P.B. Mukherji, J.
1. This is an application by Dulal Ranjan Adetya under Article 226 of the Constitution for a Writ of Mandamus and Certiorari in respect of the order of his dismissal. By order dated 23rd/26th February, 1957 and 26th April, 1957 the applicant was discharged from service.
2. The facts of this case may be briefly stated. The applicant was appointed as a Bus Conductor in the State Transport Service on the 15th May, 1952 at a monthly salary of Rs. 50/- plus the usual allowances. The appointment was made by one R.K. Bose, then known as the Director of Administration in the Directorate of Transportation, Government of West Bengal. On the 21st November, 1956, the applicant was served with a charge sheet from R. Ghose, Director of Operations. The charge sheet informs him of the serious complaint against the applicant. The gist of the complaint is that the applicant refused to perform his duty and he was charged with 'gross dereliction of duty and gross insubordination'. In fact, the charge sheet expressly states that it has been reported that in the second shift on 20-11-1956 during change of shift at Howrah Control Point at 13-50 hours when the applicant was allotted duty in State Bus WBS 1240 of Route No. 35A he refused to perform his duty over Route 35A and moreover used caustic language to the officers present there against all codes of discipline. He was suspended pending the decision of enquiry into the case and was allowed a subsistence grant of one-fourth of his pay plus full allowances during the period of suspension.
3. On the 23rd November, 1956 the applicant submitted the explanation to the charge sheet. In that answer the applicant admits that he signed the way bill with statement of refusal, to work although he says that he had no other option but to do it. On the 27th December, 1956 the next notice to show cause was given to the petitioner by stating:
'You have been found guilty of the charge framed against you and proposed for discharge from service. You are, therefore, hereby directed to show cause by the 4th January, 1957 against the proposed order.'
4. This shows that ho was given full notice and particulars of the charges against him. He was given fullest opportunities to answer those charges. He availed of that opportunity and submitted his written answer to that charge. Then he was found guilty of those charges. Thereupon the Depot Manager gave him notice to show cause on the 27th December, 1956 why he should not be discharged from service. The applicant again showed cause on the 2nd January, 1957. In showing cause against the proposed punishment of discharge, it is the applicant who referred to his own past service record to show that the particular officer always found fault with his work. This answer to the second notice to show cause against the proposed action for discharge from service is significant in two ways in that not one of the two objections now taken against the order of discharge is mentioned in that explanation. In the first place, he himself refers to his past record of service with a view to provide extenuating circumstances in order to avoid the punishment of discharge from service. Secondly, no objection was there taken that the Depot Manager could not or was not the proper authority or that he was in any way a subordinate authority vis-a-vis the appointing authority and, therefore, could not dismiss or discharge the applicant. In fact, he says in his letter of the 2nd January, 1957:
'The copy of the charge sheet was given by Director-in-Charge, Belghoria Depot, instead of Depot Manager, Belghoria'.
5. On 23rd/26th February 1957, the Depot Manager of Belghoria Depot passed the following order;
'Heard the Conductor and seen all the re-cords. The Conductor gave all possible explanations, but none are satisfactory. He refused to carry out the order of the T. I. who allotted his, duty on Route No. 35A on that day instead of the usual duty on Route No. 11A. Subsequently the Conductor reported sick. This plea of the Conductor cannot be accepted as only the day before he was certified by his attending physician to be fit for duty. The Conductor seems, to be incorrigible. His past records of service is anything but satisfactory. He is considered unsuitable for an Essential Public Service like 'State Transport'. He is discharged from service with effect from 23-2-57. The period under suspension to be treated as one fourth pay plus allowances'.
6. On 21-3-1957 the applicant preferred an appeal against the order of the Depot Manager. The appeal was rejected on 16-4-1957 by the Appellate Authority, the Director General of Transport. The order of 16-4-1957 states as follows:
'Examined the records. The appellant says that his version is true and the allegation against him is false. There is nothing in the record except his own statement to support his case. It is not probable that the others have combined against him to implicate in a false case. He admits having received a way bill and tickets for duty on Route No. 11A. His duty was then changed to Route No. 35A, but he refused to do duty on this route. His plea is that he suddenly got pain in the stomach and wanted to go 'sick'. It is a strange coincidence that his sickness developed suddenly when he was asked to do duty on a different route. The allegation against him that he was not willing to carry out order is proved.
