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Khem Chand Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 690 of 1972
Judge
Reported in1975(8)WLN292
AppellantKhem Chand
RespondentUnion of India (Uoi) and ors.
DispositionPetition dismissed
Cases ReferredIn Union of India v. Prem Prakash Midha
Excerpt:
redeployment of surplus staff against vacancies in central civil services & posts class iii rules 1967 - rules 3, 7 & 8--a quasi permanent ldc & temporary jr. accounant in settlement department declared sur plus and absorbed as temporary udc in income tax department--held, he does not carry quasi--permanent status to income tax department.;it is also quite natural because when a person is brought into a new organisation in a temporary capacity, there may not be a permanent post vacant for such a person in the recipient organisation and a supernumerary post created in the central surplus staff cell would continue only for a limited period of six months, as the purpose of the creation of that cell is merely the proper deployment of surplus staff received from various.....orderof the surplus staff taken on the rolls of the central (surplus staff) cell vide ministry of home affairs order no. 4/8/70-csiii, dated 25.2.70, the following persons are transferred to the various offices with effect from the dated shown against their names:________________________________________________________________________________s. name of office to which past againstno. the officer transferred which absorbed date________________________________________________________________________________s/s inspecting1 k.c. gupta assistant commissioner u.d.c. 13.3.70of income tax ajmer (130 - 300) (a n )range, ajmer.sd/- (p.l. gupta)deputy secretary to thegovernment of india.3. the petitioner continued to work for some time in the office of the commissioner of income-sax, rajasthan......
Judgment:
ORDER

Of the surplus staff taken on the rolls of the Central (Surplus Staff) Cell vide Ministry of Home Affairs Order No. 4/8/70-CSIII, dated 25.2.70, the following persons are transferred to the various offices with effect from the dated shown against their names:

________________________________________________________________________________S. Name of Office to which Past againstNo. the officer transferred which absorbed Date________________________________________________________________________________S/S Inspecting1 K.C. Gupta Assistant Commissioner U.D.C. 13.3.70of Income tax Ajmer (130 - 300) (A N )Range, Ajmer.Sd/- (P.L. Gupta)

Deputy Secretary to the

Government of India.

