ORDER : 1. This is an application under Art. 226 of the Constitution to quash the order No. 8883 dated 16-10-1952, by which the non-applicant No. 2 is said to have accepted a resignation from service by the applicant which was never tendered and which never existed, and to direct the non-applicant No. 2, preventing him from debarring the applicant from joining his post. 2. The applicant was in the employment of the Bhopal Government, Revenue Department, as a Wasil Baqi Navis at the office of the Tehsil of Budni in Sehore revenue district. During an enquiry by Tehsildar against one Shri Krishna Mishra for an alleged offence of cheating by impersonation, the statement of the applicant was said to have been obtained on 21-3-52 and suddenly, on 16-7-52, the applicant was suspended without stating any reasons and was ordered to attend before the Deputy Collector, Sehore, on 20-9-52, in a departmental enquiry against him, and made (make?) a statement. On 27-11-52 the applicant was served with the order No. 8883 dated 16-10-52, passed by the Under Secretary, Revenue Department, purporting to say that the resignations tendered be the applicant and Shri Krishna were accepted and the Collector would take action required. The Tehsildar then, in compliance with the order and instructions of the Collector N.A. 2, debarred the applicant from resuming his duties. 3. It is stated that as a fact the applicant never submitted any resignation, that never was any charge-sheet given to the applicant for breach of any rules, nor prosecution taken out, nor was there any conviction of the applicant for any offence. The applicant, on 16-12-52 submitted a representation to the Collector, asserting that he never tendered any resignation and be allowed to re-join his duties, but no reply was received. He then made representations to the Chief Minister and the Chief Commissioner, Bhopal, but it is said that they were not paid any attention to. Then, on 19-6-53, the applicant sent an application for a copy of the resignation, along with, a remittance of Rs. 2/- to cover the copying charges. This was refused and no copy nor any reply was ever given to him. 4. Then, on 19-6-53, the applicant sent an application for a copy of the resignation, along with, a remittance of Rs. 2/- to cover the copying charges. This was refused and no copy nor any reply was ever given to him. 4. It is contended that the action of the non-applicants in removing the applicant from service was in violation of Art. 311 of the Constitution and totally arbitrary, unjustified, mala fide and contrary to the principle of natural justice, and the applicant having no other speedy and adequate remedy, was entitled to submit this application. 5. The non-applicant, in reply, without stating how, merely stated that the applicant was aware of the reasons of his suspension on 16-7-52. It was said that the applicant approached the non-applicant No. 2 for mercy and he was advised to tender resignation and this was done, but it appeared that the resignation was removed from the file. It is said that the applicant was informed of the nature of the enquiry against him by the Tehsildar and the Deputy Collector (It is not stated how and when). It was denied that the applicant never tendered his resignation. It is said that his representations were rejected and no copy of his resignation could be given as it was suspected to have been removed from the file by the applicant or at his instance. It was further said that due enquiry was made and the resignation was accepted and the services of the applicant were terminated. 6. The non-applicant No. 2 stated that he did not remember the date when the resignation was tendered, as it was not tendered to him, nor did he remember to which officer it was tendered. It is said that it is not found on any of the files of his office or the Tehsil office and no further enquiry was made for it. 7. The non-applicants contended that the application was not tenable in the absence of violation of any fundamental rights and in the circumstances of the case, the applicant was not entitled to any relief. It is also contended that the application suffers from inordinate delay and that the application did. not lie as against the administrative orders of the Government in exercise of life executive authority. 8. It is also contended that the application suffers from inordinate delay and that the application did. not lie as against the administrative orders of the Government in exercise of life executive authority. 