Manoranjan Sen Sarma v. STATE OF WEST BENGAL — 1963 DIGILAW 58 (CAL)

JUDGMENT 1. This is an appeal against an order discharging a Rule under Article 226 of the Constitution obtained by the appellant in respect of his removal from service by order of the Governor of the State of West Bengal. The respondents to the petition were (1) The State of West Bengal, (2) B. Das Gupta, Secretary, Excise department, Government of West Bengal, (3) K. P. Sen, Commissioner of Excise, West Bengal at the relevant time, (4) the present Commissioner of Excise, (5) A. B. Rudra, Deputy Secretary, Department of Excise at the relevant time and (6) Assistant Secretary to the Government of West Bengal. 2. The facts leading to the making of the application are as follows: As a result of the West Bengal Civil Service (Executive) and Allied Service Examination held in December 1952 the petitioner along with two other persons were appointed on probation to the west Bengal Junior Excise Service. The period of probation was to be two years during which they were required to undergo the prescribed training and pass all the Departmental examinations. Before completion of his period of probation the petitioner submitted an application on June 6, 1955 for permission to sit at a competitive examination to be held by the State Public service Commission for recruitment of commercial Tax Officers. He got back his application on July 16, 1955 with the information that necessary permission was not granted by the Governor. In the meanwhile however he had been preparing himself to sit for the examination. On the last mentioned date he sought for an interview with A. B. Rudra to persuade him to accord permission for appearing at the examination. The happenings at the interview formed the subject matter of an enquiry against him and ultimately led to his removal from service. According to the petitioner he behaved politely throughout the interview but the respondent No. 5 used insulting language towards him and his father. The said respondent left his room for sometime and came hack with one S. V. Krishnan, under Secretary, Home Department and threatened the petitioner with removal by force. Ultimately a police sergeant and a police constable were brought in who assaulted the petitioner and dragged him out of the room. On august 17, 1955 i.e., nearly a month afterwards the petitioner received a charge sheet initialing proceedings under rule 55 of the Civil Services (Classification. Ultimately a police sergeant and a police constable were brought in who assaulted the petitioner and dragged him out of the room. On august 17, 1955 i.e., nearly a month afterwards the petitioner received a charge sheet initialing proceedings under rule 55 of the Civil Services (Classification. Control and Appeal)Rules. Three charges were leveled against him. (1) He was guilty of gross indiscipline and insubordination inasmuch as he insisted upon the reasons for not forwarding his application for permission being given then and there ; (2) that he was guilty of gross misconduct inasmuch as he used offensive language to the effect that the days were days of democracy and not of "julumbaji" and (3) that he was utterly unsuitable for Government service because of his conduct including the use of violence against the police. The narrative on which the charges were framed was in substance as follows: The petitioner saw the Deputy Secretary A. B. Rudra at about 2 P. M. in his room and wanted the latter to forward to the Public Service commission his application for the post of a Commercial Tax Officer which had been withheld by the Government and although the petitioner was told the reason for the same he insisted that the same should be forwarded although the deputy Secretary A. B. Rudra and B. K. Bhattacharyya, Deputy Secretary, Finance Department who happened to be present there, tried to reason with him. The petitioner arrogantly demanded that his application must be forwarded. The Deputy Secretary thereafter asked the petitioner to leave the application with him but the latter remarked that he knew the tricks of Government officers and when told that better conduct was expected of an Inspector of Excise, said that the days were days of democracy and not of "julumbaji. " Thereafter the petitioner was asked to leave the room and make a representation to Government, through the Excise commissioner but instead of doing so the petitioner went on insisting that his application must be forwarded whereupon the two Deputy Secretaries left the room. When these two persons came back to the room after about 15 minutes the petitioner re-entered the room without permission and demanded that either the Deputy Secretary should then and there forward his application and hand over the same to the petitioner or state on the body of the application the reasons for not doing so. When these two persons came back to the room after about 15 minutes the petitioner re-entered the room without permission and demanded that either the Deputy Secretary should then and there forward his application and hand over the same to the petitioner or state on the body of the application the reasons for not doing so. The petitioner was informed that the reasons would be given in writing on Monday July 18, 1955 but he would not listen to any argument or reason. The Deputy Secretary thereafter told him that unless he left the room voluntarily he would be forced out of it but instead of going away the petitioner went on demanding that an order should be passed on his application immediately. As in spite of persuasion by the Deputy Secretary and other officers who were then present the petitioner persisted in his insolent attitude, the police had to be called in and remove the petitioner from the room. During the course of such removal the petitioner kicked a police constable and tore out some of his buttons. 