ORDER
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 severalcolumns. 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 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 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) Thereare two grades of Commissioners of Income-tax(Class I service) viz., Commissioners, Grade Iand Commissioners, Grade II. promotions to thegrade of Commissioner of Income-tax, Grade I(other than posts reserved for Finance/CommercePool Officers), are made from the grade of Commissioner of Income-tax, Grade II........' :
4. Mr. Chatterjee next draws my attention to a Division Bench judgment of the Patna High Court, Mahadev Prasad Roy v. Section N. Chatterjee, AIR 1954 Pat 285. In that case, a person was appointed in 1928 as a Lino Operator, in the Government Printing Press, Patna, by the Superintendent of the Press. A Government, order was passed on 20-6-52 delegating the power of appointment and dismissal to the Deputy Superintendent, who initiated a proceeding against him, on a charge of theft, and ultimately passed an order dismissing him from service. Thereupon, he made an application under Article 226 before the Patna High Court. It was held that the petitioner could be dismissed only by the Superintendent Of Press or by any higher authority and the order of dismissal passed by the Deputy Superintendent was invalid and the Government order mentioned above was repugnant to the provisions of Article 311 and, therefore, void. The argument on behalf of the Government was that by virtue of the Governmental order, the Deputy Superintendent had been vested with powers of appointment and dismissal of staff and he was not subordinate to the Superintendent in this respect, as his authority was co-extensive. It was argued that the designation of a particular officer was immaterial but what we must look at, are the powers and duties conferred on that Particular officer. This argument was however not accepted, and it was held that Article 311 must be construed as referring to subordination in rank and not subordination in respect of powers and duties. Reference was made to a decision of the Judicial Committee, North-West Frontier Province v. Suraj Narain . In that case also, the respondent had been appointed as a Sub-Inspector of police by the Inspector General of Police. By certain rules framed, the power of dismissal was vested in the Deputy Inspector General of Police, who dismissed the respondent. It was held that the order was bad, since the dismissing authority was subordinate in rank to the authority by whom he was appointed. The next case cited is a Division Bench decision of the Rajasthan High Court Sobhagmal v. State . In that case, the facts were as follows: The applicant, Sobhag Mal succeeded in a competitive examination for the civil and subordinate service of the State of Jaipur, and was appointed by the order of the Government of Jaipur in October 1946. He was then employed by the said Government in various posts and ultimately was ordered to report himself to the Commissioner, Customs and Excise who was asked to post him. He was posted as an Inspector in the Customs and Excise Department. Thereafter, there was a merger of a number of princely states to form the present State of Rajasthan. After the merger, sometime in June 1949 the applicant was charge sheeted by the Assistant Commissioner, Customs and Excise, Jaipur. In August, 1951 he was given a second charge-sheet by the Divisional Assistant Commissioner, Customs and Excise. By an order dated 29-7-52 the applicant was removed from service by the Commissioner of Customs and Excise. Thereupon, the applicant made an application be' fore the Rajasthan High Court on two grounds. One of the grounds was that he was appointed by the Government of the former State of Jaipur. So, he could only be removed by the Government of Rajasthan, otherwise there would be a violation of the provisions of Article 311 of the Constitution. Wanchoo C. J., (as he then was) said as follows:
'It is urged on behalf of the State that the article (311) provides' that a civil servant cannot be dismissed or removed by an authority subordinate to that by which he was appointed, and this means that if the authority dismissing, is not directly subordinate to the authority which made the appointment, the dismissal or removal would be justified. Thus it is contended that as the Commissioner, Customs and Excise, Rajasthan, was not directly subordinate to the Government of the former State of Jaipur, he could not be deemed to be an authority subordinate to that by which the applicant was appointed, and therefore the Commissioner, Customs and Excise, could dismiss the applicant. We are of opinion that this interpretation is not correct,
What Article 311(1) provides is that the authority dismissing should not be subordinate in rank to that by which the appointment was made. The intention seems to be that the authority dismissing should be co-ordinate in rank to the authority appointing, and not that in the absence of direct subordination any authority could dismiss even though the authority appointing might be a higher authority in rank.
If the provision merely protected civil servants from dismissal by an authority directly subordinate it might be possible for example, for a person appointed by the Head of one Department, say the Commissioner of Customs and Excise, to be dismissed in case he was transferred to another Department, say Revenue Department, even by a Tehsildar in that department, for a Tahsildar in the Revenue Department is not directly subordinate to the Commissioner, Customs and Excise. Obviously, therefore, Article 311 means that the dismissing authority should be at least co-ordinate in rank with the appointing authority, and should not be subordinate in rank. Thus if a person is appointed by a Head of one Department, and he is transferred to another Department, he can only be dismissed or removed by the Head of the other department.'
