Rajagopala Ayyangar, J.
1. The petitioner in this writ petition is a dismissed Government servant and he seeksto issue a writ of mandamus or other appropriatewrit for quashing the order of dismissal. Thefacts necessary to appreciate the legal pointsraised by the petitioner against the order of hisdismissal are these: The petitioner had put innearly thirty years of service under the Government of Madras and the last post that he heldwas as Sty. Sub-Magistrate, Pollachi in Coimba-tore District. While so he was engaged in thetrial of a case of wrongful confinement and extortion against one Chinnaswaml Gounder, an influential and wealthy person, of the place, andhis two sons and some others between Marchand June 1949. On 21-6-1949 an application waafiled for the adjournment of the case on production of a medical certificate by the principalaccused. This was granted and on the next daythe case was transferred to the file of the Additional First Class Magistrate, Pollachi.
2. The circumstances which led to the transfer of the case from the file of the petitioner's court to that of the Additional First Class Magistrate was that a statement was made by one Sethurama Goundan before the District Magistrate, Coimbatore that the petitioner personally negotiated for a bribe with the said individual as a condition for acquitting the accused. The petitioner was Immediately placed under suspension and the District Magistrate referred the complaint against the petitioner to the 'X' branch of the C. I. D. of police for investigation. The Government after considering the report of the C. I. D. referred the case against the petitioner for enquiry and report to the Tribunal for disciplinary proceedings. The charges which were framed against the petitioner and which were enquired into by the Tribunal were:
Charge l : 'That you, when you were stationary Sub-Magistrate, Pollachi, abused your position and on or about 13-6-1949 when Sri p. K. Sethuramaswami Goundar, Chairman, Municipal Council, met you, in the course of your conversation promised to help the accused In C. C. No. 2008 of 1948 on the file of the Sty. Sub Magistrate, Pollachi if they would pay yon some money; on or about 14-6-1949 while receiving a sum of Rs. 1000 from the aforesaid P. K. Sethuramaswami Goundar-on behalf of. Sri M. R. Chinnasami Gounaar of Muthur one of the accused in the aforesaid case, demanded that a sum of Rs. 10,000, should be paid if the accused wanted to be acquitted; on or about 20-6-1949 when told that the accused were not prepared to pay more expressed that you would be satisfied if at least Rs. 5000 was paid and on being told that the parties were not willing to pay anything more than the sum of Rs. 1000 already paid, returned the sum of Rs. 1000 re-ceived by you, to P. K. Sethuramaswami Goundar.
Charge II: That you when you were the Stationary Sub Magistrate, Pollachi, demanded and received illegal gratification of two sums of Rs. 500 each froin Sri Gopalaswami Goundar of Singarampalayam promising to convict the accused concerned in the case filed by him against Chinnaswami Gounder alias Subblah counder and others for alleged trespass intohis lands.' :
3. The enquiry, before the Tribunal was very elaborate and after consideration of the evidence, the Tribunal found in regard to charge No. I that the main evidence of the prosecution witnesses could not be believed but went on to state 'I feel no doubt that the offer of bribe proceeded only from p. w. 1 (Sethurainaswami Goundar) that the alleged payment of Rs. 1000 as bribe and alleged return of it are not true. It seems to me, however, that when P. W. 1 approached the accused officer, the latter snatched the opportunity to demand high bribe as Chlnnusami Goundar was in his estimation fabulously rich; but that no bribe was paid to him. The charge is proved only to the limited extent, viz., that the accused officer demanded the bribe of Rs. 10000 and that no money was actually paid to him.'
4. The second 'charge was also held not to he proved and found to have been, made falsely and maliciously. The recommendation of the Tribunal was that in view of the finding that the accused officer had demanded a bribe of Rs. 10000 from P. W. 1, Sethuramaswami Goundar, he be dismissed from service.