3. The petitioner continued to work for some time in the office of the Commissioner of Income-sax, Rajasthan. Jaipur, after which, he appears to have been transferred to the office of the Income-tax Officer, Alwar in November 1970, where he continued to work till he was further transferred by the order of the Inspecting Assistant Commissioner, Income-tax, Ajmer Rauge, Ajmer, dated May 27, 1971, to the office of the income-tax Officer, Sirohi. The petitioner was relieved from the office of the I income-tax Officer, Alwar, on June 7, 1971 but he did not join his duties in tae office of the Income tax Officer, Sirohi at any time thereafter, although he had taken, in advance, one month's salary and traveling allowances on transfer. In the first instance, he applied for leave on the alleged ground of the illness of his wife and daughter but the leave was refused and the petitioner was asked to join at his new place of porting immediately. However, instead of joining in the office of the Income-tax Officer, Sirohi, the petitioner again applied for leave but the said application vas also rejected by the order of the Injecting Assistant Commissioner, date September 14, 1971 on the ground that the reasons on which the leave was applied for were not satisfactory. The petitioner was also intimated that his absence from duty vas deliberate and with out compelling reasons and smacked of insubordination and that he shall not be entitled to any have salary for the period of his absence. It appears that the petitioner reported for duty at Jaipur from July 28, 1971 to July 31, 1971 for appearing at the department examination of ministerial staff for his confirmation on the post of Upper Division Clerk, but thereafter, he again proceeded to Alwar and did not join hi-t duties at Sirohi. The Inspecting Assistant Commissioner, by his letter dated October 4, 1971 (Ex. 7) again directed the petitioner to join his duties at Strohi immediate and clearly warned him that in case he did not do so on or before October II, 1971, then his services would be terminated under Rule 5(1)(a) of the Central Civil Services (Temporary Service) Rule, 1965 (hereinafter referred to as 'the Rules'). Yet, inspite of this clear warning by the Inspecting Assistant Commissioner, the petitioner did not Join duties at Sirohi but sent a letter alleging that he was ill Thereupon, the Inspecting Assistant Commissioner, by his letter dated October 12, 1971. directed the petitioner to appear before the Principal Medical and Health Officer, Alwar, on October 15, 1971 far medical examination and the said Medical officer was requested to send to him a medical report regarding the petitioner's health The petitioner, however, did not appear before the Principal Medical and Health Officer, Alwar on October 15, 1971 as directed Thereupon, by the order dated October 28, 1971, the Inspecting Assistant Commissioner of Income-tax, Ajmer Range, Ajmer, terminated the services of the petitioner as a temporary Upper Division Clerk in the Income-tax Department under Rule 5(1)(a) of the Rules, with immediate effect. It was made clear in the aforesaid order that the petitioner was entitled to his pay and allowances in lieu of one month's notice, as provided in the provision to the above mentioned Rule and the petitioner was informed that the said amount may be adjusted against the advances if Rs. 1166/- which the petitioner bad obtained from the Income tax Officer, Alwar at the time of being relieved of his duties there, in respect of advance towards one month's salary and traveling allowance on transfer. The petitioner has alleged that he did not receive this order of the Inspecting Assistant Commissioner, dated October 28, 1971, but only received a blank envelope in place thereof and that he again applied for 15 days' extension of (sic) is leave by telegram on November 1, 1971 In reply to that telegram, the Inspecting Assistant Commissioner wrote to the petitioner on February 4, 1971 that his service already stood terminated with effect from October 28, 1972 and the question of granting any leave to him thereafter did not arise. He also enclosed, with that Utter, a duplicate copy of his earlier order dated October 28, 1971, terminating the services of the petitioner.

4. The petitioner has filed the present writ petition in this Court as be felt aggrieved from the aforesaid order of the Inspecting Assistant Commissioner of Income tax dated October 28, 1971 terminating his services under Rule 5(1)(a) of the Rules. Learned Counsel for lie petitioner mainly made two submissions before me. His first submission was that as the petitioner was declared a quasi permanent employee on the post of Lower Division Clerk, his services could not be terminated under Rule 5(1)(a) of the Rules but his services could only be terminated under Rule 3 thereof which was applicable to quasi permanent employees The second contention of the earned Counsel for the petitioner was that the order passed by the Inspecting Assistant Commissioner, on October 28, 1971, was by way of penalty and the said order cost a stigma and as such, the provisions of Article 311 of the Constitution were violated The reply of the earned Counsel for the non-petitioners is that the petitioner having been declared surplus in the Rehabilitation Department, he was deployed and absorbed in the office of the Commissioner of Income-tax Rajasthan as a temporary Upper Division Clerk and that he was never declared a quasi permanent employee in the Income-tax Department, and as such, the services of the petitioner were rightly terminated under Rule 5(1)(a) of the Rules. la respect of the second contention, earned Counsel for the non-petitioners urged that disciplinary proceedings were not at all initiated against the petitioner and there is no question of attaching any stigma in the present case and that the order of the Inspecting Assistant Commissioner dated October 28, 1971 is an order of termination simplicities, in accordance with the provisions of Rule 5(1)(a) of the Rules.

5. I have considered the rival contentions of the learned Counsel, As regard the first submission, there is no doubt that the petitioner was declared as a quasi permanent Liver Division clerk with effect from July 1, 1958 by the order of the Regional Settlement Commissioner, Rajasthan, Jaipur dated September 2, 1959 (Ex 1) vet while working on the higher post of Junior Accountant 10 a temporary and officiating capacity, the petitioner was declared surplus with effect from February 1, 1970 by the order Ex 3.