8. As regards the objection to the tenability of the application in the absence of an infringement of a fundamental right, it is true that this Court has consistently held that an application under Art. 226 of the Constitution lies only in the case of infringement of such right as stated in Part III of the Constitution. Most of the High Courts have differed from this view and several decisions can be cited in support of the said view. I am not pressed to reconsider my decisions but I am inclined Co think that a public servant under the State or Union has a certain right under the Constitution to a proper and due enquiry according to the rules prescribed therefor. There can be no dispute that under Art. 310, the member of a Defence or Civil Service holds office during the pleasure of the President or the Governor. The Constitution has, however, prescribed certain restrictions on exercise of this pleasure and Art. 311 provides one. The members of those services have thus a very important right provided to them by the Constitution and it constitutes the highest safeguard for their protection from possible vagaries of the superior authorities that be. The right of being heard in a due, proper and prescribed enquiry is one which is cherished by a servant with the same avidity or confidence as any citizen of India cherishes his fundamental right. Both these rights are provided under the Constitution. and even to these rights may not fall within the purview of fundamental rights under Part III, still it is undisputed that it is his constitutional right and is the very essence of his own and his dependants' living. That being so, in my opinion, it is but proper and according to the Constitution that protection under the Constitution should be available to them and in this view the petition under Art. 226 is tenable to enforce a constitutional right and the High Courts have power to interfere and set right any infringement of such right in its substance or its enforcement. 9. 9. Then again, it is now well-settled that any faction or order in contravention or violation of natural justice infringes the fundamental rights of every person. Such principles of natural justice may be illustrated by rules that no person shall be condemned or made to suffer without giving him a hearing or without evidence to support the condemnation or by caprice of the authority condemning him. If, therefore, it is proved that the applicant has been condemned in violation of any of the principles of natural justice, then the action or order of the authority by which he is so condemned to suffer infringes his fundamental right and the Constitution has made provision for bringing such authorities under the supervision of the ordinary courts in India. One of such provisions is the power given to the High Courts in the States under Art. 226(1) and Art. 227(1) of the Constitution. In this view then the application which complains of violation of the principles of natural justice is tenable in law. 10. As regards the objection to the petition on the ground of the order being an administrative order by an executive authority, it is now settled law that merely calling it an administrative order by an executive authority does not absolve it from the jurisdiction of the High Court, if the order is required to be passed on objective consideration and standards, i.e., where the authority passing the order has to consider the case of the party, the evidence and arguments for or against him and such other matters before passing the order, it is a quasi-judicial order and the High Court has a power to examine and interfere with it. In - 'Bidhu Bhushan v. State of West Bengal', AIR 1952 Cal 901 (A), it has been observed : "The expression 'in appropriate cases any Government' only confers on the High Court powers of interference with orders of the Government only in appropriate cases i.e., cases which require the exercise of quasi-judicial powers by the Government." And in - 'Sampu Gowda v. State of Mysore', AIR 1953 Mys 156 (FB) (B) it is observed : "The issue of a writ of certiorari or any other suitable writ which the High Court can issue under Art. 226 or order that it can make under Art. 227 cannot be avoided by merely calling a particular order or action as in the nature of an executive order or action." 11. It is not disputed that the fate of a public servant cannot be decided arbitrarily by superiors merely on subjective consideration but as laid down under Art. 311(2) of the Constitution, certain procedure is to be followed. He has to be heard after notice and then alone, considering the case, the evidence and the arguments, the superior authority can pass an order on the objective consideration of the matters before him. I am clear that the order in the case on hand is a quasi-judicial order and that this court can entertain the petition under Art. 226 of the Constitution. In - 'Mohammad Bux v. Govt. of State of Uttar Pradesh', AIR 1953 All 739 (C) Sapru J. has observed as follows : "The distinction between an administrative and judicial or quasi-judicial act turns upon the question whether the duty of the authority was to act judicially or not." 12. As regards the contention that the application suffers from inordinate delay, it must appear that the applicant submitted representations by way of appeals to the Chief Minister and the Chief Commissioner and was awaiting the result and he asked for a copy of the resignation only in 1953 and none was sent to him and no reply was even given to him. The application was thus filed on 13-7-1953. In the circumstances of the case it cannot, in my opinion, be held to have been inordinately delayed, and even if it is somewhat delayed, satisfactory explanation has been submitted by the applicant. The application, therefore, cannot be thrown out on this ground. 13. The application was thus filed on 13-7-1953. In the circumstances of the case it cannot, in my opinion, be held to have been inordinately delayed, and even if it is somewhat delayed, satisfactory explanation has been submitted by the applicant. The application, therefore, cannot be thrown out on this ground. 