JUDGMENT Rajeshwari Prasad, J. - This is a plaintiff's first appeal from the judgment of Sri R.K. Misra, II Additional Civil Judge, Allahabad, dated 29th April 1960 in Civil suit No. 14 of 1953. (After stating facts and the history of previous litigation in Paras 2 to 19, not material for this report, the judgment proceeded): 20. In the memorandum of appeal filed in this case, the appellant has taken as many as 71 grounds. 21. One of the submissions made before us is that the order of dismissal dated 30th August 1949 is not an order, which has been made by the Governor, nor is the order expressed to be in name of or by the order of the Governor. The order of dismissal, proceeded, from the Chief Secretary, who did not have power to order the dismissal of the plaintiff. Learned counsel for the appellant has submitted that on this consideration alone, plaintiff's suit is fit to be decreed, even if the other contentions made on plaintiff's behalf do not succeed. We have, therefore, decided to proceed to consider this particular question first. 22. In paragraph 87 of the plaint, it has been alleged that the order of dismissal is illegal, wrongful, void and inoperative on the grounds given in the said paragraph. As many as thirty grounds have been disclosed by the plaintiff in this context. 18th Ground under Paragraph 87, is in the following terms: "The order of dismissal proceeds from the Chief Secretary, who had no power to order dismissal. The order is not expressed to be in the name of or by the order of, the Governor." The reply to paragraph 87 as contained in the written statement filed by the defendant is as follows: "84. The allegations made in para 87 of the plaint are repetition of what has been said in the previous paragraphs of the plaint and as such do not need any further reply". 23. We have already mentioned the six additional pleas taken in the written statement, but none of the said six additional pleas related to the allegations made by the plaintiff in his plaint in paragraph 87(18'). 23. We have already mentioned the six additional pleas taken in the written statement, but none of the said six additional pleas related to the allegations made by the plaintiff in his plaint in paragraph 87(18'). We asked the learned counsel for the respondent to point out from the plaint if the plea mentioned in paragraph 87(18) had been mentioned in any other part of the said document and whether there was any definite reply to that allegation in the written statement. The learned counsel has, however, not been able to point out either in the plaint or in the written statement anything similar to what has been said in paragraph 87(18). The result is that although the plaintiff took expressly the ground which he has mentioned in para 87(18) of the plaint, the defendant has neither admitted nor denied the said allegation in the written statement and all that was said in the written statement was that the allegations made in paragraph 87 of the plaint was repetition of what had been said in previous paragraphs of the plaint and as such do not need any further reply. With reference to the pleadings, therefore, it must be held that the allegation made in the plaint that the order of dismissal proceeds from the Chief Secretary, who had no power to order dismissal and that the order was not expressed to be in the name of, or by the order of the Governor has not been denied, by the defendant in his written statement. This being so, it must be deemed that the averment made in paragraph 87(18) is admitted by the defendant. 24. Rule 5 of Order VIII of the Code of Civil Procedure lays down as follows: "Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to he not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission." 25. The allegation of fact as contained in paragraph 87(18) is that the order of dismissal proceeds from the Chief Secretary, and that the order is not expressed to be in the name of or by the order of the Governor. The allegation of fact as contained in paragraph 87(18) is that the order of dismissal proceeds from the Chief Secretary, and that the order is not expressed to be in the name of or by the order of the Governor. These allegations are allegations of fact, and consequently, covered by rule of law quoted above. It is a different matter that it may still be open to the defendant to urge that the order of dismissal, though it proceeds from the Chief Secretary, is a valid order of dismissal, or that though the order of dismissal is not expressed to be in the name, of or by the order of Governor, the order of dismissal is valid order. What is apparent is that the two allegations of fact made in paragraph 87(18) not having been denied in the written statement, must be deemed to be admitted by the defendant. 26. The submission made on behalf of the plaintiff-appellant is that when he was appointed in the year 1940, it was the Governor of the State who was the appointing authority and it was the Governor who had actually made the plaintiff's appointment. The order of dismissal has not been made by the Governor, but by the Chief Secretary, an official Subordinate in rank. The order of dismissal is wholly illegal and contrary to Section 240 (2) Government of India Act, 1935. 27. The other submission made in this connection is that the impugned order of dismissal is neither expressed to be in the name of nor by the order of the Governor as required by Section 59 Government of India Act, 1935. Consequently, the order is not valid. 28. It has however, been urged on behalf of the respondent that inasmuch as the order in question bears the signature of the Chief Secretary, it is a validly authenticated order, and it cannot be called in question on the ground that it is not an order made by the Governor. Section 59 of the Government of India Act provides as follows: "59(1) All executive action of the Government of a Province shall be expressed to be taken in the name of the Governor. 2. Section 59 of the Government of India Act provides as follows: "59(1) All executive action of the Government of a Province shall be expressed to be taken in the name of the Governor. 2. Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. 3. The Governor shall make rules for the more convenient transaction of the business of the Provincial Government, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Act, required to act in his discretion." 29. Clause (2) of Section 59 affords protection to orders expressed to be taken in the name of the Governor. If there is such an order, then its validity will not be questioned on the ground that it is not an order made by the Governor, provided it is authenticated in such manner as may be specified in rules to be made by the Governor. It is not in dispute that an order signed by the Chief Secretary is duly authenticated inasmuch as under Rule 12 of the Rules of the Executive Business made by the Governor, the Chief Secretary hap the authority to make authentication of the order. In the instant case, however, the order has not been expressed to be taken in the name of the Governor. A copy of the order has been exhibited in this case and marked as Ex. 12C. It is necessary to quote the entire order at this place: "Dismissal order dated 30-8-1949. Government of the United Provinces Appointment (A) Department. Notification Dated Lucknow, August 30, 1949. No. 4795/II-A-125-1948. With effect from August 30, 1949 Sri Om Prakash Gupta, Deputy Collector, under suspension is dismissed from service. Bhagwan Sahay Chief Secretary. Copy forwarded for information to: 1. The Officer concerned. 2. The Commissioner Lucknow-Faizabad Division. 3. The Accountant General United Provinces. 4. The Superintendent Printing and Stationery, United Provinces for publication in the next issue of the United Provinces Gazette. 5. Bhagwan Sahay Chief Secretary. Copy forwarded for information to: 1. The Officer concerned. 2. The Commissioner Lucknow-Faizabad Division. 3. The Accountant General United Provinces. 4. The Superintendent Printing and Stationery, United Provinces for publication in the next issue of the United Provinces Gazette. 5. The Director of information for favour of release to the press. By order, Sd. K.P. Bhargava, Secretary." 30. In view of the contents of the above order, the question of valid authentication and the consequence as provided for by clause (2) of Section 59 does not arise. This, however, only lifts the bar against questioning the validity of the order. It may still be open to the State to prove by evidence that the order has really been made by the Governor. We have, therefore, to see if the defendant has adduced any evidence to prove that the order, though not expressed to be taken in the name of Governor, is really an order made by the Governor. The question whether the Governor has really made any such order is a question relating to the substance of the order and not only to its form. 31. Court below in this connection referred to the instructions issued by the Premier. Rule 18 of the instructions lays down in effect, that cases dealing with the dismissal of any officer of Provincial Service were to be submitted to the Premier by the Secretary of the Department concerned, after consideration by the Minister incharge before the issue of orders. In this case, the Premier himself was incharge of appointments. The court below has observed that the papers were submitted to the Premier and he agreed to the dismissal of the plaintiff, and that thereafter, the order of dismissal was issued under the signature of the Chief Secretary. Therefore, according to the court below, the order was properly authenticated although it was not expressed in the name of the Governor. Even if it be assumed that at the time when the order of dismissal was made, the Premier himself was in charge of the appointment department, we are unable to agree with the view taken by the court below that it has been proved in this case that the Premier agreed to the dismissal of the plaintiff. There is absolutely no evidence to establish that part of the defendant's submission in this case. 32. There is absolutely no evidence to establish that part of the defendant's submission in this case. 32. While discussing issue No. 4 (b), court below has observed as follows: "In the present case also, the Chief Secretary has signed this order on behalf of the 'Government of United Provinces Appointment (A) Department' 'Notification', and it has been proved that the satisfaction of the Hon'ble Premier, as the power was delegated to him by the Governor, under Rule 14 had been obtained, and so the order is not invalid on this ground." 