5. It was held on the facts and circumstances of that particular case, that there was no question of equating the Government of the former State or Jaipur with the Government of Rajasthan. Where there was a merger of a number of princely states, we have to see as to what was the authority which appointed the applicant in the new State, which arose out of the merger, and after it was created. It was found that the applicant was suspended even before the merger. Therefore, the proper way to look at it was to see who would have appointed him in the State of Rajasthan after the integration.
6. The position, therefore, is as follows; Under Article 311(1) of the Constitution, a civil servant cannot be dismissed or removed from service by an authority subordinate in rank to the authority appointing him. This subordination refers to rank and not subordination in respect of powers and duties. It does not, however, follow that a civil servant should always be removed by a person lower in rank to the original appointing authority. It may so happen that he may be transferred from one department to another, which is a department completely independent of the department in which he was originally appointed. In such a case, if he was originally appointed by the head of one department, he cannot be removed except by a person not lower in rank to the head of the department to which he is transferred, I shall, therefore, proceed to examine the problem before me from that point of view. The office of the Commissioner of Income-tax is created by the Income-tax Act, which is a self-contained Code. The relevant provision is contained in section 5(2) of the said Act. It runs as follows:--
'The Central Government may appoint as many Commissioners of Income-tax as it thinks fit and they shall perform their functions in respect of such areas or of such persons or classes of persons or of such income or classes' of incomes or of such cases or classes of cases as the Central Board of Revenue may direct, and where such directions have assigned to two or more Commissioners of Income-tax the same area or the same persons or classes of persons or the same income or classes of incomes or the same cases Or classes of cases, they shall have concurrent jurisdiction subject to any orders which the Central Board of Revenue may make for the distribution and allocation of work to be performed.'
7. Sub-section (7) of Section 5 lays down the hierarchy of officials in the Income-tax Department. On the top we have the Commissioner of Income-tax and the Director of Inspection. Under them there are Inspecting Assistant Commissioners and under the latter we have the Income-tax Officers. In Sub-section (7) of Section 5, there is no separation of jurisdiction between the Commissioners of Income-tax of different grades. That appears to be a question of scales of pay and not of rank. Mr. Pal appearing on behalf of the respondents, has argued that upon this question as to whether there is a difference in rank or not, We may apply several tests. He first of all draws my attention to the Central Civil Services (Classification, Control and Appeal) Rules, 1957. In the schedule to the said Rules, are set out the particulars of the appointing authority and the authority competent to impose a penalty. In the case of income-tax services Class II, the appointing authority is the Commissioner of Income-tax and he can also impose any of the penalties mentioned in Rule 13. There is, however, no distinction between one Commissioner of Income-tax and another. The case of Central Civil Service Class III, is dealt with in Part III of the schedule. The petitioner in this case belongs to the Class III Service. In such a post, the appointing authority is the head of office, who is also the authority entitled to impose a penalty. If such 'head of office' is subordinate to the 'head of department' under the Ministry or Department of Government, then the appellate authority is such 'head of department.' In this case, the order of dismissal was passed by the Commissioner of Income-tax, Calcutta, dated 3rd April, 1958 and it must be considered as an order of penalty imposed by him as the 'head of office.' If, therefore, the Commissioner of Income-tax, West Bengal, held a higher rank, he should be considered as a 'head of a department' and then the appeal would lie to him. In this case, however, the petitioner himself preferred an appeal to the Central Board of Revenue, New Delhi. This shows that the petitioner was well aware that the Commissioner of Income-tax, Calcutta, was both the 'head of office' and the 'head of department', and that it was not an office subordinate in rank to the Commissioner of Income-tax, West Bengal. The fact is, that the Central Board of Revenue, in exercise of powers granted under Sub-section. (2) of Section 5 or the Income-tax Act, has specified certain charges, viz., the West Bengal Charge and the Calcutta Charge, and the Central Government has appointed Commissioners of Income-tax in these charges. In one particular charge, there might be appoint-ed more than one Commissioner. But so far as the West Bengal and the Calcutta Charges are concerned, they are distinct and not overlapping. The Commissioner of Income-tax, West Bengal has no authority or jurisdiction within the Calcutta Charge, and has no power of superintendence over the Commissioner of Income-tax, Calcutta. The two jurisdictions are entirely separate, and do not overlap. In order to find out the true meaning of the expression 'head of department', Mr. Pal has referred me to the rules framed for the delegation of Financial powers as laid down in the Rules called, the 'Delegation of Financial Power Rules, 1958' framed under Clause (3) of Article 77 of the Constitution. Under Rule 2 (e), a 'head of department' in relation to an office or offices under its administrative control has been defined to mean an authority specified in Schedule I to the Rules. In the Revenue Department, we have on the top the Central Board of Revenue, under whom are--'the Commissioners of Income-tax'. This shows that the Financial rules make no distinction between different Commissioners of Income-tax, and they are all considered as 'heads of department' in