6. It would be proper at this stage to notice some of the relevant notifications and Rules relating to the absorption of surplus staff. The Ministry of Home Affairs by its memorandum dated February 25, 1966 issued detailed instructions regarding the deployment of staff rendered surplus as a result of introduction of Administrative reforms or studies of Staff Inspecting Unit Ministry of Finance. The scheme provided in the first instance for the disposal of the surplus personnel by transferring the same to the Central Pool with the opinion to retire voluntarily. A special cell was brought into existence in the Ministry of Him Affairs for dealing with the surplus staff, so transferred to the Central Pool It vas provided in the scheme that the junior-most temporary persons should he surrendered first against reduced cadre strength followed, if necessary, by junior nest quasi-permanent and then permanent staff On transfer of such surplus personnel to the Central Pool, it was envisaged in the scheme, that such persons would continue to receive pay and allowances in their period scales. A total bin was imposed on direct recruitment in all Government offices and organisations, unless clearance was obtained from the Central Cell for each category of posts on each occasion, to the effect that the Central Pool had no suitable candidate to offer. The scheme also provided that in the event of any vacancies occurring in any Government organisations, they would require the Central Pool to indicate if it had suitable persons for recruitment to those costs and that attempt in individual placements should be made to match the physical of the individual with the pay-scale of the recipient post, as far as possible and if, in case the pay scale of the recipient post was lower, the individual may be allowed the facility of carrying the previous scale alone with him, even it he was only officiating on the new post. It was then provided that such surplus staff would be allowed to remain in the Central Pool for a period of six months and in case they were not absorbed any where and they did not opt to retire, then may be retrenched under the exiting rules In respect of temporary, quasi permanent and permanent employees.

7. This memorandum of February 25, 1968 was subsequently amended by the memorandum dated September 24, 1966 to the effect that the post, temporary or permanent held by the surplus employee would be deemed to be transferred to the Central Pool in the same scale of pay and conditions, with effect from the date of transfer and that the duration of the posts so created in the Central Pool would be six months unlese the incumbents are transferred earlier within that period from the on their placement in regular vacancies elsewhere or allowed to retire on opting for voluntary retirement. Even in the case of permanent employees, the creation of supernumerary post was envisaged. Subsequently by memorandum dated May 17, 1968, the earlier memorandum of September 24, 1966 was further modified, stress being laid on the point that the duration of the posts created in the Central Pool, in all cases, be for a maximum period of six months, unless the incumbents are transferred from the Pool earlier than that period on their appointment to regular vacancies elsewhere or on their retirement earlier by opting for voluntary retirement. Even in the case of permanent surplus personnel, it was provided in the last mentioned memorandum that their lien would be retained against supernumerary permanent posts created in the Central Pool for the next ensuing six months from the date of their transfer to the Pool and that their lien shall stand terminated in the expiry of that period of six months, even if they are not confirmed in the new posts in which they are employed within that period.

8. The President also made rules, under the proviso to Article 309 of the Constitution, called 'The Redeployment of Surplus Staff against Vacancies in Central Civil Services and Posts, Class III Rules 1967' for the purpose of regulating the redeployment of such surplus staff. Rule 8 of those rules provided that all rules regulating the recruitment of persons to Central Civil Services and Polls would be deemed to have been amended to the extent provided in these Rules. The age limit, educational qualifications, medical examination etc. provided in the recruitment rules for various Central Civil Services and posts were thus relaxed, in the case of surplus staff redeployed through the Central Cell. Rule 3 of there rules provided that all vacancies in the Central Civil Services and Posts, Class III, would be filled from amongst the surplus staff sponsored by the Central Cell in the Ministry of Home Affairs, except in cases where the recruitment was to be made on the basis of competitive examinations, held by the Union Public Service Commission. Further Rue 7 provided that the Ministry of Home Affairs would decide regarding the suitability or otherwise of the surplus staff for redeployment.

