S.D. Khare, J.
1. By means of this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks to get quashed the order, dated 29 September 1964, by which he was dismissed from service, He farther prays that the orders, dated 2/4 January 1965, pasted by the Settlement Officer, Consolidation, and 37 May 1965, passed by the Consolidation Commissioner be also quashed.
2. The undisputed facts leading to the filing of this writ petition, briefly stated, are that Hari Shankar Shukla, petitioner, was appointed as a temporary clerk in the office of the Assistant Consolidation Officer on 26 April 1946, and had continued to work as such till the date of his dismissal. On 13 September 1964, the petitioner applied for one and a half months' earned leave on the ground that his a mother was ill, and the Assistant Consolidation Officer. under whom be was working, recommended his leave by passing the following order:
Forwarded to the Consolidation Officer II Hari Shankar Shukla, court clerk to this office may be sanctioned earned leave with effect from 13 September 1964 forenoon, for 45 days and in his place Bishan Nath Lal Lakhpal (C) of the circle may be appointed to officiate in place of Shukla from 13 September 1964, Fard charge in duplicate is attached herewith.
3. The leave prayed for by the petitioner was not sanctioned and by his order, dated 39 September 1964, the Settlement Officer, Consolidation, passed the following order of termination of service which was duly notified to the petitioner:
Please take notice that your services are no longer required in Consolidation of Holding departments and are terminated with effect from 53 September 1964 forenoon, the date of absconding from duty. You will get one month's pay in lieu of notice.
The order of the termination of service was passed without giving any opportunity to the petitioner to explain.
4. The contention of the petitioner is that the order of dismissed is illegal because on the face of it, it attached a stigma to the petitioner as it indicated that he had been absconding from duty. Another ground taken is that no order for dismissal could be passed with retrospective effect.
5. On the other hand, it has been contended on behalf of the opposite parties that the petitioner has been dismissed without his being accused of anything and that the order of dismissal was to take effect from 13 September 1964 because the leave prayed for by him had not been granted and he had remained off duty with effect from the forenoon of that date.
6. It is not disputed that the petitioner is a temporary servant and, therefore', his services could have been terminated by his employer on one month's notice or one month's pay in lieu of notice the provisions of Article 311 of the Constitution may not have applied to his case provided the petitioner bad been dismissed without casting any stigma. However, in case a stigma had been cast in the order of dismissal, the provisions of Article 311 of the Constitution will apply and no dismissal could be ordered without giving the employee opportunity to explain.
7. So far as the facts of thin writ are concerned, there can be no doubt that the petitioner had left the charge of his office after having moved a regular application for leave and after being permitted by his immediate officer to proceed on leave in anticipation of the sanction. The fact, that the immediate officer of the petitioner had recommended the leave was not disputed in the of counter affidavit, in which it was alleged that the ground on which the leave was being taken was not bona fide, inasmuch as the petitioner had developed illegal relations with a married girl of the circle in which he was posted as a court clerk and he apprehended serious reaction to his misconduct from the parents of the ill-fated married girl and other tenure-holders of the locality.
8. However, all that has been said in the counter-affidavit need not be taken into consideration for purpose of this writ petition. The opposite parties appear to have mentioned those facts in order to explain why no leave was granted to the petitioner. It is, however, clear that although no leave bad been sanctioned to the petitioner, he had left the charge of his office after having presented as application for leave and obtaining the recommendation of his immediately superior officer to proceed on leave in anticipation of sanction. In the circumstances of the case, there could be no justification to mention in the dismissal order that, the petitioner had been absconding from duty.
9. Absconding from duty is a misconduct for which the employer could inflict any punishment. A person reading the dismissal order served on the petitioner could at once know that in the opinion of the employer of the petitioner the latter had remained absconding from duty and his services were terminated with effect from the date from which he had absconded from duty.
10. The question whether or not any particular averment in the dismissal order cast any stigma on the conduct; of the employee is a question of fact and has to be determined mainly after looking into the order of dismissed itself which was passed. As observed earlier, the order of dismissal conveyed to the petitioner mentioned two things, that is:
(1) he had retrained absconding from duty with effect from 13 September 1964, and
(2) on the date of the order he had been dismissed with effect from 13 September 1964, the date from which he had been absconding from duty.
It is true that the dismissal order does not mention that the applicant was being dismissed for having absconded from duty. However, that would not make any difference, because in my opinion a mere reading of the dismissal order (annexure A) makes it abundantly clear that he had been dismissed from the date he had absconded from duty. Those averments in the dismissal order itself clearly cast a sigma on the character of the petitioner.
11. It has been held in a number of cases beginning from the case of Parshotam Lal Dhingra v. Union of India 1958-I L.L J. 544 that the provisions of Article 311 of the Constitution as much apply to temporary servants as to permanent servants. It has also been held that in the case of temporary servants it may be quite in order to dismiss them from service without any reason and without complying with the provisions of Article 311 of the Constitution so long as no stigma was cast on the conduct of the Government servant. However, if the order of dismissal indicated that he was being dismissed because of some misbehaviour on his part, then the provisions of Article 311 of the Constitution apply and an enquiry as contemplated by that provision shall have to be made. I am supported in this view by the case of Jagdish Mitter v. Union of India 1961-I L L.J. 418.
12. It is, therefore, clear that the provisions of Article 311 of the Constitution would apply in the case of the petitioner regardless of the fact that he was a tamporary servant. The order of dismissal served on him was, therefore, illegal, because no opportunity to explain, as envisaged by Article 311 of the Constitution, was given to him.
13. As the petition succeeds on the first point, it is unnecessary to record any finding on the second point raised by the petitioner.
14. The petition is allowed and the order of dismissal dated 29 September 1961 (annexure A), the order, dated 2/4 January 1965, passed by the Consolidation Commissioner (annexure E) are quashed. Opposite parties 1 to 3 are directed to continue to treat the petitioner as employees of the State Government. I make no order as to costs.