relation to an office or offices under its administrative control. I now come to several points argued by Mr. Chatterji to meet those propositions. He first of all points out that if this were so, there was no point in appointing Commissioners of Income-tax in different grades, namely, Grade I and II, with different scales of pay, and even providing that there may be promotion from one grade to another. So far as the Income-tax Act is concerned, I do not find any provision for appointing Commissioners of Income-tax of different grades. That, however, must be taken to be an administrative policy. It does, not, however follow, that the grades are synonymous with rank. In other words, there is nothing to show that a Commissioner of Income-tax in grade II, with a lower scale of pay, is subordinate in rank to the Commissioner of Income-tax in Grade I, with a higher scale of pay. Ordinarily, such grades or differences in scale of pay, with a provision for promotion from one grade to another, would be strongly indicative of the fact that the lower grade is subordinate in rank to the higher grade. This, however, does not appear to be so, so far as the Income-tax Commissioners are concerned. Such Commissioners are appointed to take charge of certain areas. Within their respective charges they constitute both the 'head of office' and 'head of department'. These areas are separate and do not overlap. One Commissioner has no power of superintendence over another, and cannot act as an appellate authority over the decision of another Commissioner of Income-tax. Thus, there is no question of subordination in rank. Promotion in such cases means that a Commissioner of Income-tax in one area is transferred as a Commissioner of Income-tax to an area which is larger or more important and, therefore, to a post which carries a larger salary. It does not however mean, that he has been promoted to a higher rank. Mr. Pal has pointed out the distinction between the grades in respect of Commissioners of Income-tax and the grades so far as Magistrates are concerned, under the Criminal Procedure Code. Under Section 6 of the said Code, four classes of Magistrates have been created. Firstly, we have the Presidency Magistrate. Then we have Magistrates of the first class, followed by Magistrates of the second class, and then Magistrates of the third class. The offences which might be tried by these several classes of Magistrates and the sentences that may ordinarily be pronounced by them, are to be found in the 7th schedule annexed to the Code. There, it is found that the powers of Magistrates of the several classes have been distinctly stated, being in a descending scale. That is to say, the Magistrates of the first class have greater powers than the Magistrates of the second class arid so on, It may, therefore, be urged that there is a difference in rank between the Magistrates of different classes. Such, however, is not the case concerning Commissioners of Income-tax. There is no provision of a Commissioner of Income-tax in district having more power than another, in a different district, or a Commissioner of Income-tax of grade I, having larger powers than a Commissioner of Income-tax in grade II. The next tiling that Mr. Chatterjee has pointed out is that certain orders were passed by the Commissioner of Income-tax, West Bengal, as are annexed to the affidavit of Anukul Chandra Mandal affirmed on the 1st day of May, 1961. In these orders we find that the Commissioner of Income-tax, West Bengal is posting certain officers to work within the jurisdiction of the Commissioner of Income-tax, Calcutta. Also, he is transferring certain persons posted in one office to another, within the said jurisdiction. It appears that the Commissioner of Income-tax, West Bengal, is not only doing so in connection with the department under the control of the Commissioner of Income-tax, Calcutta, but also with the departments dealing with Estate Duty and Excess-Profits Tax. These orders certainly require an explanation, and for that purpose I directed that a supplementary. affidavit be filed, and a supplementary affidavit has been filed by the Commissioner of Income-tax Calcutta, Sri Har Prasad Sharma, affirmed on the 26th June, 1961. He states that these orders were made in that form, as a matter of administrative convenience, and as a result of an internal arrangement. He has further pointed out that so for as the grades of Commissioners is concerned, there was no connection between, grade and rank. For instance, Sri Sharma is a Commissioner of grade II but he held the charge of the Commissioner of Income-tax, West Bengal for some time. He also points out that there has been occasions when the Commissioner of Income-tax, West Bengal, held the charge of the Commissioner of Income-tax, Calcutta. From this it appears that grades in this case do not proclaim difference in rank. So far as the orders are concerned, I have to accept the explanation of Sri Sharma, because there does not seem to be any power Or jurisdiction conferred in that respect by any statutory provision or rules. In other words, there is no provision in the Income-tax Act or the Rules framed thereunder, which enables the Commissioner of Income-tax, West Bengal, to post an Income-tax Officer within the jurisdiction of the Calcutta charge, or to transfer such an officer from one post to another. It must therefore be accepted that in certain cases, this is permitted to be done as a matter of administrative convenience, with the tacit consent of the parties concerned.
8. For these reasons, I am, of the opinion that the Commissioner of Income-tax, Calcutta, is not an officer subordinate in rank to the Commissioner of Income-tax, West Bengal. The petitioner was originally appointed by the Commissioner of Income-tax, West Bengal, but he was subsequently transferred to the Calcutta charge.In that charge, the 'head of office' and the'head of department' is the Commissioner ofIncome-tax, Calcutta, Therefore, he is the proper person to dismiss the petitioner. That beingso, the second point must be decided against theContention of the petitioner. The rule is accordingly discharged. Interim orders, if any, arevacated. There will be no order as to costs.