9. In accordance with the aforesaid rules, and the memoranda referred to above, the petitioner was, in the first instance, taken in the Central Pool as soon as he was declared surplus with effect from February 1, 1970 and be was transferred, along with his post to the Central (Surplus Staff) Cell in the Ministry of Home Affairs Thereafter, he was deployed to the office of the Commissioner of Income-fax, Rajasthan, jaipur. An offer was made to him on March 7, 1970 (Ex. A-1) far appointment in a temporary vacancy on Upper Division Clerk and on the petitioner's reporting there for duty, the appointment order was issued o him on April 18, 1970 (Ex A-2) by the Income-tax Officer, Headquarters, attached to the Office of the Commissioner of Income-tax The Central Government there upon declared, by its order dated June 2, 1970 that the petitioner stood transferred to the office of the Commissioner of Income-tax, Rajasthan, Jaipur with effect from March 13, 1970 and was absorbed against the post of an Upper Division Clerk. The contention of the earned Counsel for the petitioner in these circumstances is that the petitioner having already been declared as quasi permanent on the post of Lower Division Clerk, he carried the quasi permanency in respect of that post even after he was declared surplus and was later on deployed to the Income-tax Department as Upper Division Clerk in a temporary capacity. Learned Counsel argued with vehemence that the declaration of quasi permanency under Rule 3 of the Rules was a declaration of status and that declaration continued to be effective so long as the petitioner's services were not terminated. A Government servant who has rendered more than three years' continuous temporary service may be declared to be quasi-permanent employee under Rule 3, If the Appointing Authority is satisfier', having regard to the quality of his work, conduct and character that he was suitable or the post However, Rule 4 specifically mentions that the declaration made under Rule 3 shall specify the particular post or particular grade of post in respect of which the declaration under Rule 3 is made and the date from which it shall take effect. Thus, the declaration made under Rule 3 by the Regional Settlement Commissioner by his order Ex 1 regarding the appointment of the petitioner in a quasi permanent capacity on the point of a Lower Division Clerk cannot endure to his benefit, after the petitioner was declared surplus, because then, be ceased to be an employee on any post under the Regional Settlement Commissioner. At the stage when he 'as declared surplus it was open to the petitioner, who was officiating in the higher post of Junior Accountant, to ask for his reversion to his original post of Lower Division Clerk in respect of which he was declared quasi permanent, instead of the declaration of his having become surplus from the higher (sic) of Junior Accountant. But as the grade of a Lower Division Clerk was 60-130, the petitioner at that stage did not choose to go back to his original post of Lower Division Clerk On the other hand, he felt contend on his being declared surplus and on being carried to the Central Pool in the hope that under the Redeployment of Surplus Staff Rules, be would be absorbed on an equivalent post Thereafter, the Income-tax Officer, Headquarters, made the offer to the petitioner of being employed in the office of the Commissioner of Income-tax as an Upper Division Clerk in a temporary capacity in the grade of Rs. 130-300 and the petitioner having submitted the joining report in pursuance of the aforesaid offer an order of his appointment on that post was issued on April 8, 1970 which clearly mentioned that the petitioner's appointment in the post of Upper Division Clerk in the Income-tax Department was in a temporary capacity. Much stress has been laid by the earned Counsel for the petitioner on the order of the Ministry of Home Affairs dated Jude 2, 1970 and it has been urged that the said order has superseded the offer made by the Income-tax Officer, Headquarters (Ex A-1) and the order of appointment passed by him (Ex A-2). I do not agree with this contention of the earned Counsel in as much as there is no inherent contraction between the order of appointment passed by the Income-tax Officer, Headquarters, dated April 18, 1970 and the subsequent order passed by the Ministry of Home Affairs on June 2, 1970 It appears that the order of the Home Ministry dated June 2, 1970 was merely