A D SUNDARAM Vs. STATE

JUDGEMENT

(1.) This is an application to call up the records and to issue a writ of certiorari or other appropriate writ to declare that the order of dismissal of the petitioner is illegal and void and in particular to quash the order of the Government of Travancore - Cochin C1-6126/51/DD, dated 3.5.1955. The petitioner was a clerk in the Cooperative Department of the State and on 30.10.1951 he was placed under suspension as he was suspected to have misappropriated a sum of Rs. 327-2-8. Subsequently he was served with a notice Ext. A dated 16.11.1951 stating the charges against him and asking him to file his statement of defence and to face an enquiry regarding the same. Ext. B dated 30.11.1951 is the statement filed by him in pursuance to the notice. The enquiry was conducted by a Commissioner appointed under the Travancore Public Servants (Enquiry) Act XII of 1122. The Commissioner conducted an elaborate enquiry and reported to the Government that the charges against the petitioner were proved. A copy of the report was produced at the time of final hearing and the same was admitted in evidence and marked as Ext. D, by consent. Thereafter he was served with a notice dated 20.4.1953 asking him to show cause why he should not be dismissed from Government service. He was also furnished with a copy of the report of the Commissioner. He showed cause but the Government dismissed him from service by order Ext. C dated 3.5.1955 and it is this order that is sought to be quashed.

(2.) The grounds urged on behalf of the petitioner at the hearing were: (1) that Art.320 of the Constitution was violated inasmuch as the Public Service Commission was not consulted before dismissing him from service; (2) that the enquiry before the Commissioner was not conducted in accordance with the provisions of the Travancore Public Servants (Enquiry) Act, and (3) that he was not given reasonable opportunity to defend himself. The Deputy Registrar of the Cooperative Societies has filed an affidavit on behalf of the State denying the main averments in the petition.

(3.) The main ground urged on behalf of the petitioner is that the order of dismissal was bad since the Public Service Commission was not consulted before the order of dismissal. The position taken by the State is that the Public Service Commission was actually consulted, but that they did not tender any evidence as the petitioners case came within the purview of Regulation.7 and Clause.6 of the Annexure iii of the Public Service Commission Consultation Regulation of 1952. It was not contended that under this Regulation such consultation was necessary, but it was urged that the Regulation was ultra vires of the powers of the Rajpramukh under the proviso to Art.320 of the Constitution. Art.320(3) reads as follows: