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Laxman Hirway Vs. State of Madhya Bharat - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Case No. 40 of 1956
Judge
Reported inAIR1958MP135
ActsConstitution of India - Articles 226, 310, 311 and 320
AppellantLaxman Hirway
RespondentState of Madhya Bharat
Appellant AdvocateP.L. Inamdar and ;G.P. Patankar, Advs.
Respondent AdvocateMungre, Government Adv.
DispositionPetition allowed
Cases ReferredMontreal Street Railway Co. v. Normandin
Excerpt:
- - ' 5. this was followed by another order passed after two days in the form of memo no 33247 xiv/134/54 dated 21st june 1956 which sought to put an end to his go-called temporary service as well. it is however, contended by the learned government advocate that though it is an order of the government, yet on account of the difficulties that subsequently arose in this case (namely the rejection of the petitioner by the public service commission and the absence of concurrence of the high court to absorb him in the judiciary), the order must be deemed to be as good as not. 3324 (?)) which was issued as a consequence of the order cancelling reinstatement, loses its force as well. article 311 in fact is designed to promote a sense of security in the civil servants and this constitutional.....a.h. khan, j.1. this is a writ under article 226 of the constitution of india for the issue of writs of mandamus and prohibition against the state of madhya bharat and now against the successor government, the government of madhya pradesh.2. the facts giving rise to this petition are that the petitioner l. p. hirway entered the service of the gwalior state as a judicial officer in 1940; in 1946 he was dismissed by the gwalior government on account of- a frivolous prosecution launched against him, which was eventually withdrawal by the government, he represented his case to the gwalior government, taut in the mean time the state of gwalior merged in madhya bharat. the efforts of the petitioner to press his representation continued and it seems that on 2-11-49, the petitioner was appointed.....
Judgment:

A.H. Khan, J.

1. This is a writ under Article 226 of the Constitution of India for the issue of writs of mandamus and prohibition against the State of Madhya Bharat and now against the successor Government, the Government of Madhya Pradesh.

2. The facts giving rise to this petition are that the petitioner L. P. Hirway entered the service of the Gwalior State as a Judicial Officer in 1940; in 1946 he was dismissed by the Gwalior Government on account of- a frivolous prosecution launched against him, which was eventually withdrawal by the Government, He represented his case to the Gwalior Government, taut in the mean time the State of Gwalior merged in Madhya Bharat. The efforts of the petitioner to press his representation continued and it seems that on 2-11-49, the petitioner was appointed Judge, Labour Court (Madhya Bharat) on a temporary and provisional basis for sis months. He continued in this capacity beyond six months and while he was continuing as Labour Judge, his representation, against his dismissal by the Gwalior Government was allowed and the Government of Madhya Bharat reinstated him and Memo No. 3024/XIV/, 52/165(50) dated 28-10-52 was issued to that effect. The Memo ran as follows;--

'In consideration of the representation of Shri L. P. Hirway, Judge, Labour Court, Indore against his removal from service from the post of Pargana Judicial office, Khachrod under orders of the then Gwalior Government as notified in the Gwalior Government Gazette dated 14-12-1946 under notification No, 36/2003 dated 9-12-1946, the Rajpramukh has been pleased to order that Shri Hirway be treated as reinstated into service of the State from the date on which he took over as Judge, Labour Court. The period prior to his removal would qualify for pension, leave and other benefits, Tit is further ordered that the break in his service from 4-9-1946 i.e. the date of his dismissal to 27-11-49, the date on which he took over as Judge, Labour Court be condoned. No salary will be payable to him for this period, nor would this period count towards any other benefits under the service rules'.

3. By this order he was taken back in service and all the benefits by way of leave and pension which he had earned prior to his dismissal, were restored to him.

4. It seems that L. P. Hirway was asked to appear before the Madhya Bharat Public Service Commission, but although they did not approve of his appointment as a permanent Judge of the Labour Court, yet they permitted his continuanceall the same. After reinstatement and while working as Judge Labour Court, an enquiry was also ordered against him by the Madhya Bharat Government for certain irregularities alleged to have been committed by him. No decision has yet been taken on the enquiry that was ordered. He was also suspended during the course of the enquiry. While he was thus continuing, on the 19th of June 1958, Memo No. 3281/XIV/LI65/50 was issued, rescinding his reinstatement order. It is annexure No. 1 and runs thus :

'The Raj Pramukh has been pleased to rescind with immediate effect, the Development and Labour Department's Memo No. 3G24/XIV/52-165 (50) dated 28-10-1952, of Shri L. P. Hirway who was dismissed from the service of the former Gwalior State on 4-8-1946, and has further been pleased to rescind with immediate effect the orders mentioned in the said Memo. As an effect of the above order Shri Hirway's re-employment will be treated as purely in a temporary capacity.'

5. This was followed by another order passed after two days in the form of Memo No 33247 XIV/134/54 dated 21st June 1956 which sought to put an end to his go-called temporary service as well. The Order read thus:--

'According to Development and Labour Memo No. 3281/XIV/165/50 dated 19-6-56 the Raj Pramukh had been pleased to rescind the order of reinstatement of Shri L. P. Hirway passed vide Development and Labour Department Memo No. 3024/XIV/52/165 (50) dated 28-10-52, since the tenure of his service under the Madhya Bharat Government has thus become purely temporary and since the Public Service Commission did not select him for the post of Judge, Labour Court and have in preference selected another person for the Post, Shri Hirway's services are no longer required for the post. The Rajpramukh has therefore, been pleased to terminate the service of Shri Hirway, who is already under suspension, with effect from one month of the date of receipt of this Memo by Shri Hirway, the period of one month being considered as the period of notice.'

