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V.P. Rehbar Vs. Punjab State - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1300 of 1963
Judge
Reported inAIR1965P& H94; (1965)IILLJ392P& H
ActsPunjab Civil Services (Punishment and Appeal) Rules, 1952 - Rule 9; Constitution of India - Article 311
AppellantV.P. Rehbar
RespondentPunjab State
Cases ReferredState of Orissa v. Ram Narayan Das
Excerpt:
.....para 12 ) :even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work for misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post. (11) lastly, it may be mentioned that rule 9 of the punjab civil services (punishment and appeal) ruels, to which reference has been made earlier refers to the case of a probationer who is defined in rule 2.49 of the punjab civil services rules volume i part i to mean 'a government servant employed on probation in or against a substantive vacancy in the cadre of a department'.this clearly the petitioner was not being a temporary government servant. it is in the..........a black development and panchayat officer in the scale of rs 250-25-350/25-500 by the order of the punjab government of 21st of september 1961. the post of block development and panchayat officer thought temporary was ' likely to continue in terms of the appointment order and the period of probation was to be two years provide the post continued to exist. it was also the term in this appointment prodder which in annexure. a that the services 'could be terminated without notice if administrative exigencies so dictate'. in other respects the punjab civil services rules were made applicable to the post to which the petitioner was appointed.(2) on the 17th of february 1962 , the petitioner when he was posted as block development and panchayat officer , lehar gagga addressed letter directly.....
Judgment:
ORDER

(1) The petitioner V. P. Rehabr has challenged the order passed by the respondent State of Punjab through its Financial Commissioner on 1st of July 1963, terminating his services as a Block Development and Panchayat Officer, Bhunga,on the ground that these were ' no longer required'. In this petition under Articles 226 and 227 of the Constitution of India the petitioner has made a mention his sacrifices as political sufferer in the cause of struggle for independence of the country and to the improvement which he made in his cause of struggle for independence of the country and to the improvement which he made in this qualification after the partition. The petitioner was appointed a Black Development and panchayat Officer in the scale of Rs 250-25-350/25-500 by the order of the Punjab Government of 21st of September 1961. The post of Block Development and Panchayat Officer thought temporary was ' likely to continue in terms of the appointment order and the period of probation was to be two years provide the post continued to exist. It was also the term in this appointment prodder which in Annexure. A that the services 'could be terminated without notice if administrative exigencies so dictate'. In other respects the Punjab Civil Services Rules were made applicable to the post to which the petitioner was appointed.

(2) On the 17th of February 1962 , the petitioner when he was posted as Block Development and Panchayat Officer , Lehar Gagga addressed letter directly to the Director-General National Employment Exchanges New Delhi in which he made certain complaints about the departmental matters and also suggested improvements to ameliorate the lot of those who were unemployed. This is Annexure, 'B'. On 17th of May 1962 the Director National employment Exchanges Punjab at Ambala wrote the Secretary , Punjab Government in the Labour and Employment Exchanges. The petitioner was further stated to have addressed a public meeting of Paches and Sarpanches at described as 'institution of unemployment' created with the object of showing 'work-load'. The petitioner is said to have criticised not only the Department of Employment Exchanges but his own. In this letter it was suggested to the Punjab Government that the 'officer concerned should be asked to explain his action in criticising his own department which he asserted was doing bogus work and also another department of the Government' and also another department of the Government' and also another department of the Government ' and also to explain why he had addressed directly to the Government of India.

A letter (Annexure 'D') was sent on 30th of June 1962 from the Secretary to the Punjab Government to the Deputy Secretary and the action of the petitioner as Block Development and Panchayat Officer in addressing directly to the Government of India ignoring the prescribed channel of correspondence was stated to be 'objectionable'. The Deputy Secretary was asked to administer a warning to this officer and to ensure that such a thing did not happen in further. A copy of this letter was sent by the Deputy Secretary to the petitioner for an explanation and to show cause why as provided under the rules. Reference may also be made to a letter of 17-4-9163 addressed by the Financial Commissioner Development tot he petitioner when he was Executive Officer panchayat Samiti Hoshiarpur (Annexure 'I') in which the language used by the petitioner in his letter to the Assistant Accounts Officer Simla was described to be 'offensive' and he was required to submit an explanation for the use of such language within 15 days. The petitioner has complained about the behaviour meted out towards him by the Financial Commissioner Shri Fletcher and Minister Shri Darbara Singh in a meeting held in the zilla parishad Hall at Hoshiarpur , on 23rd of May

According to the return was that in reply to certain questions put by the Minister the petitioner gave answers which were described to be 'foolish' revealing that he did not have 'the requisites knowledge of his work and responsibilities.'