33. The learned counsel for the respondent informed us that although there is no evidence on the record to establish that the satisfaction of the Hon'ble Premier had been obtained, the court below looked into certain papers contained in the file relating to the plaintiff in the custody of the defendant, from those papers, court below held that satisfaction of the Premier had been obtained. In his statement on oath, Chhotalal Sahu defendant's witnesses stated that he was the Assistant Superintendent Appointment 'A' Department, that about the Government's confidential file of this suit, he had instruction that he should not produce it as an exhibit, but that the instruction was not that if the court wanted to see the same, it should not be shown to the court. At the time of his deposition, he had the file with him and he disclosed that the number of file was 125/ 1948. He had seen the file and nothings on that file relating to proceedings by the Government in this case after the receipt of the report of the Commissioner. According to him, the appointment 'A' Department was under the General Administration Portfolio, and that this portfolio was under the charge of the Chief Minister. He said that the file was placed before the Chief Minister and the dismissal order had been passed with the approval of the Chief Minister. Before the order of dismissal was passed, the Public Service Commission was also consulted. In cross-examination, he said that the above file No. 125/1948 contained the old papers also relating to plaintiff's case and he stated that he did not want to file the order of approval of the Chief Minister. He conceded that his statement relating to matters of the year 1949 was made after consulting the file, and that he had no personal knowledge about the same. He conceded that his statement relating to matters of the year 1949 was made after consulting the file, and that he had no personal knowledge about the same. He then said that he had orders in writing with him that the said record must not be filed as an exhibit in this case. 34. It is this file which has been relied upon by the court below for its finding that the satisfaction of the Premier had been obtained before the order of dismissal was issued. The statement of Chhotay Lal Sahu defendant's witness was recorded by the court below on the 25th April 1960. On the 29th April 1960, plaintiff filed an application supported by an affidavit. In that affidavit, the plaintiff averred that the evidence of the plaintiff in the case had finished on 25th April 1960 and that the evidence of the defendant concluded the same day. 26th April 1960 was fixed for argument, when the plaintiff opened his case, and thereafter argument of the defendant was heard. At the end of the argument, the defendant produced certain papers and file before the court, the contents of which were not disclosed to the plaintiff, but that the court looked into the file and read the documents. It was then said that the plaintiff had protested against the court's looking into the document of the defendant, which was not on the record of the case, but that the court did read the papers and did look into the document. In the circumstances, it was necessary that the plaintiff be given an opportunity to look into the file and the record which was seen by the court at the instance of the defendant, so that the plaintiff could produce evidence in rebuttal. It was then said in the affidavit that the defendant had also handed over a book called "Rules of Business", and that the court took the same for studying its provisions. The plaintiff wanted to challenge the provisions of that book, which were against him and that the court stopped him from doing so on the ground that the book was confidential and could not be shown to the plaintiff The plaintiff then said in the affidavit that he had been greatly prejudiced by the above mentioned act of the defendant. The plaintiff wanted to challenge the provisions of that book, which were against him and that the court stopped him from doing so on the ground that the book was confidential and could not be shown to the plaintiff The plaintiff then said in the affidavit that he had been greatly prejudiced by the above mentioned act of the defendant. The prayer made in the accompanying application is as follows: "This Hon'ble Court may be pleased to direct the defendant to disclose to the plaintiff all the papers and documents which had been shown to this Hon'ble Court on 26th April 1960 during arguments in the case, and to give the plaintiff an opportunity of producing evidence in rebuttal, and to pass such other or further orders as this Hon'ble Court may deem proper in the circumstances of the case. Sd. Hari Swarup. Plaintiff's Counsel 29-9-1960." 35. The short order made by the court below on that application may now be quoted and it is as follows: "The judgment is about to be delivered and this is no stage for admitting fresh evidence. I had seen only the approval of the Hon'ble Premier in the Confidential file and nothing more. File." 36. The procedure adopted by the court below in looking into the file and papers which were not part of the record of the case in not directing those papers to be filed in a regular way as evidence in court: in rejecting the prayer of the plaintiff made in the application mentioned above; and finally in making use of those information which the court derived from the perusal of those papers in deciding this case, is rather unusual, and perhaps not warranted by any provision of either the Code of Civil Procedure or the Indian Evidence Act. In case the State claimed privilege with regard to those documents, that matter should have been gone into by the court below and should have been properly decided No, claim of privilege appears to have been made on behalf of the defendant and the witness only acted upon some instructions which, according to him, he had received, and on the basis thereof, the witness asserted that he had orders not to file the papers in court. No party to a case, even though it be then State Government, is entitled to refuse to produce documents in court, and at the same time ask the court to use the contents of that document as evidence against the other party. The only contingency under which a document may not be produced in court, is the one relating to privileged documents. In the absence of any claim of privilege, no party could say that such document would not be filed in court. 37. It has been contended on behalf of the appellant that so far as the present record is concerned, there is no material or evidence to show that the satisfaction of the Premier had been obtained on the question of the dismissal of the plaintiff before the order of dismissal was issued, or to show that the order of dismissal was passed by the Premier. It was further contended that even on the file, which was wrongfully used by the court below against the plaintiff, there is no such material which will be to establish the above fact. It was then urged that this Court may get the file from the defendant and peruse the same to find out the correctness of the submission made on behalf of the plaintiff. In view of the submission made by the plaintiff's learned counsel we agreed to look into the file which the defendants learned counsel was directed to produce. We have looked into the file relating to the dismissal of the plaintiff and we have also looked into the other file which related to the appointment of the plaintiff in service in the year 1940. We had to look into the file relating to the appointment of the plaintiff in the year 1940 in relation to another argument advanced on behalf of the defendant, with which we shall deal hereafter. After perusal of the file relating to the dismissal of the plaintiff in the year 1949, we are satisfied that it does not contain any material to shows that the order of dismissal of the year 1949 was passed by the Premier himself or that the Premier had applied his mind to the question and had felt satisfied in the matter. The file contains an office report. The file contains an office report. It was pointed out in that report, that although notice to show cause against the proposed punishment had been issued to the plaintiff, he did not file any reply to the same. It was said that the plaintiff did not show cause against the aforesaid notice, because according to the plaintiff, he had filed an appeal in this court, from the decision in suit No. 1 of 1948, and that no cause could be shown until that appeal had been decided. The office report Bilso said that notice of the appeal had not been received by the State till then. The Rime given to the plaintiff to show cause bad expired, and as the plaintiff did not place any fresh material before the authorities his case should be decided on the basis of the old enquiry and materials that were Thready before the State authorities, and that it was also said that on the basis of those materials, the Government should be asked to order that the plaintiff be dismissed from service. It was also proposed that as the matter had once been sent to the Public Service Commission at an earlier stage, the matter be again sent to the Public Service Commission. The aforesaid report was placed before the Hon'ble Premier and the Hon'ble Premier wrote on that report 'agree'. 38. It has been urged that the report and the note of the Premier established the fact, that the order of dismissal was passed by the Premier, or that the order has been passed after Premier had felt satisfied in the matter. On behalf of the plaintiff, reliance had been placed on Rule 41 of the Rules of Executive Business and Secretariat Instruction and it has been urged that when a matter had been directed to be sent to the Public Service Commission, the State Government did not have the power to take decision about the merits of the case until the reaction of the Public Service Commission had been known. It is doubtful whether that Rule would be applicable to the present case, but what is apparent is that, when, it had been proposed that the matter be sent to the Public Service Commission, and the matter had still to be sent there, it could not be open to the State Government to take any final decision in the matter, without awaiting the advice of the Public Service Commission. In fact we are of the view that the word "agree" used by the Premier does not imply that he agreed to the dismissal of the plaintiff. Read in the context of the report, the only conclusion that can be arrived at is that the Hon'ble Premier had agreed only to the proposal that the case of the plaintiff be decided on the basis of the old materials and that the matter be referred to the Public Service Commission. We are, therefore, of the view that even these documents which were contained in the Government file, do not go to establish that the order of dismissal was passed by the Premier or that it was issued after the Premier had applied his mind to the facts of the case and after he had felt satisfied about the same. 39. The other contention made on behalf of the plaintiff-appellant is that inasmuch as the plaintiff was appointed in 1940 by the Governor of the State, he could not be dismissed from service by an order of the Premier, or that of the Chief Secretary The power to dismiss could not be delegated to a subordinate authority. Such a delegation would be in contravention of Section 240(2) of the Government of India Act. It was further argued that so far as the plaintiff is concerned, he was actually appointed by the Governor in the year 1940, he could not be dismissed either by the Premier or the Chief Secretary even if, the portfolio of Appointment Department may have been assigned to the Premier thereafter. On the basis of such delegation, the Premier could exercise the power of dismissal in the case of those persons only, who had actually been appointed by him. He could not exercise the power of dismissal in the case of a person who had in fact been appointed by the Governor. 40. On the basis of such delegation, the Premier could exercise the power of dismissal in the case of those persons only, who had actually been appointed by him. He could not exercise the power of dismissal in the case of a person who had in fact been appointed by the Governor. 