1. Prem Prakash Dixit who was employed in the Water Works Department which was under the Municipal Committee, Muktsar, as Superintendent of Water Works has applied to this Court for directions against the Government of the Punjab and certain other public officers that he be restored in his office on the ground that his removal from service is contrary to the provisions of Article 311 of the Constitution of India.
2. On 29-12-1947 the Punjab Government suspended under Section 4 of the East Punjab Local Authorities (Restriction of Functions) Act, Act 9 of 1947, the Municipal water Works Department of Muktsar. By a notification dated 29-4-1949 the petitioner was appointed to discharge the functions of that Department, his designation being Superintendent, Water Works, on a salary of Rs. 162/- per mensem in the grade of RS. 152-8-200. This was also under Section 4 of that Act.
On 19-2-1954 by another notification the Punjab Government appointed Ram Nath, opposite party No. 6, who was Assistant Foreman working under 8. D. O. Mechanical, Public Health Sub-Division, Ludhiana to discharge the functions relating to the Municipal Water Works Department of Muktsar, with the result that the petitioner's services came to an end, and on the 24th February 1954 the Secretary, Local Government Department, informed the Deputy Commissioner, Ferozepore, of this appointment, and in paragraph 4 it was stated as follows:
'4. The services of Shri P. P. Dixit shall be treated as terminated under Section 45 of the Punjab Municipal Act, 1911, with effect from the date Shri Ram Nath assumes charge and he shall draw one month's pay in lieu of the notice.'
3. The question to be decided is whether the petitioner can have the protection of Article 311 of the Constitution of India, and for that purpose it is necessary to refer to the provision of the East Punjab Local Authorities (Restriction of Functions) Act. Section 4 provides:
'4. The Provincial Government, if satisfied that a local authority (not being a Cantonment Board) having jurisdiction in any notified area is incapable of performing or does not adequately perform, any or all of its functions, may suspend such branches or departments of the local authority as are entrusted with these functions, and shall appoint any person or persons either by name or designation to discharge such function or functions.'
4. Under Section 5 the expenses for the discharging of the functions presumably by the Government have to be paid by the local authority and in certain circumstances the Government can call upon the person in charge of the funds to pay the expenses to Government.
By Section 8 the provisions of this Act override the provisions of the Punjab District Boards Act, the Punjab Municipal Act, or other similar Acts dealing with Small Towns.
5. For the Government it was submitted that this is not a civil post to which Article 309 of the Constitution of India will apply and therefore, the protection of Article 311 is not available to the petitioner because-
(1) he is not holding a civil post;
(2) he was not appointed to perform any functions of the State Government; and
(3) he is at the most a statutory agent of the local authority.
6. It was also submitted that the mere fact that the power to appoint or dismiss a servant is in the State does not make him an officer of the State because a person may be a servant of another although the power of appointing and dismissing him may lie with a third person.
Reliance was placed on -- 'Mangal Sain v. State of Punjab', AIR 1952 Punj 58 (A), where a person appointed by the Government as an Executive Officer of the Ambala City, Municipal Committee, was held not to be protected by Article 311 of the Constitution of India and, therefore, he could be dismissed without the provisions of that Article being complied with, but I do not think that the rule laid down in that case applies to the present case because in that case the Executive Officer could under the statute be suspended or removed from office by the State Government and could be suspended or removed by the Municipal Committee and it was found that he was in the employ of the Municipal Committee. Therefore, the law stated in Halsbury's Laws of England, Hailsham Edition, Volume XXII, Para. 191 at page 112, that 'a person may be the servant of another, although a third party has the power of appointing or dismissing him or of requiring his dismissal' would be applicable to that case, but as I will indicate a little later it has no application to the present case.
7. Prem Prakash Dixit was appointed to perform certain functions of which the Municipal Committee had been deprived, and as I read Section 4 of the Act the functions had been taken over by the Punjab Government who had appointed the petitioner to discharge the functions pertaining to the Municipal Water Works Department. No doubt, the Water Works Department continued to belong to the Municipal Committee but its working had been taken over by the Government and they had the power to appoint a person to discharge the functions connected with that Department. It is for that reason that the appointment was notified in the Government Gazette.
