NARAYANA PAI, C. J. ( 1 ) THE petitioners were working in the Revenue Department of the erstwhile state of Hyderabad and stood allotted to the new State of Mysore under the States Reorganisation. When the petitioner in WP. 1663|67 was working as a Deputy Tahsildar and the petitioner in WP. 1664|67 as a clerk, a joint enquiry into their misconduct was instituted through the vigilance Commission. After enquiry, the Vigilance Commission sent its report to the Government together with its recommendation. The Government after perusing the same and consulting the Public Service Commission imposed the penalty of compulsory retirement on the petitioner in wp. 1663|67 and of dismissal of the petitioner in WP. 1664|67. The writ petitions are directed against the said final order of the Government dated 5-6-1967 bearing No. RD 105 EGO 64. ( 2 ) TWO points are raised in support of the prayer for quashing the said order. They are: (1) the enquiry should have been held under or pursuant to the Hyderabad Public Servants' (Tribunal of Inquiry) Act, 1950 and not under the Mysore Civil Services (Classification, Control and appeal) Rules; (2) the petitioners have not been furnished with copies of the recommendation of the Vigilance Commission and of the Public service Commission's reply upon consultations. ( 3 ) THE Hyderabad Public Servants' (Tribunal of Inquiry) Act, 1950, was it is admitted, in force in the erstwhile State of Hyderabad on 31-10-1956 and has not yet been repealed by the Legislature of the new State of mysore. The case of the petitioners is that so long as the said Act continues to be in force, the disciplinary or departmental enquiries in cases to which the said Act applies could only be held under or pursuant to the provisions of the said Act and that the Rules made by the Governor under the proviso to Art. 309 cannot override the same. ( 4 ) IF the statute deals with a condition of service to the benefit of which the petitioners are entitled there can be no doubt whatever that that statutory right cannot be taken away by Rules made under Art. 309 of the Constitution because the statute dealing with a condition of service must be regarded as legislation within the scope of Art. 309 subject to the provisions of which alone the rules made under the proviso to the said article can operate. ( 5 ) HENCE the question is whether the Act hereafter referred to as the 'tribunal of Inquiry Act creates any condition of service to the benefit of which the petitioners are entitled. ( 6 ) BEFORE proceeding we may state that the benefit of a procedure prescribed for disciplinary enquiries is or does constitute a condition of service. ( 7 ) THE Trbiunal of Inquiry Act, after giving definitions in S. 2 provides for the constitution of a Tribunal every member "of which should be a Judicial Officer who had worked as a Sessions Judge in the territory of india for a period of not less than three years. S. 4 of the Act reads:"4. Government may, and in such cases, if any, as may be prescribed shall refer to the Tribunal for enquiry and report any case involving an allegation of misconduct or inefficiency or disloyalty on the part of a public servant. " ( 8 ) REST of the provisions of the statute deal with powers of the Tribunal and procedure. Under S. 5 the Tribunal is invested with certain powers of the Civil Courts. S. 6 deals with procedure and S. 7 lays down special rule of evidence to be applied to cases of corruption etc. Sec. 8 requires the Tribunal to send its report and findings to the Government with its recommendations regarding the penalty to be imposed. Sec. 9 empowers the Government to consider the report and then pass orders. S. 11 bars suits, prosecution or other legal proceeding in respect of anything done in good faith under the Act. S. 12 empowers the Government to make Rules under the Act. Under S. 13 the Public Servants (Departmental inquiry) Regulation of 1358f. is repealed. ( 9 ) THE first thing to be taken note of is that there is nothing in the statute itself which confers any right or benefit to a condition of service upon a Government servant. It provides what appears to us to be a special procedure, for certain enquiries (apparently of a serious nature if regard is had to the special rule of evidence prescribed under S. 7) and confers upon the Government the discretion of referring any case of misconduct or inefficiency or disloyalty on the part of a public servant to the tribunal. It provides what appears to us to be a special procedure, for certain enquiries (apparently of a serious nature if regard is had to the special rule of evidence prescribed under S. 7) and confers upon the Government the discretion of referring any case of misconduct or inefficiency or disloyalty on the part of a public servant to the tribunal. "s. 4 makes it perfectly clear that unless it