5. The Government after the receipt of this .report consulted the Board of Revenue and called upon the petitioner to show cause why heshould not be dismissed from service as recom-mended by the Tribunal for a disciplinary proceedings. A copy of the report of the Tribunalalong with the notes was despatched to the petitioner, The petitioner sent in his explanation inthe course of which he canvassed the correctnessof the findings of the Tribunal and prayed thatthe Government may he pleased that his casemight be favourably considered and that he mightbe declared innocent and allowed to resume duty.The Government however, by their order dated7-6-1951 stated that the Government saw no reason to differ from the findings of the Chairmanand his recommendation in respect of the punishment to be awarded. They, therefore, directedthat the petitioner be dismissed from service witheffect from 23-6-1949 the date from which he waskept under suspension. It is the legality of thisorder of dismissal that is canvassed is the present writ petition.
The legal contentions raised on behalf of the petitioner are briefly these: (1) that the Disciplinary Tribunal had no jurisdiction to inquire into the complaint against the petitioner, because the petitioner was an officer in the judicial department, (2) that the Government had no power to refer the petitioner's case to the Tribunal because they had previously decided that the case against the petitioner should be tried in a court of law and not By the Tribunal for disciplinary proceedings and (3) that the charge of-corruption found to have been proved against the petitioner was not corruption within the meaning of Act 2 of 1947. On these three grounds it is contended that the proceedings of the enquiry which preceded his dismissal 'were 'ultra vires' with the result that the order of dismissal is vitiated by such antecedent illegality. I shall deal with these contentions in their order.
6. Section 241, Government of India Act, 1935 vested in the Provincial Government, power to prescribe conditions of service of persons 'serving His Majesty in a civil capacity in connection with the affairs of the Province. Under this power the Government of Madras framed the Madras Civil Services 'Disciplinary Proceedings Tribunal' Rules, 1948, which came into force on 1-1-1949. These rules were applicable to all officers under the rule making control of the Provincial Government other than persons appointed by the Secretary of State for India. Rule 4 of these rules provides :
'The Government may, subject to the provisions of Rule 5 refer to the Tribunal, (a) cases relating to Government servants on a monthly salary of Rs. 150 and above in respect of matters involving corruption on the part of such Government servants in the discharge of their official duties;
(b) all appeals to the Government from Government servants against disciplinary orders passed by heads of departments and other competent authorities on charges of corruption, and (c)'any other case or class of cases which the Government consider should be dealt with by the Tribunal provided that case arising in the Judicial Department and against Government servants in the subordinate ranks of the police forces of the rank of the Sub Inspector and below shall not be referred to the Tribunal.' (6a) Rule 5 which is referred to here is in these terms:
'(a) In every ease referred to clauses (a) and (c) of rule 4 on completion of the investigation, the Special Branch of the C. I. D. or other departmental authority concerned, shall forward to the Government all the records of the case (b) The Government shall after examining such records and after consulting the Head of the Department concerned, if necessary decide whether the case shall be tried in a court of law or by the Tribunal.
(c) If the Government decide that the case shall be tried by the Tribunal they shall send the records to the Tribunal. (d) In any case where the head of the Department is not consulted, he shall be informed of the action that is being taken.
(e) When the Tribunal is seized of the case, the staff of the police and concerned departments shall help the tribunal in securing the necessary documents, in the production of witnesses and in such other ways as the Tribunal may desire. (f) There shall be a direction of prosecutions to conduct enquiries on behalf of the Government in Disciplinary cases before the Tribunal and the accused officer concerned shall be allowed to be represented by counsel.' The only other relevant provisions of the rules are those contained in Rule 8(b) and Rule 9 of the rules which run thus:
'8(b): After the enquiry has been completed the Tribunal shall send its findings and recommendations to the Government together with its opinion in cases in which acquittal is recommended, whether the acquittal is an honour able acquittal for purposes of fundamental rule 54(a). Where the Tribunal does not express any such opinion ft shall be presumed by the Government that the acquittal was not an honourable one. (G. O. Ms. 1882 pub (ser) dated 18-4-1950). Rule 9: Notwithstanding anything contained in the Madras Civil Services (Classification, Control and Appeal) Rules, the Government shall be the authority competent to impose a penalty in cases enquired into by the tribunal. The advice of the Tribunal will ordinarily be accepted. If the advice is to be rejected or deviated from, the reasons for such rejection or deviation shall be communicated to the Tribunal and the remarks of the Tribunal in regard thereto shall be taken into consideration before passing orders.'
