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Bhagwat Saran Srivastava Vs. Collector and District Magistrate, Jaunpur and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2503 of 1957
Judge
Reported inAIR1961All284; [1961(2)FLR558]; (1961)IILLJ191All
ActsConstitution of India - Articles 226, 311 and 311(1)
AppellantBhagwat Saran Srivastava
RespondentCollector and District Magistrate, Jaunpur and ors.
Appellant AdvocateG.N. Verma, Adv.
Respondent AdvocateShambhu Prasad, Adv.
DispositionPetition dismissed
Excerpt:
.....order - writ of certiorari cannot be issued and record cannot be summoned - protection of article 311 (1) - available in case of removal by way of punishment - no charges leveled and termination not by way of punishment - held, protection of article 311 (1) not available. - - in this petition the question whether he was a temporary employee or a permanent employee is a question of fact which could better be gone into if the petitioner had filed a suit. varma (1958)iillj259sc it has been observed by their lordships of the supreme court that where a question of fact arises, the better course for the petitioner would have been to file a regular suit, because there he would not only be entitled to set the order quashed but he would also be entitled to the relief of arrears of..........that if a new power has been given to the deputy director of appointment it will also include the power o removal and, therefore, the termination of the service was correct. 10. learned counsel for the petitioner has relied on certain decisions of the privy council as well as of the madhya pradesh. inter aha, he has relied on north west frontier province v. suraj narain anand and ramchandra gopal-rao v. d.i.g., police : (1958)iillj414mp . the latter authority has discussed the previous authorities. those were cases where formerly the power of appointment vested with the inspector general of police; later on by rules, the power of appointment was delegated to the deputy inspector general of police. the plaintiff in those cases had been dismissed by the deputy inspector general of police.....
Judgment:
ORDER

V.D. Bargava, J.

1. This is a petition under Article 226 of the Constitution filed by one Bhagwat Saran Srivas-tava, who had been appointed as a consolidator on 11-11-1955.

2. According to the petitioner, he had worked satisfactorily and that his record has been clean throughout. According to him on 20-4-1957 the Settlement Officer happened to be on an inspection tour in the petitioner's circle. He required the Petitioner's fortnightly diary which was in the custody of the Consolidation Officer, for inspection. During that period the petitioner had been recording, all the daily work on loose sheets of paper. He was also required to submit some further documents and the documents, according to the opposite party were not in accordance with rules.

He was asked immediately to apply for leave for one month. Thereafter he was asked to get himself transferred. The same day opposite party No. 2 asked opposite party No. 3 to take charge from the petitioner in anticipation of leave. On 22-4-1957 the petitioner was asked to hand over charge to one Sukhdeo Lal Amin, (Consolidation). The petitioner again joined on 22-5-57 in the forenoon. He was served with a notice to the following effect:

'Please take notice that your services are no longer required in the department of Consolidation of Holdings and are terminated with immediate effect. You are however allowed one month's pay in lieu of notice.'

The petitioner sent a representation to the Director of Consolidation, Lucknow, but he does not know what happened to it.

3. The petitioner's complaint is that he was afforded actually no opportunity to meet the charges against him, and that the termination of services was in direct contravention of Article 311 of the Constitution. He further contends that the decision of the opposite party is based on bias against the petitioner and is against the principle of natural justice, (4) The petition and the affidavit do not expressly state as to what was the authority that appointed the petitioner. For that purpose the petitioner asked the record to be summoned of the case, because, according to him, in a writ of certiorari it is the right of the parties to get the record summoned. So far as summoning of record is concerned, it can of right only be summoned in a case of certiorari. An order of termination of service is not a judicial or quasi-judicial order and under the circumstances there is no question of summoning of the record and issuing a writ of certiorari. In the prayer all the writs are asked for -- certiorari, mandamus, quo warranto, or any other writ or direction.

5. In the counter affidavit it has been alleged that the appointment of the petitioner was on a temporary basis and his services have been terminated. It was not in any way by way of punishment but was innocuous, because his services were no longer required. As no charge was levelled against him there was no question of giving opportunity to him. According to the petitioner, he was a permanent employee and not a temporary one, though he has not specifically said so.

In this petition the question whether he was a temporary employee or a permanent employee is a question of fact which could better be gone into if the petitioner had filed a suit. In the case reported in Union of India v. T. R. Varma : (1958)IILLJ259SC it has been observed by their Lordships of the Supreme Court that where a question of fact arises, the better course for the petitioner would have been to file a regular suit, because there he would not only be entitled to set the order quashed but he would also be entitled to the relief of arrears of pay. In the present case also it is more a question of arrears of pay rather than restoration to the service.

6. The main argument of learned counsel for the petitioner is that under Article 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.

7. According to the petitioner, he had been appointed by the Director of Consolidation of Holdings. This fact again has not been asserted anywhere. But this fact is not denied in the counter affidavit. It also appears from the record that the appointment was made by the Director of Consolidation. The termination of service has been made by the Deputy Director and, therefore, learned counsel for the petitioner argues that since the removal was ordered by an authority subordinate to that by which the petitioner was appointed that removal is an improper removal.