(3) Without assigning any cause the order of termination of services was passed under the signature of Shri Fletcher on 1st of July 1963 (Annexure 'J') and the ground stated was that the services of the petitioner were 'no longer required'

(4) In a very earnest argument addressed by Mr. Hoshiarpuri, the learned counsel for the petitioner it has been urged that the order of termination of services though it purports to be a simple order of discharge has in the context of events to be construed as an order imposing a punishment and a stigma being attached to the order of termination of services a notice was required under the provisions of Article 311 of the Constitution. Mr. Hoshiarpuri further submits that Rule 9 of the Punjab Civil Services (Punishment and Appeal ) Rules 1952 which are found in Appendix 24 of the Punjab Civil Services Rules Volume I part II lay down that:

'Where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation for any specific fault or on account of the unsatisfactory record or unfavorable ports implying the unsuitability for the service the probationer shall be apprised of the grounds of such proposal and given and opportunity to show cause against it before orders are passed by the authority competent to terminate the appointment.'

It is also to be observed that Rule 10 gives a right of appeal to every person to whom these rules are applicable against order terminating his appointment unsure Rule 9. Admittedly no appeal was ever preferred and the petitioner has come direct to this Court in writ proceedings to question the validity of the order terminating his services.

(5) On behalf of the respondent-State it is submitted in the written statement that the action against the petitioner was ever given a charge-sheet or that the matter s mentioned in the petition have been taken account of in passing the order complaint of. The contents of Annexure 'B', 'C', 'D' and 'E' are not denied though the inference drawn therefrom that the action of the Government was animated by mala fides is strongly controverted.

(6) Before dealing with the legal position the facts at they emanate from the pleas and the documents filed with the pleadings may be reiterated. The petitioner was appointed a Block Development and Panchayat Officer on a purely temporary basis. His services were liable to terminated without notice though he had undergo a period of probation for two years. The petitioner did have some brushes with the Government as he addressed a public meeting where he ventilated his own views and criticised Government departments and also wrote directly to the Government of India without resort to the recognised channels. The petitioner was asked to explain his conduct which was described as objectionable and was also given a warning by the Government through the Deputy sectary to ensure that he did not resort to such methods again. An explanation was called for about the letter which he wrote to the Assistant Accounts Officer Simal. There is nothing on record however to suggest that nay enquiry was ever held or any other action was taken against the petitioner beyond the order of termination of his services passed on 1st July 1963 for the reason that his services were no longer required.

(7) The question to determine is whether the facts established in this case justify the issuance of the writ as asked for by the petitioner. Mr. Hoshiapuri has placed great reliance on a Supreme Court decision in Jagdish Mitter v. The Union of India AIR 1964 SC 449. In this judgment it was made clear by Chief Justice Gajendragadkar that:

'every order terminating the services of a public servant who is either a temporary servant or a probationer will not amount to dismissal or removal from service within the meaning of Article 311. IT is only when the termination of the public servant's services can be shown to have been ordered by way of punishment that it can be characterised either as dismissal or removal service...

The protection of Article 311 can be invoked not only by permanent public servants but also by public servants who are employed as temporary servants or probationer...... The appropriate authority possesses two powers to terminate the services of a temporary public servant; it can either discharge him purporting to exercise its power under the terms of contract or the relevant rule and in case of discharge and nothing more; in such a case , Article 311 will not apply. The authority can also act under its power to dismiss a temporary servant and make an order of dismiss; in straightforward way in such a case, Article 311 will apply.' The authority concerned may however inform itself a person who has been discharged and 'there is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not punish the temporary servant but to just to decide whether he deserves to be continued in services or operating the mind of the authority in terminating the services of a temporary servant does not alter the character of the termination and is not material in determining the said character.'

(8) I do not think that the principle enunciated in this authority can be found to support the contention of Mr. Hoshiarpuri that some kind of enquiry having been held about the petitioner and his removal having been decided upon as a result thereof the element of punishment has to be deduced. There was no enquiry and prima facie the order of removal dose not refer to any defect or misconduct on the part of the petitioner. Some of the other authorities on which reliance has been placed by Mr. Hoshiarpuri have been fully discussed and explained in an unreported decision of the Supreme Court in Champaklal Chimanlal Shah v. Union of India, Civil Appeal No. 472 of 1962, D/-23-10-1963: (since reported in AIR 1962, D/-23-10-1963: (Since reported in AIR 1964 SC 1854). The relevant observation are to be found at page 8 of the 'blue print' judgment where protection of Article 311 in the case of a temporary Government servant is discussed. In the word of Mr. Justice Wanchoo, the protection of Article 311(2) is only available to temporary Government servants where.

'discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise... even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the term of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant'.