8. An argument was then raised that Article 311 of the Constitution is not infringed because termination of service does not fall within the words 'dismissal', 'discharge', or 'reduction in rank' as used in Article 311 and that it only applies whenever there is an element, of penalty implied in the order, and reliance was placed on two judgments of the Supreme Court -- 'Satish Chandra v. Union of India', AIR 1953 SC 250 at p. 251 (B) and -- 'Shyam Lal v. State of Uttar Pradesh', AIR 1954 SC 369 (C).
Now in the former case a man had been annotated by the Resettlement Department of the Government of India for a term of years and subsequentlv under the terms of his contract he could be discharged from service bv a month's notice, and it was held in that case that Article 311 did not apply as there was no contravention of the Rules of Service and the termination was under the terms of a contract.
In -- 'Shyam Lal's case (C)', a Government Servant was made to retire under the rules governing his service at the completion of twenty-five years' service, and it was held that compulsory retirement does not amount to dismissal or removal and it had no stigma or implication of misbehaviour or Incapacity. Now, in that case the retirement was under Rule 4 of the Rules of the Department by which Government was given the absolute right to retire any officer after he had completed twenty-five years' service without being obliged to give any reasons or compensation in addition to pension.
Neither of these two cases can apply to the facts of the case before me. The services of the petitioner have not been terminated either because of an express contract into which he had entered or of any rule as there was in -- 'Shyam Lal's case (C)' and I do not think that either of these two cases can help the opposite party.
9. Reliance was then placed on Sections 12, 13 and 14 of the Punjab General Clauses Act. In my opinion none of these sections have any application to the facts of the present case. Sec-tion 12 provides that the Government can exercise any power conferred upon it from time to time as occasion requires. Section 13 gives the power to appoint a person either by name or by virtue of office, and Section 14 gives to the Government the power to suspend or dismiss. I am unable to see how these sections can help the-case of the opposite party.
10. The learned Advocate for the Municipal Committee relied on the Punjab Civil Services Rules, particularly on Rule 1.4(iii) at page 2 of Volume I, part I and on Appendix 2 at page 12 of Part II. If these rules apply and they are made under Article 309 of the Constitution of India, then there is no doubt that subject to these rules the petitioner will be entitled to the protection of Article 311 of the Constitution. The rule relied upon runs as follows:
'1.4. These rules shall not apply to-
(iii) any Government servant of class of Government servants to whom the competent authority may. by general or special order direct that they shall not apply in whole or in part. One of such classes of Government servants is that employed only occasionally or which is subject to discharge at one month's notice or less. A list of such Government servants is given in Appendix 2.'
and in Appendix 2 at page 12 of the Punjab Civil Services Rules, Volume I, Part II, under the heading 'Public Works Department, Buildings and Roads Branch -- (i) Work Charged Establishment', water Works Superintendent is mentioned. Now, the petitioner is not a Water Works Superintendent in the Public Works Department. He was appointed and his services were terminated by the Local Government Department of the Government of Punjab and, therefore, he is not a person falling within Rule 1.4 (iii) and consequently is not either a temporary servant or a person who is subject to discharge at one months' notice.
11. The fact that the petitioner was appointed by the Government and his services were terminated by the Government, though nothing is indicated as to whether the termination is as a penalty of some delinquency or incapacity, esta-blishes that he was holding a civil post under the Punlab Government and therefore he has the protection of Article 311 of the Constitution. It is not all cases of termination of service which fall within the rule laid down by the Supreme Court and therefore in my opinion unless opportunity was given to the petitioner before his services were terminated which is a milder way of saying so before he was discharged from service, he would be entitled to fret an opportunity under Article 311 of the Constitution.
12. I would therefore allow this petition andissue a direction to the Punjab Government toreinstate the petitioner and he Is entitled tocosts.