The plea of sickness is an afterthought. The past record of the appellant is not satisfactory. The order of discharge is justified.
The appeal is rejected'.
7. Mr. Bose appearing on behalf of the applicant has taken two points of objection. His first objection is that the order of discharge is in this case made by an authority subordinate to that by which the applicant was appointed. He, therefore, contends that it is in violation of Article 311 of the Constitution. His second objection is that the order of discharge was based on extraneous consideration like his past records and he has no notice of such past records, so that he could not furnish any explanation. It is, therefore, said that this reference to the past record violates the principle of natural justice. Another ground about contravention of Rule 55 of the Civil Service Classification Rule was taken in the petition but was not pressed before me.
8. On the facts of this case I have come to the conclusion that the applicant was not dismissed in this particular case by an authority subordinate to that by which he was appointed. He was appointed by the Director of Administration. The post of the Director of Administration was subsequently abolished and was not in existence at the time of the discharge of the applicant. The post of the Director of Administration which appointed the applicant was a temporary post. On 19-2-1953 by a Notification No. 1988-WT/3E-12/53 the whole Directorate was recognised. Instead of a Director of Administration, two Directors were created called as 'Directors-in-Charge', one Director in charge of the Lake Depot, and the other Director in charge of the Belghoria Depot. Having abolished the post of one Director of Administration and decentralised his work and distributed it among two Directors newly created, the posts of the Director of Administration and Chief Accountant were merged and re-designated as the Director of Administration and accounts and the then Chief Accountant was put in charge of that post. This re-organisation makes it clear by Clause (7) of the Notification that each Director will have the power to make appointment to vacancies arising in the establishment under him, from persons selected by the Appointment Board, and to take disciplinary action against such staff and impose all penalties permissible under the Rules. It was expressly provided by Clause (7) of that Notification that in case of Conductors and Drivers on route, the Director of Operations will be competent to take necessary action against such staff for any misconduct committed while on route, but if the punishment to be awarded is one of dismissal or discharge from service, the case after compelling the departmental enquiry should be forwarded to the appropriate Director-in-Charge for passing the final order. By Clause (8) of that Notification it was also expressly provided that in all disciplinary cases, the aggrieved person will have the right to prefer an appeal to the Director General against any order passed by the Director concerned.
9. To complete the scheme of re-organisation, there was a further Notification No. 4858-WT/T 3E-60/56 dated 28-8-1956. This established a revised set up of the gazetted officers in Zonal Deports under the Directorate of Transportation, West Bengal. By Clause (3) of that Notification a temporary gazetted post of Depot Manager was created in the Belghoria Depot on the scale of pay of Rs. 500-1200/- and the present incumbent, respondent No. 3 who was the Depot Manager of Belghoria, was appointed to that post at a fixed pay of Rs. 840/- per month with usual dearness allowances and rent free quarters. It is expressly provided by Clause (4) of that Notification:
'The Depot Manager will have full control over the staff attached to the respective depots as well as the Depot Cash Staff. Each Depot Manager will have power to make appointment to vacancies arising in the establishment under him, from persons selected by the Appointment Board, and to take disciplinary action against such staff and impose all penalties permissible under the rule. In case of conductors and drivers in route, the Director of Operation will be competent to take disciplinary action against such staff for any misconduct committed while on route, but if the punishment to be awarded is one of dismissal or discharge from service, the case after completing the departmental enquiry should be forwarded to the appropriate Director -in-Charge/Depot Manager for passing the final order''.
