Raj Kishore Prasad, J.

(1) The petitioner, Rangnath Misra, has moved this Court, under Articles 226 and 227 of the Constitution, and, obtained a rule against the Chairman, District Board, Saharsa, who is the sole opposite party to this case, to show cause why an appropriate writ should not be issued to call up and quash his order dated 21-10-1955, which is Annexure C to the affidavit of the petitioner, dispensing with his services with effect from 22-10-1955.

(2) This opposite party has shown cause against the rule through the Advocate General, and, also filed a counter affidavit.

(3) The petitioner was appointed a clerk in the District Board of Bhagalpur on 19-3-1926. In July, 1948, on the Constitution of a District Board at Saharsa, the services were transferred there. He continued to serve thereafter as a clerk in the Saharsa District Board. On 30-7-1955, he received a letter from the opposite party calling upon him to explain within three days several charges mentioned therein. This letter, which is Annexure A, is to the following effect:

"As desired by the Government you are directed to explain the following charges within three days from the date of receipt of this letter positively. Charges:--

1. That, you drew Earthquake advance twice from the Bhagalpur District Board which tanta-mounted to double payment for which you were warned in D. Bd. letter No. 7649-50, dated 18-12-38 and 5337 dated 5-9-39 as it appears from entries in your service book.

2. That, you deposited Rs. 20/- being the bid money of Katahi and Daparkha pounds for the year 1953-54 received by you on 19-12-52 into the District Fund, Saharsa, on 22-5-54 which tanta-mounts to temporary embezzlement.

3. That, you withdrew Rs. 1455/- from your P. F. in April, 1953, and refunded Rs. 55/- into the District Fund by chalan No. 2 dated 29-4-53 against advance outstanding against your name. You manipulated to get your P. P. credited with Rs. 55/- on the basis of the said chalan for which you were warned. 4. That, the records and papers of all D, Bd. important cases including the case Chhatradhari Singh v. D. Bd. were kept in your custody, but the records and papers of the case Chhatradhari Singh v. D. Bd. were found missing from your custody and at last you produced some of the said papers. This amounts to negligence of duty.

5. That, you are not reforming yourself even after being warned on previous occasions."

(4) Immediately, on receipt of the above letter, the petitioner on 2-8-1955, requested the opposite party to supply him with copies of certain documents. He was only shown the office records which, according to the District Board authorities, formed the basis of the charges, and he could only make notes from them. The petitioner thereafter on 18-9-1955, submitted his explanation, which is Annexure 6 (c) to the counter-affidavit of the opposite party.

(5) The petitioner on 19-10-1955, received a letter from the opposite party forwarding to him a copy of the resolution of the District Board dated 18-10-1955, in which it was resolved by majority that if the petitioner submitted his resignation by 21-10-1955, it should be accepted by the opposite party; otherwise, the opposite party was authorised to treat the services of the petitioner as being dispensed with and to give him order accordingly. This letter is Annexure B to the affidavit of the petitioner.

(6) By this letter, Annexure B, the petitioner was informed that he should submit his resignation by 12 A. M. on 21-10-1955, or, his services will be dispensed with from 22-10-1955, No such resignation having been submitted by the petitioner, he received another communication on 21-10-1955, which is Annexure C to the petitioners application, from the opposite party informing him that as the petitioner had failed to submit his resignation till 2 p.m., on 21-10-1955, his services were thereby dispensed with from 22-10-1955, and, therefore, he must make over charge of his duties to the person, named in the letter. This is the letter which is sought to be removed by a writ.

(7) In support of the rule, Mr. B.C. Ghose attacked the validity of the order of the opposite party dated 21-10-1955, Annexure C, on the following grounds:



1. That the opposite party dispensed with the services of the petitioner under the direction or the State Government, which had no power to do, and, as such, the impugned order of discharge was without jurisdiction;



2. That the petitioner was not given a second notice to show cause against the proposed action of termination of his services, on his explanation being found unsatisfactory by the opposite party, and, as such, Article 311 (2) of the Constitution had been violated, and, therefore, the order discharging the petitioner from his service was null and void;



3. That the petitioner was not given reasonable opportunity to submit his explanation to the charges, in that, the documents asked for by the petitioner on 2-8-1955, were not supplied to him, nor, were they even shown to him.