is so prescribed by any rule made under the statute, it is not obligatory on the part of the government to refer any case to a Tribunal of Enquiry". ( 10 ) HENCE the next point for investigation is whether there are any rules under which certain specific cases or specific categories of cases are required to be referred to a Tribunal and if so, the case of the petitioners comes within the ambit of the description. ( 11 ) THE Rules made under the Statute deal for the most part with the details of procedure to be followed by the Tribunal. The only Rules which are of relevance to our present discussion are Rules 3 and 4 (1) which read as under :"r. 3. It shall not be necessary for Government to refer to the tribunal for enquiry under S. 4 of the Act cases relating to public servants drawing a monthly salary not exceeding Rs. 150. R. 4 (l) The Government shall first examine all the records of the investigation that may have been conducted either by the Police or other departmental authority into the conduct of a public servant and thereafter after making such other investigation as may in its opinion be necessary, decide whether these cases shall be tried in a Court of law or be referred to the Tribunal for inquiry under S. 4 of the Act. " ( 12 ) THE argument constructed by Mr. Murlidhar Rao on these two Rules is that in the case of Government servants whose salary does not exceed Rs. 150 per month, the Government is not obliged to refer any case of misconduct, inefficiency or disloyalty to the Tribunal, but in all other cases the Government have no alternative but to choose between a court and the Tribunal. Murlidhar Rao on these two Rules is that in the case of Government servants whose salary does not exceed Rs. 150 per month, the Government is not obliged to refer any case of misconduct, inefficiency or disloyalty to the Tribunal, but in all other cases the Government have no alternative but to choose between a court and the Tribunal. ( 13 ) UNLESS it is possible to read that much into these two Rules there is no'basis for the contention of the petitioners that their cases must have been referred to a Tribunal specially created or constituted under the Statute. It appears to us that the plain meaning of the language does not lend any support to the contention put forward. The basic provision is S. 4 of the Statute which leaves it to the Goverment whether or not to refer any case to the Tribunal. That discretion of the Government is taken away or can be taken away only by listing in any rules made under the Statute, cases in which reference must be made to the Tribunal. There is no such positive direction in the Rules extracte'd above. Indeed, Rule 3 definitely says that in the case of persons whose salary does not exceed rs. 150 per month it is not necessary at all for the Government to make any reference to the Tribunal. Provisions of sub-rule (1) of Rule 4 apply only in cases where Government takes up a case for consideration whether it should be referred to the Tribunal. Even in such an event the sub-rule empowers the Government to choose between the Tribunal and a Court. The said sub-rule therefore far from compelling the Government to refer a case to the Inquiry Tribunal, provides for a further discretion of declining to refer a case to the Trbunal and deciding to send it to a Civil Court. ( 14 ) WE are therefore, clearly of the opinion that the petitioners are not entitled to claim that their cases should have been tried only by the tribunal constituted under the Hyderabad Public Servants' (Tribunal of inquiry) Act, 1950 and not under the Mysore Civil Services (Classification control and Appeals) Rules. The first contention therefore fails. ( 15 ) THE second contention however, finds support in the decision of this Court in Ruplanaik's case, (196) 2 Mys. L. J. 452. The first contention therefore fails. ( 15 ) THE second contention however, finds support in the decision of this Court in Ruplanaik's case, (196) 2 Mys. L. J. 452. in which it has been held that an omission to furnish a delinquent with the copy of recommendation of the Vigilance Commission is fatal to the validity of the ultimate order of punishment made by the Government. ( 16 ) APPLYING the said ruling, we quash the impugned order namely rd 105 EGO 64 dated 5-6-67 and direct that the Government do now proceed to issue a fresh notice to show-cause against any proposed punishment under Art. 311 of the Constitution furnishing therewith to the petitioners, copies of the recommendation of the Vigilance Commission and the reply of the Public Service Commission, if any, on consultation by the government with them and proceed to deal with the matter in accordance with law. In their reply to such notice, the petitioners can, of course, urge all contentions available to them regarding the enquiry. --- *** --- .