3. The charge-sheet called upon the petitioner to show cause within ten days why he should not be removed from Government service or otherwise suitably punished under rule 49 of the civil Services (Classification, Control and Appeal) Rules. The petitioner was required to put in his written statement before K. P. Sen, Commissioner of Excise, who had been appointed the Enquiring Officer and intimate to him whether he wished to be heard in person. On August 26, 1955 the petitioner put in his written statement. Although this document covers five pages there is only one short paragraph dealing with the incident of July 16, 1955 in the Deputy Secretary's room. In paragraph 7 of the said document the petitioner stated that he had placed the facts of his case before the Deputy secretary in the hope that he would get a sympathetic hearing but the attitude of the said officer was far from helpful. With regard to his conduct complained of the petitioner stated "i did not behave or act in the way as stated in the charges. Nor, I uttered any objectionable expression. I did not use any violence to the police man". 4. With regard to his conduct complained of the petitioner stated "i did not behave or act in the way as stated in the charges. Nor, I uttered any objectionable expression. I did not use any violence to the police man". 4. The Commissioner of Excise fixed September 5, 1955 for the holding of the enquiry at which A. B. Rudra, B. K. Bhattacharyya, P. M. Das Gupta and S. V. Krishnan were asked to appear and depose on the incident. The petitioner appears to have prayed for permission to have his case presented through a lawyer but this was rejected. By another written representation the petitioner wanted the reporter of the paper Lok Sevak who was present in the writers' Buildings on July 16, 1955 and the doctor who had treated him on the same day to be summoned as witnesses on his behalf. According to the petitioner the prayer to examine the reporter of the Lok Sevak was refused. The commissioner of Excise signed his report on the enquiry on November 7, 1955 from which it appears that six witnesses including the Deputy Secretary had been examined in support of the charges while the petitioner and the doctor who had examined the injuries on his person had been examined on behalf of the defence. In the opinion of the Enquiring Officer the petitioner's statement that A. B. Rudra had insulted his father was a travesty of truth. The Enquiring Officer further found that although the Deputy Secretary rudra had left the room for some time the petitioner had lingered on and reentered the room as soon as A. B. Rudra and B. K. Bhattacharyya came hack to the room after a quarter of an hour. After dealing with the evidence adduced the Enquiring Officer was satisfied that the charges had been proved against the petitioner whom he found to be totally unfit for retention in service by reason of his insubordination, insolent conduct and false accusation against the Deputy Secretary and other witnesses. On November 15, 1955 the petitioner was served with an Order No. 1000/ex bearing date November 10, 1955 asking him to show cause why he should not be removed from service as he had been found guilty of all the three charges by the Enquiring Officer. On November 15, 1955 the petitioner was served with an Order No. 1000/ex bearing date November 10, 1955 asking him to show cause why he should not be removed from service as he had been found guilty of all the three charges by the Enquiring Officer. He was given time till November 25, 1955 to do so and was at the same time asked to make his representation about the grounds on which punishment was proposed. This order bore the signature of A. B. Rudra, the respondent No. 5 The petitioner made a written representation which forms annexure "h" to the petition. In this he denied any insolent or arrogant attitude on his part and stated that he never had the intention of annoying anybody although he might have been persistent in his demand for disclosure of the reasons for refusal of permission to sit for the examination as he had worked hard for the same. On May 14, 1956 an order was issued in the name of Governor signed by B. Das Gupta, Secretary to the Government of West Bengal to the effect that the Governor had been pleased to remove the petitioner from service with effect from May 15, 1956. 5. The present petition was affirmed on June 19, 1956 but it was moved on june 26, 1956 along with an additional affidavit. Quite a number of grounds were taken in the petition but only the following were pressed at the appeal: (a) The enquiry was vitiated by being conducted by the respondent No. 3 who was subordinate to respondent No. 5 at whose instance the proceedings were started. In connection with this ground it was urged before us although not suggested in the petition that the recommendation as to the punishment was beyond the jurisdiction of the enquiring officer and the inclusion of the same vitiated the proceedings. A complaint was made that the enquiring officer had not recorded his findings specifically on the charges framed but had stated in one paragraph that he was satisfied that all the charges had been proved and this went against the provisions of rule 95 (3) of the Excise Manual Vol. II. (b) The second show cause notice was bad because it had been signed by the respondent No. 5 who was the complainant and the accuser and had no authority to authenticate the order of the Governor. II. (b) The second show cause notice was bad because it had been signed by the respondent No. 5 who was the complainant and the accuser and had no authority to authenticate the order of the Governor. (c) The order of removal from service did not show that the Governor had at all applied his mind to the facts of the case or considered the Enquiring Officer's report, the defence argument, etc. (d) The refusal of leave to examine the reporter of the Lok sevak seriously prejudiced the defence case. (e) The case of insubordination of the petitioner was not borne out by the enquiry and therefore the order should be quashed. 