40. Section 240 of the Government of India Act 1935, in the first place provides that no person, who is a member of a civil service of the Crown in India, or holds any civil post under the Crown of India, shall be dismissed from service of his Majesty by any authority subordinate to that by which he was appointed. If the actual appointment had been made by the Governor in this case in the year 1940. then in spite of subsequent delegation of the power of appointment and dismissal, the power to dismiss the plaintiff rested with the Governor. The object of Section 240(2) of the Government of India Act, in other words, cannot be allowed to be defeated by having recourse to delegation of powers. Section 240 is certainly not contravened in cases where on the strength of delegation of powers any subordinate authority makes an appointment and then the same authority subsequently orders the dismissal of the appointee. But in a case where actual appointment had been made by one authority and the subsequent order of dismissal is passed by an authority subordinate to that authority, the provision of Section 240(2) is certainly contravened. In this view of the matter, it is clear that the power to dismiss an employee who had been appointed by the Governor, could not be exercised by an authority subordinate to him. We do not suggest that the delegation of authority to appoint and consequently to dismiss, is illegal, but the delegation to a subordinate authority of power to dismiss an employee who had been appointed by a higher authority is certainly repugnant to Section 240(2), and, is therefore, unconstitutional. The present one is an instance of a case, where the actual appointment had been made by the Governor, and order of dismissal was made by the Chief Secretary or by the Premier as alleged by the defendant. It was then suggested though faintly that it had not been shown by the plaintiff that he was appointed by the Governor in the year 1940. It was then suggested though faintly that it had not been shown by the plaintiff that he was appointed by the Governor in the year 1940. It is however, not possible for us to accept that submission. It is not in controversy that in the year 1940, it was the Governor who held the power to make such an appointment under the Government of India Act, 1935. We have already mentioned that we have also looked into the file in the possession of the defendant relating to the appointment of the plaintiff in the Provincial Civil Service in the year 1940. The office prepared a report dated 5th June 1939 showing the names of various candidates, who had been declared successful in the Provincial Civil Service examination on May 5, 1939. The plaintiff is one of them. Comments were made in that report about the various candidates, and in the end, five persons were named who could be appointed to the Provincial Civil Service as non-Muslims. Plaintiff is one of them. From the said report, we find that it was requested that the Deputy Secretary may obtain Government orders, and that it was directed that his Excellency should also see. The report was seen by the Premier, who put his signature on the same on 7th June, 1939 in token of his consent. The matter was then placed before the Governor and the Governor finally put his signature on it on the 10th June 1939. The respondent was very well aware of the fact that it was the Governor, who was the appointing authority and that it was he who had to apply his mind to the question of dismissal of the plaintiff. That this is so, is clear from the notice issued by Sri B.N. Jha, Chief Secretary to Government of United Provinces on 11th April 1949, to the plaintiff. That this is so, is clear from the notice issued by Sri B.N. Jha, Chief Secretary to Government of United Provinces on 11th April 1949, to the plaintiff. The aforesaid notice is in the following terms: "Whereas, you Shri Om Prakash Gupta, were subjected to a departmental enquiry in 1944 in respect of your conduct as a Deputy Collector in Kheri, and whereas the Governor is satisfied that on the basis of the evidence recorded during the course of the said inquiry the finding of the Commission, namely, that the charges were established against you, is correct, it is proposed to dismiss you as your conduct has been found to be unbecoming of an officer of the United Provinces Civil (Executive) Service. Before, however, arriving at a final conclusion and passing an order of dismissal, you are hereby required in accordance with the provision in sub-section (3) of Section 240 of the Government of India Act, 1935, as adopted by the Indian (Provisional Constitution) Order, 1947, to show cause within a period of one month from the date of the receipt of this notice why you should not be dismissed from service. April 11, 1949. Sd. B.N. Jha Chief Secretary to Government, United Provinces." 41. It was claimed in the above notice that it was the Governor who was satisfied in the matter. We are, therefore, of the view that there can be no manner of doubt that the appointment of the plaintiff in 1940 was made by the Governor. There is no evidence on behalf of the defendant to show that somebody else and not the Governor had appointed the plaintiff. This being so, even if it were to be assumed for a moment, that the Premier had applied his mind to the question of dismissal of the plaintiff, the order of dismissal would still be invalid. 42. There is absolutely no material on the record to prove that the order of dismissal of the plaintiff was passed by the Governor and that this is so, has not been disputed by the learned Standing Counsel. 43. 42. There is absolutely no material on the record to prove that the order of dismissal of the plaintiff was passed by the Governor and that this is so, has not been disputed by the learned Standing Counsel. 43. All that had been contended on behalf of the State is that the power to appoint and consequently to dismiss employee of the cadre of the plaintiff, has been given to the Premier under the Rules of Executive Business and Secretariat Instructions framed under Section 59 of the Government of India Act, 1935, which continued to be in force with certain modifications by virtue of section 8 of the Indian Independence Act, 1947. The Rules of Executive Business and Secretariat Instructions came into force from August 15, 1947, and it was contended that in the year 1949 when the order of plaintiff's dismissal was made, the power to appoint and dismiss vested in the Premier and not the Governor. Reference was made to Rule 4 which reads as follows: "The Premier shall allot amongst the Ministers the business of the Government by assigning one or more Secretariat Departments to the charge of a Minister. The existing allotment is shown in the schedule of these Rules." 44. The substituted schedule referred to above consists of two columns. First column is headed 'Portfolio' and the second "Departments". First item in the schedule deals with portfolio entrusted to the Premier. One of the departments mentioned therein is "appointment". It has been urged that as those Rules and Secretariat Instructions have been framed under Section 59 of the Government of India, Act, 1935, by the Governor, the power of appointment and dismissal, passed on to the Premier, and the Premier was competent to dismiss the plaintiff. 45. Part II of the book of Rules relied upon by the learned counsel for the State contains, what are described as "Secretariat Instructions". The said instructions are purported to have been issued under Rule 14 of the Rules of the Executive Business. 45. Part II of the book of Rules relied upon by the learned counsel for the State contains, what are described as "Secretariat Instructions". The said instructions are purported to have been issued under Rule 14 of the Rules of the Executive Business. The Preamble given to Part II of the Book of Rules reads as follows: In pursuance of the provision of Rule 14 of the Rules of Executive Business, the Premier of the United Provinces has been pleased to make, as a supplement to the aforesaid Rules, the following instructions for the more convenient transaction of the business of the Provincial Government in the Council of Ministers and in the Department of the Secretariat." Clause (18) of the said instructions gives a list of cases, which must be submitted to the Premier by the Secretary of the Department concerned after consideration by the Minister incharge but before the issue of orders. Sub clause (iii) of Clause (i) of paragraph 18 of the instructions refers to the cases dealing with the first appointment or dismissal of any officer of a Provincial Service. According to the above instructions, even if the portfolio of appointment had been given to ;me Minister other than the Premier, the cases of first appointment or dismissal of any officer of Provincial Service are required to be submitted to the Premier by the Secretary of the Department concerned before the issue of orders. As the department of appointment was allotted to the Premier himself, the question of reference of the case of the dismissal of the plaintiff by the Secretary of the Department to the Premier after consideration by the Minister incharge, could not arise. It may, however, be noticed that the Rules under which the Secretariat instructions have been given, themselves have been framed under Section 59 of the Government of India Act, 1935 and not under Section 241 of the Government of India Act, 1935. 46. It had been contended on behalf of the plaintiff that it is not the aforesaid Rules and instructions, which had to be looked into, in connection with the question of appointment and dismissal, but the rules which are relevant are those, which were framed under sub-sections 1(b) & 2(b) of Section 241 of the Government of India Act, 1935. These Rules have been described as the U.P. Civil Service (Executive Branch) Rules, 1941. These Rules have been described as the U.P. Civil Service (Executive Branch) Rules, 1941. The book of the said Rules which purports to have been corrected upto September 1953, has been placed by the plaintiff before us for our consideration. The plaintiff has urged that the subject of appointment, dismissal and the conditions of services are specifically dealt with by Section 241 of the Government of India Act, 1935, and not by Section 59 of that Act. The parable of the aforesaid United Province Service (Executive Branch) Rules, 1941 ; quoted below: "In pursuance of the provision of subsections 1(b) and 2(b) of Section 241 of the Government of India Act, 1935 and in supersession of all existing rules and orders on the subject, the Governor of the United Provinces makes the following rules, regulating recruitment to posts in and the condition of service of persons appointed to the United Provinces Civil Service (Executive Branch)." Reliance has been placed by the plaintiff on Rules 20 to 24 of the said United Provinces Civil Service (Executive Branch) Rules. Rule 20 enjoins that the Governor shall make appointment to the service on the occurrence of substantive vacancies by taking candidates alternatively, so far as this may be possible, from the two lists prepared under Rule 18. Candidates shall be taken, in the order, in which, they stand in the list and the first candidate taken shall be from the list of Tehsildars. Clause (2) of Rule 20 points out that the Governor may make appointment in temporary or officiating vacancies. Rule 21 deals with the question of seniority: Rule 22 with the question of period of probation; Rule 23 with the question of extension of the period of probation; and Rule 24 with the question of confirmation. The plaintiff urges that a perusal of these Rules makes it clear that the power to appoint continued to be with the Governor in the year 1949 when the plaintiff was dismissed. It is, however, not necessary for us, in this case, to enter into that question. It may be that in the year 1949, the portfolio of appointment came to be held by the Premier. It is, however, not necessary for us, in this case, to enter into that question. It may be that in the year 1949, the portfolio of appointment came to be held by the Premier. The short question which arose in the present case was whether by holding the aforesaid portfolio in 1949, the Premier could have the power to dismiss the plaintiff, who as we find, had been actually appointed by the Governor in the year 1940. We have already arrived at the conclusion that this could not be done. Such an effect of the Rule framed under Section 59 of the Government of India Act, 1935, would be violative of Section 240(2) of the said Act. For the same reason, a further argument of the learned counsel for the respondent has to be rejected. This further argument is based on Article 154 of the Constitution. It has been urged that the powers which are exercisable by the Governor could be exercised by him, either directly or indirectly through others. But even Article 154 of the Constitution makes it abundantly clear that functions to be performed by the Governor could be got performed through others provided in so doing, none of the provisions of the Constitution is violated. In our opinion, the transfer of power of dismissal in respect of la person appointed by the Governor would clearly be in contravention of Section 240(2) of the Government of India Act, 1935, or Article 311 of the Constitution. 