4. That the charges framed and specified in Annexure A formed part of earlier proceedings which ended in punishment of the petitioner, and therefore, they could not be the subject of a second disciplinary proceeding against the petitioner; and,



5. That there being no rules made by the District Board as required by Section 32 (g) of the Bihar and Orissa Local Self Government Act of 1885 (Bengal Act III of 1885) providing for punishment (including suspension and removal), the opposite party had no power to discharge the petitioner.

(8) Before I consider the arguments presented for determination by the petitioner, I want to dispose of his application for adding the State of Bihar as a party to the case, which was pressed by Mr. Ghose at the commencement of the hearing of this Rule. We have considered the grounds mentioned in the application, which was made at a very late stage, and, heard the parties on this question. We, however, do not feel satisfied that any ground has been made out for adding the State of Bihar as a party to the proceeding at such a late stage. We, accordingly, reject the application.

(9) I would now proceed to consider the several grounds of attack urged by Mr. Ghose in support of the rule in the order in which they are mentioned above.

(10) Re: Ground No. 1: In support Of his argument that the opposite party discharged the petitioner under the direction of the Government, Mr. Ghose relied on para 3 of the counter affidavit of the opposite party, which is to the following effect;

"3 That as regards the statement in paragraph 3 the opposite party had to start enquiry into the conduct of petitioner on receipt of a letter from the Secretary, Local Self Government through the District Magistrate, Saharsa, which referred to a letter of the Joint Secretary, Fraja Socialist Party, to which there was complaint against the conduct of the petitioner. The petitioner had already been warned about his conduct. The District Magistrate was informed accordingly. But the Government insisted upon drawing proceedings against the petitioner for more severe punishment including dismissal and prosecution. In these circumstances the opposite party had to draw proceedings against the petitioner. These letters referred to above are enclosed herewith and marked annexures 1, 1-A and 1-B".

(11) The learned Advocate General, in reply, however, submitted that the Government only advised the opposite party, and, it did not give any mandatory direction to him so as to take away the discretion of the Board. It was, therefore, open to the District Board to exercise its own discretion, and not to accept the advice of the Government, and, accordingly, on this ground, the discharge-order cannot be declared illegal and null and void.

(12) Annexure 1 is a letter dated 6-11-1954, from the Additional Under Secretary to Government (Local Self Government Department) to the District Magistrate, Saharsa, enclosing a copy of the letter dated 14-10-1954, received by him from the Joint Secretary, Praja Socialist Party Saharsa. about certain allegations made by him against the petitioner for misappropriation of money. By this letter, the District Magistrate, Saharsa, was requested to furnish a report on the matter at a very early date. In this letter, charges 1, 2 and 3 mentioned in Annexure A, are also referred to as instances of misappropriation of money by the petitioner. On receipt of this letter, the District Magistrate, Saharsa, on 23-11-1954, forwarded the copy of the letter received from the Joint Secretary, Praja Socialist Party, dated 14-10-1954, to the opposite party, and asked him to submit his report.

(13) The opposite party sent his report to the District Magistrate on the 24-1-1955, which is Annexure 1A to his counter-affidavit. In this report, he dealt with the charges 1, 2 and 3 mentioned in Annexure A. He further informed the District Magistrate that the explanation of the petitioner on each of the three charges mentioned in his letter was found to be not satisfactory, and, therefore, the petitioner was warned on each occasion.

