Bose, C.J. - (1.) This is an appeal from an order of Mr. Justice Banerjee dated the 23rd April, 1965, making the Rule absolute and quashing certain orders of termination of service of the respondent.
(2.) In June, 1957, the respondent applied for the post of a Constable in the Department of Subsidiary Intelligence Bureau in the Ministry of Home Affairs, Government of India. By a memorandum dated 28th August, 1957, issued by the Deputy Director, Subsidiary Intelligence Bureau, the respondent was asked to join in the temporary post of a Constable on a salary of Rs. 40 in the scale of Rs. 40-2-60 plus dear-ness allowance and other allowances and he was asked to report for duty at the Office of said Department at 9/1, Gariahat Road, Bally-gunge, Calcutta. On 7th September, 1957, the respondent received another memorandum issued by tbe said Deputy Director asking him to report for duty on or before 15th September, 1957, otherwise the memorandum dated 28th August, 1957, would be treated as cancelled. On 16th September, 1957, the respondent joined his post and there he worked for a few days and after that he was transferred to the Burrabazar Office at 9, Madan Chatterjee Lane, Calcutta. There he worked up to December, 1960, and thereafter he was transferred to Cooch Behar. It is alleged that during the period the respondent worked at the Burrabazar Office and in Cooch Behar, he worked with credit and efficiency. Sometime In August 1961, the respondent was transferred to Siliguri and there he worked under the control and supervision of the Sub-Inspector, Subsidiary Intelligence Bureau one Shri Narayan Jha. It is alleged that while working there, he incurred the displeasure of that Officer although he was rendering efficient service for about four and a half years in that department On or about the 28th February, 1962, the Assistant Director, Subsidiary Intelligence Bureau, issued an order terminating the service of the respondent on the expiry of one month from the date of the said Office order. This order was purported to have been made under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. The said order runs as follows:-- "Under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, Sri Rabindra Nath Majuradar is hereby given notice that his service is terminated with effect from the date of expiry of one calendar month from the date of the service of this order on him. Sd/- (R.K. Mukharjee) Assistant Director S. I. B., Calcutta 28-2-62." Thereafter the respondent received another order dated the 22nd March, 1962, issued by the Deputy Director, Subsidiary Intelligence Bureau, which purports to be an order of discharge which was to take effect from 7th April, 1962. This order was to the following effect:-- "Office Order No. 206/62. In pursuance of this SIB Order No. C. 9/ East/58 dated 1-3-82 Const. Rabindra Nath Majumdar is discharged from service w. e. f. 7-4-62. F. N. Dated, Calcutta, Sd/- the 22nd March, for Deputy Director 1962. S. I. B. Calcutta." After receipt of the letter of discharge, the respondent made an appeal to the Deputy Director, Subsidiary Intelligence Bureau for reconsideration of the order and he was granted an interview by the Deputy Director on 30th April, 1962. It is alleged that at that interview the respondent was told by the Deputy Director that Mr. Narayan Jha, the Sub-Inspector, Subsidiary Intelligence Bureau, had made certain confidential reports against the respondent alleging that the respondent was a habitual absentee and was negligent in his duties and was insubordinate and accordingly the Deputy Director had issued the letter of discharge on the basis of those confidential reports. But as the respondent did not get any redress of his grievances as a result of the interview, the respondent demanded justice challenging the validity of the order of termination of service and the order of discharge on the ground that the said orders were invalid as they were made in violation of Rule 5 (a) of the Central Civil Services (Temporary Service) Rules, 1949, as the Assistant Director, Subsidiary Intelligence Bureau, was not the appointing authority of the respondent and also on the ground that it violated Rule 5 (b) of the laid Rules as the Office order dated the 22nd March, 1962, did not give clear one month's notice as required under the said Rule. The legality of the said orders was also challenged on the ground that they violated Article 311(2) of the Constitution of India inasmuch as the order of discharge was virtually an order of removal and as no opportunity had been given to the respondent to show cause against the action proposed to be taken and as no charge-sheet was issued and enquiry was held, the orders in question were in contravention of Article 311(2) of the Constitution.
(3.) As no action was taken on this letter demanding justice, the respondent moved this Court under Article 226 of the Constitution and a Rule nisi was issued on 16th August, 1962. In the petition under Article 226 of the Constitution the respondent alleged that the letter of discharge was a colourable one inasmuch as it was in fact an order of removal as contemplated in Article 311(2) of the Constitution and it was further alleged that the orders of termination and discharge were issued mala fide and were without jurisdiction. In answer to petition under Article 226 of the Constitution, the opposite parties Nos. 2, 3 and 4 have filed an affidavit-in-op-position and this affidavit was affirmed by one Ranjit Kumar Mukherjee, who was the Assistant Director of Subsidiary Intelligence Bureau at Calcutta and who is respondent No. 3 in the petition. In paragraph 4 of this affidavit it was stated that at the time the respondent was selected for the post of Constable, the Deputy Director, Subsidiary Intelligence Bureau, was the appointing authority for Government servants of Class IV cadre, to which category the respondent was appointed. But it is further stated in paragraph 10 of the affidavit that this power of the Deputy Director has since been transferred to and vested in the Assistant Director, Subsidiary Intelligence Bureau and this Assistant Director was at the relevant point of time, namely, at the time of the respondent's discharge from service, the appointing authority in regard to the Class IV employees to which the respondent belonged and consequently the Office order dated the 28th February, 1962, which was issued by the Assistant Director was a perfectly valid order. It is also stated in this paragraph that after this order was issued, another formal Office order discharging the respondent from his service was issued by the Deputy Director.;