47. On the question of delegation of power, reliance has been placed on decisions of various courts. The view taken in the case of Mahadev Prasad Roy v. S.N. Chatterjee, AIR 1954 Pat 285 supports the plaintiff's contention. In that case, the petitioner Mahadev Prasad sought a writ in the nature of certiorari to quash the order of respondent No. 1. Mr. S.N. Chatterji, Deputy Superintendent of the Bihar Government Press, dated 16th September 1953 dismissing the petitioner from service. On 16th July 1928, the petitioner was appointed as line operator in the Government Printing Press, Gulzaribagh by the Superintendent of the Government Printing Press. Service of the plaintiff was confirmed and he was promoted to be a lino-foreman in 1942. In 1951, the Deputy Superintendent started proceedings against the petitioner on the allegation that the petitioner had committed theft of lino-metal. Service of the plaintiff was confirmed and he was promoted to be a lino-foreman in 1942. In 1951, the Deputy Superintendent started proceedings against the petitioner on the allegation that the petitioner had committed theft of lino-metal. There was a criminal prosecution of the petitioner, but by the order of the Magistrate dated 26th March 1952, he was acquitted. The petitioner thereafter made prayer to the Deputy Superintendent for reinstatement. In July 1952, the Deputy Superintendent initiated a second proceeding against the petitioner based on the same facts. After considering the petitioner's explanation the Deputy Superintendent agreed that the petitioner had been acquitted of the charge of theft, but he proceeded to pass an order dismissing him from service. The petitioner took objection to the effect that he having been actually appointed by the Superintendent of the Government Printing Press, could not be dismissed by the order of the Deputy Superintendent of the Government Press. Reliance was placed on Article 311 clause (1) of the Constitution. The view taken by that court was that the petitioner dismissed only by the Superintendent Government Press or any higher authority and that the order of dismissal passed by the Deputy Superintendent was invalid and inoperative. It was also held that the Government order delegating the power of appointment and dismissal to the Deputy Superintendent which was made on 20th June 1952, could be valid with respect to persons appointed by the Deputy Superintendent himself after that date. But that order could not be valid so far as the petitioner was concerned. The reason for saying so was that the actual appointment of the petitioner was made by the Superintendent, and that consequently, the petitioner was protected under Article 311 of the Constitution. It was observed that the said order of delegation dated 20-6-1952 was repugnant to Article 311 so far as the petitioner's case was concerned and to that extent that Government order was invalid. 48. Next reliance was placed on the case of Mohammad Matteen Qidwai v. Governor General-in-Council, AIR 1953 All 17 . In that case, it was held that the petitioner having been appointed by the General Manager, his services could not be terminated by an officer lower than the General Manager, though they could be terminated by one superior to the General Manager. In that case, it was held that the petitioner having been appointed by the General Manager, his services could not be terminated by an officer lower than the General Manager, though they could be terminated by one superior to the General Manager. It was also held that the power of dismissal could not be delegated and any rule to the contrary was void, in view of provisions of Section 240(2) of the Government of India Act, 1935. 49. The above view of law finds further support from the case of Balakdas Vithoba v. Asst. Secretary Officer S.E. Rly. Bilaspur, AIR 1960 Madh Pra 183. The view taken in that case was that the power under Article 309 of the Constitution to frame rules, could not be exercised so as to contravene Article 311(1) of the Constitution. The power of the Assistant Security Officer could not, therefore, extend to dismiss employees who were appointed actually by a higher authority. It was further held that the test, whether Article 311 (1) is contravened, is not, that the authority should be performing the same functions, but that it should not be lower in rank than the authority that appointed a civil servant. In the case of Abid Mohammad Khan v. State of Madhya Bharat, AIR 1956 Madh Bha 259 it was observed with regard to Article 311(1) that the language of that clause does not indicate that the power to determine the services of the Civil Servant was intended to be conferred on the person who was an appointing authority on the date the order of dismissal of the public servant was passed. The Article talks of factual appointment and states in express terms that no person shall be dismissed by an authority subordinate to that by which he was appointed. It was further held that the proposition is indisputable that if a civil servant is dismissed from service by an authority, which is inferior in rank to that by which he was in fact appointed, the dismissal is invalid and inoperative. 50. The Punjab High Court also took the same view in the case of Gurmukh Singh v. Union of India, New Delhi, AIR 1963 Punj. 370. So also did the Madras High Court in Pioneer Motors Ltd. v. O.M.A. Majeed, reported in AIR 1957 Mad 48 . 51. 50. The Punjab High Court also took the same view in the case of Gurmukh Singh v. Union of India, New Delhi, AIR 1963 Punj. 370. So also did the Madras High Court in Pioneer Motors Ltd. v. O.M.A. Majeed, reported in AIR 1957 Mad 48 . 51. An attempt to overcome the above difficulty has been made on behalf of the respondent by advancing yet another argument. The mental process which compelled such an argument was, that, if it could be taken, that the appointment of the plaintiff was made by the Premier himself, the order of dismissal alleged to have been made by the Premier in the year 1949, would become perfectly valid. It may be mentioned that in view of our finding that it has not been established in this case that the order of dismissal of the plaintiff in the year 1949, is attributable to the Premier, it would not be necessary for us to notice the argument that has now been advanced by the learned counsel for the respondent. Nevertheless, we consider it appropriate to briefly deal with the same. 52. It has been urged that as a result of the Indian Independence Act, 1947, plaintiff's service came to an automatic end from 15th August 1947. Thereafter, if he remained in service, it would be the result of a fresh appointment in the year 1947. Such appointment, it is urged must be deemed to have been made by the Premier to whom the portfolio of appointment had been transferred. Incidentally, it was also urged that in spite of declaration by the court that the order of dismissal of the plaintiff made in the year 1944 was illegal and inoperative, the plaintiff could not be deemed to have continued in service in the year 1947. We do not find any substance in the last submission. The result of the decision in Suit No. 1 of 1948 was that the order of dismissal of the plaintiff of the year 1944 was for all purposes effaced and it could not, therefore, be of any consequence. 53. On the question of automatic termination of plaintiff's service on 15-8-1947 reliance has been placed on the case of State of Madras v. K.M. Rajagopalan, AIR 1955 SC 817 . In our view, that decision of the Supreme Court has no bearing on the present case. 53. On the question of automatic termination of plaintiff's service on 15-8-1947 reliance has been placed on the case of State of Madras v. K.M. Rajagopalan, AIR 1955 SC 817 . In our view, that decision of the Supreme Court has no bearing on the present case. Sri K.M. Rajagopalan was recruited to the Indian Civil Service by open competitive examination in 1936 and he joined duty in the then Province of Madras in October 1937. The last office that he held was a Sub-Collector and Joint Magistrate at Dindigal. While on leave, he received a letter from the Government of India dated 19th June 1947. wherein he was asked whether he was willing to continue in the service of the Government after the then contemplated transfer of power from the British Government to the Dominion of India on 15th August, 1947. He expressed his willingness to do so. On 9th August, 1947 he received a communication from the Government of Madras dated 7th August 1947, which was signed by the Chief Secretary thereof stating that it had been decided not to retain him in service from and after 15th August 1947, and that his service would, therefore, be terminated as on the afternoon of 14th August 1947. Sri Rajgopalan thereafter proceeded to file a suit which gave rise to the appeal that was decided by the Supreme Court. It was alleged on behalf of Sri Rajgopalan that the termination of his services by the order dated 7th August 1947, was in violation of the statutory guarantee relating to his service under Section 240 of the Government of India Act, 1935. One of the pleas raised in defence against his claim was that on the transfer of power to the newly constituted Dominion of India in pursuance of the Indian Independence Act, as and from the appointed day i.e. 15th August 1947, the tenure of the service of the plaintiff came to an end and he had no legal claim to continue in service thereafter. It was also alleged that the career of the plaintiff under covenant with the Secretary of State came to legal termination as and from 15th August 1947. It was also alleged that the career of the plaintiff under covenant with the Secretary of State came to legal termination as and from 15th August 1947. On that basis, the plea raised in defence was that it was not correct on the part of the plaintiff to state that there was any termination by the Government of Madras and that there was utter lack of legality in the order passed by the said Government. The contention made by the Attorney General was to the effect that the political changes which came into force from 15th August 1947 operated in law to terminate the services of all persons in the position of the plaintiff as and from 15th August 1947, and that it was open to the new Dominion Government or the Governments of the various provinces either to invite such persons to continue to be in their respective service, or to intimate that they were no longer required, and that it was in the exercise of this option that the Government of Madras communicated to the plaintiff an advance intimation on 7th August 1947 that he would not be retained in service as and from 15th August 1947. The contention with regard to the automatic termination of service in that case was based on three grounds; (i) The political change which came into operation on 15th August 1947, resulted in creating a new Sovereign State of India and on the creation of such Sovereign State, the pre-existing contracts of service under the previous Government automatically terminated: (ii) The contract between the Secretary of State for India and the plaintiff being one of service terminated on the Secretary of State's ceasing to have control in respect of the services contemplated under the contract; (iii) The statutory changes which came into operation as from 15th August 1947, by themselves brought about a termination of such services and the protection of Section 240. Government of India Act, 1935, was no longer available to a person in the situation of the respondent. 