This re-organisation of the Directorate shows clearly that the former Director of Administration who was the appointing authority, no longer exists. Not only has that post been abolished but the incidents of that post have been distributed to newly created posts. It is true that another officer called 'Director of Administration and Accounts' has come into being, but this is not the old post of Director of Administration which was the appointing authority for the applicant. By Clause (4) of the last Notification the Depot Manager has the express power to make appointments to vacancies arising in the establishment under him, and he has the complete power to take disciplinary action against such staff and impose all penalties permissible under the Rules. I do not think, therefore, that in this case discharge or dismissal by the Depot Manager violates the constitutional doctrine that the dismissing authority should not be subordinate to the appointing authority.
10. The constitutional rule contained in Article 311 has not been broken in the facts of this case and, in my opinion, has not been violated at all. The language of Article 311, material for the present application, is 'No person who is a member of a civil service.......shall be dismissed or removed by an authority subordinate So that by which he was appointed.' The constitutional requirement operates when the former appointing authority exists and some other authority subordinate to it wants to exercise the power of dismissal over a civil servant. The constitutional expression 'an authority subordinate' indicates an existing subordination. It proceeds on the sensible view that the order of a superior authority appointing a civil servant cannot be allowed to be nullified by one subordinate to him by dismissing that civil servant. That will be detrimental to the morale and security of public service. But this sensible constitutional rule need not be converted into a senseless fetish by seeking to apply it to a situation where the authority dismissing the civil servant at the time of dismissing suffers no subordination because the post of the former appointing authority has ceased to exist.
11. Mr. Bose on behalf of the applicant relied on the case of Mahesh Prasad v. The State of Uttar Pradesh reported in : 1955CriLJ249 (A) and the observations made by Jagannadhadas, J., at p. 70 (of SCA): (at p. 73 of AIR):
'Learned counsel for the appellant urged that the requirement both of the Constitution and of the rule of the Railway Code, contemplates that the authority competent to remove must be either the very authority who appointed or any other authority directly superior to the appointing authority in the same department. We do not think that this contention is tenable. What the Constitution requires is that a person should not be removed by an authority subordinate to the one by whom he was appointed and what the rule in the Railway Code prescribes is substantially the same, viz., 'the authority competent to remove should not be lower than the one who made the appointment. 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'.
I do not think that this case helps the applicant at all. In fact, the decision and principle quoted above goes against the applicant's contention. The question of the removing authority being of the same rank or grade has to be tested in the light of the facts of the present case. Now the, only appointing and removing' authority in the present re-organised scheme is the Depot Manager. Therefore, he must be deemed and regarded to be of the same rank or grade so far as this particular power is concerned. He, therefore, answers the test laid down by the Supreme Court. Besides, the Supreme Court was not concerned' with the case as in the present one before me where the post of the appointing authority itself has been abolished and new post with different schemes of power and division of duties has come into operation giving the Depot Manager the power to appoint and dismiss with rights of appeal as indicated above. The Supreme Court in the particular case was not concerned with the abolition of a post but was concerned with the comparative tests between two existing different posts in order to determine the question whether the rank or grade of the removing authority was subordinate to the appointing authority. In fact, there the Supreme Court came to the conclusion that the Divisional Personnel Officer as well as the Superintendent were officers in the senior scale of the Railway service drawing equal scales of pay Rs. 625-50-1375 and held that this was 'an indication that they were officers of the same rank.' Mr. Bose tried to argue from this that the test of salary laid down there does not apply here because the Depot Manager does not get as much salary as the defunct post of the Director of Administration. I do not think that the Supreme Court intended to lay down there that the salary was the only test or that such test was intended to apply in case of a re-organised department where former posts of appointing and dismissing authority are replaced by new posts with new duties and new scales of pay.
