1. This is an application under Article 226 of the Constitution for an appropriate writ for cancellation of certain orders passed against the petitioner in March 1951 and on 25-4-1952 imposing certain punishments for misconduct in the discharge of his duties as an Overseer in the Military Engineering Service and also for quashing of an order D/- 10-4-1952 by which the petitioner was discharged from service with effect from 10-7-1952.
2. The petitioner's case is that he was appointed as Overseer in the Military Engineering Service in 1940 under the Government of India. In 1942 he was promoted to the post of Sub-Divisional Officer which was re-designated as Superintendent, Grade I, with effect from January 1947. On 16-6-1949 a departmental enquiry was started against the petitioner on a charge of throwing away certain stores which were the property of Fort William. As a result, of the enquiry a warning order was made against the petitioner in or about March 1951. As the authorities were not satisfied with merely passing a warning order against the petitioner, a charge-sheet was given to the petitioner on or about 28-2-1952, and it appears that the petitioner was held guilty of the said charge and it was directed that Rs. 50/- would be deducted from the pay and allowance due to the petitioner. The petitioner challenges the orders as mala fide. It further appears that prior to the said orders the petitioner had also been charged with absence from duty without leave and for disobeying an order of transfer made by the authorities in the department in which he was serving and the petitioner was found guilty of the charge of disobedience of the transfer order and it is alleged that he was reverted to the post of Superintendent, Grade II. The petitioner preferred an appeal against the order of reversion but the same was rejected. The petitioner then gave notice under Section 80, Civil P. C. and has filed a suit in this Court being suit No. 975 of 1952 which is still pending. It is alleged that after the service of notice under Section 80, the petitioner was falsely and maliciously charged with neglect of duty regarding the recording of sizes and lengths of certain wooden beams handed over to a contractor for sawing and for failing to obtain the cut pieces from the contractor and to record measurements of sawing made by the contractor. The petitioner submitted his defence to the said charges on or about 24-10-1951. On or about 10-4-1952 notice was served upon the petitioner intimating that his service would stand terminated after three months with effect from 10-7-1952. The petitioner challenges the validity of this order on the ground that it is mala fide and also as being made in contravention of Article 311(2) of the Constitution of India.
3. In the affidavit in opposition affirmed by respondent 1 it is denied that the orders in question were passed mala fide and some facts are set out explaining the circumstances under which the impugned orders were made.
4. In the course of the hearing it was indicated by me that as there was considerable dispute with regard to the issue of mala fide,the question cannot be decided in a proceeding under Article 226 of the Constitution and the petitioner should take appropriate proceedings for determination of that question, if he was really inclined to press the charge of mala fide against the respondent in respect of the orders in question. Mr. B.C. Dutt realized the force of the observation and asked the Court to keep the matter open for the purpose of being agitated in other appropriate proceeding if his client will be so advised. I have acceded to the request of Mr. Dutt and it may be noted that this issue as to the orders being made mala fide is left open.
5. Mr. Dutt has in this application, therefore, confined his attack to the validity of the notice or order dated 10-4-1952 on the ground that it is made in violation of the provision of Article 311(2) of the Constitution. It is argued that after the authorities concerned arrived at the provisional conclusion that the petitioner was guilty of the charges made against him in the charge sheet dated 17-10-1951, he should have been given a further opportunity to show cause against the action of his dismissal proposed to be taken against him by the authorities concerned. As this opportunity was not given the order of 10-4-1952 terminating the service of the petitioner is bad.
