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Ram Nath Sahni Vs. Punjab State and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1308 of 1963
Judge
Reported inAIR1967P& H129; (1968)ILLJ443P& H
ActsConstitution of India - Article 311(2)
AppellantRam Nath Sahni
RespondentPunjab State and anr.
Appellant Advocate M.R. Chhibber, Adv.
Respondent Advocate M.S. Pannu, Adv.
DispositionPetition dismissed
Cases ReferredChampaklal Chimanlal Shah v. Union of India
Excerpt:
.....order. - 1961. thereafter, an enquiry was made on his behalf by one shrimati ram piari from the finance minister who wrote back to say on january 17. 1962 (annexure d-1) that the decision about the petitioner had been 'given by the vigilance department and in such like cases the decisions made by the said department are accepted' as nothing further could be done the finance minister expressed his inability to assist shrimati ram piari. in any event, the law is now well settled that the government has a right to terminate the services of its temporary servants when it can do so under the terms of the contract of employment or the specific service rules and motive operating on the mind of the government is immaterial and the fact that the inducing factor which influenced the government..........september. 1961.thereafter, an enquiry was made on his behalf by one shrimati ram piari from the finance minister who wrote back to say on january 17. 1962 (annexure d-1) that the decision about the petitioner had been 'given by the vigilance department and in such like cases the decisions made by the said department are accepted' as nothing further could be done the finance minister expressed his inability to assist shrimati ram piari. the petitioner had earlier moved the same minister on 5th of september. 1961 and a reply was sent to shrimati bhagwati sethi (annexure g) informing her that 'the services of shri sahni were terminated on receipt' of a report against him from the vigilance department.' it being alleged that he used 'to take liquor daily and that he was accepting illegal.....
Judgment:
ORDER

Shamsher Bahadur, J.

1. Ram Nath Sahni whose temporary services as an Inspector of Food and Supplies were terminated on one month's notice has filed this writ petition under Article 226 of the Constitution asserting that the order of discharge is violative of Article 311(2) of the Constitution.

2. The petitioner was an employee of the Rationing Department from where he was discharged in 1948; on re-employment he was taken over as Sub-Inspector in the Food and Supplies Department in Amritsar in October, 1966. Even though the petitioner was promoted as Inspector in December, 1968, his services were dispensed with after one month's notice had been given to him. No enquiry was ever conducted against the petitioner, nor any charge-sheet served on him. Naturally, being a temporary employee no show-cause notice was served on the petitioner before action for termination of his services was taken. The appeal preferred by the petitioner was dismissed on 29th of September. 1961.

Thereafter, an enquiry was made on his behalf by one Shrimati Ram Piari from the Finance Minister who wrote back to say on January 17. 1962 (Annexure D-1) that the decision about the petitioner had been 'given by the Vigilance Department and in such like cases the decisions made by the said Department are accepted' As nothing further could be done the Finance Minister expressed his inability to assist Shrimati Ram Piari. The petitioner had earlier moved the same Minister on 5th of September. 1961 and a reply was sent to Shrimati Bhagwati Sethi (Annexure G) informing her that 'the services of Shri Sahni were terminated on receipt' of a report against him from the Vigilance Department.' it being alleged that he used 'to take liquor daily and that he was accepting illegal gratification from a certain party' He is also said to have been involved, according to the Finance Minister, in a case while he was at Nawanshahr.

3. The counsel for the petitioner has urged that when such allegations have been made the order of termination of the services of the petitioner cannot be regarded as an order of discharge simpliciter, there being element of punishment involved in it. It is consequentially urged that a notice under Article 311(2) of the Constitution was imperative. It is to be regretted that the personal communications of the Finance Minister, who out of courtesy acknowledged the letters addressed on behalf of the petitioner and actually gave the reasons which had impelled the Department, should have been used for a purpose they could not have been intended.

In any event, the law is now well settled that the Government has a right to terminate the services of its temporary servants when it can do so under the terms of the contract of employment or the specific service rules and motive operating on the mind of the Government is immaterial and the fact that the inducing factor which influenced the Government to take action under the contract of employment is the misconduct, negligence, inefficiency or other disqualification will not make the action taken a punishment to attract the provisions of Article 311(2)

There was no charge-sheet against the petitioner who was never called upon to file a reply. If there was some kind of enquiry to reach the conclusion envisaged in the letter written on behalf of the Finance Minister it was only of a preliminary nature and may have been conducted by the Government to inform itself about the suitability of the petitioner The Government may have a reason to dispense with the services of a temporary employee and such a conclusion may be reached by a process of a preliminary enquiry. Even where an explanation is taken from the servant concerned such an enquiry is not converted into a full-fledged departmental enquiry which usually precedes the infliction of three major punishments under Article 311 of the Constitution. It is to be borne in mind that the order of termination passed in accordance with the terms of appointment did not refer to any defect or misconduct on the petitioner's part and it was thus a simple order of discharge without any element of punishment involved in it. Protection, in these circumstances, of Article 311(2) could not be claimed

4. As observed by Chief Justice Gajendragadkar in Jagdish Mitter v Union of India, AIR 1964 SC 449:

'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 that case, it would be a straightforward and direct 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 dismissal in a straightforward way; in such a case Article 311 will apply This simple position is sometimes complicated by the fact that even while exercising its power to terminate the services of A temporary servant under the contract or the relevant rule, the authority may in fairness enquire whether the temporary servant should be continued in service or not.' If an enquiry is held to inflict any of the three major punishments, then of course the concerned servant has to be joined in it and full opportunity afforded for his defence. The motive operating in the mind of the authority is sometimes confused with a punitive element involved in inflicting one of the major punishments. As observed by the learned Chief Justice in Jagdish Mitter's case, AIR 1964 SC 449: 'That is why in dealing with temporary servants against whom formal departmental enquiries may have been commenced but were not pursued to the end, the principle that the motive operating in the mind of the authority is immaterial, has to be borne in mind. But 'since considerations of motive operating in the mind of the authority have to be eliminated in determining the character of the termination of services of a temporary servant, it must be emphasised that the form in which the order terminating his services is expressed will not be decisive.'

In the present case, no enquiry was held and whatever element of punishment is involved is to be deduced from the letter sent out of courtesy on behalf of the Finance Minister to the person who had interceded for the petitioner. The same principle was laid down in the case of Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854.

5. Such being the legal position, there is nothing of substance left in the case of the petitioner. This petition, therefore, fails and is dismissed. Being an employee whose services have been dispensed with, I would make no order as to costs against the petitioner.


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