8. On behalf of the State reliance has been placed on a notification of the State Government dated 22-12-1957 No. 8310/I-A-815-1956 which reads as follows:

'In supersession of notification No. 1740(1)/I-A. 815-54 dated May 17, 1956 and in exercise of the powers conferred by Section 44 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (U. P. Act No. V of 1954), the Governor, Uttar Pradesh is pleased to delegate to the Deputy Directors (Consolidation) of the Consolidation districts the power under Section 42 of the said Act, of making appointment of consolidator.'

Under section 42 the power of appointing of consolidates was with the State Government. Under section 44 the State Government is authorised to delegate its power of appointment toany subordinate authority. It appears that by noti-fication dated May 17, 1956 the State Governmentdelegated the power of appointment of consolidatorto the Director of Consolidation and by notificationnoted above that notification was superseded andthe power of appointment was given to Deputy Direc-tors.

9. According to learned counsel for the State, at the time when the services of the petitioner were terminated the Deputy Director had no power of appointment, and if he had no power of appointment he would be deemed to have had no power of dismissal or termination either. Therefore it was contended that if a new power has been given to the Deputy Director of appointment it will also include the power o removal and, therefore, the termination of the service was correct.

10. Learned counsel for the petitioner has relied on certain decisions of the Privy Council as well as of the Madhya Pradesh. Inter aha, he has relied on North West Frontier Province v. Suraj Narain Anand and Ramchandra Gopal-rao v. D.I.G., Police : (1958)IILLJ414MP . The latter authority has discussed the previous authorities. Those were cases where formerly the power of appointment vested with the Inspector General of Police; later on by rules, the power of appointment was delegated to the Deputy Inspector General of Police.

The plaintiff in those cases had been dismissed by the Deputy Inspector General of Police under the new rules. The Privy Council as well as the Madhya Pradesh Court held that by making a new rule the authority could not circumvent the provisions of Article 311. By this means, at any time, the authority concerned could take away the protection which has been given to the employee by making new rules.

11. The sole question for determination in the case is whether the termination of service amounts to 'dismissal' or 'removal'. Both Clauses (1) and (2) of Article 311 use the word 'dismissed' (removed). Article 311, in my opinion, gives protection to an employee against any sort of punishment being inflicted on him. Whether it is Clause (1) or Clause (2), it will come into operation only when a 'dismissal' or 'removal' is by way of punishment. If the services of an employee have been terminated not as punishment, but just under the contract, then in that case it cannot amount either to 'removal' or 'dismissal'. In the case reported in Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC their Lordships observed as follows:

'It follows from the above discussion that both at the date of the commencement of the 1935 Act and of our Constitution the words 'dismissed' 'removed' and 'reduced in rank', as used in the service rules, were well understood as signifying or denoting the three major punishments which could be inflicted on Government servants. The protection given by the rules to the Government servants against dismissal, removal or reduction in rank, was incorporated in sub-secs. (1) and (2) of Section 240 to give them a statutory protection by enacting a procedure which had to be followed before the punishment of dismissal, removal or reduction in rank,could be imposed on them and which could be-enforced in law. These protections have now been incorporated in Article 311 of our Constitution.....Thus under Article 311(1) the punishment of dismissal, or removal cannot be inflicted by any authority subordinate to that by which the servant was appointed and under Article 311(2) the punishment of dismissal, removal and reduction in rank cannot be meted out to the Government servant without giving him a reasonable opportunity to defend himself.'

From the above observation of their Lordships-of the Supreme Court it is quite clear that the removal whether it is under Article 311(1) or 311(2) means only removal from, service by way of punishment and not removal by way of termination of service.

12. In another case reported in Khem Chand v. Union of India : (1959)ILLJ167SC their Lordships of the Supreme Court have again expressed the same opinion. They have said:

'The expressions 'dismissal', 'removal' and 'reduction in rank' in Article 311(2) are technical words taken from the service rules where they are used to denote the three major categories of punishments.'

In the present case, so far as the order shows the termination of service was not by way of punishment at all. But since he was considered a temporary employee the Deputy Director of Consolidation gave notice that his services were no longer required.

13. It has been contended by learned counsel for the petitioner that it was really the displeasure of the opposite parties and certain acts, which according to the opposite parties, were not to their liking and it was really on account of the supposed Inefficiency of the petitioner, that he was dismissed. That may be so. But we cannot go into it and find out what was in the mind of the employer. In a : (1960)ILLJ577SC , State of Bihar v. Gopi Kishore Prasad, their Lordships of the Supreme Court have observed as follows:

'But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause.'

Since in my view the present termination of services does not come within the definition of the technical words used in Article 311, i.e., 'dismisal' or 'removal', Article 311 will not apply, and if Article 311(1) does apply and according to the notification now the power of appointment vests with the Deputy Director of Consolidation, he will be the proper authority for terminating the services, though he may not be the proper authority for dismissing or removing the petitioner.

14. Under the circumstances I see no force in this petition; it is accordingly dismissed with costs.


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