6. On behalf of the respondents it is contended by Mr. Kar that inasmuch as the service agreement of the petitioner is not in conformity with the requirements of Section 175(3), Government of India Act, 1935, or Article 299 of the Constitution, it is void and, therefore, the petitioner is not a servant of the Union of India and as such he cannot take advantage of Article 311(2) of the Constitution. Although this is an unreasonable and unfair attitude on the part of the Government to take up and does not merit any encouragement, I have most reluctantly given effect to this contention in Original Side Matter No. 23 of 1952 (Dinendra Nath Mullick v. Director of Supplies & Disposals, Judgment dated 3-7-1952) and accordingly I have no other alternative but to uphold the contention of Mr. Kar. As the petitioner is not a validly appointed servant of the Government, he has no right which he can enforce in this proceeding. Mr. Dutt argued that as Section 175(3). Government of India Act, 1935, has been repealed the respondents cannot take advantage of this section for the purpose of invalidating the appointment of the petitioner. I do not think there is any substance in this contention. Mr. Dutt further argued that in any event there has also been infringement of Rule 55, Civil Services (Classification, Control & Appeal) Rules. But this point has not been taken in the petition. Moreover, Rule 55 presupposes that the person claiming to be governed by the Rule is a member of service under the Government. But as I have pointed out already, the petitioner cannot be deemed to be in the employment of the Government. See -- 'Krishnaji v. Secretary of State', 39 Bom L R 807 in which Section 30 of the old Government of India Act was applied to contract of employment.
7. Mr. Dutt also contended that Section 175(3), Government of India Act, 1935, or Article 299 of the Constitution was not mandatory in character but only directory and hence non-compliance with their provisions did not render the contract invalid. Reliance was placed on the decision of the Federal Court in the case of -
J.K. Gas Plant . v. Emperor', (1947) 9 F C R 141 at pages 154-158, and on the decision of the Supreme Court in the case of -- 'Dattatraya Moreshwar v. State of Bombay', 1952 S C A 526. In the earlier case the Federal Court construed Section 40, Government of India Act, 1919, and upon consideration of the scope and object and the wordings of the Section, came to the conclusion that the Section was directory and not imperative in character, following the principle of interpretation laid down in Maxwell's Interpretation of Statutes. The later decision of the Supreme Court merely follows the decision of the Federal Court and applies the reasonings of the Federal Court to the interpretation of Article 166 of the Constitution. But none of the two decisions has expressed any opinion on the interpretation of Section 175(3), Government of India Act, 1935, or Article 299 of the Constitution of India. Mr. Justice Sinha in the case of --'Ram Nagina Singh v. Governor General in Council', 84 Cal L J 275 at pp. 290-291, dealt with the Federal Court decision and pointed out that the decision was no authority for the proposition that Section 175(3) was not mandatory. The learned Judge further observed that having regard to the authorities it was too late in the day to contend that the Section was only directory. This case went up in appeal before Chakravartti J. (as his Lordship then was) and S.R. Das Gupta J. and the view of Sinha J. was affirmed in such appeal. 'Union of India v. Ram Nagina Singh', 89 Cal LJ 342 at pp. 357-358. This is a decision directly in point and relates to the interpretation of Section 175(3), Government of India Act, 1935, and I respectfully follow this decision.
8. It was also argued by Mr. Dutt that admission made by the respondents to the effect that the petitioner was an employee of the Government and the acts and conduct of the Authorities concerned in granting the petitioner promotion and increments of pay operate as estoppel and preclude the respondents from denying the status of the petitioner as a servant under the Government. It is, however, clear from para. 16 of the affidavit in opposition that there is no unqualified admission about the contract of employment. An alternative case has also been pleaded that there is at any rate no valid employment of the petitioner. Moreover, it is clear law that the equitable doctrine of estoppel cannot override the provisions of a Statute (See for instance -- 'G. S. C. Ariff v. Jadunath', 58 Ind App 91 at p. 104 (P C) last but one paragraph). It is true that it is an extremely hard view to take of the law, that Section 175(3) or Article 299 defeats this application. But as observed by Lord Blackburn in the case of -- 'Young & Co. v. Mayor of Leamington Spa', (1883) 8 AC 517 at p. 522:
'It may be said that this is a hard and narrow view of the law; but my answer is that Parliament has thought expedient to require this view to be taken and it is not for this or any other Court to decline to give effect to a clearly expressed Statute because it may lead to apparent hardship.'
9. In my view this petition fails. The Rule is accordingly discharged. I make no order as to costs.