(Annexure No. 2)

6. The Petitioner after stating these facts challenges the validity of Memo No. 3281 dated 19th June 1956, rescinding the order of his reinstatement and also of Memo No. 3324 dated 21-6-56 which puts an end to his temporary service. He prays that it be declared that he has a lien on the post of a Labour Judge or on an equivalent post in the Judicial Department He also prays that a writ of prohibition be Issued against the Government not to pass any orders on the enquiry conducted by Mr. Narayan Singh, Collector of Indore, in 1930, against the petitioner.

7. In the return filed on behalf of the Government of Madhya Bharat by Mr. Puranik Under-Secretary to the Government in the Development and Labour Department, it is submitted that the writ petition should be dismissed on the short ground that there has been no invasion of any fundamental right or any legal right by the rescission of the order of reinstatement passed earlier by the Government. No contravention of Article 311 of the Constitution has been committed or contemplated. The facts about the early service of the petitioner, his dismissal by Gwalior Government, his representation for reinstatement, his temporary appointment as Judge. Labour Court, the order contained, in Memo. No. 3024, reinstating him are all admitted in the return by the Government. With regard to the order cf reinstatement, it is stated that 'the said order merely directed reinstatement of the petitioner in service without more.' The petitioner could not be reinstated, as a Judicial officer without the concurrence of the High Court, which was not obtained. In picturesque language the order of reinstatement is described as being merely an order 'invacuo'. It is said that an attempt was made to get the approval of the Public Service Commission but they did not approve of the petitioner as a Labour Judge. Since he could neither be appointed as a Judicial Oitlcer, nor could be assigned the post of the Judge Labour Court the order of reinstatement did not clothe the petitioner with any legal right. Article 310 of the Constitution of India renders tenure of all civil posts under the state an office held during the pleasure of the Raj Pramukh of the State. No question of any punishment at all arises in the case and it is a mere coincidence that the petitioner had to answer some charges on account of his alleged acts of commission and omission. That part of the case is separate and distinct from the impugned orders of the Raj Pramukh and no attempt has been made to circumvent the constitutional procedure. In para 17 of the Return, the Government recounts 'the circumstances under which the petitioner was suspended. In short they are that on the allegation of the Registrar, Industrial Court that the petitioner had irregularly retained in his possession a large sum of money in the accounts under Workmen's Compensation. Act for which he was a Commissioner, the enquiry was entrusted to Mr. Narayan Singh, Collector, Indore, who has submitted his report. It was considered necessary to have all the accounts under the petitioner audited, for which purpose Mr. Bajpai has been appointed and his report is awaited. After receiving it, such action as may be necessary in the light of the facts revealed shall be taken by the Government in compliance with the procedure laid down. It is said in conclusion that the present petition is to forestall and obstruct the Government in the enquiry which it is the duty of the Government to conduct.

8. From the facts disclosed in the petition and those stated in the Return, the admitted facts are :

1. The petitioner entered Gwalior Service in 1940.

2. He was dismissed by Gwalior Government in 1946 without any reason being assigned.

3. After dismissal the petitioner represented his case to Gwalior Government and continued to press his representation.

4. That before any final orders on his representation were passed, in 1949, he was appointed temporarily and provisionally as Judge, Labour Court for six months.

5. He continued beyond six months and on 28-10-1952 final orders were passed on his representation, which was allowed, and, he was reinstated in terms of Memo No. 3024 dated 23-10-52.

6. After his reinstatement, on the basis of some irregularities alleged to have been committed by the petitioner, an enquiry was instituted against him and his explanation was called. But no final decision has yet been taken. In the meanwhile on 19th June 1956, by Memo No. 3281 (Annex. 1 of the petition) the order of reinstatement passed on his representation was rescinded and it was said in the Memo that as a consequence of the order, his continuance in service would be deemed to be temporary.

7. In connection with an enquiry, he was suspended on 15th July 1955 and on 21-6-56 by Memo No. 3324, his so-called temporary services were also terminated on the ground that the Public Service Commission did not select him for the pest of judge, Labour Court.

9. Of these admitted facts, attention is invited to fact No. 5, which is that after dismissal from Gwalior Service, he had made a representation seeking redress against the order of dismissal and on 28-10-1952, his representation was allowed and in terms of Memo No. 3024/dated 28-10-1952, he was reinstated.

10. The question is what is the effect of this order. The petitioner contends that as a result of the order of reinstatement, he acquired the status of permanent servant of the former Gwalior State that his period of service prior to dismissal was tacked on and he qualified himself for 'pension, leave and other benefits'. The Government on the other hand contends that because the Public Service Commission rejected him as a candidate for the post of a Judge, Labour Court and because he could not be appointed on judicial post without the concurrence of the High Court, the order of reinstatement must be looked upon as an order 'in vacuo'.

