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1954 DIGILAW 71 (KER)

Madhava Iyer v. State

1954-03-25

M.S.MENON, SANKARAN, SUBRAMONIA.IYER

body1954
Judgment :- 1. This is an application under Art. 226 of the Constitution of India praying: 1. that a writ of certiorari be issued to the counter petitioner for calling up the records and proceedings in Government Order ROC 5880/48/Home, dated 29.7.1949 and 13.8.1949 whereby the counter-petitioners have wrongly dismissed the petitioner from their service, for the purpose of scrutinising and quashing the same; 2. that a declaration may be made that the termination of the petitioner's service was improper, illegal inoperative, and void; 3. that a writ of mandamus or such other direction be made to the counter-petitioners for compelling them to reinstate the petitioner in Government Service in his former post or to provide him with a post of like status and remuneration and to reimburse the petitioner in full for the loss of salary occasioned by his wrongful dismissal from service; and 4. that such other further and incidental orders may be passed as would be required from time to time for a proper disposal of the case and to meet the ends of justice". Along with the application the petitioner filed his affidavit and produced the documents exhibited therein marked A to G. The application was presented on 17.7.1952. The only respondent is the State of Travancore Cochin. On behalf of the respondent a counter affidavit sworn to by G. Bhaskaran Nair, under-Secretary in charge of the Home Section, dated 16th November, 1952, was filed in court the next day. One of the main complaints of the petitioner related to the want of consultation with the Public Service Commission in connection with the impugned order of dismissal under the Public Service Commission Ordinance, VI of 1124. The answer to this is contained in paragraph 7 of the counter-affidavit which reads as follows: "The order of dismissal was passed when the Public Service Commission Ordinance, VI of 1124 was in force, R.16 of the Rules of Business framed under S. 5 of the Administration and Application of Laws Ordinance, 1124, which was in force at the time of the dismissal deals with cases to be submitted to His Highness the Raj Pramukh. The case of the petitioner does not come within this rule." In the 12th paragraph of the counter-affidavit it is stated: "The long delay in invoking the extraordinary jurisdiction of this Hon'ble Court must, it is submitted, induce this court to deny relief to the petitioner". At the hearing of the application on 12.12.1952 an order was passed by one of us sitting alone quashing the impugned order of dismissal and disallowing the prayer for reinstatement. That order was passed upon certain concessions upon a point of law which the order refers to as having been made by the learned Advocate-General who appeared on behalf of the State. The State preferred an appeal against that order (A.S. No. 242 of 1953) and the Division Bench consisting of His Lordship the Chief Justice and one of us, reserved the order on the basis of an affidavit filed by the Advocate General denying the aforesaid concessions. The case was remanded for disposal on the merits by judgment rendered on 27.10.1953. The ground that the application was submitted after long delay which was taken in paragraph 12 of the counter-affidavit was not for obvious reasons pressed at the trial. That ground is not seen taken in the memorandum of appeal and it was not pressed at the argument of the appeal. When the matter came before the single judge after remand the learned Government Pleader pressed for the dismissal of the petition on account of its belated character alone. Relying upon a decision of a Division Bench of this Court in ILR 1953 TC 962 (1953 KLT 703) it was contended that a belated application should necessarily be dismissed and that a single judge in view of the decision of the Division Bench has no jurisdiction but to dismiss it. That question having been raised the case was referred to a Full Bench by order dated 6th January 1954 because another case in which the identical question was raised had been already referred to a Full Bench. That case is OP 99 of 1951 in which we have this day delivered judgment. As indicated by us therein it is within the discretion of the judge or Bench trying an Original Petition to reject or to admit a belated application. That case is OP 99 of 1951 in which we have this day delivered judgment. As indicated by us therein it is within the discretion of the judge or Bench trying an Original Petition to reject or to admit a belated application. We indicated therein that we consider that the period available for a civil revision petition as reasonable time within which an application under Art. 226 should be presented, that no hard and fast rule can be fixed in that regard and the matter should be left to the trying judge or Bench to accept a petition though presented beyond that period and deal with it on the merits. 