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Brajamohan Nath Vs. Smt. Kesi Tripathy and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 446 of 1983
Judge
Reported in57(1984)CLT145; 1984(I)OLR111
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145, 145(1) and 146(1)
AppellantBrajamohan Nath
RespondentSmt. Kesi Tripathy and anr.
Appellant AdvocateB. Nayak and P.K. Padhi
Respondent AdvocateP.K. Misra, N.C. Pati, A.K. Mohapatra and M.P. Misra
Cases ReferredAjaya Mohanty v. Union of India
Excerpt:
.....servant would be deemed to be in quasi-permanent service :(i) if he has been in continuous temporary service for more than three years ;and (ii) if the appointing authority, being satisfied having regard to the quality of his work, conduct and character as to the suitability for employment in a quasi-permanent capacity under the government of india has made a declaration to that effect. ' it is clear that both the conditions must be satisfied before a temporary government servant can be deemed to be in quasi-permanent service. 6. the legal position is well settled that an order terminating the service of a temporary government servant and ex-facie innocuous in that it does not cast any stigma on the government servant or visits him with penal consequences must be regarded as..........the order of termination of service on the following grounds ;(i) rule 5 (1) of the central civil services (temporary services) rules, 1965 is not applicable to him as he was in quasi-permanent service as defined in rule 3 of the said rules.(ii) the order of termination of service has been passed as a measure of punishment which amounts, in fact, to removal from service and since the provisions of article 311 (2) have not been complied with, the order is void.(iii) the petitioner's service was. terminated while allowing the services of his juniors to be retained. therefore the order is violative of article 16 of the constitution.3. the opposite parties have advanced the following contentions :(i) in the absence of a declaration under rule 3 (ii) of the central civil services (temporary.....
Judgment:

P.K. Mohanti, J.

1. The petitioner was appointed in 1972 as a lower division clerk in the office of the Accountant-General, Orissa as a candidate belonging to the Scheduled Caste. While he was continuing in service, he was served with a Notice on 8th June, 1977, that his services would be terminated with effect from the date of expiry of a period of one month from the date of service of the notice_Vide Annexure_l, Four representation made by the petitioner against the order of termination was rejected and the order of rejection was intimated to him on 15-2-78 vide Annexure_2. The petitioner prays for issuance of an appropriate writ quashing Annexures 1 and 2 and directing the opposite parties to reinstate him in service and to give all service benefits which would have accrued to him had he continued in service.

2. The petitioner challenges the order of termination of service on the following grounds ;

(i) Rule 5 (1) of the Central Civil Services (Temporary Services) Rules, 1965 is not applicable to him as he was in quasi-permanent service as defined in rule 3 of the said Rules.

(ii) The order of termination of service has been passed as a measure of punishment which amounts, in fact, to removal from service and since the provisions of Article 311 (2) have not been complied with, the order is void.

(iii) The petitioner's service was. terminated while allowing the services of his juniors to be retained. Therefore the order is violative of Article 16 of the Constitution.

3. The Opposite parties have advanced the following contentions :

(i) In the absence of a declaration under rule 3 (ii) of the Central Civil Services (Temporary Services) Rules, 1965, the petitioner cannot be said to be in quasi-permanent service. Hence, the contention that the provisions of rule 5 (1) of the said Rules are inapplicable to his case is untenable.

(ii) As the order of termination of service does not cast any stigma on the petitioner, it does not amount to imposing any penalty on him and as such there was no question of complying with the provisions of Article 311(2) of the Constitution.

4. Rule 3 of the said Rules provides as Follows:

'3. A Government servant would be deemed to be in quasi-permanent service :

(i) If he has been in continuous temporary service for more than three years ; and

(ii) If the appointing authority, being satisfied having regard to the quality of his work, conduct and character as to the suitability for employment in a quasi-permanent capacity under the Government of India has made a declaration to that effect.'

It is clear that both the conditions must be satisfied before a temporary Government servant can be deemed to be in quasi-permanent service. Mere continuance of temporary service for more than three years does not entitle a temporary Government servant to be in quasi-permanent service. Although the petitioner had completed more than three years continuous service, there has been no declaration by the appointing authority that he was suitable for employment in a quasi-permanent capacity. Hence he could not be deemed to be in quasi-permanent service.

5. The petitioner being a temporary Government servant his services could be terminated by one month's notice simpliciter according to the provisions of section 4(1) of the Rules. But if the service of a temporary servant is terminated on the ground of misconduct without a proper enquiry and without giving him a reasonable opportunity of showing cause, it may in a given case amount to removal from service within the meaning of Article 311 of the Constitution of India. Even in the case of a temporary Government servant his services cannot be terminated by way of punishment in violation of the requirements of Article 311. The question, there fore, arises whether the termination of the service of the petitioner was by way of punishment.

