ORDER
D. Basu, J.
1. This petition under Article 226 of the Constitution brings before the Court a somewhat queer story about a Primary School teacher.
2. The petitioner was appointed a teacher of the Kiol Primary School, by the District School Board (Respondent No. 11, under Section 23 (1) (g) of the Bengal (Rural) Primary Education Act 1930. The petitioner, on account of his alleged grievances regarding non-payment of some arrears of salary, went on hunger strike from 7-8-1963 and squatted on the premises of the District School Board while on hunger strike which continued until 16-8-1963. when he was bodily removed by the Police from such premises to the judicial lock-up, and a criminal case was started against the petitioner under Section 448 of the Indian Penal Code.
3. While he was still on hunger strike at the premises of the School Board, on 13-8-1963, he was served with the charge-sheet in Ann. A, containing as many as 16 charges and asking him to show cause within three days from the receipt thereof. The petitioner's case is that owing to his ill health on account of this hunger strike and of want of materials, it was not possible for him to show cause within the unreasonably short period of three days allowed for the purpose and this was communicated by the petitioner to the Secretary of the School Board, the same day (which was the 7th day of his hunger strike), by the letter at Ann. B. It appears that notwithstanding this letter, the authorities proceeded with the charges, and, on 19-10-1963, the School Board passed the order at Ann. D, dismissing the petitioner, with effect from the afternoon of that very day, finding the petitioner guilty of all the charges, -and having 'considered the report of the District Inspector of Schools (respondent 2)............... regarding the conduct and behaviour or the petitioner and the petitioner's letter at Ann. B, which was taken to be his explanation to the charges.
4. The resolution of the School Board, dismissing the petitioner, was not, however, communicated to him until 26-11-1963, when the Secretary of the Board wrote the letter at Ann. C. The petitioner points out that this happened to be the date when the Criminal Case started against him was disposed of, with an order of acquittal in his favour.
5. The petitioner challenges the resolution and order of dismissal at Anns. C-D, on several grounds:
(i) That the order of dismissal with retrospective effect from 19-10-63 was bad inasmuch as it was not communicated to the petitioner until 16-11-1963.
(ii) That the said orders are bad because of the contravention of the Rules made under the Bengal Primary Education Act (hereinafter referred to as 'the Act'), inasmuch as no inquiry was held upon the charges and the petitioner was not given a personal hearing, though requested.
(iv) That no opportunity was given to the petitioner to show cause against the proposed order of dismissal before it was made.
6. The petition is opposed by two separate counter-affidavits. The first one is by the District Inspector of Schools (Respondent 2), who is also the ex officio Secretary of the School Board (Respondent No. 1) and the second one is filed by the Chief Inspector of Primary Education, on behalf of Respondent 3--the Director of Public Instruction, Government of West Bengal.
7. I. On the question of retrospective effect having been given to the order of dismissal, the verdict must be in the petitioner's favour.
8. It is now settled that an order of dismissal cannot have effect from any date prior to that on which it is communicated to the delinquent Government servant. State of Punjab v. Amar Singh, : (1966)IILLJ188SC ; Jeevaratnam v. State of Madras, : (1967)ILLJ391SC . In the instant case, therefore, the impugned order cannot take effect earlier than 26-11-1963 and the petitioner should get appropriate relief upon this finding.
9. II. (a) The petitioner further contends that the impugned order is bad because it was made without an inquiry into the charges held by the President of the Board as required by Rule 12 of the Rules made under Section 66 (2) (t) of the Act. The contention of the Respondents is that, that Rule is not applicable to the case of the petitioner, who is a teacher and, is therefore, governed by Rule 12 of the Rules framed by the State Government under Section 66 (2) (p) of the Act. I have, therefore, to determine which of these two sets of Rules is applicable to the teacher of a Primary School.
10. In order to solve this question, we have to advert to the provisions of Section 23 (1) (g) and Section 26 of the Act It is common ground that the petitioner was appointed a teacher by the Board hi exercise of its power under Section 23 (1) (g). This is a very short provision and, perhaps, the only provision relating to the service of teachers of primary schools, in the Act. It says--
'It shall be the duty of every Board, subject to the prescribed conditions, to appoint and fix and pay the salaries and allowances of teachers in primary schools.'