54. Their Lordships of the Supreme Court then proceeded to notice the various events that led upto political changes and the statutory provision by which they were brought about, in so far as they related to the class of service with, which their Lordships were dealing in that case. 54. Their Lordships of the Supreme Court then proceeded to notice the various events that led upto political changes and the statutory provision by which they were brought about, in so far as they related to the class of service with, which their Lordships were dealing in that case. It was observed that the question as to whether the Indian Independence Act brought about a full Sovereign State for each and every purpose, was a question of considerable importance and was not free from difficulty. Their Lordships of the Supreme Court did not decide that question, inasmuch as the case before their Lordships of the Supreme Court could be decided with reference to the question as to what exactly had been brought about by the Indian Independence Act and the subsidiary legislation, which followed therefrom in so far as they related to the tenure of persons in the position of the plaintiff. Their Lordships then classified the idea as to the tenure of service with which their Lordships were dealing. Such appointments were made by the Secretary of State for India by virtue of the power conferred upon him under Section 244(1) of the Government of India, Act, 1935. The persons so recruited were appointed to the service called the Indian Civil Service. Each person so recruited had to enter into a covenant by means of an indenture between himself and the Secretary of State. Apart from the covenant, the tenure of such a service was regulated by a number of statutory provisions under the Government of India Act and one of the sections of that Act applicable to such services also, is Section 240. Their Lordships then observed that the tenure of an Indian Civil Servant was basically contractual but with conditions and prospects of such service regulated by statute. A person recruited to such service was in a very special position in comparison with persons holding other civil posts of the Government of India or the Provincial Government. The Indian Civil Service was a specially privileged class of service under the Crown with the essential characteristic of direct and ultimate protection by the Secretary of State representing His Majesty's Government. The Indian Civil Service was a specially privileged class of service under the Crown with the essential characteristic of direct and ultimate protection by the Secretary of State representing His Majesty's Government. In connection with the basic changes brought about in view of the above by the Indian Independence Act, it was noticed, that the Secretary of State who, as a Member of British Cabinet, acting in the name of the Crown and responsible to the British Parliament, was exercising such control as was vested in him in respect of the affairs of India, and in particular as regards these services, completely disappeared. Reference to Section 7(1) (a). Indian Independence Act, 1947 was made and it was observed that as a consequence of the setting up of the new Dominions as from the appointed day, 15th August 1947, His Majesty's Government in the United Kingdom ceased to have responsibility as respects the Government of any of the territories which, immediately before that day, were included in British India. Section 10 of the aforesaid Act dealt with the subject of the Secretary of State's Services etc. in the following terms: "The provisions this Act, keeping in force provisions of the Government of India Act, 1935, shall not continue in force the provisions of that Act relating to appointments to the civil services of and civil posts under, the Crown in India by the Secretary of State, or the provisions of that Act relating to the reservation of posts." It is to be noticed that effect of the provisions of the Indian Independence Act referred to above was given by the India (Provisional Constitution) Order of 1947 issued by the Governor General on 14th August 1947, under the power of adaptation vested in him under Section 9(1)(c) Indian Independence Act. The various sections relating to the Secretary of State and his services were deleted. By the same order, changes were made under Sections 240 to 247 relating to certain conditions of service. The purpose of so doing was to withdraw the responsibility of the Secretary of State as regards the matters covered by these sections. As a result of it, the essential structure of the Secretary of State's services was altered and the basic foundation of the contractual-cum-statutory tenure of the service disappeared. The purpose of so doing was to withdraw the responsibility of the Secretary of State as regards the matters covered by these sections. As a result of it, the essential structure of the Secretary of State's services was altered and the basic foundation of the contractual-cum-statutory tenure of the service disappeared. It would thus appear that the decision of the Supreme Court in the aforesaid case can have no application to the present case, where the service in question is not a covenanted service. Even in the case which was considered by the Supreme Court, it was made clear that all persons who were previously holding civil posts were deemed to have been appointed and hence to continue in service except those whose case is governed by general or special orders of arrangement affecting his case. Such persons also continued to have the protection of section 240(2) of the Government of India Act as modified. Section 240(2) of the Government of India Act as modified is as follows: "No such persons as aforesaid, who having been appointed by the Secretary of State or the Secretary of State in Council 'continues' after the establishment of the Dominion to serve under the Crown in India shall be dismissed from the service of His Majesty by any authority subordinate to the Governor-General or the Governor according as that person is serving in connection with the affairs of the Dominion or of a Province; and no other such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed." Persons, therefore, who have to be deemed to have been appointed and hence to continue in service except those whose cases were governed by general or special orders or arrangement affecting those cases are, therefore, clearly protected by Section 240(2) as modified. 55. Under the circumstances, we come to the conclusion that the order of dismissal of the plaintiff dated 1st September 1949, is void, illegal and inoperative. 56. In view of our above finding, the plaintiff would be entitled to succeed, without any further findings on other issues involved in the case. The plaintiff, however, has urged that in the earlier suit, namely. 56. In view of our above finding, the plaintiff would be entitled to succeed, without any further findings on other issues involved in the case. The plaintiff, however, has urged that in the earlier suit, namely. Suit No. 1 of 1948, no finding with regard to the question of validity of the enquiry made in the case of the plaintiff, was returned, and the result was, that on the basis of the aforesaid invalid enquiry, order of plaintiff's dismissal was passed for a second time. This gives the plaintiff the apprehension that unless a finding is given now on the question of the validity of the aforesaid enquiry, the process may be repeated by the respondent. On such submission, the plaintiff has insisted that we should also give our findings on the other questions involved in this case. 57. The validity of the enquiry made by the Deputy Commissioner and the Commissioner, in the case of the plaintiff, has been questioned on a large number of grounds by the plaintiff. Plaintiff's contention is that he was denied reasonable opportunity to defend himself during the course of the enquiry; witnesses were examined by the Deputy Commissioner behind the back of the plaintiff; copies of depositions of the witnesses were not furnished to plaintiff to enable him to effectively cross-examine the said witnesses; evidence that the plaintiff wanted to produce was shut out inasmuch as witnesses required to be summoned were not summoned at all; assistance of counsel was not permitted; witnesses were not allowed to be cross-examined; materials which were sought to be used against the plaintiff were not brought to the notice of the plaintiff; appointment of the enquiring officer was not made by the punishing authority; charges were not framed by the punishing authority; suspension order was not passed by the punishing authority, nor was the second show cause notice issued by it. It was also contended that the English translation of the statements of witnesses, which were furnished to the plaintiff, were incorrect. 58. We propose to deal with some of the founds which have been relied upon by the plaintiff with a view to decide the question whether enquiry was vitiated under any provision of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. 1930, or on account of its being violative of any principles of natural justice. 59. 58. We propose to deal with some of the founds which have been relied upon by the plaintiff with a view to decide the question whether enquiry was vitiated under any provision of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. 1930, or on account of its being violative of any principles of natural justice. 59. Four charges of misbehaviour were framed against the plaintiff. They are as follows: "1. That on or about August 15, 1944 one Mst. Jamila was presented before you in court by the Police under a warrant under Section 100 Criminal Procedure Code. You did not decide the case on the 15th August but postponed it to the 19th August 1944 making over the girl to the custody of one Habib Beg. On 17th of August you sent for Mst. Jamila from the house of Hafiz Habib Beg at about 7 p.m. through your orderly Jangu Khan and detained the girl at your house for the whole night evidently to use her for immoral purposes. Next morning the girl expressed a desire to go with her father who came to receive her at your house but you did not allow her to do so and again sent back the girl to the house of Hafiz Habib Beg. 2. That on or about August 10, 1944 the police on the complaint of one Puttu Lal, produced before you one Mst. Gunga Kurmin for whose arrest you had issued a warrant under Section 100 Criminal Procedure Code. You directed Mst. Gunga and Puttu Lal to be escorted to your house by your orderly Jungu Khan. You sent away Puttu Lal and detained Mst. Gunga alone at your house for about two hours evidently to use her for immoral purposes. 3. That sometime in the last week of July 1944, a girl named Tagderan was produced before you under a warrant of arrest issued by you under Section 100 Criminal Procedure Code but you asked the parties to present the girl after court hours at your house. When the girl was brought to your house you asked the people accompanying her to stay outside, and took the girl alone inside your house under the pretext of recording her statement and detained her there for two hours evidently to use her for immoral purposes. 4. When the girl was brought to your house you asked the people accompanying her to stay outside, and took the girl alone inside your house under the pretext of recording her statement and detained her there for two hours evidently to use her for immoral purposes. 4. That in all these three cases you conducted yourself in a manner unbecoming of an officer of the U.P.C.S. & therefore you are asked to show cause why you should not be dismissed from service." 