7. It is under these rules that the case of thepetitioner was referred to the Tribunal for disciplinary proceedings.
8. The contention urged on behalf of the petitioner turns upon the proper construction of the proviso to Rule 4(c) which excepts from the Jurisdiction of the tribunal cases 'arising in the judicial department'. The petitioner was a Stationary Sub Magistrate and therefore, was certainly a member of the Judicial department though he was not in the civil Judicial department. The pay of the Sub Magistrates along with the officers in the civil Judicial department are listed in the budget estimates under Head 27 administration of Justice. In Boards Standing Orders, 163, paragraph 1 form 4, the heading of the form for investing magisterial powers of the members of the Subordinate Magistracy is, 'The Judicial department'.
The contention however of the learned Special Government Pleader was that as there had been no separation of the Judicial functions in the Coimbatore district the Sub-Magistrate in question must be deemed to be an officer of the Revenue Department and therefore, not falling within the proviso to Rule 4(c). But this ignores the fact that the charge against the officer was not in relation to anything done by him as an officer of the revenue department but in his character as a magistrate and therefore, an officer of the Judicial department. In my opinion the case against the petitioner clearly falls within the proviso to Rule 4(c) and therefore it would not be a matter which could have been sent up for enquiry and report to the tribunal for disciplinary proceedings under G. O. No. 2572 which is the governing provision in regard to these enquiries.
9. The next point that is urged is the one turning upon the provisions in Rule 5(b) set out above. It is stated that the Government after examining the records and consulting the head of the department concerned have to decide whether the case shall be tried in a court of law, that is, by the officer being prosecuted for the offence of corruption or whether the matter should be sent up for departmental enquiry by the tribunal. It is stated that the Government in the particular case originally decided to launch a prosecution against the petitioner and therefore they are precluded by election from afterwards taking disciplinary proceedings against him. I have perused the records.
I do hot consider that this point has been established. No doubt G. O. No. 5186 (Home department) dated 28-12-1949: was issued granting sanction to the prosecution of the petitioner under. Section 197, Criminal P. C. and Section 6(b) of Act 2 Of 1947 (Prevention of Corruption Act). I do not read Rule 5(b) as precluding the Government from reviewing, its decision until the matter is placed before a court. In the present case there was a review of their previous decision after the G. O, was issued and the Government taking into account -the further report of the C. 1. D. decided that the matter was one which might go before the Tribunal instead of before a Magistrate. I am not therefore inclined to uphold this contention by the petitioner.
The last point that has been raised by the learned counsel for the petitioner is that the case against the petitioner before the tribunal was that he had been guilty of the offence of 'corruption' within the meaning of Prevention of Corruption Act (Act 2 of 1947) but that the finding had completely negatived this charge against him. On the basis of this it is argued that the order of dismissal was bad since it proceeded upon a mistake that corruption had been provad. (10) The relevant provision of this Act runs: 5(1)'A public servant is said to commit the offence of criminal misconduct in the discharge of his duty.
(a) it he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration as a motive or reward such as is mentioned in Section 161, I. P. C. or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been or to be or to be likely to be concerned in any proceeding or business, transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.' (11) It will be noticed that the finding in the] present case is that the petitioner demanded al bribe in a single case which was not paid. In order that the provisions of Sub-clause (a) or (b) of Section 5(1) might apply there must be evidence that the accused did the fact habitually and that was probably the reason why a second charge was framed so that if that charge were also made out the officer might be held guilty of habitually at-temoting to obtain gratification etc., as mentioned in Section 161, I. P.C. The actual receipt of a bribe abusing his official position by an officer even if It is single act tails within the Sub-clause (d) of Section 5(1) of Act 2 of 1947 but an attempt to obtain a' bribe does not fall within it. The contention, therefore, of the learned counsel for the petitioner that on this finding that the petitioner asked for a bribe which was not paid no offence within the meaning of Disciplinary proceedings, rules has been made out is clearly established.