6. No less than four affidavits in opposition were filed from time to time a course to which strong exception was taken by the learned advocate for the appellant before us. The first affidavit in opposition was affirmed by Asit Baran Ghosh on January 4, 1957. He was an Assistant Secretary in the Department of Excise and was acting as such at all relevant time. In this affidavit it is stated that while the petitioner was working as an Inspector of Excise he applied for the post of a Commercial Tax Officer, Grade II, a post which was comparable with that held by him and carrying the same scale of pay. The then Deputy Secretary did not forward the application of the petitioner to the Public Service Commission as he considered that the post applied for was not higher than the post held by the petitioner at the time. The deponent referred to the report of A. B. Rudra on which the proceedings were started. This document purports to give the discussion which the petitioner had with the said respondent and reveals that the permission to appear at the examination was refused because the petitioner had not been able to pass the departmental examination in Hindi which would form one of the subjects along with several new ones in the examination to be held by the Public Service Commission. The incident in the room of the Deputy Secretary was reported to the Minister of Excise as also to the Chief Secretary. As the Secretary of the Department was absent on that day the Chief Secretary ordered that the Inspector should be placed under suspension and departmental proceedings should be started against him. The incident in the room of the Deputy Secretary was reported to the Minister of Excise as also to the Chief Secretary. As the Secretary of the Department was absent on that day the Chief Secretary ordered that the Inspector should be placed under suspension and departmental proceedings should be started against him. With regard to the grounds mentioned in the petition the deponent stated that the enquiring officer i. e., Excise Commissioner, held the status of a Joint Secretary to the government and was in no way subordinate to the Deputy Secretary, A. B. Rudra. The reporter of the Lok Sevak whom the petitioner wanted to examine was not present in the Deputy Secretary's room during the happenings and was not an eye-witness to the incident and as such the prayer for calling the said reporter as a witness was refused. According to the Rules of Business contained in the Home (Constitution and Election) Department Notification dated 25. 8. 51 all orders and instruments made or executed by or on behalf of the Government of West Bengal could be authenticated by the deputy Secretary and the second show cause notice was validly given. With regard to the order of removal the deponent stated that it was passed by the authority after giving due consideration to the facts and circumstances of the case. An affidavit in reply to this was affirmed on January 21, 1957. In paragraph 13 of this affidavit pointed reference is made to the fact that A. B. Rudra who was the complainant in this case and bore grudge against the petitioner was the person to communicate the proposal of the Governor to remove the petitioner from service. From this it was argued that the proper authority who could order punishment did not consider the matter and allowed the deputy Secretary to authenticate the order of the Governor. Annexed to the affidavit is the report of the incident in the issue of the Lok Sevak on July 20, 1955. This report purports to give the substance of what had happened on July 15, 1955 but does not show that the staff reporter, responsible for making the report, was present at the spot. Annexed to the affidavit is the report of the incident in the issue of the Lok Sevak on July 20, 1955. This report purports to give the substance of what had happened on July 15, 1955 but does not show that the staff reporter, responsible for making the report, was present at the spot. The scraps of conversation quoted in the report and said to have been heard from outside the room of the Deputy Secretary are not based on what the reporter had heard himself but on the information given by some one who had heard it. A supplementary affidavit in opposition was affirmed by Asit Baran Ghose on May 24, 1957 in answer to the supplementary affidavit affirmed by the petitioner along with his original petition. The only thing of importance contained in this affidavit is that the representation of the petitioner had been duly considered by Government as also by the Public Service Commission. An affidavit in reply thereto was affirmed on May 27, 1957 contradicting the above. On June 19, 1957 the application was opened before the learned trial judge when after hearing the learned advocate for the petitioner, he allowed an additional ground to be taken to the effect that "the show cause notice did not show that the Government had come to any clear or firm finding that the petitioner was guilty of the charges framed against him. " 7. After the above ground was added the respondents were allowed to use a further affidavit in opposition and this was done by Asit Baran Ghose affirming an affidavit on August 20, 1957. The deponent there stated that before the issue of the order dated November 10, 1955 asking the petitioner to show cause against the proposed punishment, the enquiring officer's report, the office note and the draft order were placed before the Secretary who after considering the recommendation of the enquiring officer and having found that the charges were of a serious nature proved during the enquiry, agreed that removal was the proper punishment and had thereupon put his signature on the office note dated November 9, 1955 a though be did not use the expression "i agree". 