60. Mr. T.B. Bishop, I.C.S. Commissioner Lucknow Division gave findings on the charges framed against the plaintiff. With regard to charge No. 1 he came to the conclusion that it had been abundantly established; on charge No. 2, he said that it was substantially established; and he further found that charge No. 3 had also been established. These findings are dated 30th September 1944. It is conspicuous to note that no finding was given, either way, on charge No. 4. On the same date, Mr. Bishop also sent a D.O. to the Chief Secretary to the Government of United Provinces described as "confidential". The said confidential letter consists five paragraphs. We need not encumber the judgment by quoting the D.O. in full, but it is necessary to mention a portion of paragraph 5 thereof, which runs as follows: "A critical discussion of the evidence regarding each of the first three charges individually has been appended to the record. You will see that I find no reason to differ from the conclusions already conveyed to you in my confidential D.O. No. 730 dated 1-9-1944 on any of the first three charges. The same applies to charge No. 4. Though I had not stated this previously in so many words, it will be clear that in my opinion Mr. Gupta had failed to show cause why he should not be dismissed from service. In my opinion the evidence warrants the conclusion that Mr. Gupta was guilty of immoral conduct towards the girls in the commonly accepted sense. But even if it were taken that no inference could be drawn regarding Mr. Gupta had failed to show cause why he should not be dismissed from service. In my opinion the evidence warrants the conclusion that Mr. Gupta was guilty of immoral conduct towards the girls in the commonly accepted sense. But even if it were taken that no inference could be drawn regarding Mr. Gupta's conduct towards the girls when left alone with them in privacy, it seems to me that his action in using his authority as a magistrate to have brought to his house on false pretext girls who had come before him in his official capacity in court, and in keeping them alone with him for considerable intervals, itself amounts to conduct impossible to tolerate in a public servant, especially in view of the fact that there were no less than three instances within a month of Mr. Gupta's joining the district, and that he has been far from straightforward about them .........." 61. On the 23rd December 1944, the plaintiff wrote to the Chief Secretary, Government of United Provinces, Lucknow requesting him that he may be furnished with copies of the detailed findings of the Commissioner, Lucknow Division, the Chief Secretary's note, the Public Service Commission's findings, as well as the order of the Governor. In reply to the aforesaid letter, the Deputy Secretary to Government United Provinces wrote back to the plaintiff that the Chief Secretary's notes and the findings of the Public Service Commission could not be supplied to him, that the Governor's order dismissing him from service had already been communicated to him through the Commissioner Lucknow Division, and that the plaintiff could gel a copy of the findings of the Commissioner Lucknow Division on payment of copying charges in advance. While in the witness box, the plaintiff stated the Government sent to him the findings of Mr. Bishop on charges Nos. 1. 2 and 3 dated 30th September 1944. It has not been shown by any evidence on behalf of the respondent that a copy of the D.O., to which reference has been made by us, was also given to the plaintiff. It is therefore, clear that the finding of the Commissioner relating to the fourth charge was at no stage furnished to the plaintiff. It has not been shown by any evidence on behalf of the respondent that a copy of the D.O., to which reference has been made by us, was also given to the plaintiff. It is therefore, clear that the finding of the Commissioner relating to the fourth charge was at no stage furnished to the plaintiff. The submission made on behalf of the plaintiff is that as a matter of fact, it was only the finding on the charge, which ultimately led to the dismissal of the plaintiff as is clear from the confidential D.O. of the Commissioner and inasmuch as a copy of the same had not been given to the plaintiff, he had no opportunity to meet the 4th charge or to show that the findings of the Commissioner relating to the 4th charge is erroneous. 62. In the case of Abdul Hassan v. Works Manager, Northern Rly. Lucknow, AIR 1961 All 338 a Division Bench of this Court sitting at Lucknow took the view that the findings returned by the Tribunal clearly indicated the point or points which had weighed with it for proposing action against the party, and that, it would, therefore, only be proper for the party concerned to try to meet the adverse conclusion reached by the Tribunal against him, if he could successfully do so. It was also said that when copy of finding on the charges returned by the Enquiring Committee, were not given to the party, the cause of the party was seriously prejudiced. Consequently, it would result in denial to the party of reasonable opportunity to answer the charges and the provisions. Article 311(2) of the Constitution would stand violated. We are not only bound by the aforesaid decision, but we are also in agreement with the view expressed therein. 63. To the same effect is the view expressed by the Supreme Court in the case of Mafatlal Narandas Barot v. J.D. Rathod, AIR 1966 SC 1364 . 64. Article 311(2) of the Constitution would stand violated. We are not only bound by the aforesaid decision, but we are also in agreement with the view expressed therein. 63. To the same effect is the view expressed by the Supreme Court in the case of Mafatlal Narandas Barot v. J.D. Rathod, AIR 1966 SC 1364 . 64. In the case of Union of India v. Piara Singh, 1966 All LJ 835 = ( AIR 1967 All 111 ) a learned Single Judge of this Court also took the view that it cannot be possible for a party affected to take advantage of the opportunity to show cause when the second notice relating to the proposed punishment is issued to him, if the copy of the finding of the Enquiring Officer is not given to hin' The learned Single Judge also made reference to the decision of the Supreme Court in the case of Union of India v. H.C. Goal, AIR 1964 SC 364 . Other courts have also taken similar view, but it is not necessary to dealt with all those cases in this case. We are oil the view that the omission to supply the plaintiff with a copy of the finding of the Commissioner, Lucknow Division, relating to the) 4th charge, is fatal to the order of plaintiff's dismissal. 65. We shall now deal with another substantial complaint of the plaintiff regarding want of reasonable opportunity to him during the course of the enquiry. It may be mentioned that the statements of witnesses, which were used against the plaintiff, were; recorded by the Deputy Commissioner. One Hafiz Habib Beg was likewise examined by the Deputy Commissioner on 19th August 1944 in connection with the charge against the plaintiff relating to Musammat Jamila. The statement of the witnesses was recorded by the Deputy Commissioner behind the back of the plaintiff. The witnesses so examined, were allowed to be cross-examined by the plaintiff when the enquiry was taken up by him. On 22nd September 1944, the witness Hafiz Habib Beg was recalled for examination. Before making statement, the witness stated that he had made his statement before the Deputy Commissioner on 19th August 1944, but he wished to make the following statement regarding what he subsequently found out from Musammat Jamila. On 22nd September 1944, the witness Hafiz Habib Beg was recalled for examination. Before making statement, the witness stated that he had made his statement before the Deputy Commissioner on 19th August 1944, but he wished to make the following statement regarding what he subsequently found out from Musammat Jamila. At that stage, the Commissioner made a note to the effect that the statement given below was volunteered and recorded at witness' own request. It is important to quote the additional statement that the witness made, which is as follows: "On 20th, she (Jamila) told me that she had been afraid to tell the truth on account of her parents' Izzat and biradari panchayat. She then told me in confidence. She told me that she remained outside at the house till 11 p.m. or so. Then she went inside and up on to the roof. The S.D.M. sent for her there. She said that the S.D.M. asked me whether had menses. I said this was not a question to ask me. He said he wanted to know whether was minor or not. He said he wished to see my pubic hair refused. Then the S.D.M. seized my hand and tied my hands, and made me completely naked. I began to cry out and appealed to him (Khushamad karne lagi). He let go of me ('hat gaye'). Then she said that if my father-in-law's people released (choor diya) me, I should take service with him and feed his children." 66. The plaintiff attempted to cross-examine the witness with regard to the additional statement made by the witness but he was not allowed to do so. The plaintiff asked the Commissioner to allow him to cross-examine the witness on the voluntary statement thus made. The reply that the Commissioner gave to the plaintiff was: "No. You have already cross-examined him. Too much time is being wasted. Let us proceed to the next witness." There is no doubt that the Commissioner did make use of this voluntary statement made by the witness in giving his finding on charge No. 1 against the plaintiff. The Commissioner in that finding has mentioned as follows: "I do not see that the pesh imam (Hafiz Habib Beg) could have had knowledge of what Mst. Jamila had told the Deputy Commissioner, or of what Mr. The Commissioner in that finding has mentioned as follows: "I do not see that the pesh imam (Hafiz Habib Beg) could have had knowledge of what Mst. Jamila had told the Deputy Commissioner, or of what Mr. Gupta himself had stated in his examination before me on August 28, unless he had been told by Mst. Jamila or Mr. Gupta himself, which last is unlikely. The pesh imam's mention of these enquiries regarding hair and menses therefore appears to afford independent corroboration of the fact that Mr. Gupta in these ways made improper addresses to the girl. The pesh imam's further deposition in question should be read. It amounts to evidence of direct admission by Mst. Jamila that her modesty was outraged by Mr. Gupta. I do not see why it should be disregarded even though Mst. Jamila herself has denied it in cross-examination before me." As a matter of fact, none of the facts dis-'closed by the witness in the volunteered part of his statement had been mentioned by the witness in the earlier part of his statement. It was the volunteered part of the statement which could, if accepted, damage the cause of the plaintiff and the plaintiff, therefore, should have been permitted to cross-examine the witness with regard to that part of his statement. We, therefore, find force in the submission made on behalf of the plaintiff that this episode furnishes another instance of denial of reasonable opportunity to the plaintiff to defend himself. 67. On this part of the case, one of the other submissions made on behalf of the plaintiff may now be considered. It has been pointed out by the plaintiff that there is absolutely no evidence or material on the record to establish that the punishing authority had ever appointed the Deputy Commissioner, or the Commissioner to make enquiry against the plaintiff; there is no evidence to show that the charges were framed by the punishing authority of the order of suspension was passed by the punishing authority or that the second stage notice was issued or the final order of dismissal passed, by the punishing authority. It has also been contended that there is no evidence on the record to show that the aforesaid functions had been performed by any person, who may have been appointed to do so by the punishing authority. It has also been contended that there is no evidence on the record to show that the aforesaid functions had been performed by any person, who may have been appointed to do so by the punishing authority. This being so, what has been urged on behalf of the plaintiff is that the entire proceedings leading upto the order of dismissal are unauthorised and illegal. 