However picturesque the phraseology may be put, an 'order in vacuo' does not show the real nature of the order. 'In vacuo' in Latin means in vacuum, which is defined as space entirely devoid of matter. It is however, contended by the learned Government Advocate that though it is an order of the Government, yet on account of the difficulties that subsequently arose in this case (namely the rejection of the petitioner by the public Service Commission and the absence of concurrence of the High Court to absorb him in the judiciary), the order must be deemed to be as good as not. An order in vacuo, would etymologically mean an order entirely devoid of matter.

In other words it means a nullity. I am surprised by the Government taking this stand. I shall first consider what in my opinion is the effect of the order in question, and later on I shall discuss the contention of the Government.

11. In determining the real nature of the order of reinstatement (Annex. No. 3 of the petition) we have to bear in mind some Past events. They are all admitted and I propose to recapitulate them briefly. The petitioner was a servant of the Gwalior State but in 1946, his services were dispensed with. He sought redress from Gwalior Government and to achieve that end he submitted a representation. While this representation was under consideration, the State of Gwalior was merged into Madhya Bharat and the Madhya Bharat Government considered this representation. As a result of their deliberation, theythought it fit to reinstate the petitioner. What does this mean? It means that either the Madhya Bharat Government considered the grounds on which he was dismissed to be frivolous and untenable, and, holding him innocent, decided to reinstate him, or it may mean that the Madhya Bharat Government condoned the faults of the petitioner, if any, and reinstated him. In either case, he was given a clear slate and permitted to continue the tenor of his service. His past services were tacked on and he was given all the benefits that had accrued to him prior to his dismissal. Memo no. 3024, reinstating him said that in consideration of the representation of Shri Hirway against his removal from service under orders of the then Gwalior Government, the Rajpramukh has been pleased to order that Shri Hirway be treated as reinstated into service. The period prior to his removal would qualify for pension, leave and other benefits. The break in his service is condoned.

12. Can there be any doubt that the above order reinstated him in service and restored to him all the benefits of his former service of which he was deprived?

13. Now the Government contends that because he could neither be fixed in judiciary (and there is nothing on record to show that any attempt was made by the Government to obtain the concurrence of the High Court) nor was he selected by the Public Service Commission for the post of a Judge, Labour Court, therefore, while not denying the existence of the order, it is said that the order was passed 'in vacuo', it lacked content and was not operative without a post. In other words, the Government contends that its own order was a nullity. But for four years till it was revoked by Memo No. 3281 of 19th June 1956, it remained in force and was effective. A peculiar and serious difficulty which arises in this case and which is of general importance is how should any one construe the orders of a Government, if the Government is allowed to take the plea that it passed orders 'in vacuo' by which is meant that the orders of the Government assume the form of nullity. I think the position which the Government seeks to take in this case is untenable.

If the argument about the order being 'in vacuo' and in consequence being a nullity is allowed to prevail, then a logical sequence of it would be that people may have great hesitation in obeying a Government' order; not knowing whether the order is real or 'in vacuo''. This argument is self-condemnatory and if it is allowed to prevail, it would throw the entire Government machinery out of gear aS for the plea that no Post was indicated in the order, it is true. The order of reinstatement was specific on the point; it reinstated him 'into service of the State' and not any particular post. It was the duty of the Government to fix him on some post and if the was not found fit for any post, then to dispense with his services as a permanent servant in a proper manner.

14. I, therefore, hold that by the order reinstating him, the petitioner became a regular and permanent servant of the Madhya Bharat Government.

15. The Government in the instant case has not used the word 'dismissal' in the order rescinding his reinstatement. Instead of dismissing the petitioner straightaway, the Government has thought it fit to rescind the order of his reinstatement. There is no manner of doubt that the effect of the order, rescinding his reinstatement is nothing but to remove him from permanent service and to forfeit his earned benefits pertaining to his leave and pension.

16. What the Government in this case has actually done is somewhat queer. Instead of dismissing or removing the petitioner, it has rescinded the order of reinstatement. It is akin to appointing servant, but instead of dismissing him straightaway, the order appointing him is cancelled. The effect of both the actions is one and the same and in principle I see no distinction between terminating the permanent services by rescinding the order of reinstatement and the termination of services by removing and dismissing him. In result he is deprived of his earned benefits and in consequence the rescinding of the order of reinstatement imposes a penalty and is a clear punishment. Their Lordships of the Supreme Court in Shyamlal v. The State of Uttar Pradesh, AIR 1954 SC 369 (A), have observed:

'There can be no doubt that removal (using the term synonymously with dismissal) generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the Officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the Officer.'

17. If we read together Memo No. 3281 dated 19th June 1956 and Memo No. 3324 of 21st June 1956 that followed two days after (they are in juxtaposition with each other), one can see an element of imputation. Their Lordships in para No. 19 of their judgment in Shyamlal's case (A), (supra) have further indicated the consequences that flow from dismissal or removal. It is said that 'dismissal or removal is a punishment. This is imposed as a penalty. It involves loss of benefit already earned, line Officer dismissed or removed does not get pension which he has earned.' It is an admitted fact that the Memo, rescinding the order of reinstatement, deprives the petitioner of the pension which he had earned and by the test laid down by the Supreme Court, there is no doubt that Memo No. 3281 dated 19th June (Annex. No. 1 of the Act) amounts to an order of dismissal or removal.