8. 8. The petitioner used a further affidavit in reply on August 23, 1957 wherein he complained that it was the jurisdiction of the Governor to arrive at a finding after considering the recommendation of the enquiring officer and a finding of the Secretary of the Department of Excise could not be substituted for the finding of the Governor. The petitioner also challenged that there was any finding by the Secretary upon the enquiry proceedings on the facts of the case and he complained further that the Secretary had not read his explanation to the charges and the evidence taken or the arguments advanced. On August 30, 1957 the Secretary of the Department of Excise Benoy bhusan Das Gupta affirmed an affidavit corroborating the affidavit of Asit baran Ghosh affirmed on August 20, 1957. The petitioner affirmed yet another affidavit in reply on August 31, 1957 wherein he reiterated his contentions made before emphasising that even the finding of the Secretary was not enough and that the matter was one which required scrutiny by the governor personally and the taking of action in pursuance of such finding. The learned Judge negatived the arguments put forward on behalf of the petitioner and discharged the Rule. 9. The first ground relating to the enquiry seems to be without any substance. Indeed the point that the enquiry was conducted by the respondent No. 3 who was alleged to be inferior in rank to the respondent No. 5 was not seriously pressed before us. According to the affidavit of Asit Baran Ghosh, the respondent No. 3 held the position of a joint Secretary and as the learned trial judge has found there might have been some cause for complaint if he had been inferior in rank to the person whose conduct was being investigated into but that is not the case here. 10. The second branch of the argument on this point that the enquiring officer did not record his findings on each and every charge is also baseless. 10. The second branch of the argument on this point that the enquiring officer did not record his findings on each and every charge is also baseless. It is true that he did not record his findings separately in respect of the charges framed but after discussing the evidence adduced, the probabilities of the case and the argument of the petitioner he found that (i) the petitioner had been pestering the Deputy Secretary for half an hour without any rea4son, (ii) the story of A. B. Rudra's insulting the petitioner's father was pure invention, (iii) the petitioner had re-entered A. B. Rudra's room a second time after the latter had left it and repeated the ugly scene which had preceded Rudra's departure from the room, (iv) V. S. Krishnan had merely asked the petitioner to leave the room or sit down instead of causing annoyance to all, (v) inspite of being asked by every one present in the room to leave it the petitioner refused to do so and there being no other way of getting rid of him the police had to be called in and (vi) the police men had to struggle with the petitioner in carrying him out of the room by force as he resisted violently and assaulted the constable. In the result he found that the petitioner had proved himself totally unfit to be retained in the service "not only by his insubordinate, insolent and disgraceful conduct but by making most irresponsible and false insinuations against Dr. Rudra and other prosecution witnesses. " The last branch of the argument on the first point was that it was beyond the jurisdiction of the enquiring officer to suggest any punishment and that his recommendation that the petitioner should be dismissed from service vitiated the inquiry. On this it is to be noted that the charges against the petitioner were of (1) gross indiscipline and insubordination, (2) wrongfully and improperly trying to force A. B. Rudra to pass an order on his application according to his dictation and (3) that the petitioner was utterly unsuitable for Government service because of his conduct. By the charge-sheet itself the petitioner was called upon to put in his written statement and to show cause why he should not be removed from Government service or otherwise suitably punished according to Rule 49 of the Civil Services (Classification, Control and Appeal)Rules. By the charge-sheet itself the petitioner was called upon to put in his written statement and to show cause why he should not be removed from Government service or otherwise suitably punished according to Rule 49 of the Civil Services (Classification, Control and Appeal)Rules. The question whether the suggestion to punishment made by the enquiring officer has any binding effect was considered by the Supreme Court in the case of A. N. D'silva v. Union of India (1) A. I. R. 1962 S. C. 1130. There two charges were delivered to the appellant and he was asked to show cause why in the event of the first charge being proved he should not be dismissed from Government service and in the event of the second being proved why he should not be permanently degraded to the