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Mohana Rao G. Vs. State Government of Andhra and Two ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 69 of 1955
Judge
Reported in(1959)IILLJ272AP
ActsConstitution of India - Articles 226, 310, 311 and 311(2); Government of India Act, 1935 - Sections 240(1), 240(2) and 240(3)
AppellantMohana Rao G.
RespondentState Government of Andhra and Two ors.
Excerpt:
.....inefficiency and the like and inflict on him the punishment of dismissal, removal or reduction carrying with it penal consequences, the servant will be entitled to protection under art. the reason of the rule is that where the services of a temporary government servant are terminated, for misconduct, negligence, inefficiency or other 'good and sufficient cause, the termination amounts to a punishment which well affect his future career......to the taluk office, pathapatnam, as a temporary lower division clerk which job he resigned. his temporary service was thereupon terminated with effect from 21 july, 1949. on 30 december, 1950, he applied to the district collector, visakhapatnam, for being appointed as a temporary clerk. the district collector sent his petition to the district magistrate (judicial), visakhapatnam (hereinafter referred to as 'the magistrate'). on 3 january 1951 he was temporarily appointed to act as a lower division clerk in the office of the magistrate. on 15 march, 1951 he was promoted as upper division clerk and posted as head clerk in the office of the magistrate. on 31 december 1952, the magistrate placed the petitioner under suspension with effect from 1 january, 1953 until further orders. several.....
Judgment:

Satyanarayana Raju, J.

1. This is a petition, under Art. 226 of the Constitution, for the issue of a writ of certiorari to quash the orders of the District Magistrate (Judicial), Visakhapatnam, dated 5 May, 1953, removing the petitioner from service and the order of the Registrar of the High Court, dated 14 September 1954, rejecting his appeal.

2. The petitioner is now aged about 40 years. He was selected by the Madras Public Service Commission in the year 1941 for appointment as a lower division clerk in the Madras Ministerial and Judicial Subordinate Services. Between the years 1941 and 1953 he had a vicissitudinous career. During these years he had transient periods of employment in various departments of Government in the Visakhapatnam district. His resilience and pertinacity in securing jobs were only equalled by the want of due care and caution on the part of the authorities who appointed him to another post no sooner than he was ousted from one. The period of the war and its aftermath were perhaps responsible for this unusual state of affairs.

3. A brief outline of his official career is given below. He jointed the office of the Superintendent, Central Jail, Visakhapatnam, on 12 July, 1941, as a lower division clerk and continued in that post till 3 November, 1941. As he had meanwhile elected to serve in the Judicial Subordinate Service, his name was deleted from the Ministerial Service in the Proceedings of the District Collector, No. 73/41-A3 dated 6 November, 1941. He then joined the Judicial Department. Shortly thereafter his probation was terminated by the District Munsif of Chodavaram on some grave charges. He appealed to the High Court against the order of the District Munsif but it was rejected on 12 October, 1944. On 22 December, 1944 he was appointed as a temporary lower division clerk by the Tahsildar, Visakhapatnam, and posted to the office of the Special Officer for Rice, Visakhapatnam. Later he was transferred to the Taluk Office, Pathapatnam, as a temporary lower division clerk which job he resigned. His temporary service was thereupon terminated with effect from 21 July, 1949. On 30 December, 1950, he applied to the District Collector, Visakhapatnam, for being appointed as a temporary clerk. The District Collector sent his petition to the District Magistrate (Judicial), Visakhapatnam (hereinafter referred to as 'the Magistrate'). On 3 January 1951 he was temporarily appointed to act as a lower division clerk in the office of the Magistrate. On 15 March, 1951 he was promoted as upper division clerk and posted as head clerk in the office of the Magistrate. On 31 December 1952, the Magistrate placed the petitioner under suspension with effect from 1 January, 1953 until further orders. Several charges were then framed against the petitioner, including:

(i) theft of several articles which were in the custody of the Court, and

(ii) tampering with the office records including his own service record;

and they were communicated to him on 19 February 1953. On 5 March, 1953, the petitioner submitted a lengthy explanation in respect of the charges. On a consideration of the charges and the petitioner's explanation, the Magistrate, in his order dated 5 May, 1953, held that the petitioner was appointed only as a temporary clerk in 1951 and the he go his promotion to the post of upper division clerk by suppressing his previous record. The last paragraph of the order reads : 'For the reasons stated above, I order that G. Mohana Rao be discharged from service with effect from 1 January, 1953 from which date he is under suspension, and, even if it is presumed that he is a permanent clerk, I find that he is liable to be removed from Government service for the abovementioned reasons and I accordingly order his dismissal. He is unfit to be entertained in any department of the Government service at any time in future.'

4. On 6 June the petitioner preferred an appeal to the High Court of Judicature at Madras. The appeal was transferred to the Andhra High Court, on its formation in July 1954 for disposal. By proceedings dated 14 September, 1954, the petitioner's appeal was rejected by the High Court.

5. The order reads :

'The appellant was not a member of the service as defined in rule 2(a)(8) of the Andhra Judicial Ministerial Service Rules, nor was he appointed to the service in accordance with the rules as defined in rule 2(a)(i) thereof. He was only an outsider, appointed temporarily under the emergency provisions in rule 16. His temporary promotion and regularization in a higher category are highly irregular. As a temporary clerk he should have been discharged at the earliest opportunity and his place taken up by a member of the service or an approved candidate qualified to hold the post under the rules. No charges need be framed to terminate the services of a temporary clerk. In this case the appellant had formal charges framed against him and ample opportunity was afforded to him to answer the charges. The Hon'ble the Judges see no sufficient or valid reasons to interfere and the appeal is accordingly dismissed.'