68. In the case of Khem Chand v. Union of India, AIR 1958 SC 300 relevant facts were that Khem Chand was a Sub-Inspector under the Delhi Audit Fund and the authority competent to appoint and dismiss him from service was the Deputy Commissioner of Delhi. Charges were framed against him and a preliminary departmental enquiry was held by one Mahipal Singh under the orders of the Deputy Commissioner. The enquiry was completed by one Mr. J.B. Tandon under the orders of the Deputy Commissioner. Mr. Tandon held that some of the charges were proved against Khem Chand and recommended his dismissal from service. The Deputy Commissioner approved his recommendation and then Khem Chand was dismissed. The following observations were made by the Supreme Court: "When the Deputy Commissioner accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant, it was on that stage being reached that the appellant was entitled to have further opportunity given to him, to show cause why that punishment should not be inflicted on him. There is, therefore, no getting away from the fact that Article 311(2) has not been fully complied with and the appellant has not had the benefit of all the constitutional protection, and accordingly his dismissal cannot be supported." 69. In the case of Krishna Gopal v. State, AIR 1960 Orissa 37 the court took the view to the effect that it was for the punishing authority to be satisfied that the charges were proved before the second show cause notice was issued. The dismissing authority itself must be satisfied first that the charges against the delinquent public servant were proved and then he must tentatively decide about the punishment to be inflicted on him and it is only when the latter stage is reached that the notice under Clause (2) of Article 311 should issue under his authority to the delinquent servant to show cause against that punishment. 70.In the case of Shardul Singh v. State of Madhya Pradesh, AIR 1966 Madh Pra 193 while dealing with the question, the court observed as follows: "Now, the exercise of disciplinary powers, or the field of disciplinary action, is not confined merely to the passing by the appointing authority of an ultimate order imposing disciplinary punishment against the employee. It extends even to the very initiating of disciplinary action against a civil servant or employee by framing charges against him and holding, or directing the holding of an enquiry into those charges. The framing of charges, the holding of an enquiry into them, the suspension of the civil servant during the enquiry, the notice to show cause, are all steps in the exercise of the disciplinary powers. These steps must be taken by the disciplinary authority and not by a delegate of that authority." 71. On the materials on the record, it is not possible for us to hold that it has been established in this case that the enquiring officer was appointed by the punishing authority or appointed under the authority of the punishing authority, that the charges were framed by the competent authority or under the authority of the competent authority; that the suspension order was passed and that second show cause notice issued by the competent authority or under the authority of the competent authority. It may also be mentioned in this connection that the plaintiff had filed yet another suit in the court of the Civil Judge, Allahabad which was Suit No. 65 of 1951 against the State of Uttar Pradesh with a view to obtain a declaration that plaintiff's suspension from the Government service was not proper and valid and also for recovery of a certain amount as arrears of pay. It may be recalled that the plaintiff was suspended on 23rd August 1944 by an order of the United Provinces Government suspending him forthwith pending enquiry into his conduct. Plaintiff's suit was contested but it was decreed and declared that the suspension order dated 23rd August 1944 was illegal, void and inoperative. Plaintiff's claim for arrears of salary was also decreed to certain extent. Plaintiff's suit was contested but it was decreed and declared that the suspension order dated 23rd August 1944 was illegal, void and inoperative. Plaintiff's claim for arrears of salary was also decreed to certain extent. One of the grounds for questioning the validity of the above suspension order was that the order was not expressed in the name of the Governor as required by section 59 of the Government of India Act, but that it was given by the Chief Secretary, United Provinces in his own name and, therefore, was not a proper order. The court deciding the case took the view that the aforesaid order was not legal and valid also on the ground noticed above. This became final between the parties. 72. Apart from it, it was held by the Supreme Court finally in the appeal filed by the plaintiff to that court that order of suspension lapsed with the order of dismissal passed in the year 1944. We, however, do not find any order of suspension passed a second time after the order of dismissal of 1944 had been declared invalid by the court. On April 12, 1949, Sri K.P. Bhargava, I.C.S. Joint Secretary to Government of United Provinces wrote to the Commissioner, Lucknow Division, on the subject of disciplinary action against the plaintiff. He referred to the fact that the civil suit of the plaintiff had been decreed and it had been declared that the order of dismissal of the plaintiff was void and in operative. The letter proceeded to say that accordingly the order of dismissal was being set aside. The next sentence that occurs in the latter may be usefully quoted at this stage which is as follows: - "Shri Om Prakash Gupta will, however, continue to be under suspension with effect from the forenoon of August 24, 1944, the date from which he was originally suspended, and will be entitled to the resumption of the same subsistence allowance of which he was in receipt before his dismissal." The letter clearly indicates that the plaintiff was treated as continuing under suspension. It is, therefore, clear that the only order of suspension was the one which was passed in the year 1944, which, however, had been declared to be void and inoperative by the civil court and which finally was held by the Supreme Court to have lapsed with the order of dismissal of the year 1944. There was no subsequent order of suspension passed, much less, such an order by the competent authority. We are, therefore, of the 'view that the enquiry is also vitiated on account of the fact that the various steps 'leading up to the dismissal of the plaintiff on 30th August 1949 have not been shown to have been taken by the competent authority or under the authority of the competent authority. 73. In the view that we take, it is not necessary for us to discuss other minor submissions made on behalf of the plaintiff with a view to establish that the enquiry made against him was invalid or that reasonable opportunity had been denied to him during the course of that enquiry. 74. It was then urged on behalf of the respondent that inasmuch as full opportunity to show cause at the second stage was given to the plaintiff, he did not avail of the opportunity and did not show any cause, he cannot be permitted to question the validity of the first enquiry. Reliance had been placed on the case of P. Joseph John v. State of Travancore Cochin, AIR 1955 SC 160 . It was observed "In our opinion, in the present case, the petitioner had reasonable opportunity at both stages to enter upon his defence. He fully availed himself of the first opportunity and though a reasonable opportunity was also given to him at the second stage, he failed to avail himself of it and it is not open to him now to say that the requirements of clause (2) of Article 311 have not been satisfied." 75. So far as the facts of the case before the Supreme Court are concerned, it was not denied that the petitioner was given by the enquiring Commissioner all facilities for entering upon his defence. Before filing his written statement before the enquiring Commissioner, the petitioner and his counsel were afforded facilities to inspect the various files concerning the charges which he had to meet. Before filing his written statement before the enquiring Commissioner, the petitioner and his counsel were afforded facilities to inspect the various files concerning the charges which he had to meet. After inspecting those files, he had filed a full written statement explaining those charges. He was defended in the enquiry by a leading lawyer and was afforded fullest opportunity to examine and cross-examine the witnesses examined by the Commissioner. After the enquiry was concluded, the petitioner was furnished with a copy of the report of the Commissioner and was asked to show cause against the action to be proposed to be taken against him. Repeatedly, time was granted to him to show cause. Their Lordships of the Supreme Court found that it was difficult to say that the time allowed to him was not reasonable in view of the fact that he had taken part in the enquiry before the Commissioner and all the evidence had taken in his presence, and he had full opportunity to defend himself. In that case all the materials on which the Commissioner had reported against him was given in the report of the Commissioner and that was supplied to him with the show cause notice. In these circumstances, there Lordships held that he could not be heard to say that he was not given reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The facts of that case are markedly distinguishable from the facts of the present case. When the finding of the Commissioner relating to the fourth charge was not given to the plaintiff at all, and it has not been shown by any evidence that the plaintiff had knowledge of the same, it is futile to say that the plaintiff failed to show cause against the same. We have also taken the view that the plaintiff was wrongly refused opportunity to cross-examine Hafiz Habib Beg on all material parts of his statement. Further we have found that the enquiry in the plaintiff's case is invalid on the ground that it has not been proved that the authority competent to take various steps leading up to the order of dismissal of the plaintiff, really took those steps. Further we have found that the enquiry in the plaintiff's case is invalid on the ground that it has not been proved that the authority competent to take various steps leading up to the order of dismissal of the plaintiff, really took those steps. In view of the nature of infirmities in the enquiry and the order of dismissal, we are of the view that they go to the very root of the matter and cannot be deemed to have been waived by omitting to show cause against the notice with regard to the proposed punishment. 76. It was then urged on behalf of the respondent that the question whether the departmental enquiry made against the plaintiff was valid or not, cannot be reagitated in the present suit on account of the finding given by the court in Suit No. 1 of 1948. We have already mentioned the various issues that were framed in Suit No. 1 of 1948 and have referred to the fact that the counsel of the parties appearing in that case had made statement to the effect, that they did not want to adduce evidence on issues 1, 2 and 3 framed in that suit. They had also stated that it could be assumed that issues 4 to 8 of that suit dealing with the question of denial of reasonable opportunity to the plaintiff to show cause against charges in the enquiry held by Mr. Bishop in 1949, would be decided in favour of the defendant. We have also made reference to the observation of the Civil Judge, who decided suit No. 1 of 1948 that he had heard issues Nos. 1 to 3 as preliminary issues at the desire of the parties. Learned counsel had urged that inasmuch as it was conceded on behalf of the plaintiff in that suit that issues 4 to 8 would be decided in favour of the defendant, the plaintiff cannot be allowed to resile from that concession and the decree passed on the basis of that concession creates the bar of res judicata, to the hearing of the same question again in the present suit. We are clearly of the opinion that no question of res judicata or estoppel by conduct or record arises in the present case. Issues Nos. We are clearly of the opinion that no question of res judicata or estoppel by conduct or record arises in the present case. Issues Nos. 1, 2 and 3 of the earlier suit were decided as preliminary issues, and even if there had been no such statement on behalf of the parties as was made, other questions raised in defence, had to be assumed to be correct for deciding the preliminary issues. The statement clearly shows that it was only for the limited purpose of deciding issues 1, 2 and 3 that it was assumed that the decision on the other issues in the case would be in favour of the defendant. On the preliminary issues, it was the plaintiff who succeeded and not the defendant. It cannot be contended with any force that it was conceded by the plaintiff in that suit that the assumed findings on issues Nos. 4 and 8 would be treated as findings on merits of the questions involved on those issues for any other purposes than for decision on issues Nos. 1, 2 and 3 of the said suit. We, therefore find that it is open to the plaintiff to agitate the said questions, 'in this suit and that the said controversy is [not barred by any principles of res judicata or estoppel. 