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Amritlal Haribhai Desai Vs. the State of Bombay (Now Gujarat) - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR268
AppellantAmritlal Haribhai Desai
RespondentThe State of Bombay (Now Gujarat)
Cases ReferredShrinivas Ganesh v. Union of India
Excerpt:
.....any formal enquiry under rule 55 of the civil services (classification control and appeal) rules and that before taking action for his compulsory retirement the government desired to give him all opportunity to show cause why that action should not be taken. 4. their lordships clearly held that even if the power of compulsory retirement is used when the authority exercising this power could not substantiate misconduct which may be the real cause for taking the action compulsory retirement would not amount to termination of services unless there was an imputation or charge which was the condition for the exercise of the power......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 465-a make it abundantly clear that an imputation or charge is not in terms made a condition tot the exercise of the power in other words a compulsory retirement has no stigma or implication of misbehaviour or incapacity. in the present case there was no doubt some imputation against the appellant which he was called upon to explain but it was made perfectly clear by the letter of the 4th january 1950 that the government was not.....
Judgment:

V.B. Raju, J.

1. This is a Second Appeal by the original plaintiff who filed a suit against the State of Bombay for a declaration that the order terminating his services with effect from 1st November 1951, passed on 29th September 1951, was ultra vires and for other incidental reliefs. The suit was dismissed by the trial Court whose Judgment was confirmed by the First Appellate Court. The appellant was a temporary Government servant employed in the Rationing Department and on 29th September 1951 an order was passed terminating his services with effect from 1st November 1951. No reason was given in the order. The learned Assistant Judge, Surat in First Appeal, held that although temporary Government servants were entitled to the protection of Article 311 of the Constitution of India, the order in question amounted merely to a termination of services, that is was not by way of punishment and that it did not amount to dismissal. His attention was drawn to the Office Departmental Notes in Ex. 34 and the orders Exs. 37 to 40. After considering these documents, the learned Judge came to the conclusion that the order of termination was not by way of punishment and the Government merely dispensed with his services as he was a temporary servant under the terms of the contract. He also observed that merely because at one time, it was thought desirable to hold a departmental enquiry against him it cannot be said that his services were terminated by way of punishment He also relied on 58 Bom. L.R. 673 Shrinivas Ganesh v. Union of India (1) He therefore held that the order terminating the services of the appellant did not amount to dismissal and therefore dismissed the appeal.

2. In Second Appeal the same point and one other point are urged. In regard to the first contention viz that the order of termination of services passed on 29th September 1961 amount to dismissal it must be noted that it is a finding of fact of the First Appellate Court that services of the appellant were terminated and that the appellant was not dismissed by way of punishment. Even on merits I agree with the view taken by the First Appellate Court that the order in question does not amount to removal from service by way of punishment. In order to ascertain whether an order of termination of service amounts to a dismissal or termination from service by way of punishment we have to look only at the order whatever may have been the real cause of the order or the motive of the person who passed the order. It is true that when we look at the order we have to look at the substance of the order and even if the word discharge or termination of service is mentioned in the order the order itself might/may amount to dismissal if there are other words in the order indicating that the termination of service was by why of punishment for example for reasons like incompetence inefficiency or corruption. The Learned Counsel for the appellant relied on 58 Bom. Law Reporter 673 in support of his contention that we have to look not merely at the order but at the actions which preceded the passing of that order In my opinion the judgment of the Bombay High Court does not support his contention because it is observed on page 677 as follows:

It is from that point of view that we must again look at the order discharging the appellant. It cannot be disputed that if the Government had discharged the appellant without giving any reasons at all that order could not have been challenged by the appellant because the appellant being a temporary servant he had no security of tenure he could not claim to continue in Government service for any length of time and the Government like any other employer would be entitled to dispense with his services at any time it thought proper. The question is whether the fact that the Government has given a reason for dispensing with the services of the appellant alters an order of discharge into an order of dismissal or removal. It is true that we must look at the substance of the matter and we should not be influenced by the language used in the order. The mere fact that Government chooses to use the expression discharge is not conclusive of the matter and notwithstanding the use of that expression it may still be an order of dismissal or removals.

3. It is true that it was observed that we must look at the substance of the matter. By the expression substance of the matter was meant the substance of the order and not the departmental proceedings which may have preceded the order of termination of services. In 1955 Supreme Court Reports Page 26 (2) Their Lordships made the following observations:

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 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 leveling 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 465-A make it abundantly clear that an imputation or charge is not in terms made a condition tot the exercise of the power In other words a compulsory retirement has no stigma or implication of misbehaviour or incapacity. In the present case there was no doubt some imputation against the appellant which he was called upon to explain but it was made perfectly clear by the letter of the 4th January 1950 that the Government was not holding any formal enquiry under Rule 55 of the Civil Services (Classification Control and Appeal) Rules and that before taking action for his compulsory retirement the Government desired to give him all opportunity to show cause why that action should not be taken. In other words the enquiry was to help the Government to make up its mind as to whether it was in the public interest to dispense with his services. It follows therefore that one of the principal tests for determining whether a termination of service amounts to dismissal or removal is absent in the case of compulsory retirement.

4. Their Lordships clearly held that even if the power of compulsory retirement is used when the authority exercising this power could not substantiate misconduct which may be the real cause for taking the action compulsory retirement would not amount to termination of services unless there was an imputation or charge which was the condition for the exercise of the power. It is therefore clear from the judgment of Their Lordships of the Supreme Court that we have to look at the order and not at what may have been the real cause of the order. In view of this decision of the Supreme Court there is no merit in the contention of the Learned Counsel for the appellant that the order in question amounts to dismissal.

5. The next point urged is that Article 16 of the Constitution of India has been violated and that there has been no equal opportunity in the matter of employment. It is difficult to accept this contention. The appellant had an equal opportunity of employment and merely because he was selected for termination of services for reasons to be found in Ex. 34 it cannot be said that he was arbitrarily picked out for termination of services. Every Government must have the authority and power to take suitable action against its servants who are found to be inefficient or corrupt or insubordinate. That cannot be said to be a denial of equal opportunity. In fact to retain such persons in service would be a denial of equal opportunity to the others. I therefore reject this contention also. No other point has been urged. Tile appeal is therefore dismissed. The Learned Counsel for the respondent does not press for costs. There will therefore be no order as to Costs of this appeal.


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