12. The learned Special Government Pleader had to concede that if the proviso to Rule 4(c) applied the Government had no power to refer the petitioner's case to the Tribunal for enquiry and that the Government could not act upon the report of the Tribunal but he contended that as the objection with regard to the jurisdiction was not raised before the tribunal the petitioner was precluded from raising the same at a later stage. It has, however, to be noted that the objection if sound involves a complete lack of jurisdiction in the tribunal and is therefore one which vitiates the entire proceeding. I do not see any insuperable objection in the petitioner putting forward this plea at a later stage.
13. The next question for consideration is whether assuming that the enquiry before the tribunal was without jurisdiction and that no charge of corruption as defined by Section 5(1), Prevention of Corruption Act 3 of 1947 was made out the order of dismissal passed by the Government could be attacked by the petitioner as a violation of Article 311, - Constitution of India. Though this point was not the subject of argument yet it has given me considerable difficulty in deciding this case.
Under Article 310(1) of the Constitution except as expressly provided by it, every person who is a member of a civil service of a State holds office during the pleasure of the Governor, or as the, case may be, the Rajapramukh of the State. There-fore we start with the primary rule that a dismissed servant of the State has no right to complain unless there is a violation of some express provision of the Constitution with regard to such a dismissal. The express provision that is referred to In Article 310(1) is Article 311(1) Which confers two rights upon the civil servants: (1) that they shall not be removed by an authority subordinate to that by which they were appointed and (2) they shall not be dismissed or removed or reduced In rank until they have been given a reasonable opportunity of showing cause against the action, proposed to be taken in regard to them.
The question is, as regards the exact scope of Sub-section (2) of Article 311 of the Constitution. The complaint of the petitioner is not that he was not given a reasonable opportunity of showing cause against any action proposed to be taken in regard to him because admittedly the Government has sent, him a copy of the findings of the Tribunal and called on him for an explanation as, to what he had to say with regard to the charge which they stated had been established. The complaint of the petitioner is that the enquiry which preceded this action of -the Government was irregular and that the tribunal which conducted the enquiry was not one that could legally under the rules consider the question of his guilt. The question is whether this is a violation of Article 311(2).
14. I might, to start with, mention one point merely to put it aside that the act or demanding bribe if proved, though it might not be corruption within the meaning of the Prevention of Corruption Act would certainly be one of grave misconduct in an officer of the position of the petitioner and if, therefore, such a charge were held made out by a tribunal, properly constituted it cannot be contended with any reason that it did not justify the dismissal of the petitioner. The only question, therefore is whether this antecedent illegality or irregularity in the constitution of the Tribunal that held the preliminary enquiry vitiate the order of dismissal. Though this point was not raised during the time of arguments it appears to me that this has to be answered in favour of the petitioner before he can be granted the relief-which he now seeks and it is the consideration of this that has given me more difficulty than the question of the legality of the preliminary enquiry in respect of which I have found in favour of the petitioner.
15. For the consideration of this question it is necessary to trace briefly the legal position relating to the tenure of 'office of Government servants in India. Under Section 96(b), Government of. India Act, 1919,'
'subject to the provisions' of the Act and the rules made thereunder, every person in the civil service of the Crown in India holds office during his Majesty's pleasure but no person in that service may be dismissed by any authority subordinate to that by which he was appointed.'
Rules were made under this section the most important of which was Rule. 55, Civil Services (Classification, Control and Appeal) Rules which provided for an officer being informed in writing of the grounds on which it is proposed to take action against him and affording him an adequate opportunity of defending himself. It was further provided that the grounds upon which it was proposed to take action should be reduced to the form of a definite charge or charges, it should be communicated to the person charged together with a statement of allegations on which the charge is based and the other circumstances proposed to be taken into consideration in passing the orders of the person concerned.