77. 1, 2 and 3 of the said suit. We, therefore find that it is open to the plaintiff to agitate the said questions, 'in this suit and that the said controversy is [not barred by any principles of res judicata or estoppel. 77. Our findings, therefore, in the present appeal are, (1) that the order of dismissal of the plaintiff dated 30th August 1949 has not been made by a competent authority, and therefore, is illegal (2) that the departmental enquiry made under Rule 55 of the Civil Service (Classification, Control and Appeal) Rules, 1930, is also invalid and illegal for the reason that the various steps that had been taken by the competent authority in the case, have not been shown to have been in fact taken by such competent authority or under the authority of such competent authority and on account of the fact that the findings of the enquiring authority on the 4th charge against the plaintiff were never furnished to him and further also on account of the fact that the plaintiff was denied opportunity to cross-examine Hafiz Habib Beg, a witness whose testimony was used against the plaintiff by the enquiring authority; (3) that the question whether the departmental enquiry is valid or not is not barred by any principles of res judicata or estoppel; (4) that the plaintiff's omission to show cause in response to the second notice issued to him in the year 1949 cannot result in the waiver of the objection that the order of dismissal dated 30th August 1949 was not passed by the competent authority and the objection that the departmental enquiry had not been conducted by or under the authority of the competent authority. We, however, make it clear that we are not concerned with the question whether the charge brought against the plaintiff were true or not. That is essentially a matter to be decided by State Government, Had we not come to the conclusion that the enquiry and the order of plaintiff's dismissal have been made in contravention of Section 240 of the Government of India Act, 1935, we would have refused to interfere with the decision taken by the respondent. In view of our findings given above, the plaintiff is clearly entitled to appropriate reliefs. 78. The next question is what are appropriate reliefs that can be granted to the plaintiff in the suit? In view of our findings given above, the plaintiff is clearly entitled to appropriate reliefs. 78. The next question is what are appropriate reliefs that can be granted to the plaintiff in the suit? The first relief that the plaintiff has sought is a declaration that the order of dismissal from service dated 30th August 1949 against the plaintiff is illegal, wrongful, void and inoperative and that he continues to remain a full member of the Provincial Civil (Executive) Service, United Provinces. The plaintiff is clearly entitled to that relief. 79. The second relief claimed is a declaration that no reasonable opportunity had been afforded to the plaintiff in the enquiry held by Mr. Bishop in 1944. Although we have arrived at a conclusion that the plaintiff has succeeded on that part of the case, but we are of the view that a separate declaration to that effect need not be granted. The first declaration involves the second declaration sought by the plaintiff. 80. The third relief sought by the plaintiff is a declaration that the plaintiff is a political sufferer. We agree with the view of the court below that such a relief could not be granted and hold that it is not a question of any legal status. 81. The fourth relief sought is a declaration that the plaintiff is entitled to his full pay with all its increments, just as if he were discharging his duties honestly and efficiently. We are of the view that inasmuch as a decree for recovery of arrears of salary as claimed by the plaintiff is being granted, it is wholly unnecessary to grant a declaration to that effect. 82. The fifth relief is with regard to arrears of salary from 30th August 1949 to 31st October 1952 with interest amounting to Rs. 24,592 and a decree for future salary from 1st November 1952 onwards in the grade of Rs. 640-30-700-50-850 with increments falling on each first of November. The plaintiff is undoubtedly entitled to a decree for arrears of salary but the question of the exact extent will be considered by us hereafter. In view of a decree for salary being granted to him, the plaintiff cannot be entitled to relief no. 6. 83. With reference to relief no. 7 we hold that the plaintiff is also entitled to interest. 84. In view of a decree for salary being granted to him, the plaintiff cannot be entitled to relief no. 6. 83. With reference to relief no. 7 we hold that the plaintiff is also entitled to interest. 84. The eighth relief relates to the question of cost and relief no. 9 is the general prayer for any other or further relief. 85. The next question is, at what rate are the arrears of salary to be calculated? 86. Both the parties have filed chart to indicate the amount of arrears of salary that the plaintiff would be entitled in the event of his success. These charts do not tally with each other. The difference in the two charts is due to the following causes: (a) The chart prepared by the defendant does not take into consideration that the plaintiff had crossed efficiency bars twice, while the chart prepared by the plaintiff is based on the assumption that he had crossed the efficiency bars and is entitled to higher emolument's; (b) According to the chart of the defendant, it was on 1st April each year that increments in the salary accrued to the plaintiff while according to the plaintiff's chart, it is the first of November each year that he became entitled to increment in his emolument. 87. As regards the question of efficiency bar, it may be noted that the Supreme Court while granting a decree for arrears of salary to the plaintiff in Suit No. 1 of 1948 assumed that the plaintiff had crossed first efficiency bar till then. We are, therefore, of the view that now that the time for crossing the second efficiency bar had elapsed, we must follow the precedent set forth by the Supreme Court and must assume for the purpose of calculating the salary that the plaintiff had crossed the second efficiency bar also. 88. On the question of the date of annual increment, we find that it used to be on 1st November as alleged by the plaintiff, and not on first of April each year as alleged by the defendant. We are also of the view that the plaintiff is entitled to interest at the rate of six per cent per annum. 88. On the question of the date of annual increment, we find that it used to be on 1st November as alleged by the plaintiff, and not on first of April each year as alleged by the defendant. We are also of the view that the plaintiff is entitled to interest at the rate of six per cent per annum. It may be noticed that the rate of interest payable to the plaintiff under Rule 185 of the Financial Handbook and Rule 776 of the Civil Service Regulations would be 71% per annum. In view of the fact that the plaintiff has ultimately claimed interest at the rate of six per cent per annum only, we consider that it is reasonable to award interest at the rate of six per cent per annum. 89. This being so, we accept the figures shown in the chart filed by the plaintiff and decide to award a decree according to the same. 90. After the hearing of the case had almost concluded before us, the learned counsel for the respondent requested that notice of the appeal should be sent to the Advocate General of the State of Uttar Pradesh, inasmuch as according to him, the case involved a substantial question of law as to the interpretation of the Constitution. The learned counsel has referred to Order 27-A Rule 1 of the Code of Civil Procedure. The two salient questions involved in the case, as wall appear from our judgment, are whether the order of dismissal of the plaintiff from Executive Service of the State has been passed by a competent authority and whether sufficient opportunity was given to the plaintiff to defend himself. In the case of Krishna Swami Pillai v. Governor General-in-Council, AIR 1947 FC 37, it was held by the Federal Court that where the only question involved in the appeal to the Federal Court was whether the appellant had been given a reasonable opportunity of showing cause against his dismissal from service within section 240(3), it could not be said that a substantial question of law as to the interpretation of section 240(3) of the Government of India Act, was involved. So far as the first question is concerned, in our view, that also does not involve any substantial question of law as to the interpretation of the Constitution. So far as the first question is concerned, in our view, that also does not involve any substantial question of law as to the interpretation of the Constitution. The State is party to this appeal and the case on behalf of the State has been argued by the learned Standing Counsel. We, therefore, find ourself unable to accede to the request made by the learned counsel for the respondent. 91. We, therefore, allow the appeal, set aside the judgment and decree of the Court below and decree the plaintiff's suit for the following reliefs: - (1) It is declared that the order of the plaintiff's dismissal from service dated 30th August 1949 is illegal, wrongful, void and inoperative and that the plaintiff continued to be member of the Provincial Civil (Executive) Service Uttar Pradesh in spite of the said order of dismissal. (2) We further grant a decree for Rs. 24,003.29 p. only on account of arrears of salary with interest at the rate of six per cent from 30th August 1949 to 31st October 1952 as claimed by the plaintiff calculated on the basis of the chart submitted by the plaintiff, (3) We also grant a decree to the plaintiff for recovery of pendente lite salary at the following rates: - (a) Rs. 640 per month from November 1952 to 31st October 1953, (b) Rs. 670 per month from November 1953 upto 31st October, 1954, (c) Rs 700 per month from November 1954 upto October 31st 1955, (d) Rs. 750 per month from November 1955 to October 31st 1956, (e) Rs. 800 per month from November 1956 to October 1957, (f) Rs. 850 per month from November 1957 till the date of this decree. 92. The plaintiff shall also get interest on the amount of his salary pendente lite at the rate of six per cent per annum. 93. The plaintiff's right to recover pendente lite salary and interest is subject to payment of court fee for him. 4. Prayer for other reliefs claimed by the plaintiff is refused. 94. Under the circumstances of the case, we direct that the parties will bear their costs throughout. The respondents are allowed three months time from the date of this decree to pay up or deposit the amount due under this decree.