11. Section 26, on the other hand, does not mention teachers but makes a more elaborate provision relating to 'officers and servants of the Board':
'(1) Subject to the prescribed conditions, a Board may appoint such staff of officers and servants other than Inspectors as it may consider necessary to carry out its duties under this Act, and may fix and pay salaries and allowances to such staff.
(2) Subject to the prescribed conditions, a Board may punish or dismiss members of its staff.'
12. The Act, thus, makes a twofold provision regarding the appointment etc. of (a) teachers and (b) officers and servants of the Board, and the distinction between the two classes is maintained by the rule-making power conferred upon the State Government by Section 66.
Sub-section (2) of this section has separate clauses relating to 'teachers' and 'officers and servants' of the Board. Clause (p), thus, empowers the State Government to make rules to provide--
'the conditions referred to in Clause (g) of Sub-section (1) of Section 23.'
13. Obviously, this refers to the conditions of service of the teachers of Primary schools, who are appointed under Section 23 (1) (g).
14. As regards the officers and servants of the Board, the rule-making power is conferred by Clause (t) of Section 66 (2) thus--
'the conditions of appointment, punishment or dismissal of the staff of the Board under Section 26 (and the salaries and allowances of such staff).'
15. In exercise of these two separate powers, the Government has made separate sets of rules:
(a) The Rules per Notification No. 1493/ 25-7-1.940 to provide for 'the conditions of appointment of teachers in primary schools maintained by District School Boards ........................'
These were made in exercise of the power conferred by Section 66 (2) (h).
(b) The Rules per Notification No. 1176C/10-7-45 regarding the conditions of appointment, punishment or dismissal of the staff of the Board under Section 26.
16. Rule 12 of the second set of Rules per notification No. 1176C is relied upon by the petitioner because it provides for an 'inquiry' by the president or by some person deputed by him, according to the procedure laid down by Ch. IV of the Board's Miscellaneous Rules, 1934, 'in cases of serious misdemeanour' committed by 'an employee of the Board.' The petitioner's case is that since no such inquiry has been held by the president or his agent in the instant case, the impugned order is invalid. But this argument will be of avail only if the Rules per notification No. 1176C, made in exercise of the power conferred by Clause (t) of Section 66 (2), are applicable to the teacher of a primary school. It is abundantly clear from the foregoing provisions that the Act as well as the Rules made thereunder make a distinction between teachers of primary schools and the office staff of the Board, even though all these persons are appointed by the Board itself. Though the word 'employee' in the Rules made under Section 66 (2) (t) is somewhat vaguely used, its ambit must be determined with reference to the scope of Section 66 (2) (t), read with the word 'prescribed' in Section 26 of the Act. It cannot be that Section 26 relates to both teachers and the office staff of the Board, inasmuch as in that case no separate provision in Section 23 (1) (g) would have been necessary regarding teachers of primary schools. The separate provisions in Rules 12-13 laying down the procedure for punishment of the teachers in the set of Rules made under Section 66 (2) (p) would also be redundant and inconsistent, if the rules made under Section 66 (2) (t) related to the teachers as well.
17. I am clearly of the opinion that Rule 12 of the notification issued under Section 66 (2) (t) is applicable to the office staff of the Board and not to the teachers of primary schools.
18. III. We have, therefore, to determine whether the procedure laid down in Rule 12 of the notification No. 5837/22-7-53, which has been incorporated in the Rules issued per notification No. 1493/ 25-7-40 has been complied with in the instant case. This rule says--
'No teacher shall be punished, dismissed, discharged, rewarded or promoted by the Board without a previous report on his or her work from the District Inspector of Schools......... In charge of the area within which the primary school is situated, as the case may be.'
19. It appears from the recital in para 9 of the impugned resolution of the Board that there was a 'Report of the District Inspector of Schools, Malda, regarding the conduct and behaviour of' the petitioner, which the Board considered. But though the District Inspector of Schools himself has filed counter-affidavit on behalf of Opposite Parties 1 and 2, stating that he submitted on 13-8-1963 his report after making inquiries, no copy of this report was disclosed to the Court by any of the Opposite Parties.
20. In this background, the complaints made by the petitioner, relating to this alleged report of the District Inspector, appear to be true.
21. (i) It is to be noted that the statement in the counter-affidavit just referred to is that the report was made by the District Inspector of Schools on 13-8-1963, when the petitioner was squatting on hunger strike at the premises of the Board, from where he addressed his letter of that date at Ann. B, complaining of his weakness and inability to show cause against the 16 charges brought against him. In para. 7 of the counter-affidavit, it is alleged that the District Inspector held his inquiry on 9-8-63, while the hunger strike of the petitioner had already started from 7-8-63. It is alleged that the President and two members of the Board somehow persuaded the petitioner to leave the premises of his hunger strike to go to the school to attend the local inquiry on the charges of his absence from the school without leave. In his affidavit-in-reply, the petitioner denies any such inquiry having been held in his presence.
22. There is thus affidavit against affidavit on the factum of the local inquiry held by the District Inspector in the presence of the petitioner. In these circumstances, the petitioner's allegation could have been thrown out as unsubstantiated, in a proceeding under Article 226 as a disputed question of fact, had not the petitioner's case been corroborated by two circumstances--
(a) It is highly improbable that a person who was on hunger strike and who had eventually to be removed with Police help (as the judgment of the Criminal case shows) would voluntarily agree to move from his place of strike to attend an inquiry which would blow his death-knell.
(b) So far as charge-sheet at Ann. A or the resolution of the Board (Ann. D) are concerned, there is no mention of the fact that there was an inquiry made by the Dt. Inspector who is none but the Secretary of the Board,--in the presence of the President and members of the Board.--which was attended by the petitioner.
23. Nevertheless, the Court could have been induced to accept the case of the Respondents had they produced the material in their custody, namely, the report and the proceedings of the inquiry held by the District Inspector which would show the date and time of inquiry, the names of persons who were present at the inquiry and the statements made by the petitioner and the other witnesses, if any. No latitude can be shown to these responsible public officers who know very well that proceedings under Article 226 are founded on affidavits and documentary evidence annexed thereto. I do not find the least justification why the affidavit of the District Inspector should not annex a copy of his proceedings and report.
24. (ii) It is not the case of the Respondents that owing to the petitioner's non-co-operation, the District Inspector held an ex parte inquiry. Their positive case is that there was an open inquiry in the presence of the petitioner. In the circumstances of the case, it is difficult to accept this story. Even if the Respondents might have succeeded in securing the physical presence of the petitioner, it was not possible for the petitioner to defend himself on the 16 charges at such inquiry, on the 7th day of his hunger-strike, however, sham it might be. The plea of the respondents that the fasting was not real is also difficult to accept inasmuch as it took place at the very premises of the respondents, which was frequented by members of the public.
25. (iii) Another grievance of the petitioner is that the aforesaid report of the Inspector was never disclosed to the petitioner nor was he supplied with a copy thereof. If there was a report of 13-8-1963, on the basis of which the Board issued the charge-sheet at Ann. A, a copy thereof should have been supplied to the petitioner along with the charge-sheet, which called upon him to show cause, if the proceeding for dismissal of a teacher in exercise of power conferred by the statute be held to be quasi-judicial, as to which I shall advert presently.
26. (iv) The petitioner's other grievance that he was not offered any reasonable or real opportunity to show cause against the charge-sheet also appears to be genuine. The respondents who served the charge-sheet knew fully well that the petitioner was on hunger strike, but they allowed him not more than three days to answer to the 16 charges relating to events on different dates and periods. As would appear from the impugned resolution of the Board, they took the petitioner's letter at Ann. B to be his explanation against the charges. Upon a reading of this letter, however, it is impossible to construe it as the petitioner's defence against the charges. Apart from his weakness on account of hunger strike, in this letter he even complained that he had no paper to write out his defence. Whatever that might be, in order to prepare the defence on 16 charges, it was essential that the petitioner should have had an opportunity to look into the relevant registers of the School, the report of the District Inspector and the like. Without these materials and in view of the narrow span of time allowed for the purpose, it was not possible for anybody to prepare an effective defence.
27. This Court would never for a moment encourage resort to hunger-strike and similar extra-legal methods for the enforcement of legal rights, whatever might be the utility of such devices in the political sphere, which is beyond the ken of a Court of law. But at the same time in order to assess the reasonableness or reality of an opportunity, it is not legitimate for a Court to shut its eyes to the circumstances in relation to which the reasonableness of the opportunity has to be determined. The respondents resorted to a criminal proceeding to chastise the petitioner for having squatted on their premises on hunger strike but failed. They might have instituted a disciplinary proceeding simply for having resorted to the extra-legal device of hunger-strike, which is doubly reprehensible for a person who professes to build up the nation of tomorrow, for which the foremost asset is discipline,--which is hardly realised by all of us to-day.
28. In determining whether a proper opportunity to defend against the charges was given to the petitioner, however, a Court of law cannot be influenced by the considerations just mentioned, which are extraneous to the legal issue involved Any inquiry or hearing, if it is to be worth the name, must be real and reasonable, having regard to the circumstances of the particular case.
29. (v) Respondents, however, seek to cut at the root of the petitioner's case by contending that there is nothing in the Act or the Rules to show that either the Board or the Inspector should proceed quasi-judicially. This is no doubt true; the only requirement of Rule 12 of the rules under Section 66 (2) (p) is that there must be a 'report' of the District Inspector against the teacher in question. But as I have explained in my Judgment in the cases of Baleswar Sineh v. Commrs., Port of Calcutta. (1966) 70 Cal WN 786, affirmed by the Division Bench in : (1969)IILLJ640Cal and Jytoprakas v. Union of India. CR 1798 (W) of 1966 (Cal), the silence of the statutory provisions in such cases is not conclusive as ,to the existence of a quasi-judicial obligation. In the latter judgment, I have cited a number of decisions to show that where the services of an employee are sought to be terminated in exercise of a statutory power on the-ground of alleged misconduct, the function must be exercised quasi-judicially and in conformity with the requirements of natural justice, even though the statute does not make any express provision in this behalf.
30. There are certain observations in the judgment of the Division Bench at pp. 795 and 798, paras. 16 and 20 of 71 C. W. N. = (at pp. 211 and 213, paras 10 and 14 of AIR) which seem to surest that both in Ridge v. Baldwin, (1963) 2 All ER 66 (HL) and in Calcutta Dock Labour Board v. Jaffar Imam, : 1966CriLJ189 their Lordships spoke of natural justice because the governing statutory provisions expressly required for a hearing I would, however, crave leave to reproduce, with respect, the passages in either decision which unmistakably demonstrate that even in the absence of such express requirement, the Court would have come to the conclusion that natural justice must be observed in exercising a statutory power to dismiss, for a cause. Thus,--
A. A close analysis of (1963) 2 All ER 66 will show that while some of the members of the House, for instanrp, Lord Devlin (p 120), preferred to rest their judgment on the express requirements of the Police Regulations that the employee must be given an opportunity to defend himself, the majority observed that even in the absence of the express terms of the Regulations, they would have come to the same conclusion from the principles of natural justice, which come into aid where the relevant statute--in that case. Section 191 (4) of the Municipal Corporations Act, 1882, which conferred the power to dismiss--is silent as to the procedure to be adopted but affects an individual in his rights of property, which include the means of his livelihood.
(a) Lord Reid first demolished the misunderstanding (p. 75, H) of the observations in R. v. Electricity Commrs., (1924) 1 KB 171 (198) and R. v. Legislative Committee, (1928) 1 KB 411 (415), leading to the suggestion that express statutory provision was the sole source of quasi-judicial obligation to abide the principles of natural justice.
'If Lord Hewart, C. J. meant that it is never enough that a body has to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities' (P. 77, H). From an examination of the judgments of all the judges in the case of the Electricity Commissioners, Lord Reid pointed out that they 'inferred the judicial element from the nature of the power' (p. 78, D).
The greatest blow offered by Lord Reid was to the Privy Council dictum in Nakkuda Ali's case, (1951) AC 66 (78) that 'there must be superadded to the characteristic the further characteristic that the body has the duty to act judicially'. As to this. Lord Reid spares no sentiments:
'So I am forced to the conclusion that this part of the judgment in Nakkuda case, 1951 AC 66 was given under a serious misapprehension of the effect of the older authorities and therefore, cannot be regarded as authoritative'. (p. 80, D). That the requirements of natural justice would, in such a case, be attracted unless they arc- excluded by the statute which confers the power to dismiss is emphatically brought out in these words:
'The question in the present case is not whether Parliament substituted a different safeguard for that afforded by natural justice, but whether in the Municipal Corporations Act, 1882, it excluded the safeguard of natural justice and put nothing in its place (p 79). It cannot be overlooked that, after founding his decision on the principles of natural justice, Lord Reid makes a passing reference to the contravention of the police regulations, as a separate ground, in one paragraph only--out of deference to those of his colleagues who relied on that ground, either solely, or in the alternative--
'The other Ground on which some of your lordships prefer to proceed is the Watch Committee's failure in act in accordance with the police regulation......' (P. 81, B).
(b) Clear language is used by Lord Morris to consecrate the functional test as an independent test, apart from express statutory requirement:--
'It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself.........' (p. 102, H). In the opinion of Lord Morris, the Police Regulations, if they required such opportunity to be offered to an employee sought to be dismissed, merely codified the requirements of natural justice (pp. 102, H; 107, D). but even without any such express requirement, such opportunity must be offered because natural justice required it:
'In my view the regulations incorporate those principles, but had there not been any and had the police authority in the exercise of powers given them by Section 191 (4) contemplated dismissing the appellant on the ground of neglect of duty, they would have been under obligation to give him an opportunity to be heard ............... I cannot think that the dismissal of the appellant should be regarded as an executive or administrative act if based on a suggestion of neglect of duty: before it could be decided that there had been neglect of duty it would be a pre-requisite that the question should be considered in a judicial spirit.' (p. 107).
'If it be assumed that no regulation had been made, then the fact that Section 191 (4) is silent as to any procedure for hearing does not involve that there could be a dismissal without a hearing. The 'justice of the common law' would require it...............' (p. 108, E).
'Being of the view that even if there had been no applicable regulations a decision to dismiss the appellant for neglect of duty ought only to have been taken in the exercise of a quasi-judicial function which demanded an observance of the rules of natural justice. I entertain no doubt that such rules were not observed' (p 109, H).
In this respect, there was no distinction between injury to property rights and the issue 'whether there has been misconduct which merits dismissal from office' (p. 109. D).
(c) Lord Hodson relies on the principles of natural justice and the requirements of the police regulations independently and comes to the same conclusion on both grounds. As to natural justice, he first observes--
'............where the power to be exercised involves a charge made against the person who is dismissed, by that I mean a charge of misconduct, the principles of natural justice have to be observed before the power is exercised' (P. 114, C). In such a case, mere silence of the statute as to the procedure was not sufficient to exclude natural justice--
'..................the deprivation of a pension without a hearing is on the face of it a denial of justice which cannot be justified on the language of the Sub-section under consideration' (p. 115, B). Thereafter Lord Hodson holds that since the Watch Committee had violated two of the three requirements of natural justice, the proceedings before the Watch Committee 'cannot be allowed to stand.'
Then his Lordship takes up the requirements of the regulations and comes to the same conclusion, in the following words:-- 'On both grounds, therefore, failure to comply with the requirements of natural justice and failure to comply with the Police Regulations, I would hold that the decision of the Watch Committee to dismiss the appellant ......... was invalid'.
31. I have thus demonstrated that three out of the five Lords who decided 1963-2 All ER 66 were of the definite view, that apart from what was provided in the Police Regulations, the very exercise of a statutory power to dismiss an employee for alleged misconduct attracted the principles of natural justice, except where the statute itself excluded them, by clear language.
32. B. In India, it is true that certain observations in Province of Bombay v. Khusaldas, : [1950]1SCR621 , based on a reading of 1924-1 KB 171 and 1928-1 KB 411 suggested,--as did the observations of the Privy Council in Nakkuda Ali's case (1951) AC 66 (78), -- that express statutory provision was the exclusive source of quasi-judicial obligation so that it could not be drawn by any process of implication, where the statute was silent as to the procedure to be followed.
33. But in view of the subsequent pronouncements of the Supreme Court during the last seventeen years, little remains of this view taken in Khusaldas' case, : [1950]1SCR621 just as little remains of the similar part of Nakkuda Ali's case, 1951 AC 66 after the open denunciation thereof by Lord Reid in 1968-2 All ER 66 (80) and the obiter of Lord Hodson (p. 115, B) that the decision in Nakkuda's case, 1951 AC 66 should be kept confined to the facts of that case.
34. The later decisions of the Supreme Court to which I am referring are--
(i) Kadheshyam v. State of M. P.. : [1959]1SCR1440 .
(ii) Board of High School v. Ghanshvam. : AIR1962SC1110 .
(iii) Board of Revenue v. Vidyavati. : AIR1962SC1217 .
(iv) Board of High School v. Bagleswar, : [1963]3SCR767 .
(v) : 1966CriLJ189 .
(vi) Sri Bhagwan v. Ramchand, : [1965]3SCR218 .
35. What was the minority view in the first mentioned case, has been sanctified by unanimous Benches in the other cases in the above list. That view of Subba Rao J., (as he then was) in Radheshyam's case, : [1959]1SCR1440 was--
'the duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance.'
36. I shall now advert to the question whether in Jaffar Imam's case, : 1966CriLJ189 the Supreme Court relied solely on the fact that Clause (3) of the Scheme made under the Dock Workers (Regulation of Employment) Act, 1948, provided for an inquiry. It will be evident from the following observation that the Court (speaking through Gajendragadkar, C. J.) relied on the principles of natural justice as an additional and independent ground, apart from the express requirements of the scheme--
'...............Such an enquiry is prescribed by the requirements of natural justice and an obligation to hold such an enquiry is also imposed on the appellant by Clause 36 (3) of the Scheme............' : 1966CriLJ189 .
'The circumstance that the respondents happened to be detained can afford no justification for not complying with the relevant statutory provision and not following the principles of natural justice. Any attempt to short-circuit the procedure based on considerations of natural justice must .................. be discouraged if the rule of law has to prevail, and in dealing with the question of the liberty and livelihood of a citizen, considerations of expediency which are not permitted by law can have no relevance whatever' (p. 233 of SCA) = (at p. 287 of AIR) ibid.
37. That this is the consistent view of the Court since Radheshyam's case would also appear from two other decisions of the Supreme Court. The observations of Gajendragadkar C. J. In Associated Cement Companies v. P. N. Sharma, : (1965)ILLJ433SC show that Lord Reid's view in 1963-2 All ER 66 is now a part of the Indian law: --
'Having set out these decisions. Lord Reid expressed his dissent from the gloss which has been put by Lord Hewart C. J. In (1928) 1 KB 411 .........on the observations of Atkin L. J. In (1924) 1 KB 171, and the view taken by the Privy Council in Nakkuda All. (1951) AC 66. In other words, according to Lord Reid's judgment, the necessity to follow judicial procedure and observe the principles of natural justice, flows from the nature of the decision which the Watch Committee had been authorised to reach under Section 191 (4). It would thus be seen that the area where the principles of natural justice have to be followed and judicial approach has to be adopted, has become wider and consequently, the horizon of the writ jurisdiction has been extended in a corresponding measure. In dealing with questions as to whether any impugned orders could be revised under Article 226 of the Constitution, the test prescribed by Lord Reid in this judgment may afford considerable assistance'.
38. A most crucial instance of this functional test is offered by State of Orissa v. Binapani Dei, : (1967)IILLJ266SC , which is perhaps the latest reported decision of the Supreme Court on this subject. This was a case of exercise of the statutory power of a State Government to compulsorily retire a Government servant on his attaining a specified age. There was a dispute as regards the age of the petitioner. The State Government fixed the age of the petitioner and ordered her to retire, without giving her an opportunity to show cause against the action proposed. No procedure was laid down by the relevant statutory rules for determining the date of birth of an employee and yet the Supreme Court held that natural justice required that an opportunity must be given to the employee to have her say at the inquiry, which was to be made objectively and not arbitrarily. The observations of the Court leave little doubt that the proposition that quasi-judicial obligation may arise only where there is an express requirement under the relevant statute, enunciated in Khusaldas' case, : [1950]1SCR621 no longer subsists.
'The State was undoubtedly not precluded, merely because of the acceptance of the date of birth............ In the service register, from holding an inquiry if there existed sufficient grounds for holding such inquiry and for re-fixing her date of birth. But the decision of the State could be based upon the result of an inquiry in manner consonant with the basic concept of justice. An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair-play......... The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences ............ Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of the power.'
39. In view of the foregoing decisions, therefore, there is little hazard in asserting, to-day, that 'the duty to act judicially is implicit in the exercise of the power' to dismiss an employee on charges of misconduct, even though the statute which confers such power is silent about the procedure to be adopted. The fact, therefore, that in Rule 12 as introduced by Notification No. 5837/22-7-53, no procedure for holding 'an inquiry' was laid down as was done in Rule 12 of the other set of rules relating to the office I staff of the Board is, therefore, immaterial. An inquiry, consonant with the principles of natural justice, must, therefore, be held before the statutory power of dismissing a teacher could be exercised by the Board, The report of the District Inspector was a condition precedent for the exercise of the power, but that does not exonerate the Board from making an inquiry into the charges of misconduct levelled against a teacher, in conformity with the principles of natural justice. A contravention of that requirement is patent on the face of the impugned proceedings in this case inasmuch as the voluminous charges were served upon the petitioner at a time when the respondents knew very well that the petitioner was already on hunger strike for a number of days. There is no apparent reason why the respondents could not wait for this purpose for a few days until the petitioner gave up his hunger strike, voluntarily or by police action as was eventually done.
40. I have no hesitation to hold that the impugned orders must be quashed, with liberty to proceed afresh according to law.
41. As a last resort, it was contended on behalf of the respondents that relief should be refused to the petitioner because he did not avail himself of his statutory right of appeal to Respondent No. 3, the Director of Public Instructions. It is true that the petitioner did not submit a formal memorandum of appeal to Respondent No. 3. But it appears from para. 13 that on 12-1-1964, the petitioner wrote a letter, seeking redress against the impugned orders, to the School Board and forwarded a copy thereof, to Respondent No. 3. In para 3 of the Counter-affidavit filed by Respondent No. 3, the receipt of such copy is not denied, but it is contended that the petitioner did not file an 'appeal' as contemplated under Rule 13. But no form for such appeal is prescribed by the Act and the Rules; if, therefore, Respondent No. 3, was aware of the facts from the copy forwarded to him, or came to know other admitted representations, there was nothing to prevent him from intervening formally or informally. In fact, Respondent No. 3 was fully aware that the petitioner had some grievances, for which he might make some inquiries, if he so liked, instead of being too technical in a matter affecting a primary school teacher. He did not take any cognisance of the petitioner's grievances until after service of the Rule in the instant case, when on 19-5-1964, he wrote the letter at Ann. X to the affidavit-in-reply by which he advised the petitioner to approach the School Board for redress. The chances of the petitioner's success if he had formally appealed to Respondent No. 3 cannot be said to be bright when Respondent No. 3 took three months to respond in the manner stated in Ann. X.
42. The existence of an alternative satutory remedy is no doubt one of the grounds upon which the Court may refuse the discretionary relief under Article 226, of the Constitution. But, as has been repeatedly observed by the Supreme Court, this does not constitute a bar to the jurisdiction of the Court.
43. In the circumstances of this case, as narrated above, I do not feel justified in refusing relief to the petitioner simply because he had not laid a formal appeal before Respondent No. 3.
44. This Rule, is, accordingly, made absolute but without costs. The Respondents be restrained from giving effect to the resolution at Ann. D and the order at Ann. C. The charges at Ann. A, however, shall subsist and the respondents shall have the liberty to proceed afresh, according to law, after calling upon the petitioner again to answer the charges, giving him reasonable time and opportunity for that purpose.