18. In the light of the above discussion, I have no hesitation in saying that the petitioner on his reinstatement became a permanent civil servant of the Government and it being so, he could, only be validly removed by following the provisions of Article 311 of the Constitution. To remove him by cancelling his order of reinstatement has the effect of removing him from permanent service and therefore it equally attracts the provision of Article 311 of the Constitution. His dismissal, by Memo No. 3281 of 19th June 1956 without giving the petitioner any reasonable opportunity to show cause against the action proposed to be taken against the petitioner contravenes the provisions of Article 311 of the Constitution and was therefore invalid.

19. After cancelling the order of reinstatement in permanent service the petitioner continued in service and the Government in the cancelling order said that he would be deemed to be in service in a temporary capacity. This temporary capacity was put to an end by Memo No. 3324 of 21-6-56. Since I have held that the order cancelling his reinstatement is invalid, it follows that Memo No. 3024 (sic--No. 3324 (?)) which was issued as a consequence of the order cancelling reinstatement, loses its force as well.

20. On behalf of the Government, it is argued that according to Article 310 of the Constitution all Government servants in the State hold office during the pleasure of the Raj Pramukh and in this view of the matter, even if the order cancelling reinstatement and contained in Memo no. 3281 of 19-6-56 operates as dismissal from permanent service, the petitioner can have no grievance as he had office during the pleasure of Raj Pramukh.

21. The constitutional expression 'During the pleasure of the Crown' used by English writers on the Constitution is wide in range in its meaning in English Law. But in India under our Constitution the opening words of Article 310 'Except as expressly provided by this Constitution have curtailed that power by Article 311 and though all the tenure of civil servants is 'during the pleasure', yet in dismissal, removal and reduction in rank, the Head of the Government has to act according to it. Article 311 in fact is designed to promote a sense of security in the Civil servants and this Constitutional safe-guard emphasises this aspect of the condition of service and protects the civil servant from arbitrary dismissal or removal or reduction in rank.

2l-a. In The State of Bihar v. Abdul Majid, AIR 1954 SC 245 (B), their Lordships of the Supreme Court have held that 'The expression 'holds office during His Majesty's Pleasure' concerns itself with the tenure of office of the civil servant but it is not implicit in it that a civil servant serves the Crown' ex gratia (as of favour) or that his salary is in the nature of a bounty'. They further observed that the rule that a civil servant holds office at the pleasure of the Crown has its origin in the Latin phrase 'durante bene placito' ('during pleasure') meaning that the tenure of service of a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. But this rule of English law has not been fully adopted in Section 240 of the Government of India Act, 1935.

Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory, 'Their Lordships were considering the effect of Section 240 of the Government of India Act, 1935. But that section has been substantially reproduced in Article 311 of the Constitution of India. And the observations of their Lordships apply with equal force in construing Article 311 of the Constitution which places two restrictions on the prerogative of dismissal at pleasure, and, to that extent the doctrine of 'holding office during the pleasure' is controlled, by Article 311. Our Constitution in this respect makes a departure from the English doctrine of 'Holding office during the pleasure of the Crown.'

22. The dismissal in the instant case has not been in compliance with the procedure laid down in Article 311 of the Constitution and the Government cannot invoke the aid of Article 310 of the Constitution in supporting a dismissal which was against the statutory provision.

23. The petitioner has not only asked us to quash the two above Memos. (Order no. 3281 of 19-6-56 and 3324 of 21-7-56) but he has also prayed for:

(1) The issue of a mandamus to the Government to the effect that he has a lien either on the post of a Judge, Labour Court or on some equivalent post in the Judicial Department;

(2) the issue of a writ of prohibition not to pass any order on the enquiry that was conducted against him by Mr. Narayan Singh, Collector, Indore.

24. I think that both the requests must be rejected First, regarding his lien, it does not appear that after his reinstatement, he was given any particular post permanently. And till that is done, no lien on any post is created. All that Memo No. 3024 of 28-10-52 says is 'that Shri Hirway will be treated as reinstated into service of the State' but does not appoint him on any particular post. His reinstatement in service is different from his appointment on particular post. The Government tried to fix him on the post of Judge, Labour Court, but the Public Service Commissiondid not select him. The Government cannot givehim any judicial post as there is no concurrenceof the High Court in the matter. Besides that itwill be beyond the province of the High Courtto suggest it to the Government to give a post toany individual. The Executive must have untrammelled powers and any interference in their administrative discretion is not called for.

25. Similarly the prayer for a writ of prohibition should be rejected. The Government hasan inherent right to carry on an enquiry againstits servants for their alleged acts of omissionsand commissions. In the interest of keeping up the tone of administration, the Government mustalways be vigilant. In fact in making this request the petitioner has shown a pusillanimousattitude and no case has been at all made out forstopping the Government from passing an orderon fee enquiry, which the Government says isstill pending.

26. In result, the petition is partly allowed; A writ be issued, quashing Memos. No. 3281 of 19th June 1956 and No. 3324 of 2lst June 1956. The petitioner will be deemed to be in permanent service of the State, till his services are terminated properly. The prayer of the petitioner in regard to a declaration that he has a lien on the post of Judge, Labour Court or on some post in judiciary, is rejected. So also his prayer about restraining the Government from passing any order on the enquiry which is being conducted against him. Parties shall bear their own costs.

V.R. Nevaskar, J.