issued for the purpose of Rule 7 of the Redeployment of Surplus Staff Rules, as it was the Ministry of Home Affairs, whose decision in respect of the suitability of surplus staff, would be final and would have to be accepted by the recipient organisation. Thus, it was the Home Ministry, which, by its order dated June 2, 1970. decided that the petitioner, who though declared surplus while working in a higher cadre of Junior Accountant in an officiating capacity in the grade of 168-300 was suitable for being absorbed on the post of an Upper Division Clerk in the grade of 130-300 in the office of the Commissioner of Income-tax, Rajasthan, Jaipur. learned Counsel for the petitioner submitted that the Home Ministry mentioned in its order dated June 2, 1970 that the petitioner was 'transferred' to the office of the Commissioner of Income-tax and that showed that the continuity and the service of the petitioner was maintained and all the rights which the petitioner had obtained while serving In the Rehabilitation Department, including his quasi permanency, continued. However, it may be pointed out that the 'transfer' envisaged by the order of June 2, 1970 was in accordance with the memorandum of the Ministry of Home Affairs dated February 25, 1971 in respect of surplus staff taken on the rolls of the Surplus Staff Cell in the Ministry of Home Affairs. I have already referred to the salient features of the Scheme contained in the aforesaid memorandum, which envisaged the transfer of surplus staff in the first instance from the organisations from where they were declared surplus to the Central Pool and thereafter their subsequent deployment to the recipient organisations. A significant fact in this connection is that the service sheet of the petitioner, a copy of which has been produced as Ex. 13 on the record, shows that when the petitioner was transferred 10 the Central Surplus Staff Gall in the Ministry of Home Affairs, he was merely shown as 'temporary' although while he was working as Junior Accountant, his services were referred as '(Q P.)' meaning thereby, quasi permanent, I may also mention here that no rule or even administrative instructions have been brought to my notice by the earned Counsel for the petitioner to show that a person who has been declared surplus and thereupon removed from his parent department, would retain his quasi permanency although he may be appointed in a parley temporary capacity only in the recipient organisation Even in case of permanent surplus personnel, the memorandum dated May 17, 1968 to which I have already referred above, clearly provided in para 4 that permanent supernumerary post in the Central Pool would be retained for a maximum period of six months from the date of the transfer of such permanent employee to the Pool and his lien shall stand terminated in the expiry of the said period of six months, even if he is not conformed in the new post in which be is deployed within that period. Thus, even if the petitioner would have been a permanent employee in the Rehabilitation Department and on his being declared surplus therefrom, he would have been deployed in a temporary capacity in the Income-tax Department, then in accordance with the aforesaid memorandum, the petitioner would have lost his lien after the expiry of six months from the date of his declaration as irrespective of the fact that he might not have become permanent employee in the new department. It is also quite natural because when a person in brought into a new organisation in a temporary capacity, there may not be a permanent post vacant for such a parson in the recipient organisation and a supernumerary post created in the Central Surplus Staff Cell would continue only for a limited period of six moths, as the purpose of the creation of that cell is merely the proper deployment of surplus staff received from various organisation. Alien of such a transferred personnel could not be created or maintained in the recipient organisation unless there is a permanent post on which such lien could be maintained. A person who was merely quasi permanent in his original employment could not strand on a better footing than a permanent employee thereof. In this view of the matter, there is no force in the argument of the learned Counsel for the petitioner that the petitioner carried his quasi permanent status even after he was declared surplus from the Rehabilitation Department and was liter on absorbed in the income-tax Department.