(14) The Additional Under Secretary to Government, after receipt of the report from the District Magistrate dated the 7-2-1955, as requested for in Annexure 1 on the above subject, sent the following letter to the District Magistrate, which was forwarded to the opposite party on the 28-4-1955, for information and necessary action. This letter is Annexure 1B, and, is in the following terms:

"Annexure 1B. Copy of Govt. letter No. 3774 LSG dated the 25-4-55 from Addl. Under Secretary to Government to the District Magistrate, Saharsa. Sub: Allegations against Sri Rangnath Mishra, Clerk. District Board, Saharsa, for mis-appropriation of money. With reference to your letter No. 203 C dated the 7-2-1955, on the above subject, I am directed to say that in view of the fact that Sri Rangnath Mishra, Clerk, District Board, Saharsa, is not reforming himself even after being warned on previous occasions, the Dist. Board, Saharsa. may be advised to draw up proceedings against him for more severe punishment including dismissal and prosecution After taking legal advice. Memo No. 7890 Collectors Residence, Saharsa. The 28th April, 1955 Copy forwarded to the Chairman, District Board, Saharsa, for information and necessary action."

14a. On receipt of this letter, proceedings were drawn up on the 17-6-1955, as a result of which the charges mentioned in Annexure A were served on the Petitioner on the 30-7-1955.

(15) Relying on the above facts, particularly Annexures A and 1B, Mr. Ghose submitted that the fact that the charges were framed by the opposite party, against the petitioner, because he was directed to do so by the Government, is established by Annexure A, the opening lines of which are: "As desired by the Government, you are directed to explain the following charges". In my opinion, this Annexure A has to be read along with Annexure 1B which is the letter of the Government and in which the Government have stated that:

"The District Board, Saharsa, may be advised to draw up proceedings against him for more severe punishment including dismissal and prosecution after taking legal advice."

(16) From this letter, therefore, it is plain that the District Board was only "advised to draw up proceedings" against the petitioner for more severe punishment after taking legal advice, and, the Government never directed the District Board that it must draw up proceedings, thereby leaving no discretion with the District Board to decide for itself whether the proceedings should as a matter of fact, be drawn up against the petitioner as suggested or not. In my opinion, there was nothing illegal on the part of the Government to give its advice to the District Board in such a matter. From the scheme of the Bihar and Orissa Local Self Government Act of 1885, it will appear that such local authorities are under the supervision of the State Government, Part IV of the Act, which contains Sections 120 to 147, deals with control. Section 120, which is one of the sections in Part IV of the Act, provides that

"it shall be the duty of the State Government, and of all Commissioners and Magistrates of districts, acting under the orders of the State Government, to see that the proceedings of local authorities, are in conformity with law and with the rules in force thereunder".

This section further empowers the State Government to "set aside any resolution or order of any local authority if in its opinion the resolution or order is in excess of the powers conferred by law. Section 124 empowers even the Magistrate of the district to suspend, action of local authorities. Section 125 confers powers on the State Government to provide for performance of duties in case of default by a District Board. Section 126 gives extraordinary powers to the Magistrate of the district in case of emergency to provide for execution of any work or the doing of any act.

(17) The State Government being, therefore, in every respect the controlling and supervising authority of the District Board, it cannot be said that the State Government would not be justified in giving its advice in a particular matter to the District Board, if it thinks fit to do so. In my opinion, therefore. Annexure 1B cannot be taken to be a direction to the District Board to draw up proceedings so as to take away the entire discretion of the District Board, and not to leave the matter of drawing up proceedings unfettered in the hands of the District Board.

(18) It is true that after the receipt of Annexure 1B, the opposite party, on the same letter, on the 17-6-1955, passed an order "Proceedings be drawn as suggested", and, thereafter, on the 30-7-1955, the charges (Annexure A) were served on the petitioner in which also it was mentioned "As desired by the Government you are directed to explain the following charges". But these letters, Annexures A and 1B, cannot be construed in the manner suggested by Mr. Ghose. On their true construction, they simply shew that the State Government tendered its advice to the opposite party. No doubt, the advice conveyed by the State Government in Annexure 1B weighed, and rightly, with the District Board and its Chairman, the opposite party, but that however, would not affect the validity of his order drawing up the proceedings against the petitioner. He was entitled to take into consideration the advice thus tendered to him by the State Government which under Section 120 of the Act was the supervisory authority, and, he was entitled in the bona fide exercise of his discretion to accept that advice and act upon it. even though he might have acted differently, if this important factor had not been present in his mind when he reached the decision.