27. I agree? with my learned brother Khan J., that the orders passed by the Rajpramukh of Madhya Bharat dated 19-6-1956 and 21-3-1956 ought to be quashed. I also agree that the petitioner cannot be awarded any other reliefs out of those claimed by him. However I would like to add a few words.

28. The petitioner was an employee of erstwhile Gwalior State having been employed as a Pargana Judicial Officer some time in 1940. He continued in the service of Gwalior State till 4-9-1946 when he was relieved of his charge as Pargana Judicial Officer and prosecution was launched against him under Section 56 of the Defence of India Rules. He was removed from service on 9-12-1946 under a notification issued by the Gwalior Government as by that time Mr. Hirway had left the limits of Gwalior State. In November 1947 prosecution against him was withdrawn and he was acquitted under the orders of the Ruler of the State.

The petitioner then made a representation to the Ruler for his reinstatement. Thereafter Madhya Bharat was formed and the State was integrated into it After the formation of the new State by order dated 22-11-1949 he was appointed on a temporary and provisional basis for six months on the post of Judge Labour Court in the grade of Rs. 250--20--450. The Question of permanent appointment on that post was before the Government and the petitioner was required to appear before the Madhya Bharat Public service Commission. The Commission did not find any of the candidates for the post suitable and permitted the continuance or the petitioner as before.

This state of affairs continued, the provisional and temporary appointment of the Petitioner being made for an indefinite Period. However the Rajpramukh by his order dated 28-10-1952 took into consideration the representation made by the petitioner against his removal from servicein 1948 and directed him to be treated as reinstated into the service of the State from the date on which he took over the charge as Judge Labour Court, it was made clear in the order that the period of his service Prior to his removal would qualify for 'pension, leave and other benefits' and that 'the break in his service from 4-9-1946 i.e., the date of his dismissal to 27-11-1949 the date on which he took over as Judge, Labour Court be condoned'. Some time in June 1954 Government framed charges against the petitioner for some irregularities said to have been committed by him during the course of his office.

He was continued in his appointment as before without being made permanent on that post. By l5-7-1955 he was ordered to be suspended pending a departmental inquiry against him for irreguarities in accounts. The inquiry and suspension continued but, before the end of the inquiry, on 19-6-1956 an order was passed in the name of Rajpramukh whereby both the earlier memo and the order dated 28-10-1952 referred to above were rescinded and it was expressly stated in the order that as the effect of that order petitioner's re-employment would be treated purely in a temporary capacity. This was followed by another order again in the name of Rajpramukh which is as follows :

'According to Development and Labour Memo No. 3281/XIV/165/50 dated 19-6-1956 the Rajpramukh has been pleased to rescind the order of reinstatement of Shri L. P. Hirway passed vide Development and Labour Department Memo No. 3024/XIV/52/165 (50) dated 28-10-1952, since the tenure of his service under the Madhya Bharat Government has thus become purely temporary and since the Public Service Commission did not select him for the post of Judge, Labour Court and have in preference selected another person for the post, Shri Hirway's services are no longer required for the post, The Rajpramukh has therefore been pleased to terminate the services of Shri Hirway, who is already under suspension, with effect from one month of the date of receipt of this Memo by Shri Hirway, the period of one month being considered as the period of notice.'

29. It was clear from these orders that the petitioner's services were first reduced to those in a temporary capacity by the rescission of the Memo dated 28-10-1952 and the order mentioned therein and therefore his services were terminated after giving him benefit of one month's pay in lieu of notice. The order of termination therefore apparently was not one on an adverse finding against him with respect to charges which had been levelled against him.

30. The petitioner's contention is that by reason of the order dated 28-10-1S52 referred to above he ought to be treated as in the permanent employment of the State and that the orders elated 19-6-1956 and 21-6-1956 resulting in the termination of his service are in violation of the requirement under Article 311(2) of the Constitution.

31. The petitioner therefore prayed for quashing the said orders and also prayed for a mandamus to the Government to treat the petitioner as in the permanent service as reinstated with a revived lien on the post of Judge, Labour Court, or on the equivalent post in the Judicial Department. A writ of prohibition in respect of the pending inquiry was also prayed for.

32. The opponent State contended that the orders dated 28-10-1952 merely directed reinstatement of the petitioner in service without moreand that inasmuch as no concurrence of the High Court had been obtained for his reinstatement into the Judicial Service and approval of Public Service Commission for his permanent appointment as the Judge, Labour Court, it was merely an order 'in vacuo', 'lacking in content' and was inoperative. It was further contended that inasmuch as the petitioner could not be 'grafted, back into Judicial Service' nor could he be taken on a permanent post as a Judge, Labour Court, due to lack of concurrence of the Public Service Commission, the order of reinstatement was rendered ineffective. Its rescission was therefore only a logical corollary and no question of punishment arose in such rescission.

The fact that petitioner was required to answer some charges in a pending inquiry against him was said to be merely an accidental circumstance which, had nothing to do with his ultimate removal from his temporary post It was contended that the order dated 19-6-1856 and 21-6-1956 were by no means the composite orders so as to attract application of Article 311(2) of the Constitution. Each of the Orders aforesaid was separate, the first being a logical corollary resulting from the absence of concurrence of the High Court and the Public Service Commission and the other was in exercise of the powers of Rajpramukh under Article 310 with respect to which no question of stigma, of any kind attaching to him involved. The petitioner therefore was not entitled to any of the reliefs claimed.