13. The next objection is that the applicant has another adequate remedy by way of a suit and therefore the petition should not be entertained. The learned Government Advocate cites the decisions in - 'Raghunandan Prasad v. Income-tax Commr.', AIR 1953 All 399 (D); - 'Parraju v. General Manager, B.N. Railway', AIR 1952 Cal 610 (E) and - 'Bibhuti Bhushan v. Damodar Valley Corporation', AIR 1953 Cal 581 (F) in support of his contention. On perusal of these cases it appears to me that they are liable to be distinguished from the case on hand. The decision in - 'Roller Flour Mills v. Income-tax Officer, 'A' ward, Patiala', AIR 1953 Pepsu 88 (G) lays down an important principle to be followed. It is said : "That the question whether the other remedy open to the applicant in a particular case is specific and adequate should be decided upon the facts of each case." In - 'Atulya Kumar v. Director of Procurement and Supply', AIR 1953 Cal 548 (H), it has been held : The High Court will not interfere when there exists other adequate legal remedies, or it will not impose its will upon the exercise of executive discretion. But that course of conduct is dependent upon expediency and not want of jurisdiction. The existence of an alternative remedy is not absolute of a and the abuse of a power even though discretionary can always be controlled." In - 'Ranvijay Singh v. Divisional Forest Officer' AIR 1953 Him-P 33 (I) the learned Judicial Commissioner has pointed out that : There must be exceptional reasons for asking for the exercise of the extraordinary jurisdiction of the High Court, for otherwise the ordinary legal remedy by a suit under the general law would be rendered wholly nugatory. Such an exceptional reason must be invariably held to exist where an application for relief under the said Article is based on infringement of one of the fundamental rights guaranteed by the Constitution. Such an exceptional reason must be invariably held to exist where an application for relief under the said Article is based on infringement of one of the fundamental rights guaranteed by the Constitution. Such an exceptional reason would also seem to exist where, though not for the enforcement of any of the fundamental rights, such an application is moved for any other purpose if that purpose cannot be served by an ordinary suit. It has, therefore, been held that the extraordinary jurisdiction in Question may be invoked if the alternative remedy by suit is less convenient, beneficial or effective." In - 'Chela Ram v. State of Rajasthan', AIR 1954 Raj 12 (J), a bench of two Judges have laid down : "Existence of another remedy cannot be a bar to the exercise of the ordinary jurisdiction of the High Court in a case where a clear breach of the mandatory provisions of the Constitution, such as under Art. 320, has been committed." 14. In the case on hand the applicant is apparently a poor man and a resident of a village in Bhopal State and his grievance is quite simple, viz., that he has been removed from service under the garb of his alleged resignation which he had never tendered and which is not found on any of the documents or files in possession of the Government or the Collector and was and is non-existent. It is abundantly clear that he cannot afford to indulge in a litigation with a formidable opponent like the Government which may nothing but sap his physical, mental and monetary capacity and is thus highly inconvenient to him. Apart from this, it may be pointed out that it is not a remedy specified under the Constitution or under any law and as regards its being adequate, the maximum benefit which the applicant might obtain from such litigation after the heavy cost, trouble, and physical strain, may be his being relegated to the position as it stood when he was removed. The violation he complains of is of a mandatory provision specified under Art. 311(2) and as such, in my opinion, this is a fit case where the petition should be entertained. 15. It was not clear if the applicant was a permanent servant or on probation or a temporary servant and the parties were called upon to clarify this point. The violation he complains of is of a mandatory provision specified under Art. 311(2) and as such, in my opinion, this is a fit case where the petition should be entertained. 15. It was not clear if the applicant was a permanent servant or on probation or a temporary servant and the parties were called upon to clarify this point. The non-applicants filed documents from which it is found that the applicant did not possess requisite qualifications for being employed permanently and, therefore, it is doubtful if he was a permanent servant. It is also clear that the Revenue Commissioner was not prepared to exempt him from the requisite qualifications. It is, however, not clear if he was a probationer or a mere temporary servant. Even if he were a temporary servant, he could not, under the rules, be turned out at a moment's notice. Under R. 5 of the Central Civil Services (Temporary Service) Rules, 1949, the services of a temporary Government servant, who is not in a quasi-permanent service, shall be liable to termination at any time by notice in writing by either the Government servant to the