(19) In my judgment, the proceedings annexure A, drawn up by the opposite party, against the petitioner, were not under the direction of the Government, and, that there is nothing to indicate that the decision taken by the opposite party was not of the Chairman himself given in the bona fide exercise of the discretion vested in him. The proceedings drawn up were not consequently Invalid merely because the District Board or its Chairman, the opposite party, decided to accept the advice of the Government, even though without that advice he would not have ordered the proceedings to be drawn up.

(20) The above view is supported by a decision of the Supreme Court in Commissioner of Police, Bombay v. Gordhandas Bhanji 1952 SCR 135 [LQ/SC/1951/65] : (AIR 1952 SC 16 [LQ/SC/1951/65] ) (A). In that case, the Commissioner Of Police stated in his affidavit before the High Court that: "I was fully satisfied that the petitioners application should be refused, but that it was only at the instance of the Cinema Advisory Committee that I granted the said permission on the 14-7-1947." Accordingly, the Commissioner accorded the necessary permission by his letter dated 14/16th of July, 1947. His Lordship Bose, J., who pronounced the unanimous judgment of the Supreme Court, held that the sanction accorded on 16-7-1947, was a good and valid sanction, and, it was not invalid merely because the Commissioner decided to accept the advice of the Cinema Advisory Committee, even though without that advice he would not have granted that permission.

(21) To the same effect is the view taken by this Bench also in Rambharosa Singh v. District Magistrate, Patna 1956 B. L. J. R. 592 (B). In that case, it was held that the order of the District Magistrate, postponing the sale on the advice of the Additional Commissioner, who was undoubtedly the sole authority to approve the terms of the lease for which the bid had to be held, was not invalid, mainly because he decided to accept the directions of the Additional Commissioner, in that, the impugned order, was passed by the District Magistrate himself in the bona fide exercise of the discretion vested in him.

(22) For these considerations, I would hold that the validity of the order of discharge of the petitioner (Annexure C), cannot be attacked on the above ground, and, as such, it must be rejected.

(23) Re: Ground No. 2: Mr. Ghose relied on Article 311(2) of the Constitution, and, submitted that the petitioner was governed by this Article, and, as he had not been given a reasonable opportunity to show cause against the action proposed to be taken against him, inasmuch as he was not given a second notice, the order terminating his services was illegal. The short answer to this contention is that the petitioner was not in Government service, because he was in the service of a District Board; and, as such, Article 311(1) of the Constitution did not govern him, and, therefore, Article 311(2) also did not apply to him.

(24) But that apart, in my Judgment, there has been no violation of natural justice in the present case, in that, he was given an effective, and reasonable opportunity to show cause against the action proposed to be taken against him by the District Board through the opposite party, its Chairman. After receipt of the charges, Annexure A, the petitioner submitted his explanation (Annexure 6C) on 18-9-1955, in which he gave a detailed explanation regarding the charges against him, and, after a consideration of the same, the District Board at its meeting held on 18-10-1955, resolved (vide Annexure B) to ask the petitioner to submit his resignation by 21-10-1955, and, on his failure to do so, it authorised its Chairman, the opposite party, to dispense with his services, and, to pass an order to that effect. It cannot, therefore, be said that the petitioner was not given an ample and reasonable opportunity to show cause against the charges (Annexure A) which were served on him. If, therefore, the principles of natural justice have not been violated, and the petitioner has been given an effective and reasonable opportunity to show cause against the charges against him, it cannot be said that he was entitled to a second notice against the action proposed to be taken by the District Board.