33. On these respective submissions the only material questions, which arise for consideration are :

1. Whether the petitioner could be regarded as in the permanent employment of the State as a result of the order dated 28-10-1952 or whether the order being one which was not referable to any post was 'in vacuo' and ineffective?

2. Is the order dated 28-10-1952 invalid due to absence of concurrence of the Public Service Commission or the High Court?

3. If the petitioner be held to be in the permanent service of the State are the orders dated 19-6-1956 and 21-6-1956 composite ones intended to deprive the petitioner of his earned benefits in respect of such a service or are distinct and separate?

4. If the answers to the aforesaid questions are in favour of the petitioner are the provisions of Article 311(2) of the Constitution attracted and do the orders deserve to be quashed on that ground?

5. Is the petitioner entitled to other reliefs claimed?

34. As regards the first question the answer to it depends upon the interpretation which can legitimately be put upon the order of the Rajpramukh dated 28-10-1952 in light of the antecedent and surrounding circumstances. The order runs as follows :

In consideration of the representation of Shri L. P. Hirway. Judge, Labour Court, Indore, against his removal from service from the post of Pargana Judicial Officer, Khachrod under orders of the then Gwalior Government as notified in the Gwalior Government Gazette dated 14-12-1948 under Notification No. 36/2003 dated 9-12-1946, the Rajpramukh has been pleased to order that Shri Hirway be treated as reinstated into service of the State from the date on which he took over as Judge Labour Court. The period prior to his removal would, qualify for pension, leave and other benefits. It is further ordered that the break in his service from 4-9-1946 i.e. the date of his dismissal to 27-11-1949, the date on which he took over as Judge, Labour Court be condoned. No salary will be payable to him for this period, nor would this period count towards any benefits under the service rules.'

35. It may be remembered that when this order was passed the petitioner was already in service on a temporary basis. He was working as a Judge, Labour Court and though he was not approved of by the Public Service Commission as a suitable candidate for the permanent post of the Judge Labour Court he was allowed to continue in that capacity. Government had earlier recommended to the Public Service Commission, to consider his case for permanent appointment, There was also his representation pending for his reinstatement after he was acquitted of the charge in respect of which He was ordered to be prosecuted.

It was in this context that the order in question was passed. The order referred to his removal from service under the notification of Gwalior Government dated 9-12-1946 and his representation in respect of it and proceeded to say that the Rajpramukh had been pleased to order that he should be treated as reinstated into the service of the State from the date On which he took over charge as Judge, Labour Court and that the period prior to his removal from service would qualify him for pension, leave and other benefits. It was also made clear in the order that the break in his service from 4-9-1946 to 27-11-1949 should be condoned.

36. In my opinion the effect of this order is that he was taken up in the permanent service of the State on the pay which he was then drawing as the Judge, Labour Court and the question of his posting on a permanent post was left undecided. In the case of temporary appointment there would be no question of reinstatement, no question of prior service being counted for leave, pension etc., and no question of break in the service from the date of his removal to the date of his temporary appointment being condoned. It what was intended by the order was that he was to continue as a temporary servant there was no need for referring to his representation, his reinstatement, his being entitled to the benefits of permanent service and condonation of the break in his service.

37. Even assuming that on 19-6-1956 the position with respect to the petitioner had been examined by the Government at the highest level and it had not been thought feasible to lend him the permanent post either of the Judge, Labour Court or of a Judicial Officer then it was quite open for the Government to put an end to his services in exercise of the powers of the Rajpramukh under Article 310 of the Constitution without depriving the petitioner of the benefits of leave, pension etc., to which he became entitled to by that time. Instead of doing so the Government re-sorted to the dubious method of rescinding the order dated 28-10-1952, The order dated 19-6-1956 makes it specifically clear that as the effect of that order the petitioner's re-employment would be treated as purely in a temporary capacity.

Thus the order was meant to have a positive and adverse effect upon the character of service of the petitioner and cannot be regarded merely as a statement of existing legal position. The contention that in the absence of concurrence of the High Court and the approval, of the Public Service Commission the petitioner could nowhere be posted in the State is lacking in materials toconvince us about the same. The Government after deciding to reinstate the petitioner and condoning the break was itself bound to give effect to it and even in the absence of a permanent post he could be regarded as being in the permanent service of the State.

38. As regards the second question reliance was placed on behalf of the State upon the decision in Vishweshwar v. State Transport Authority M. P., AIR 1955 Nag 163 (G). That case however has no application because there the order of appointment was construed as temporary since the word used therein was 'officiate'.

39. In the case aforesaid the petitioner, who had applied for the post of Motor Vehicles Inspector, was appointed to officiate as Inspector of Motor Vehicles in the scale of pay of Rs. 150--10--200 Bar 200--10--220--225 With effect from 12-2-1950. On 2-1-1951 he received a notice from the State Transport Authority that as the Public Service Commission had not concurred in his appointment his services were to stand terminated. It was held that the Petitioner in that case could not say that the Public Service Commission ought to have considered him suitable. It was no doubt observed there after referring to the case of Satish Chandra Anand v. Union of India, AIR 1953 SC 250 (D) as follows :

'In the present case the question of removal or dismissal does not arise as the petitioner's appointment could not be regarded as valid in the absence of the concurrence of the Public Service Commission. The safeguard provided in Article 311 applies to cases where the appointment is validly made. Rules 55 and 55A of the Fundamental Rules have also no application.'