rank of a supervisor or awarded any other penalty. The enquiring officer reported that both the charges had been proved. The president sent the report along with the record to the Union Public Service commission. The Commission agreed with the view of the enquiring officer that the appellant had contravened specific orders issued by the appellant's superior, the Post Master General, but commented that this was at the most neglect in complying with the orders of superiors. The Commission did not take the view that receiving illegal gratification was one of the motives of the appellant in violating the orders of the superior but found the appellant guilty of gross negligence and disobedience of orders and suggested that the appellant should be retired compulsorily. The President, however, decided that the appellant should be removed from service with immediate effect. The supreme Court observed that the punishment proposed to be imposed upon the appellant if he was guilty of the charges could not properly be set out in the communication addressed by the enquiry officer and said that "the question of imposing punishment can only arise after enquiry is made and the report of the enquiry officer is received. It is for the punishing authority to propose the punishment and not for the enquiring authority. The latter has, when so required, to appraise the evidence, to record its conclusion and if it thinks proper to suggest the appropriate punishment. But neither the conclusion on the evidence nor the punishment which the enquiring authority may regard as appropriate is binding upon the punishing authority. The latter has, when so required, to appraise the evidence, to record its conclusion and if it thinks proper to suggest the appropriate punishment. But neither the conclusion on the evidence nor the punishment which the enquiring authority may regard as appropriate is binding upon the punishing authority. " It must, therefore be held that it is not out of place for the enquiring authority to suggest punishment if he thinks proper and specially if the charge-sheet makes a reference thereto. In this case the charge sheet itself called upon the appellant to show cause why he should not be removed from Government service and the enquiring officer naturally had to appraise the evidence in the light of the charges. The first point therefore fails with regard to all the branches of the argument. 11. The second point was the one very strongly canvassed at the bar namely that the second show cause notice was bad as it bad been signed by the complainant A. B. Rudra. I must admit that it did cause a mild shock to learn that a complainant who was accusing the appellant of insubordination and insolent conduct towards him should be the person signing or authenticating an order of the Governor when there were so many other persons in the secretariat who could have done so. It was argued that this went to show that it was the malice of the respondent No. 5 against the appellant which persisted throughout the enquiry and the steps taken against the appellant as we wanted to make sure as to what really had happened we had the records of the case brought before us. From there we find that after the enquiring officer, the Commissioner of Excise had signed his report, an office note was prepared recording that the said enquiring officer was satisfied that the charges brought against the inspector had been proved and that the inspector had proved himself totally unfit to be further retained in service. The last paragraph of this note reads: "as the charges brought against the Inspector are very serious ones and as also the enquiring Officer has found the same to be proved it appears that nothing short of removal from service will serve to be an adequate punishment to the inspector. The last paragraph of this note reads: "as the charges brought against the Inspector are very serious ones and as also the enquiring Officer has found the same to be proved it appears that nothing short of removal from service will serve to be an adequate punishment to the inspector. In view of this he may be asked to show cause why he should not be removed from his present service. Draft below for approval. " 12. Below this we find the signatures of the Assistant Secretary Asit Baran ghosh, the respondent No. 5 and the secretary B. Das Gupta, all dated November 9, 1955. The draft does not appear at this page but according to the notes at the bottom of the page it bore the number 1005-Ex dated 10. 11. 1955 which is the order forming annexure 'f' to the petition over the signature of respondent No. 5. This document merely refers to the findings of the enquiring officer and records that "in view of the findings referred to above, government propose to remove the said monoranjan Sen Sarma from his present service. "It must be said that annexure 'f' leaves much to be desired as it does not purport to show that the punishing authority had considered the report independently or that he had applied his mind to the facts of the case uninfluenced by any suggestion already made. It is moreover curious that in a matter like this the proceedings should move from the bottom upwards instead of going from the top downwards and that the office should recommend that "nothing short of removal from service would serve to be an adequate punishment to the Inspector because the charges were very serious ones. " To this extent the affidavit of the Secretary affirmed on August 30, 1957 is far from conclusive. In paragraph 4 of the said affidavit he says "the office note and the draft order were placed before me by the Assistant Secretary, Excise department for my consideration. After considering the recommendation of the enquiring officer's report and having agreed that nothing short of removal from service would serve to be an adequate punishment, I put my signature on the said note on 9. 