His Lordship referred to a preliminary enquiry which is generally held to determine whether a prima facie case for a formal departmental enquiry is made out, and observed that 'it is very necessary that the two should not be confused'. Said Mr. Justice Wanchoo at page 10 (See AIR 1964 SC 1854 para 12 ) :

' Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work for misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post... Such a preliminary enquiry may even be held ex party for it is merely for the satisfaction of government though usually for the sake of fairness , explanation is taken from the servant concerned even at such an enquiry..........There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the Government servant is entitled to the protection of that Article. That is why this Court emphasized in Parshotam Lal Dhigra v. Union of India , 1958 Scr 828: (AIR 1958 SC 360 and in Shyam Lal v. State of Uttar Pradesh 1955-1 Scr 26: (AIR 1954 SC 369) that the motive or the including factor which influences the government to take action under the terms of the contract of employment or the specific service rule in irrelevant.'.

Later it was observed at page 11 (See AIR 1964 SC 1854 para 13) that :

'The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of Article 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service.'

(9) In discussing cases on which Mr. Hoshiarpuri has relied, Mr. Justice Wnachoo at page 13 (See AIR 1964 Sc 1854 par 16 ) discussed first of all the case of Madan gopal v. The State of Punjab , AIR 1963 SC 531. In that case charges were actually served upon Madan Gopal who was a temporary servant. The distinguishing feature in the instant case is that no charge was ever framed against the petitioner. In Madam Gopal's case , against the petitioner. In Madan Gopal/s case Air 1963 SC 531 and explanation was asked why disciplinary action should not be taken against him and in reply the defaulting official wanted to be a personal hearing. This in Mr. Justice Wanchoo's view amounted to the holding of departmental enquiry and actually the action was taken by the Deputy Commissioner on the report submitted to him by the Enquiry Officer. It was therefore held in Madan Gopal's case, AIR 1963 SC 531 that though the order impugned mentioned only termination of services the order virtually amounted to dismissal and the provisions of Article 311(2) were ,made applicable.

(10) Mr. Hoshiarpuri also relied on the Supreme Court case of the State of Bihar v. gopal Kishore Prasad , ARI 1960 SC 689. The proposition state therein is to this effect:

'But if instead of terminating such a person's service without any enquiry the employer chooses to hold an enquiry into his alleged misconduct or inefficiency or for some similar reason the termination of service is by way of punishment , because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of Article 311(2) of the Constitution.'

Mr. Justice Wanchoo in elaborating this proposition made it clear that not every enquiry held about the conduct of a probationer or a temporary servant would entitle him to the protection of chooses to hold an enquiry purporting to act under Article 311 as was done in the case of Gopu Kishore Prasad, AIR 1960 SC 689 that it would afford the Government servant protection which Article envisages. This was also clarified in the case of State of Orissa v. Ram Narayan Das, (1961) 1 SCR 606: (AIR 1961 SC 177) and it was observed that in Gopi Kishore Prasad's case AIR 1960 SC 689 the enquiry referred to was actually.

'an enquiry into allegations of misconduct or inefficiency with a view if they were found established to imposing punishment and not to an enquiry whether a probationer should be confirmed.' In effect therefore the provisions of Article 311 would be attracted only if Government purports to hold an enquiry under this Article read with the Rules in order to punish an officer and the proposition in Gopi Kishore Prasad's case , AIR 1960 SC 689 must be read in this context. In the present instance even if the correspondence referred to coupled with the explanation called for imply some sort of enquiry it has not been found to have been made with the object of punishing the petitioner and there is nothing to controvert assertion made by the respondent-State that the Government intended to discharge the petitioner in accordance with the terms of the appointment letter.

(11) Lastly, it may be mentioned that Rule 9 of the Punjab civil Services (Punishment and Appeal)

Ruels, to which reference has been made earlier refers to the case of a probationer who is defined in Rule 2.49 of the Punjab Civil Services rules Volume I part I to mean ' a Government servant employed on probation in or against a substantive vacancy in the cadre of a department'. This clearly the petitioner was not being a temporary Government servant. There is a difference between a 'probationer ' and a 'person on probation'. The probationer is one appointed in or against a post substantively vacant with definite conditions or probation while the 'person on probation ' is one appointed to a post (not necessarily vacant substively) for determining his fitness for eventual substantive appointment to that post. It is the latter sense that the petitioner was appointed on probation for two years and the Government was free to make up its mind whether it would retain the services of the petitioner after expiry of the period. It is in the exercise of the power that the Government decided to dispense with the services of the petitioner on Ist July 1963.

(12) This petition must therefore fail and is accordingly dismissed. There would be no order as to costs.

(13) Petition dismissed.


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