40. But that being a case where the appointment was not permanent entitling him to benefits of pension, leave etc., it did not involve any removal or dismissal amounting to punishment as a disciplinary measure nor was there any question of loss of benefits earned. According to the observations of their Lordships of the Supreme Court in Shamlal's case (A), the dismissal or removal under the circumstances did not fall within the meaning of those terms as used in Article 311(2) of the Constitution.

Had the petitioner been appointed permanently either without consulting the Public Service Commission or in disregard of their advice the case would have been directly applicable, though in that event the decision would have run counter to the decision of the Federal Court in Biswanath Khemka v. Emperor, AIR 1945 FC 67 (E), to which a reference hereafter will be made. In the present case the Public Service Commission had been consulted and they did not hold the petitioner suitable for permanent appointment but were prepared to continue him in a temporary capacity.

The Government had recommended his case again to Public Service Commission for reconsideration but then too they did not agree. Under these circumstances it is difficult to say that the constitutional requirement was not followed. The function which the Public Service Commission exercised under Article 320 is advisory and in view of that it cannot be said that after they had been thus consulted and their view obtained it was not open for the Rajpramukh to depart from that view. There is nothing in the Wording of Article 320 to give rise to that inference. In fact the word 'consult' appears to hare been intentionally used. Concurrence is a stronger term and it means that where there is no consent the act would be invalid.

Consultation even if it be held to be mandatory cannot be construed to mean concurrence. It only means that a certain statutory preliminary ought to be performed before the act is done. But if the matter is further examined on authorities it would appear that the provision would appear to be mandatory where it adversely affects a civil servant as in the cases of disciplinary actions involving penal consequences. But where the act does not work against him but in his favour as in the case of appointments it appears to be directory. For if we do not construe the provision, in that manner it would lead to great public inconvenience and hardship to civil servants concerned who many times may not have knowledge as to what passes between the Appointing Authority and the Public Service Commission.

41. In Pradyat Kumar Bose v. Hon'ble Chief Justice Of Calcutta High Court, (S) AIR 1956 SC 285 (F), their Lordships, of the Supreme Court observed as follows :

'There can be no doubt that members of the staff in other Government departments of the Union or the State are normally entitled to the protection of the three constitutional safeguards provided in Articles 311(1), 311(2) and 320(3)(c).'

42. It appears from these observations of their Lordships that these provisions ought to be regarded as safeguards intended for the benefit of civil servants as against the actions involving penal consequences of serious character in the matter of their service

43. In AIR 1945 FC 67 (E), their Lordships of the Federal Court had to consider the question regarding validity of appointment of a Magistrate where such appointment had not been made after consultation with the District Magistrate as required under Section 258 of the Government of India Act, 1935. It was held by their Lordships following the principle laid down in Montreal Street Railway Co. v. Normandin, 1917 AC 170 (G), that the provision was directory and not mandatory. Their Lordships observed:

'We are further of the opinion that the direction laid down in Section 250 is directory and not mandatory and that non-compliance with it would not render an appointment otherwise regularly and validly made ineffective or inoperative. It seems to us that any other view would lead in many cases to results which could not have been intended by Parliament and would entail general inconvenience and injustice to persons who have no control over those entrusted with the duty of making recommendations for the grant of magisterial powers.'

44. In the aforesaid English case it was laid down that:

'When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.'

45. In view of the foregoing discussion it appears clear to me that the appointment of the petitioner cannot be said to be invalid due to absence of concurrence either of the High Court or the Public Service Commission. This appeared to be the view of the Government is clear fromthe orders dated 19-6-1956 and the letter No. 3393/XIV/165/50 dated 20-12-1952 from the Deputy Secretary to Government, Development and Labour Department, Madhya Bharat, to the President Industrial Court on the subject of salary and grant of allowance to the petitioner. In the latter document it is said:

'In fact, Shri Hirway should consider himself lucky to have been appointed On this Post for which he was judged by the Public Service Commission to be not up to the mark. The Government have shown him very special consideration by condoning the break in his services from 4-9-1946 to 26-11-49 but this has been done mainly with the purpose that his previous service in Gwalior State may count for purposes of pension, leave etc.'

46. Next question then is are the orders dated 19-6-1956 and 21-6-1956 distinct orders unrelated to each other or ought to be regarded as merely steps for bringing about the termination of his permanent service.

47. Now in order to consider this question we have to keep in mind the back-ground. The petitioner by that time was charged with having committed irregularities in the discharge of his duties as the Judge, Labour Court. Charges had been framed against him and after ordering his suspension regular departmental enquiry had also been ordered and was pending. It was in this context that the order was passed on 19-6-1956 i.e. about more than three and half years after the order of reinstatement and two days before the order of termination of his service. This Order was couched as rescinding the order dated 28-10-1952 and it was specifically stated in the order that its effect was that the petitioner's re-employment was to be treated as purely in a temporary capacity.

This certainly was not mere statement of the existing legal position but was meant to bring about a change in the existing position by converting his permanent service into temporary one The wording of the order which was passed two' days later made it clear that it took its stand for the removal from service of the petitioner upon the earlier order dated 19-6-1956 which had converted his permanent service into temporary one. Thus the ultimate removal of the petitioner was admittedly brought about by reason of these two orders passed in quick succession. It is difficult in these circumstances to hold otherwise than that the orders in question are composite. The effect of these orders no doubt is to deprive the petitioner of his earned benefits to which he became entitled under the order of the Government dated 28-10-1952 and by reason of his subsequent service.