11. After considering the recommendation of the enquiring officer's report and having agreed that nothing short of removal from service would serve to be an adequate punishment, I put my signature on the said note on 9. 11. 1955 although the formal expression "i agree" was not put in there as it was not considered essential," This quotation does not show prima facie that he had considered the enquiring officer's report and not merely the recommendation contained therein. But it should be noted that Asit Baran Ghose had said in his affidavit of the 20th August, 1957 that "the aforesaid order dated 10.11.1955 asking the petitioner to show cause against the proposed punishment was not made only on agreeing with the recommendation of the enquiring officer's report as alleged but upon the satisfaction of the Government that the charges were established during enquiry. "It may be pointed out that the Secretary Das Gupta said in his affidavit of August 30, 1957 that it was he who had authorised the Assistant Secretary to make the statements contained in the further affidavit of the 20th august 1957 and that the statements there in were correct. From this it may be inferred that what was considered was not only the recommendation in the report but the proceedings in extensor before Government was satisfied that the charges had been established. The affidavits of the Assistant Secretary of the 20th August 1957 and the Secretary dated August 30, 1957 considered in the light of the file which we had before us negative the charge of the appellant that the draft order dated November 10, 1955 was drawn up so that it should pass through the hands of the Deputy Secretary and not the secretary. Although the order was actually signed by the Deputy Secretary on November 10, 1955 it is clear that the action taken thereby had been approved of by the Assistant Secretary and the Secretary on the 9th November. These facts further meet the appellant's contention that it was the bias of the Deputy Secretary which had persecuted him throughout the enquiry and the subsequent stages of the proceedings. 13. In answer to this branch of the argument as also on the contention that the order of removal had not been considered or passed by the appropriate authority Mr. Majumdar referred us to article 166 clauses (2) and (3) of the constitution. 13. In answer to this branch of the argument as also on the contention that the order of removal had not been considered or passed by the appropriate authority Mr. Majumdar referred us to article 166 clauses (2) and (3) of the constitution. He argued that as soon as it was found that an order had been made in the name of the Governor and authenticated in the manner laid down by the Rules of Business formulated by the Governor the same could not be called in question on the ground that the Governor had not personally looked into the matter. He relied on certain observations of the Judicial Committee of the Privy Council in Sibnath Banerji's case (2) and of the Supreme court in Dattatraya's case. In the latter case Dattaraya Moreshwar v. The State of Bombay, (3) A. I. R. 1952 s. C. 131 Das, J., (at page 185) observed "strict compliance with the requirement of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not ah order made by the Governor. " Relying on the same Mr. Majumdar said that as the orders in this case were expressed to be made "by order of the governor and signed by a Secretary in compliance with the Rules framed under article 166 (3) of the Constitution the Court could not go into the question as to whether the Governor had looked into the matter personally or not. In my opinion, the true position in law can be gathered from the case of King emperor v. Sibnath Banerjee, (2) 72 i. A. 241 although the Judicial Committee there had to consider the Defence of India Act with the Rules framed there under and the Government of India Act, 1935. In that case certain orders of detention had been passed under the Defence of India rules which on the face of them went to show that they were made by order of the Governor and signed by an Additional Deputy Secretary to the Government of Bengal. In that case certain orders of detention had been passed under the Defence of India rules which on the face of them went to show that they were made by order of the Governor and signed by an Additional Deputy Secretary to the Government of Bengal. The Judicial Committee referred to section 49 (1) of the Government of India Act, 1935 which is practically identical with article 154 (1) of the Constitution regarding the executive power of the State, section 50 (1) of the Government of India Act, 1935 which compares with article 163 (1) of the Constitution, section 50 (3) of the Government of India Act, 1935 which has its counter part in article 163 (2) of the Constitution, section 59 (1) of the Government of India, Act, 1935 which corresponds to article 166 (1) of the Constitution, section 59 (2) of the Government of India Act, 1935 corresponding to article 166 (2) of the Constitution and section 59 (3) of the Government of India Act, 1935 corresponding to article 166 (3) of the Constitution. Under rule 26 (1) of the defence of India Rules the Central Government or the Provincial Government, if it was satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India etc. it is necessary to do may make an order directing that he be detained. Under Rule 26 (5)the period of detention could be prolonged by the Central Government or the