(25) Further, the resolution of the District Board was communicated on 19-10-1955, to the petitioner as appears from Annexure B. After receipt of the memo forwarding to him a copy of the resolution of the District Board dated 19-10-1955 the petitioner neither submitted his resignation, nor did he file any petition showing cause that the definite action contemplated to be taken against him was not proper or justified. In Annexure A, he was informed that even when he had been warned on previous occasions, he had not reformed himself. Even assuming that the petitioner should have been given a second notice against the action proposed to be taken against him after the Board had found his explanation unsatisfactory, in my opinion, Annexure B would be tantamount to such a second notice, and, it was open to him to make representation against the decision of the Board to dispense with his services, if he did not tender his resignation. But he sat tight, and, took no steps in the matter, and, ultimately, on 21-10-195

5. the opposite party was obliged to send Annexure C informing the petitioner that his services are being dispensed with with effect from 22-10-1955, in accordance with the resolution of the District Board.

(26) In my opinion, therefore, in any view of the matter, the petitioner cannot now take advantage of his own lapse and negligence and carelessness and make any grievance that Annexure C the order of his discharge is invalid, because he was not given a second notice.

(27) The ratio which should govern such class of cases, to which Article 311 (2) of the Constitution does not apply, is what was laid down in Arthur John Spackman v. Plumstead District Board of Works. (1885) 10 AC 229 (C), which was applied and relied upon in the Bench decision of this Court, in Ramnath v. Collector, Darbhanga, ILR 34 Pat 254: (AIR 1955 Pat 345 [LQ/PatHC/1955/15] ) (D) by my Lord the Chief Justice, Ramaswami, J., as he then was, who read the leading judgment of the Court.

(28) The principle clearly enunciated by Lord Selbourne in Spackmans case (C) (Supra) at p. 240, is in the following terms:

"No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word: but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice. But it appears to me to be perfectly consistent with reason, that the statute may have intentionally omitted to provide for form, because this is a matter not of a kind requiring form, not of a kind requiring litigation at all, but requiring only that the parties should have an opportunity of submitting to the person by whose decision they are to be bound such considerations as in their judgment ought to be brought before him. When that is done, from the nature of the case, no further proceeding as to summoning the parties, or as to doing anything of that kind which a judgment might have to do is necessary."

(29) In the instant case, the opposite party gave a fair opportunity to the petitioner to make a relevant statement, or to controvert the relevant statements made to his prejudice. The substance of the different allegations against him was communicated to him. and the contents of the information against him were divulged to him, and he was asked to show cause. The real charge was mentioned in paragraph 4 in Annexure A. The facts mentioned in the earlier paragraphs 1 to 3 were mentioned with a view to show that in respect of those matters although, he was warned on previous occasions, he had reformed himself, and, therefore, if the new charge, mentioned in paragraph 4 of Annexure A was proved, he, was liable to severe punishment this time. Reading the whole of Annexure A, it is clear enough that this was its intention. It was mentioned in paragraph 4 of Annexure A that the new charge amounted to negligence of duty. The opposite party was not bound to follow all the procedural requirements of a formal trial. It is sufficient if he gave a fair opportunity, as was done in the present case, to the petitioner, to present his case and his view point.

(30) As observed by my Lord the Chief Justice Ramaswami, J., as he then was, in Ramnaths case (D) (Supra):

"On the question whether a fair opportunity has been given no general test can be formulated which would be applicable to all conditions. The question would depend very much on the particular facts of each case."

(31) I am satisfied on the affidavits and the Annexures filed along with them, that the petitioner was given an effective and reasonable opportunity to show cause against his discharge.

(32) The second ground, urged in support of the invalidity of the discharge of the petitioner also must, therefore, be rejected.

(33) Re: Ground No. 3 Mr. Ghose next submitted that the documents called for by the petitioner were neither supplied nor shown to him and, as such, he had been denied an effective and reasonable opportunity. He relied on paragraph 9 of his affidavit to show what documents he required the opposite party to supply him.

