D.N.Sinha, J. - (1.)The petitioner in this case was appointed sometime in 1950, as an Upper Division Clerk in the Income Tax Department, West Bengal, by the Commissioner of Income Tax, West Bengal. Thereafter, his services were transferred to Calcutta and he was posted under the Inspecting Assistant Commissioner of Income Tax, Range II, who is under the Commissioner of Income Tax, Calcutta. On or about 20th March 1957 he was served with a charge-sheet containing two charges. The first charge was that while working as an assessment clerk attached to the 5th A.I.T.D. C.D.11, he alone or in collusion with the notice-server of that office, with a view to helping the assessee, Narsi Purusottam and Co., recorded the issue of notice under Section 34(1) (a) relating to the assessment year 1945-46 on 27-3-54, both in his Issue Register and in the order sheet of the assessee's file, but retrained from effecting its service. With the same object, he also failed to report the non-service of the notice to his I.T.O. before 31-3-54, thereby allowing the assessee to escape assessment for the year 1945-46. The second charge was that when section 34 (1-A) of the Income-tax Act was introduced in 1954, the petitioner, with the object of helping the said Narsi Purusottam and Co. to escape action under the new provisions in respect of 1945-46, alone or in collusion with others re" moved the assessment records of the case from the office and made them over to the assessee. The petitioner gave his explanation and an enquiry was held by Sri K. D. Banerjee, the Inspecting Assistant Commissioner of Income Tax, Head Quarters, Calcutta. The Enquiring Officer held that the first charge had been proved but the second charge had not been established, although a strong suspicion was raised. On or about 3rd January, 1958 the petitioner was served with a second show-cause notice by Sri M. N. Wagh, the Commissioner of Income Tax, Calcutta, and the petitioner was asked to show cause why he should not be dismissed from service. It was stated therein that the offence was a grave one and merited dismissal. The petitioner showed Cause. On the 3rd April, 1958 the said Commissioner of Income Tax, Calcutta, passed an order dismissing the petitioner from service. Against this order, the petitioner preferred an appeal to the Central Board of Revenue. By an order dated 30th March, 196D the appeal was rejected. Thereafter, this application has been made.
(2.)Mr. Chatterjee, appearing on behalf of the petitioner, has taken two points. The first point is that the evidence of one Rajani Kanta Sen, now posted as I.T.O. in District V-A Calcutta, was taken behind the back of the petitioner without giving him an opportunity to cross-examine him. The second point taken is that the order of dismissal by the Commissioner of Income Tax, Calcutta, is bad inasmuch as it violates the provisions of Article 311 (1) of the Constitution, the Commissioner of Income Tax Calcutta being an officer subordinate in rank to the Commissioner of Income Tax, West Bengal.
(3.)With regard to the first point, I am unable to allow this to be agitated in this application, because no mention of it has been made in the petition. In the petition, a general ground has been taken that the procedure adopted in the enquiry was against the rules of natural justice, but no mention was made about the evidence of Sri Rajani Kanta Sen being taken behind the back of the petitioner, or that the petitioner had no opportunity to cross-examine him. Therefore, the respondents had no opportunity to contest this point. Obviously, this point is a question of fact, and until that fact is stated, the respondents have no opportunity of denying the same or explaining any fact which requires to be explained. In a writ application, no ground can be taken, which is based on facts, without disclosing the same. It appears that before the Tribunals below, this point was taken and dealt with. When no reference to it was made in the petition, it must be presumed that it was abandoned. I now come to the second point. I must confess that this point is not free from difficulty. Mr. Chatterji has framed his argument thus: He refers me to a publication entitled "Establishment List of the Income Tax Department, West Bengal, Calcutta, and Central, Calcutta". In that book, at page 2/3, is set out an abstract of the sanctioned staff (gazetted) of the Income-Tax Department, West Benglal and Calcutta. Under this, there a table, divided into several columns. The second column sets out the designation of the post and the third column the scale of pay. Under the second column, the first entry in the "Commissioner of Income-tax, West Bengal", who is a grade I officer, whose pay scale is Rs. 1800-100-2000 plus special pay of Rs. 250/-per month. The second entry is the 'Commissioner of Income Tax', who is described as a Grade II officer whose scale of, pay is 1300-60-1600. It is not disputed that the Commissioner of Income Tax, Calcutta, is a Grade II. officer. The next publication to which my attention is drawn is a publication by the Central Board of Revenue, entitled "Office Manual Volume II". Mr. Chatterjee draws my attention to page, 27 of the publication which contains Chapter II(c) under the heading, "Recruitment and Promotion of officers". Paragraph 17 in this chapter is relied upon, and the relevant part thereof runs as follows :--
"17. Commissioners of Income-tax:--(a) There are two grades of Commissioners of Income-tax (Class I service) viz., Commissioners, Grade I and Commissioners, Grade II. promotions to the grade of Commissioner of Income-tax, Grade I (other than posts reserved for Finance/Commerce Pool Officers), are made from the grade of Com missioner of Income-tax, Grade II........" :