appointing authority or by the appointing authority to the Govt. servant. The period of such notice shall be one month unless otherwise agreed to by the Government and the Government servant, provided that the service of such Government servant may be terminated forthwith by payment to him of a sum equivalent to his pay and the allowances for the period of the notice, etc. 16. It is thus clear that in order to terminate the services of even a temporary servant either there should be a due and proper enquiry as prescribed, a finding as to his delinquency or fault or defect as to his competency or conduct or one month's notice terminating his service at the last date of the period of such notice. The Collect of N.A. No. 2 seems to have chosen the former and, therefore, the applicant was entitled to a due, proper and prescribed enquiry. The following observations of the Assam High Court in - 'Bhugiram Hazarika v. Supdt. of Police Sibsagar', AIR 1954 Assam 18 (K) seem to apply to the case on hand with force, viz., : "It is incumbent on the authorities to comply with the requirements of Art. 311 (2) before they proceed to dismiss a public servant. The following observations of the Assam High Court in - 'Bhugiram Hazarika v. Supdt. of Police Sibsagar', AIR 1954 Assam 18 (K) seem to apply to the case on hand with force, viz., : "It is incumbent on the authorities to comply with the requirements of Art. 311 (2) before they proceed to dismiss a public servant. The said Article is mandatory and an order of dismissal passed against a civil servant without giving him the opportunity provided under it is void and inoperative and the person concerned will continue to be a member of the service notwithstanding the order. It is not sufficient that the said servant should have received a general invitation to show cause against the possible dismissal but that he should have been given an opportunity to show cause against the punishment of dismissal itself, after dismissal had passed from being a possible punishment to the punishment proposed and recommended. Where an order of dismissal of a public servant is found to be wholly unjustified, the High Court can interfere under Art. 226. It is imperative on the State to frame specific charges with full particularity, intimate those charges to the Government servant concerned, give him an adequate opportunity to answer those charges and after considering his answers to take its decision." 17. In the case on hand an enquiry was started against two persons including the applicant. The applicant was suspended on 16-7-52. The latter's statements were recorded by the Tehsildar and the Deputy Collector. Copies of these statements are filed on record. The allegations against the applicant are not quite, clear but seem to be that the applicant persuaded, his colleague one Shri Krishna to impersonate him at a qualifying examination which the latter did. In none of the statements, however, this is admitted by the petitioner. No charges were framed, much less given to him, and, in fact, the requisite enquiry was not completed nor was any finding or report submitted to the authority who had power to pass the final order in the enquiry. All of a sudden the applicant was informed that his resignation was accepted. 18. No charges were framed, much less given to him, and, in fact, the requisite enquiry was not completed nor was any finding or report submitted to the authority who had power to pass the final order in the enquiry. All of a sudden the applicant was informed that his resignation was accepted. 18. Turning then to the merits of the case, it is the case of the Government and the Collector that the applicant was to appear for an examination to qualify for the post and had taken leave for the purpose but one Shri Krishna, a colleague of the petitioner, impersonated him and appeared for the examination. He was, however, found out and departmental enquiry was started against both and they were suspended. During the enquiry, after making a statement, the applicant is said to have tendered his resignation and the resignation was accepted. The case of the applicant is that he did not even know for what fault of his he was suspended, that he had never tendered his resignation but all of a sudden his services were terminated on the above ground. Affidavits have been filed on both sides. It is strange to find that the non-applicants did not make a clear and definite statement on the question whether a charge-sheet was given, to the applicant, and to which officer, the Tehsildar the Deputy Collector, or the Collector, the resignation was tendered and whether it could be produced. In such cases it was expected that the Government was advised to lay all the cards on the table. The Government cannot allow itself to be influenced by its officers. Various considerations for concealing their own faults or negligence or failure to comply with rules, etc., may prevail in suppressing facts or resorting to the tactics of 'suppressio veri and suggestio falsi'. The very statement filed on behalf of the non-applicants, the State and the Collector, exhibits such methods. The written-statement in paras (2), (5), (7), (8) and (9) suffers from vagueness and definite statement had to be called from the non-applicants in this behalf. I am perfectly clear that the Government does not seem to have been properly advised in this matter and fought shy of making a correct and definite statement. 19. The petitioner has filed an affidavit that he never tendered any resignation. I am perfectly clear that the Government does not seem to have been properly advised in this matter and fought shy of making a correct and definite statement. 19. The petitioner has filed an affidavit that he never tendered any resignation. The most important question of fact for determination is whether the applicant had tendered his resignation from service and the consequential question would be whether his services were duly and in accordance with the rules terminated on acceptance of such resignation. In the ordinary course the best evidence to demolish the case of the applicant was to produce the resignation. If it is lost or untraceable, secondary evidence including even oral evidence as to its past existence and the fact of its being tendered by the applicant could be admissible. Nothing of the former or the latter has been produced on record. 20. The Collector N.A. 2 filed a definite statement only on 5-3-54, being called upon to do so. The State did not file a statement as ordered on 15-2-54, for reasons best known to it. Non-compliance of the orders leaves the Court to draw its own conclusions on the points raised. The Collector's additional statement says that he did not remember the date when the resignation was given, as it was not given to him personally. He did not remember to which officer it was given and he adds that it is not found in any of the files in any office, and lastly that no further enquiry was made in that behalf. This alone is, in my opinion, enough to reach the conclusion that there was no such resignation, nor was it ever tendered. In addition, an affidavit by the Collector N.A. 2, without date and apparently sworn in a casual manner, is filed on record on 3-2-54. In para 4 of the affidavit, the Collector, after stating how the question of the resignation of the applicant arose, swears : "That on the receipt of this report the petitioner one day came to me at my residence at Sehore early morning and prayed for mercy. He was told that it was not possible to retain him in service any longer when he was found guilty of such a serious criminal act. He was told that it was not possible to retain him in service any longer when he was found guilty of such a serious criminal act. However, in view of his young age and straightened circumstances, I advised him to tender his resignation to which he very gladly agreed and told me that he would hand over his resignation in the office. Accordingly I wrote to the Chief Secretary, recommending that his resignation may be accepted and the Government accepted this proposal." 21. It is abundantly clear from these two affidavits that the Collector never saw the resignation himself personally nor was it within his personal knowledge that a resignation was tendered by the applicant. Without ascertaining this fact he seems to have rushed to inform the Chief Secretary as above. In para. 5 of the affidavit the Collector does not say when and what for he had to refer to the same file again and makes himself bold to add not that he found the resignation missing but this fact was brought to his notice. Then, an attempt is made to create confusion toy adding in para. 6 that he believed that the resignation seemed to have been removed by the applicant or someone else at his instance. No reliance can be reasonably placed on such affidavits in vaguest of expressions even from responsible and respectable officers like the Collector. He was himself not personally certain that a resignation was tendered and in that case it is futile to swear that it had been removed. The two documents viz., this affidavit and the additional statement dated 5-3-54, read together with the applicant's affidavit clearly establishes the fact that the applicant never tendered his resignation from service and that his services were terminated on the ground of acceptance of a never existent resignation. The order terminating his services by his removal on the ground of the acceptance of his resignation was, therefore, passed on misapprehension of fact and suffers from want of jurisdiction and being in contravention of the rules is bad in law. It is, therefore, liable to be quashed by a writ of certiorari. 22. The non-applicants should have filed the original order by which the alleged resignation was accepted. The original file is, however, placed before this Court. It is, therefore, liable to be quashed by a writ of certiorari. 22. The non-applicants should have filed the original order by which the alleged resignation was accepted. The original file is, however, placed before this Court. The order dated 16-10-52, under which the alleged resignation was accepted is, therefore, quashed and it is ordered that the applicant shall be deemed to be in service since the date of the order and onwards, subject, however, to the result of the departmental enquiry which was then pending against him. The petition, therefore, succeeds and is allowed with costs against the non-applicants who shall bear their own costs. Counsel's fee for each side shall be Rs. 75/-. Order accordingly.