(34) Paragraph 9 is to the following effect:

"That immediately on receipt of the said communication, the petitioner wrote to the Chairman on 2-8-1955, requesting him to supply the petitioner with along others (i) copies of all correspondences which passed between the Government and the District Board in that connection (ii) copies of all relevant documents and office records on which the charges were based." In Annexure 4. which is a petition filed by the petitioner on 2-8-1955, after the receipt of the charge (Annexure A), the documents, called for and specified therein, are the following: Annexure 4

1. Copy of the note or notes submitted by the dealing clerks regarding late deposit of the sum of Rs. 20/- with accountants note, if any, thereon together with copy of the order of the executive on the same as also of my report if any on it.

2. Copy of the report of the P. P. Clerk regarding the credit of the sum of Rs. 55/- to my P. F. account after the said amount was refunded into the District Fund as also copy of my report thereon, if any, together with copy of the order of the executive thereon.

3. Copy of the letter in which I prayed for sanctioning payment of Rs. 1455/- out of my P. F. account with copy of the accountants note thereon together with copy of the order of the executive on it. 4. Copy of the note of the P. F. clerk seeking permission of the executive to credit the sum of Rs. 55/- into my P. F. account after withdrawing the same from the District fund together with copies of the accountants note thereon and of the executives order.

5. Copy of the voucher in which the said amount of Rs. 56/- was withdrawn from the District fund and credited into my P. F. account. 6; Copy of the chalan in which the sum of Rs. 55/- was deposited into district fund. 7. Copy of the list of records and papers of all D. B. important cases alleged to have been kept with me. 8. Copies of all the correspondences that have passed between the Government and the District Board in this connection."

(35) On this petition, on 12-9-1955, the apposite party ordered that the petitioner may be allowed to take copies of the papers applied for. Notes and orders on the petitioners petition are to be found from Annexure 4A, which are as follows:

"Annexure 4A Saharsa District Board. Notes and orders. H. C. This matter has been long delayed. I dont understand why notes have been put up after such a long time. Please supply him copies of the papers noted below. Nos. 1, 2, 3, 4, 5, 6, 7 (only the list of papers.) No copy of correspondence between D. B. and Government can be allowed. Sd/- Illeg. 12-9. He should be asked to copy out the papers in presence of H. C. by 15-9 and he must submit explanation by 18-9. No more time will be allowed. Sd/- Illeg. 12-9. Rangnath Babu will please note and comply. Sd/- Illeg. 12-9. Copies of items Nos. 1, 2, 3, 5, 6 taken. Item No. 4 not available. Item No. 7 (removal slip with list of 16 papers as received by me) was seen. Sd/- R. Misra 13-9-55."

(36) Prom the above "Notes and Orders" (Annexure 4A), it will appear that the petitioner was allowed copies of the first seven items mentioned in his petition (Annexure 4). With regard to the last item mentioned in his petition, item No. 8, the Chairman on 12-9-1955, ordered that no copy of correspondence between the District Board and the Government could be allowed to the petitioner. He was, however, permitted to copy out the papers, the first seven items, in presence of the Head Clerk by 15-9-1955, and, he was directed to submit his explanation by 18-9-1955, as no further time would be allowed. From the signature of the petitioner dated 13-9-1955, on Annexure 4A, however, it appears that copies of items Nos. 1, 2, 3, 5, 6 were taken, and, item No. 4 was not available; and item No. 7, which was a removal slip with a list of 16 papers received by the petitioner on behalf of the District Board, was shown to him. . It may be noted that item No. 4 was in respect of the P. F. matter, which was item No. 3 in the charge, which was. not the subject matter of the present charge. The new charge was charge No. 4 as mentioned in Annexure A, as I will show hereafter. It will further appear that in his explanation (Annexure 6C), he did not make any grievance about the documents mentioned in items 1 to 7 in his application made on 2-8-1955 (Annexure 4), but what he said in his explanation was that as he had not been given copies of the correspondence made between the Government and the District Board, although prayed for in his petition dated 2-8-1955, which was item No. 8 and not item No. 7 as wrongly mentioned in his show cause petition, he was not in a position to explain consistent with the observations made by the Government as also by the Chairman in the reply sent to that Government. He further said towards the end of his explanation that he could have submitted his explanation much earlier, but for the fact that he was not supplied the typed copies of the papers called for by him and, therefore, he had to take copies himself. This grievance of the petitioner was absolutely false as will appear from para 12 of the opposite partys letter, which he sent on 29-12-1955 (Annexure 6B) to the Magistrate In-charge, English Office, Saharsa, in response to his letter (Annexure 6A) on the representation of the petitioner to the Secretary Local Self Government, Bihar, against the impugned order.