6. On 21 October 1954, the petitioner filed a petition under Art. 226 for the reliefs mentioned above.

7. Before us, the petitioner has contended that he was not given an opportunity to show cause against the action proposed to be taken in regard to him as required by Art. 311(2) of the Constitution; while it is argued by the learned Government Pleader that the petitioner being only a temporary clerk on the material date, he was not entitled to the protection of Art. 311(2) at all and that his services were rightly terminated.

8. The relevant provisions of Art. 310 and 311(2) of the Constitution, which substantially reproduce Sub-secs. (1), (2) and (3) of S. 240 if the 'Government of India Act, 1935, are as follows :

'310. (I) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union of an all-India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.

'311. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under Cl. (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final. 'In Khem Chand v. Union of India [1959 - I L.L.J. 167], their lordships of the Supreme Court summarized the effect of these provisions at p. 175, thus :

(a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told that the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally.

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.'

9. The Government Pleader has, however, urged that the above provisions cannot be invoked by temporary servants. The recent judgment of the Supreme Court in Parshotam Lal Dhingra v. Union of India [1958 - I L.L.J. 544] furnishes an effective answer to this contention. At p. 554 their lordships observed :

'In our judgment, just as Art. 310 in terms makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does Art. 311(2), in our view, make no distinction between the two classes, both of which are, therefore, within its protections and the decisions holding the contrary view cannot be supported as correct.'

10. The following passage from their lordships' judgment lays down the principle applicable to the present situation :

'The principle is that when a servant has a right to a post or a rank either under the contract of employment, express or implied, or under the rules governing the conditions of service, the termination of service of such a servant or his reduction to a lower post is by itself and prima facie a punishment for it operates as a forfeiture of his rights to hold that post or that rank and to get the emoluments and other benefits attached thereto; but if the servant has no such right to the post or that rank as when he is appointed to a post permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened to a quasi-permanent service under the appropriate rule, the termination of his employment does not deprive him of any right and cannot therefore by itself be a punishment. In other words, if the Government has the right to terminate the employment at any time, then such termination in the manner contemplated by the contract or by the rules is prima facie and per se not a punishment and does not attract the protective provisions of the Art. 311(2).

Even in such cases if the Government chose to proceed against the servant on the basis of misconduct, inefficiency and the like and inflict on him the punishment of dismissal, removal or reduction carrying with it penal consequences, the servant will be entitled to protection under Art. 311(2).'

11. On the principle stated by their lordships of the Supreme Court, even in the case of a temporary Government servant, if the order terminating his service puts an indelible stigma affecting his future career, he will be entitled to the protection of Art. 311(2). If, however, his services are simply terminated involving no penal consequences he cannot claim such protection. The reason of the rule is that where the services of a temporary Government servant are terminated, for misconduct, negligence, inefficiency or other 'good and sufficient cause, ' the termination amounts to a punishment which well affect his future career. Where the order casts a slur on his capacity or character, it is but right that he should be given a reasonable opportunity of showing cause against the action proposed to be taken against him. That being the test propounded by the Supreme Court, it has to be seen whether the impugned orders involve penal consequence to the petitioner. The Magistrate's order, when analysed, consists of two parts. One is that the petitioner was temporary servant and had been removed from service. Without framing charges and recording finding thereon, if the petitioner had been simply removed from service, there cannot be any difficulty in reaching the conclusion that the petitioner is not entitled to the protection of Art. 311(2), but the Magistrate's order goes further. The Magistrate recorded findings that the petitioner was guilty of misconduct and negligence on the charges framed against him. As a result of these finding, the order sates that the petitioner was unfit to be in Government service. The order terminating the services of the petitioner, therefore, certainly carries with it a stigma. It is not mere termination of his service on the ground of his being a temporary Government servant.

12. It is then argued by the learned Government Pleader that whatever infirmities there may be in the order of the Magistrate, the High Court made it clear that the petitioner is not a member of the service as defined in rule 2(a)(8) of the Andhra Judicial Ministerial Service Rules nor is he appointed to the service in accordance with the rules as defined in rule 2(a)(i) thereof. The High Court pointed out that no charges need have been framed to terminate the services of a temporary Government servant. But the order did not stop with that. That High Court went on to observe that the appellant had formal charges framed against him and ample opportunity had been afforded to him to answer the charges. From a reading of this order it is clear that the appeal filed by the petitioner before the High Court was rejected on two grounds :

(1) that the petitioner was a temporary clerk and that his services could have been terminated without any charges having been framed; and(2) that even otherwise, formal charges having been framed against him and ample opportunity having been given to him, there was no valid reason for the interference of the High Court.'

13. The latter part of the order undoubtedly says that one of the reasons for rejecting the petitioner's appeal was that the petitioner had ample opportunity to meet the charges framed against him, and it cannot be said that the fact that the charges were framed and held to have been proved, did not operate as a ground for the rejection of the appeal. There is, therefore, no getting away from the fact that Art. 311(2) has not been fully complied with, and the petitioner has not had the benefit of all the constitutional protection.

14. It is true that the petitioner did not raise this ground of objection at any time anterior to the filing of the writ petition, and the question is, should be denied relief on that ground Informing the Government servant of the action proposed to be taken and giving him an opportunity to show cause against that action, are statutory requirements now embodied in Art. 311(2) of the Constitution, and non-observance of the requirements of the article has the effect of invalidating the order. We are, therefore, of opinion that the petitioner should not be denied the relief, to which he is otherwise entitled, on this ground.

15. For the above reasons, we hold that the rule nisi must be made absolute. The order of the Magistrate and the order of the High Court confirming the same are hereby quashed. This will not, however, preclude the appropriate authority from proceeding against the petitioner after complying with the requirements of Art. 311(2). By reason of his omission to raise this objection till the stage of the writ petition, we do not propose to award any costs to the petitioner.


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