48. This takes us to the fourth question formulated by me above viz. are the provisions of Article 311(2) of the Constitution attracted in this case?

49. In AIR 1954 SC 369 (A), their Lordships of the Supreme Court held :

'There can be no doubt that removal -- I am using the term synonymously with dismissal -- generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he can he guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and Justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the officer.

There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty-five years service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or imputation of misbehaviour or incapacity.

Finally, Rule 49 of the Civil Services Classification, Control and Appeal Rules clearly indicates that dismissal or removal is a punishment. This is imposed on an officer as a penalty. It involves loss of benefit already earned. The officer dismissed or removed does not get pension which he has earned. He may be granted a compassionate allowance but that, under Article 353 of the Civil Service Regulations, is always less than the pension which he would have got had he retired on medical certificate. But an officer who is compulsorily retired does not lose any part of the benefit that he has earned.

On compulsory retirement he will be entitled to the pension etc. that he has actually earned. There is no diminution of the accrued benefit. It is said that compulsory retirement, like dismissal or removal, deprives the officer of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get an enhanced pension and that is certainly a punishment. It is true that in that wide sense the officer may consider himself punished but there is a clear distinction between the loss of benefit already earned and the loss of prospect of earning something more.

In the first case it is a present and certain loss and is certainly a punishment but the loss of future prospect is too uncertain, for the officer may the or be otherwise incapacitated from serving a day longer and cannot, therefore, be regarded in the eye of the law as a punishment. The more important thing is to see whether by compulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal. The answer is clearly in the negative. The second element for determining whether a termination of service amounts to dismissal or removal is, therefore, also absent in the Case of termination of service brought about by compulsory retirement.'

50. It appears clear from these observations of their Lordships that whether a particular termination of service amounts to dismissal or removal or not, within the meaning of those terms as used in Article 311, depends upon the answers to the following two questions :

First: Whether the action of removal or dismissal involved the levelling of some imputation or charge against the servant and whether the action is founded and justified on an adverse finding with respect to the same attaching some stigma to him?

Second : Whether the action involved loss of benefits of leave, pension etc. which the servanthad already earned? Where there is a stigma attached to the servant concerned while his services are terminated that would certainly amount tc punishment. Where the servant is deprived of the benefit which had already accrued to him there too the order would amount to punishment. In either case a dismissal or removal of this character would attract application of Article 311 of the Constitution. An order of dismissal or removal may follow an adverse finding against a public servant involving some blemish in discharge of his duties.

In that event the loss of benefits earned may follow automatically as a result of provisions contained in the service rules or otherwise. It is also possible to conceive of a case where there is removal or dismissal attended by loss of benefit earned without there being any adverse finding attaching some stigma in the discharge of his duties. Even then it would amount to punishment attracting applicability of Article 311 of the Constitution.

The practical test to determine whether a civil servant's removal or dismissal is as indicated in Article 311 is to see whether it took place under circumstances resulting in deprivation of the benefits which he had already earned in the discharge of his duty. Where this is the direct result of the order of dismissal the civil servant will be entitled to the constitutional safeguard under Article 311. It also appears clear to me that you cannot be permitted to do indirectly what you are prohibited from doing directly by the Constitution.

The law frowns upon its evasion by devices and subterfuges. It was perfectly open for the Rajpramukh to terminate the petitioner's services without assigning any reason provided the benefits which had accrued to him till then were not lost to him. Instead of doing that he is attempted to be punished by means of an order of dismissal, which by reason of the conversion of his permanent service into temporary one resulted in deprivation of the benefits already earned by him. This result is brought about without imputation of any charge and an adverse finding upon it. Had the latter thing been done that would have afforded him the benefit of the constitutional safeguard under Article 311 and also the safeguards provided under the service rules. The enquiry against petitioner is still pending. The termination of service had nothing to do with that enquiry. In these circumstances although each of the orders dated 19-6-1956 and 21-6-1956 when read separately may not appear to attract applicability of Article 311(2) of the Constitution yet when read together in light of their sequence and surrounding circumstances they do give rise to the legitimate inference that they were meant to circumvent the provisions of Article 311 of the Constitution. Even if we do not go to the length of imputing that intention to the Government still there is no doubt that that is the effect of those orders.

51. Thus the answers to all the four questions are in favour of the petitioner and the question now is whether he is entitled to the protection afforded by Article 311.

52. Since it has been held that the orders dated 19-6-1956 and 21-6-1956 are composite and amount to dismissal of the petitioner from permanent service into which he was inducted by the order dated 28-10-1952 and since the order results in deprivation of the benefits earned by him with respect to that service from the date of his initial appointment in 1940 Article 311 of the Constitution applies. It is not disputed that the said provision was not complied with. The orders therefore which brought about that result are invalid and deserve to be quashed.

53. As regards other reliefs claimed by the petitioner I agree with my learned brother that the petitioner has not shown that he is entitled to the same.

54. The petition is therefore allowed and orders dated 19-6-1356 and 21-6-1956 referred to above are hereby quashed.

55. Parties are directed to bear their costsof this petition.


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