(37) It will, therefore, appear that all the documents mentioned in his petition dated 2-8-195

5. (Annexure 4), that is, items Nos. 1 to 7 except item 4, were shown to him and their copies were taken by him. The correspondence, which passed between the Government and the District Board, being confidential papers, could not possibly be either shown to him or made available to him but there is nothing to suggest that those correspondences had anything to do with the specific charge No. 4 mentioned in Annexure A.

(38) In my opinion, therefore, the grievance of the petitioner that the documents were not shown to him, or supplied to him, is without any foundation, since we find from Annexure 4A that the petitioner took copies of items 1 to 3 and 5 to 7; and, item No. 8 was shown to him; and only item No. 4 was not shown to him, because it was not available in the office, but which had nothing to do with the new charge, which was mentioned as charge 4 in Annexure A. I would therefore, reject this ground also for challenging the validity of the order of discharge of the petitioner.

(39) Re: Ground No. 4: It was then contended that the charges mentioned in Annexure A formed part of earlier proceedings, which ended in the punishment of the petitioner, and therefore, they could not be the subject matter or a second disciplinary proceeding against him. In my opinion, there is no substance in this contention as well. On an examination of the true position, it will appear that charge No. 4 was a new charge, which was never before the subject matter of any enquiry, or warning to the petitioner. Regarding this charge, the petitioner stated in paragraph IV of his explanation (Annexure 6C) that only 16 papers in original or copies of the case Chhatradhari Singh v. District Board, mentioned in charge 4 in Annexure A, were made over to him by one Mahidhar Jha, who after receiving receipt from him on the removal slip, and as regards other papers, regarding, the said case, it was one Shree Krishna Upadhya, who, in course of a thorough search, got the whole file on the rack in the correspondence department. The petitioner, therefore, admitted his negligence for the missing of at least 16 papers, which were kept in his custody and made over to him. In his explanation, the petitioner further said that other papers, which were kept in a small box, inside the almirah in the cashiers room, had since been made over to the Cashier as per the instruction of the Accountant. He, therefore, admitted that some papers, which were found missing from his custody were at last produced. Whether these facts constitued negligence of duty or not was a question for the consideration of the District Board. Charges 1 to 3 were mentioned in Annexure A to inform the petitioner that although in respect of those charges he had been warned on previous occasions, he had not improved and reformed himself, and, therefore, they were grounds for inflicting more severe punishment this time, if his negligence of duty in respect of charge No. 4 mentioned in Annexure A was proved. The new charge, therefore, was charge No. 4 in respect of which the proceeding was really started for imposing a severer punishment this time. The early history of the petitioner that he was warned previously in respect of the matters mentioned in charges 1 to 3 and still he had not reformed himself, and, that the last negligent act of his that the records and papers, which were in his custody, were found missing, and thereafter recovered, weighed with the District Board in inflicting this time a severer punishment in the shape of his discharge. It cannot, therefore, be said that charges 1 to 3 also formed the subject-matter of the present proceeding, which was really in respect of charge 4 mentioned in Annexure A.