6. The legal position is well settled that an order terminating the service of a temporary Government servant and ex-facie innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of. the materials on the record that although innocent in its terms, the order was passed in fact with a view to punishing the Government servant, it is a punitive order which can be passed after complying with the provisions of Article 311. The scope of the enquiry called for in such a case has been considered in the case of State of Maharashtra v. Veerapna R. Suboji and Anr., A. I. R. 1980 S. C. 42 where it was laid down as follows :

'The law, it seems to me, is that where the services of a temporary Government servant or a probationer Government servant are terminated by an order which does not ex-facie disclose any stigma or penal consequences against the government servant and is merely a termination order simpliciter there is no case ordinarily for assuming that it is anything but that it pur ports to be where, however, the order discloses on the face of it that a stigma is cast on the Government servant or that it visits him with penal consequences, then plainly the case is one of punishment. There may still be another kind of case where although the termination of services is intended by way of punishment, the order is framed as a termination simpliciter. In such a case, if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Article 311 of the Constitution have not been satisfied, In a given case, the Government servant may succeed in making out a prima- facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official records for the purpose of determining the truth. It is such a case generally that the official records may be called for by the court'

7. In the present case, the petitioner contended in the writ petition that though no reasons were assigned in the order of termination the same was made on the charge that he had furnished a false certificate at the time of entry into service showing that he belongs to the Scheduled Caste. It was alleged that on some false anonymous complaints the Accountant-General of Orissa (O. P. No. 1) made enquiries behind the back of the petitioner. By letter dated 15-9-57, opp. party No. 1 wrote to the District Welfare Officer, Cuttack for making enquiry about the petitioner and after a series of correspondence between the District Welfare Officer and the opp. party No. 1 the order of termination of service was passed. It was stated that the District Welfare Officer intimated the opp. party No. I that the petitioner does not belong to 'Dewar' community and he could not be treated as a member of the Scheduled Caste. It was further alleged that the District Welfare Officer, Cuttack furnished false and wrong information to the opp. party No. 1 on the basis of which the services of the petitioner were terminated. The petitioner contended that in the record-of-rights his father's caste has been recorded as 'Dawar' and there is no doubt about the fact that he belongs to the Scheduled Caste of Dewar community and the information supplied by the District Welfare Officer was wrong. It was further alleged that even assuming that opp -party No 1 had any doubt about the genuineness of the certificate (Annexure-3) issued by the Additional District Magistrate, Cuttack to the effect that the petitioner belongs to the Dewar community, an enquiry should have been held to that effect and the petitioner should have been given an opportunity of showing cause. These averments in the writ petition were not denied by the opp. parties in their counter affidavit. In para. 5 of the counter affidavit it was merely stated that when a temporary Government servant is guilty of unsatisfactory work or misconduct the appointing authority is to satisfy himself by obtaining necessary information for his consideration as to whether the service of a temporary Government servant shall be dispensed with and that after going through the information so obtained the appointing- authority may pass an order of termination by virtue of the powers conferred on him in terms of the appointment order.

8. Being satisfied that the petitioner had made out a prima-facia case that the order of termination was by way of punishment, we called upon the opp. parties, to produce the relevant departmental file. The file was made available to us by the learned Standing Counsel for the Central Government at the time of hearing. On a perusal of the file, we found that an enquiry was held behind the back of the petitioner and an information was furnished by the District Welfare Officer, Cuttack that the certificate (Annexure-3) produced by the petitioner at the time of entry into service was false. When the draft charges for misconduct were put up for approval of the Senior D. A. G. (Administration), he directed issue of notice under rule 5 (I) of the said Rules for termination of service of the petitioner. The fact that the services of the petitioner were terminated after holding enquiries behind his back about the genuineness of the certificate (Annexure-3) clearly indicates that this is not a termination simpliciter. In our opinion, this is not a case of simple termination, but a case of removal from service. There is substance in the submission of the petitioner that the order of termination was issued for circumventing the provisions of Article 311 of the Constitution. The order of termination is therefore liable to be quashed.

9. It was next contended that the petitioner alone was picked up for this action and persons junior to him have been retained in service. According to the opp. parties, the mere fact that juniors were retained in service does not amount to discrimination. Nothing has been shown why the juniors have been retained and the service of the petitioner has been terminated. In the case of The Manager, Government Branch Press and Anr. v. D. B. Belliappa : AIR 1979 SC 429, their Lordships held that the protection of Articles 14 and 16 will be available even to a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors similarly circumscribed. This decision was followed by a Division Bench of this Court in the case of Ajaya Mohanty v. Union of India, represented by the Comptroller and Auditor-General of India and Ors., 51 (1981) C. L. T. 111, wherein it was held that since a charge of arbitrary discrimination had been levelled against the opp. parties, it was incumbent on them to show that the petitioner stood as a class by himself. The opp. parties did not produce any material to show that persons junior to the petitioner had better service records than the petitioner. In these circumstances, the Division Bench held that the equality clause enshrined in Article 14 and 16 of the Constitution had been contravened. We accordingly held that the order of termination is liable to be set aside on the ground also.

10. In the result, the petition is allowed and the order in Annexure-I is quashed and it is declared that the petitioner should be treated as still continuing in service. He is entitled to his pay and allowances and all service benefits for the period that he has been out of office. We make no order as to costs.

11. It is, however, open to the authorities to consider and decide the question, after giving the petitioner a reasonable opportunity of showing cause, if the petitioner is liable to be removed from service on account of the allegation that he submitted a false certificate at the time of entry into service or any other allegation which may justify removal from service.

G.B. Patnaik, J.

12. I agree.


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