12. The next objection relates to the reference to past records.
13. Mr. Bose for the applicant has relied on an unreported decision of Sinha, J. of this court dated 11-1-1957 in Sankar Chandra Chatterjee v. S.N. Haldar (B), where the learned Judge says that ''if in a departmental enquiry it was proposed to rely on any part of his service record which is to be used against the delinquent, then he must be given notice of it and an opportunity of meeting it', and a decision of the Nagpur High Court in Gopalrao Damodarji v. State Government of Madhya Pradesh, AIR 1954 Nag 90 at pp. 91-92 (C), where it was observed :
'Normally the question of punishment is linked up with the gravity of the charge, and the penalty that is inflicted is proportionate to the guilt. Where the charge is trivial and 'prima facie' merits only a minor penalty, a civil servant may not even care to defend himself in the belief that only such guilt will be visited on him. In such a case, even if in the show cause notice a more serious punishment is indicated than what the finding of guilt warrants, he cannot be left guessing for himself what other possible reasons have implied the proposed action. It is not, therefore, sufficient that other considerations on which a higher punishment is proposed are present in the mind of the competent authority or are supported by the record of service of the civil servant concerned. In a case where these factors did not form part of any specific charge and did not otherwise figure in the departmental enquiry, it is necessary that they should be intimated to the civil servant in order to enable him to put up proper defence against the proposed action.'
14. Mr. B. Das, the learned Junior Standing Counsel appearing for the Government has questioned the correctness of these decisions. He has drawn the analogy from the Criminal Procedure Code to argue that the charge in this case was refusal to obey orders and insubordination, very serious in their nature. The past records in this case were looked into only for the purpose of punishment. He argues on the analogy of Criminal Procedure Code that previous convictions are not any evidence in criminal Courts until the trial Court finds the accused guilty whereupon before sentence or punishment is inflicted the previous convictions could in certain circumstances be put forward as a consideration for higher punishment or sentence. Mr. Das's argument is that in this case the orders both of the Depot Manager and the appeal order of the Director General of Transportation clearly show that they found him guilty of the charges of insubordination and refusal to obey orders. It was only when the question of punishment whether he should be discharged or not came into consideration that previous records were examined. According to his argument this is not a matter of charge but a consequence on the finding of guilt after the charge has been established. It may be necessary in some future time to review these decisions, but I do not feel called upon to express any opinion on the correctness or otherwise of those decisions on the ground that the facts here provide an ample answer to this objection.
15. The facts are clear on the point Article 311(2) of the Constitution says that no person shall be dismissed or removed 'until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.' Now on the facts, all available reasonable opportunity of showing cause against dismissal was given in this case. The notice dated the 27th December, 1956 whereby it was said:
'You have been found guilty to the charge framed against you and proposed for discharge from service. You are, therefore, hereby directed to show cause by the 4th January, 1957 against the proposed order,'
is in my judgment sufficient compliance with the requirement of Article 311 of the Constitution, the material portion of which I have quoted above. Then the second fact in this case is that it was not the dismissing authority who was looking into the records of the applicant's past service but it was the applicant himself who was asking and putting forward specific records of his past service before the dismissing authority in answer to this very notice to show cause against the proposed order of discharge. I have already stated that the applicant by his letter dated the 2nd January, 1957 specifically quoted 12 instances of his past record of service and asked them to be considered by the dismissing authority in answer to the notice to show cause why he should not be dismissed. In fact his whole idea in doing so was that the particular officer was always adverse to him and whose decisions had been upset on appeals to higher officers. The applicant himself put forward his past record of service with specific instances and having asked the dismissing authority to consider those instances of his past record of service, it is not open to him any more to turn round and say now that the authority should not have considered them. It is not alleged and certainly not proved that there was any other record of his past service which was looked into by the dismissing authority. In those circumstances these, two signal facts distinguish this case from the two decisions on which reliance has been placed. In none of those two cases did the public servant himself put forward instances of his past record of service as explanation in answer to the notice to show cause why he should not be dismissed. Indeed I should have thought that in the explanation and answer to the notice to show cause why a public servant should not be dismissed, if the public servant puts forward specific instances of his past record of service as a part of his answer, then it is the duty of the dismissing authority to consider them. It is worth remembering that the principle behind disclosing a record to the public servant before a punishment is inflicted on him is to enable him to answer the proposed action. But if in the very answer to the proposed action the aggrieved public servant himself asks for a consideration of his past record of service, then I do not think the principle applies at all.
16. For these reasons both these objections fall. I dismiss this petition and discharge the Rule and vacate the interim, orders, if any. There will be no order as to costs.