The officer shall within a reasonable time put In a written statement of his defence and state whether he desires to be heard in person. If he so desires or if the authority concerned so directs an oral enquiry shall be held at which evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as he may wish provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.
The effect of the non-observance of these provisions s of Rule 55 was considered by the Privy Council in--'Venkatarao v. Secy, of State . The facts of this case were these: Venkata Rao was a reader in the Government Press, Madras. He fell under the suspicion of being concerned in the leakage of Information in respect of pleadership examination question papers. He denied the charges and when the Government directed him to vindicate his character Jn a court of law he filed a suit for libel against the person who traduced him by making this charge and he succeeded in that suit. But still the Government first suspended him and then dismissed him from service. He filed a suit on the Original Side of the High Court claiming damages for wrongful dismissal on the ground that the dismissal was effected in breach of the material rules of the service.
The High Court found that the rules regarding enquiries were not observed but still dismissed the suit on the ground that the plaint disclosed no cause of action. On appeal their Lordships of the Privy Council agreed with the High Court, that there had been no enquiry at all as required by the rules and affirmed the judgment of the High Court holding that where there was a violation merely of the rules as distinguished from the safeguards enacted by the statute itself, the officer had no right of redress in a civil court. Rule 55 and the rules in similar terms in respect of officers in provincial services were in operation immediately prior to the coming into, operation of Part III of the Government of India Act, 1935, and under Section 276 of that Act were continued in force
'notwithstanding the repeal of the 1919 Act, if and in so far as the provisions of the rules were consistent with the Constitution Act, 'in which case they were to be deemed to be rules made under the appropriate provisions of the Government of India Act of 1935.:'
16. In this connection reference may be made to the decision of the Privy Council in 'High Commissioner for India v. I. M. Lal where Lord Thankerton expressed himself in these terms:
'In their opinion Sub-section (3) of Section 240 was not intended to be, and was not a reproduction of Rule 55 which was left unaffected as an administrative rule. Rule 55 is concerned that the civil servant shall be informed of the grounds on which it is proposed to take action and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provision of a 'reasonable opportunity of showing cause against the action proposed to be taken in regard to him'. In the opinion of their Lordships no action is proposed within the meaning of sub-section until a definite conclusion has been come to on the charges and the actual punishment to follow is provisionally determined on. Before that stage the charges are unproved and the suggested punishments are merely hypothetical.
It is on that stage being reached that the statute gives the civil servant the opportunity for which Sub-section (3) makes provision. Their Lordships would only add that' they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under Rule 55 it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would- not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry.'
It is therefore clear that their Lordships of the Judicial Committee viewed Sub-section (3) of Section 240 as affording to the officer a statutory opportunity at more than one stage of vindicating himself. A similar result was reached by a Bench of this Court dealing with the case of dismissal of a railway servant in the decision reported in -
'Sambandam v. General Manager, Section I. Rly.', : AIR1953Mad54 (C)
17. Section 240(3), Government of India Act, 1935, having been reproduced in Article 311(2) of the Constitution the conditions of service and tenure of Government servants which was affirmed by the Privy Council in 'Lall's case (B)' is applicable to a Government servant after the coming into force of the Constitution of India. It is only necessary to add that in regard to rules which were framed under Section 241, Government of India' Act, 1935, such of them as were in force when the Constitution was enacted were confirmed andl continued by Article 313. In my judgment the non-observance of the rules which have statutory force under Article 313 of the Constitution and the conduct of the enquiry by a Tribunal or authority not competent to do so necessarily leads to the conclusion that the preliminary conditions subject to which alone the notice to show cause under Article 311(2) could be issued have not been satisfied and it follows that the resultant order is in violation I of Article 311(2) of the Constitution.
18. It follows that the order of dismissal of thepetitioner from service is invalid' as violative ofArticle 311(2) and it is hereby quashed. The Government will be at liberty to have an enquiry conducted by a competent authority and proceed in accordance with the rules if they so desire. Therewill be no order as to costs.