(40) We have seen Annexure 1-B in which the Government advised the opposite party to draw up proceedings for more severe punishment, and, therefore, items 1 to 3 were mentioned in Annexure A, as stated before, to show that the warnings given previously in respect of those three matters had proved abortive and he did not reform himself, and instead of improving, he had committed negligence of duty, as disclosed by the real and new charge No. 4 in Annexure A. It is, therefore, clear from Annexure A read with Annexure 1-B that the petitioner was asked to show cause against the charge No. 4, and, it was made clear to him that as the previous warnings in respect of the old charges 1 to 3 had proved ineffective, if this new charge No. 4 was made out, a severer punishment was to be inflicted on him. On the admission of the petitioner himself in Para IV of his show cause petition, Annexure 6(c), he was guilty of negligence of duty.

(41) In these circumstances, the grievance of the petitioner that either he has been doubly punished, or that the earlier proceedings formed charge of the second proceeding, in my opinion, is not correct.

(42) Re: Ground No. 5:--Lastly, it was urged that as admittedly the model rules have not been adopted by the District Board, and, no rule has been made by the District Board as required by Section 32 (g) of the Bihar and Orissa Local Self-Government Act of 1885 providing for punishment, the District Board had no power to discharge the petitioner. In my opinion, there is no substance in this contention. It will appear from Annexure 6-B, the reply, which was sent by the opposite party to the Magistrate-in-charge, English Office, as required by him" in his letter (Annexure 6-A) on the representation of the petitioner to the Government, that the practice prevalent in the District Board is that charges are framed, and, the employee concerned is asked to explain them within a specified period, and, after a consideration of the explanations offered by the employee concerned action resulting in punishment or acquittal according to the nature of the offence is taken by the Board. The opposite party further referred in Annexure 6-A in support of the above practice to the letters received from the other District Boards. Therefore, the fact that the draft rules have not yet been finalised by the Government as referred to in paragraph 23 of Annexure 6-B will not lead to the conclusion that as long as such rules are not adopted, the District Board will have no power to take any disciplinary action against its employee. In the absence of statutory rules the practice just mentioned, which is quite consistent with principles of natural justice also, would be a valid practice which would empower the District Board to take necessary action in any matter. In the present case, the charges were framed. The petitioner was asked to explain. The petitioner was given an opportunity to have copies of the documents and to see them which were relevant with regard to the charges, and, thereafter, when the petitioner submitted his explanation it was considered by the Board at its meeting and, then a decision was taken by the Board on the merits of the case, and thereafter, the petitioner was informed of the Resolution of the Board, and, he was asked to submit his resignation within, the time given by the Board, but the petitioner neither tendered his resignation nor made any representation to the Board, or the opposite party against the resolution of the Board, and, therefore, the petitioners services were thereafter terminated in accordance with the resolution of the Board (Annexure B).

(43) I may here mention that the observations of my Lord the Chief Justice, as he then was, in Ramnaths case (D) (supra), to the following effect, are very apposite, and, as I am in full agreement with the same, I propose to read them:

"In a case of this description when the statute is silent, what procedure will the law imply Even if the statute is silent there is an obvious implication that some form of enquiry must be made for the section requires the Collector to satisfy himself that there has been a breach of the conditions of the license by the holder or any of his servants. The Collector is bound as a matter of principle to give a fair opportunity to the licencee of presenting his case. The Collector is under a duty to hear the matter in a judicial spirit for the question at issue is a matter of proprietary or professional right of an individual. The Collector should for instance give a fair opportunity to the licensee to make a relevant statement or to controvert any relevant statement made to his prejudice. Apart from this, the Collector is not required to decide the question at issue as if he were sitting as a Court of law. He is not bound to follow all the procedural requirements of a formal trial. It is sufficient if the Collector gives a fair opportunity to the licensee to present his case and to state his view point."

(44) In my opinion, therefore, this ground also must be overruled.

(45) For the reasons given above, I would hold that the order of discharge of the petitioner from his service (Annexure C), is a valid order, arid, the petitioner, has not made out any case for issuing any Writ under Article 226, or any direction under Article 227, quashing the same.

(46) In the result, the rule is discharged, the application fails, and is, accordingly, dismissed with costs; hearing fee Rs. 100.00 payable by the petitioner to the opposite party.