Case: Gian Singh Vs. The State Of Punjab

1. Sardar Gian Singh - hereinafter called the appellant - was recruited in 1927 as a Naib Tehsildar in the Revenue department of the Province of Punjab. He was confirmed in that rank in 1939. In 1946, he was promoted to the rank of officiating Tehsildar and was posted as Tehsildar at Hansi in the district of Hissar on September 22, 1947, and since then he held the post of Tehsildar at diverse places.2. On August 20, 1952, the appellant was served with a charge sheet by the Financial Commissioner, Punjab containing eleven heads of charges of misappropriation, misconduct, irregularities and dereliction of duties committed by him. The Deputy Commissioner, Hissar was appointed to hold a departmental enquiry into those charges. On August 28,1953, the appellant was served with a notice to show cause why on the findings recorded by the enquiry officer, he should not be dismissed from service. The appellant submitted his explanation. The Financial Commissioner by order dated October 26, 1953 ordered that the appellant be dismissed from service. An appeal preferred against that order was dismissed and application to the Government of Punjab to revise the order of the appellate authority also proved infractuous. The appellant then presented a petition under Art. 226 of the Constitution to the High Court of Punjab for an order quashing the order of dismissal contending inter alia that (a) reasonable opportunity was not given to the appellant either before the enquiry officer or before the Financial Commissioner to rebut the allegations contained in the charge sheet; and (b) that the Financial Commissioner was incompetent to pass the order of dismissal. Bishan Narain J. who heard the petition rejected the first plea, but in the view of the learned Judge, the Financial Commissioner ceased to have any power to make rules regulating the appointment and dismissal of Tehsildars because of the amendment of the Punjab Land Revenue Act, 1887 by the Government of India (Adaptation of Indian Laws) Order, 1937 and the authority derived by the Financial Commissioner under those rules to dismiss Tehsildars was also abrogated, and therefore the order of the Financial Commissioner dated October 26,1953 was void and of no effect. In appeal under Cl. 10 of the Letters Patent, a Division Bench of the High Court reversed the order passed by Bishan Narain J. The High Court held that by virtue of cls. 9 and 10 of the Government of India (Adaptation of Indian Laws) Order, 1937, the rules framed under the Punjab Land Revenue Act, 1887 continued to remain in operation even after the Act was amended by the Adaptation of Indian Laws Order, 1937 and the Financial Commissioner remained invested with the power to dismiss the appellant from service. The High Court accordingly dismissed the petition of the appellant. The appellant has appealed to this Court against the order o the High Court with certificate of fitness under Art. 133 of the Constitution.

Reasoning:
the authority of the Financial Commissioner under the rules which remained in force by virtue of cl. 9 was exercisable except as provided by the Adaptation of Indian Laws Order, 1937. By S. 241 (2) of the Government of India Act, 1935, the conditions of service, in the case of persons serving in connection with the affairs of a Province, were to be such as may be prescribed by rules made by the Governor, or by persons authorised to make rules for that purpose. But this provision was, till other provisions were made, subject to cl. 15 (2) of the Commencement and Transitory Provisions Order, 1936. Clause 7 of the Adaptation of Indian Laws Order on which reliance was placed by counsel for the appellant in support of his contention that the Governor alone could exercise the powers of dismissal under the Rules because he was the corresponding authority, does not also assist the appellant. The clause applies only to those cases where an authority competent at the date of passing of any Indian law, to exercise any powers or authorities or discharge any functions, ceased to exist and a corresponding new authority was constituted by or under any Part of the Government of India Act, 1935 the clause did not apply where only the powers of an authority were vested in another authority, the former authority not otherwise ceasing to function. The conditions of service of civil servants having remained unaltered even after the Government of India Act, 1935 was brought into operation by virtue of the Commencement and Transitory Provisions Order, 1936, and the Adaptation of Indian Laws Order having made express provision saving the rules as well as the authority granted under the rules to the Financial Commissioner, the order of the Financial Commissioner dismissing the appellant from service was notis however unnecessary to consider whether under the Punjab Civil Services Rules, 1941 the Governor alone was competent to dismiss from service a public servant of the Provincial Service or Subordinate Service or officers holding special posts or any other Government servant or class of Government servants to whom those rules applied. It was expressly enacted in R. 1.4 that the Civil Services Rules were not to apply to any person for whose appointment and conditions of service special provision was made by or under any law for the time being in force. Special provision did in fact exist for the appointments and condition of service of Tehsildars under the law for the time being in force and those rules are not shown to have been superseded or abrogated by the Civil Services Rules. Counsel for the appellant asserted that Tehsildars belonged to the Subordinate Services, Class III and the rules framed in 1941 under S. 241 of the Government of India Act superseded the Tehsildari Rules of 1932. The Advocate General appearing for the State of Punjab submitted that Tehsildars were not included in the Subordinate Services, because no notification in that behalf was issued.As we have already observed, the question as to the effect of the rules framed in 1941 under S. 241 of the Government of India Act was never raised or argued before Bishan Narain J nor before the High Court in appeal. It is difficult for this Court to entertain any plea depending for its adjudication on notifications said to be issued by the Government from time to time, raised for the first time in appeal, when such notifications have never been brought to our notice.10. On the whole, we are of the view that the record does not support the contention that the Punjab Tehsildari Rules were not in operation at the date of dismissal. There is also nothing to show that the, Financial Commissioner was not invested at the material time with the power to dismiss a Tehsildar.