Provincial Government. The Judicial Committee held that matters such as those which fell to be dealt with by the Governor under rule 26, could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chapter II of Part III of the Act of 1935 and, in particular, under the provisions of section 49, and the Rules of business made under section 59. Accordingly, the Judicial Committee came to the conclusion that in the case of persons whose detentions were not considered by the secretary but in whose case the orders were made as a matter of routine on a recommendation by the police for further detention the same must be held to be invalid. Accordingly, the Judicial Committee came to the conclusion that in the case of persons whose detentions were not considered by the secretary but in whose case the orders were made as a matter of routine on a recommendation by the police for further detention the same must be held to be invalid. The Judicial Committee turned down the contention of the crown "that the order being on their face regular and in conformity with the language of the rule, it was not open to the court to investigate their validity and further. " The Board observed that "the contention of the Crown goes too far, as section 59 (2)of the Government of India Act only relates to one specified ground of challenge, namely, that the order or instrument was not made or executed by the Governor. "i venture to think that the position would be the same under our Constitution. Merely because an order is expressed to be "by order of the Governor" and executed in his name and authenticated in the manner specified in rules made by the governor it cannot be held to be beyond challenge on any ground whatsoever. Article 166 (2) takes away the right to challenge the legality of the order or instrument on the ground that it is not an order made or executed by the Governor. In this case, however, as we not only find that the order was executed and authenticated in the proper manner but the affidavits of the two Secretaries go to show that before the making of the order the matter had been considered according to the normal Rules of Business the appellant cannot challenge the same on the ground that it was not considered by the Governor personally. 14. The last point made was that the appointing authority did not consider the order of removal made in 1956. From the file it appears that the Public Service Commission was consulted before the final order of removal was made. The Commission found that the appellant was extremely unsuitable for further retention in the Government service. The recommendation of the commission is not of course legally binding but as the law requires that the commission should be consulted and it had been referred to, the formalities must be held to have been duly complied with. The Commission found that the appellant was extremely unsuitable for further retention in the Government service. The recommendation of the commission is not of course legally binding but as the law requires that the commission should be consulted and it had been referred to, the formalities must be held to have been duly complied with. Before the final order of removal was made the matter was considered by the Minister of Excise who it appears referred to certain matters in favour of the appellant and to the fact that he was the only earning member of the family and, in the circumstances of the case he remarked that although removal from service was the proper punishment it would be for consideration by the Chief Minister whether any lesser punishment might be meted out. The file also shows that the Chief Minister did consider the matter and was not inclined to agree to a lesser punishment in the absence of any extenuating circumstances. The above facts and circumstances normally do not see the light of the day and I have referred to them merely to dispel the grievance of the appellant that it was the malice of the accusing officer or the bias of the senior officers which was responsible for depriving a young man of his position. The above also bears out that the matter had not been dealt with cursorily or perfunctorily but was considered by the Minister of Excise as well as by the Chief minister and the ultimate decision did not rest on the caprice of a particular official. 15. One small point remains. It was argued that the appellant was prejudiced in the enquiry as he had not been supplied with a copy of the complaint made by A. B. Rudra on which the charge-sheet was drawn up. It does not appear that the enquiring officer considered the written complaint made by A. B. Rudra. There is no reference to it in the report and there is nothing to show that the enquiring officer's mind was influenced by the said document. It does not appear that the enquiring officer considered the written complaint made by A. B. Rudra. There is no reference to it in the report and there is nothing to show that the enquiring officer's mind was influenced by the said document. In a case like this where all the eye witnesses to the incident were examined and where the appellant had an opportunity of cross-examining them it would be difficult to hold that the enquiring officer was influenced by the written complaint unless it contains something which could not be brought out in the oral examination of the witnesses. Before parting with the case one cannot but help feeling sorry for a young man who lost his job because he could not control his temper and suit his conduct to the occasion. Grave though his lapse, he might have been visited with a less severe punishment than removal from service. In the result, the appeal must be dismissed. There will be no order as to costs.