2. In this case the impugned order for dismissal was dated 13.8.1949 and the Original Petition for quashing it was as already stated, presented, only on 17.7.1952. Though the ground that on account of its belated character the petition ought to be dismissed was taken in the counter-affidavit it was not, as already stated, pressed at the trial nor was it taken in the ground of appeal nor was it urged at the time the appeal was argued. It was only when the matter came before the single judge in the third round that this point was pressed. Under the circumstances we consider that it is not open to the respondent to plead delay as a ground for dismissing the petition because the matter was considered by the Trial Judge and also by the Bench in appeal on the merits which might not have been necessary had the objection regarding the belated character been pressed. The order of remand made by the appellate Bench is for the purpose of the disposing of the application on its merits. The entire case has been referred to the Full Bench and the order of reference mentions the reason why the case was so referred. 3. The only question that need be considered is whether S. 4 of the Ordinance, VI of 1124, in the matter of consultation of the Public Service Commission before the order of dismissal of the petitioner dated 13.8.1949 was passed has been violated and if so whether such violation is fatal to the validity of the order. 3. The only question that need be considered is whether S. 4 of the Ordinance, VI of 1124, in the matter of consultation of the Public Service Commission before the order of dismissal of the petitioner dated 13.8.1949 was passed has been violated and if so whether such violation is fatal to the validity of the order. S. 7 of the counter-affidavit presented on behalf of the respondent which was read in terms admits that Ordinance VI of 1124 was in force when the order of dismissal of the petitioner was passed. The Ordinance came into force on 16.7.1949 and the order of dismissal was dated 13.8.1949. S. 4 of the Ordinance by the 2nd clause renders consultation with the Public Service Commission obligatory "on all disciplinary matters affecting the persons serving under the Government of the United State in a civil capacity, including memorials or petitions relating to such matters" (Clause c). C1.2 contemplates cases where it shall not be necessary for the Public Service Commission to be consulted and that class of cases would arise when rules are made by His Highness the Raj Pramukh in consultation with the Commission specifying the matters on which either generally or in particular class of cases or in particular circumstances such consultation shall not be necessary. Learned Counsel for the petitioner submits before us that no such rule had been framed at the time. Learned Government Pleader appearing for the respondent does not controvert the truth of that proposition. The third clause of S. 4 provides that: "Nothing in this section shall require the Public Service Commission to be consulted." (i) in the case of the subordinate ranks of the Police Force as respects the matters mentioned in clauses (a), (b) and (c) of sub-s. (2) of this section, or (ii) in the case of menials or any other class of subordinate ranks of civil service as may be notified by the Raj Pramukh as respects any of the matters mentioned in Cl. (c) of sub-s. (2) of this section." There is an explanation defining 'disciplinary matters' which says: "Disciplinary matters" in this section includes 'dismissal', 'discharge' and 'removal' from service but does not include suspension, fine or any other such form of punishment". Learned counsel for the petitioner submits that the Raj Pramukh had not at the time notified regarding any of the matters under sub-cl. (2) of Cl. (c). Learned counsel for the petitioner submits that the Raj Pramukh had not at the time notified regarding any of the matters under sub-cl. (2) of Cl. (c). Learned Government Pleader did not controvert that proposition either. The mandatory provisions of S. 4 regarding the necessity for an antecedent consultation with the Public Service Commission before taking action against the petitioner who was a person serving under the Government of the United State in a civil capacity within the meaning of Cl. (c) of S. 4 sub-cl. (2) has been violated and in our judgment such violation is fatal to the order of dismissal. The result is that the order of dismissal of the petitioner must be and is hereby quashed and is directed that the respondent would regard the petitioner as not having been dismissed. 4. The petition is allowed to the extent above indicated with costs. Advocate's fee Rs. 150/-. Allowed.