIR 1955 SC 70. There, their Lordships while discussing the aforesaid Article observed as follows:
'These provisions cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It appears to us to be enough that the removing authority is of the same rank or grade'. While discussing the facts of that case their Lord-ships observed that both the appointing authority and the dismissing authority (Divisional Personnel Officer and the Superintendent Power) were in the same senior scale of Rs. 625-50-1375/-, and that was a clear indication that the two officers were of the same rank. These observations apply with full force here. It is not denied that the Controller of Supplies was an officer in the senior scale of the Indian Administrative Service. Similarly, it is not challenged that the Deputy Commissioner of Sambalpur, was also an officer in the senior scale of the Indian Administrative Service though the actual pay drawn by him might have been less, than that drawn by the Controller of Supplies. But so long as the two officers were of the same grade it cannot be said that the Deputy Commissioner was an authority subordinate to the Controller for the purpose of Article 311(1) though there may be subordination in the functions of the Deputy Commissioner.
5. The learned Advocate General also contended that all the posts in the Supply Department were being renewed from year to year as soon as sanction for those posts expired, the petitioner must be deemed to have reverted to his permanent post of a clerk in the Deputy Commissioner's Office momentarily, until the post of Inspector of Supplies was again renewed and that consequently the Deputy Commissioner of Sambalpur may be held to be his 'appointing authority' inasmuch as at any rate from 1948 by virtue of the delegation of powers (see annexure 3) to the supplementary affidavit of the Deputy Secretary the Deputy Commissioner became the appointing authority in respect of Inspector of Supplies also within his district. There is some force in this contention but it is unnecessary to examine this in detail. Even if we accept the extreme contention put forward by Mr. Mohanty that as the petitioner was 'appointed' in July 1947 the subsequent order of delegation made in 1948 has no application to his case, nevertheless we must hold on the basis of the supplementary, affidavit of the Deputy Secretary that the real ap pointing authority of the petitioner was not the Government of Orissa but the controller of supplies and transport who was a head of Department. I have already shown, on the basis of the authorities discussed above, that the Deputy Commissioner of Sambalpur was not an authority subordinate to the Controller of Supplies and Transport for the purpose of Article 311(1) of the Constitution.
6. For the aforesaid reasons I see no ground for disturbing the order of dismissal passed against the petitioner. This application is dismissed with costs. Hearing fee is assessed at Rs. 100/- (Rupees one hundred only).
7. I agree.