Case: State of Orissa Vs. Dhirendranath Das

1. Dhirendranath Das - respondent to this appeal - was appointed a lower Division Assistant in the Secretariat of the Government of Orissa. Later, the respondent was promoted as an Upper Division Grade I Assistant and was posted in the Commerce Department, and was at all material times a non-gazetted servant of the State. On November 27, 1953, by order of the Secretary to the Government of Orissa, Commerce Department, the respondent was placed under suspension pending an enquiry conducted by the S. P. Enforcement into cases of alleged manipulation of figures in the receipt registers maintained by certain employees in the commerce Department. By order of the Governor of Orissa, the case of the respondent along with the cases of certain other persons was referred for enquiry on January 23, 1954, to an Administrative Tribunal consisting of one P. K. Kapila, as sole member of the Tribunal, The Tribunal framed charges against the respondent and called upon him to show cause why he should not be dismissed from service. The respondent submitted his reply to the notice. The Tribunal held an enquiry and on September 28, 1954, recorded a finding that it was proved on the evidence that the respondent was guilty of the charges against him and recommended that he be dismissed from service. Notice was then issued to the respondent to show cause why the punishment proposed by the Tribunal should not be inflicted upon him. After considering the explanation submitted by the respondent, the Government of Orissa by order dated August 3, 1955, dismissed the respondent from service2. The respondent submitted a petition under Art. 226 of the Constitution of India to the High Court of Judicature, Orissa praying for a writ declaring illegal the order of dismissal passed against him and further declaring that he continued to remain "in the service of" the Government of Orissa. The High Court held that in directing the enquiry under the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 - hereinafter referred to for the sake of brevity as the "Tribunal Rules" instead of an enquiry under the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935 - hereinafter referred to as the "Service Rules" discrimination was practised against the respondent, and accordingly declared that cls. (a) and (b) of sub-r. (1) of R. 4 of the Tribunal Rules, 1951 in their application to non-gazetted Government servants infringed the guarantee under Art. 14 of the Constitution, and directed that the entire departmental proceedings against the respondent held by the Tribunal and the orders of punishment passed by the Government be declared inoperative, and further directed that the disciplinary proceedings against the respondent be restored to the stage which they had reached on November 27, 1953, before the case was referred to the Tribunal. Against the order passed by the High Court, this appeal has been preferred.

Reasoning:
We may, however, point out that this argument was never advanced in the High Court; it was not set out in the application for leave to appeal to this court and does not also find place in the statement of case filed in this court on behalf of the State. We do not think that we would be justified in permitting counsel at this late stage to raise a contention which has not been raised at any earlier stage. If we were to entertain this argument, it would necessitate a radical enquiry into the source of the power in exercise of which the Tribunal Rules were promulgated and whether those rules superseded the earlier rules. The High Court has recorded a clear finding that both the sets of rules were in force in the year 1952, and if the Service Rules were not in fact in force, we would have expected the State to raise that contention prominently before the High Court. Even in the argument before us, counsel for the State did not contend that the Service Rules were wholly superseded by the Tribunal Rules, since the latter rules contained a provision permitting a Gazetted Officer charged with misdemeanour to elect whether a proposed enquiry shall be conducted according to the procedure prescribed by the Service Rules. In these circumstances, we refuse to entertain the argument which is advanced for the first time in this court5. If the two sets of rules were in operation at the material time when the enquiry was directed against the respondent and by order of the Governor, the enquriy was directed under the Tribunal Rules which are "more drastic" and prejudicial to the interests of the respondent, a clear case of discrimination arises and the order directing enquiry against the respondent and the subsequent proceedings are liable to be struck down as infringing Art. 14 of the Constitution.