10. As regards the second submission, it has not been argued by the earned Counsel for the petitioner that the order of termination of the petitioner dated October 28, 1971 on the face of it costs any stigma. However, the argument of the earned Counsel is that the events preceding the termination of his service should be taken into consideration and the attendant circumstances showed that the termination of the petitioner's service was brought about because of the allegations of insubordination or misconduct emanating from the failure of the petitioner to join the service at the new place of his posting, at Sirohi. Earned Counsel for the petitioner submitted that even an apparently innocuous order may be passed by way of punishment and that the Court should consider as to what was the real basis for passing the order of termination. There can be no doubt so far as the principles governing such cases are concerned. In Jagdish Mitter v. Union of India : (1964)ILLJ418SC , Gajendragadkar J., as he then was, observed:

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 straight forward 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 straight forward 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. It is obvious that temporary servants or probationers are generally discharged because they are not found to be competent or suitable for the post they hold, In other words if a temporary servant or a probationer is found to be satisfactory in his work, efficient and otherwise eligible, it is unlikely that his services would be terminated, and so, before discharging a temporary servant, the authority may have to examine the question about the suitability of the said servant to be continued and acting bonafide in that behalf the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not. If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of Article 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged.

This principle was reiterated by the Supreme Court in a subsequent case, State of Punjab v. Sukh Raj Bahadur : (1970)ILLJ373SC wherein, their Lordships of the Supreme Court, after considering a catena of judgments on the subject, laid down the following propositions:

1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.

2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.

5. If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service mad thereafter will attract the operation of the said article.

Then again in State of Bihar v. Shiva Bhikshuk Mishra their Lordships of the Supreme Court observed as under:

The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. In Bahadur's case : (1970)ILLJ373SC it was not found that the order of reversion was based on misconduct or negligence of the officer. So far as we are aware no such rigid principle has ever been laid down by this Court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government Officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of the order in not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct See S.R. Tewari v. District Board Agra and Anr. 1970 SLR 863. It may be that an order which is innocuous in the face and does not contain any imputation of misconduct is a circumstance of a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding of attendant on impugned order must be examined and the over riding test will always be whether the misconduct is a mere motive or is the very foundation of the order.

Thus, what we have to examine in the present case is as to whether the alleged misconduct of the petitioner was merely the motive or the very foundation for passing the order of termination of his service dated October 28, 1971. The attendant circumstances may be examined in the background of the principles laid down in the aforesaid decisions. The petitioner was transferred to the office of the Income-tax Officer, Sirohi, by the order dated May 27, 1971 and was relieved with effect from June 7, 1971. He also collected one month's salary in advance as also an amount to cover travelling expenses. Yet he did not join his duties at Sirohi at any time thereafter. However, the petitioner made several applications for leave, in the first instance on the ground of the illness of his wife and daughter and later, on the ground of his own illness. But he appeared at the test for confirmation as Upper Division Clerk held at Jaipur from July 28, 1971 to July 31, 1971. He was directed by the Inspecting Assistant Commissioner, while rejecting his application for leave, to join at Sirohi immediately. In his letter dated September 14, 1971 (Ex. 6) the Inspecting Assistant Commissioner wrote to the petitioner, 'You are also requested to please intimate when do you intend to join at Sirohi.' Then again the Inspecting Assistant Commissioner wrote on October 4, 1971 to the petitioner, 'I may clearly warn you that if you do not join your duties at Sirohi on or before 11.10.1971, your services would be terminated under Rule 6(A) of C.C.S. (T.S.) Rules 1965'. When the petitioner did not join even up to October 11, 1971, the Inspecting Assistant Commissioner directed him to appear before the Principal Medical & Health Officer, Alwar, on October 15, 1971 because the petitioner had applied for leave on the ground of his own illness. The Inspecting Assistant Commissioner in this letter dated October 12, 1971 clearly stated that in case the petitioner did not appear before the medical officer concerned then it would be presumed that he was not ill. Even then the petitioner failed to appear for medical examination before the Principal Medical & Health Officer, Alwar. Then the order dated October 28, 1971 terminating his services under Rule 5(1)(a) was passed. From a resume of all these events, I am unable to conclude that any stigma or aspersion was cast against the petitioner. Of course, it is quite apparent that the petitioner was unwilling to join at Sirohi for reasons which he failed to disclose. The petitioner has completely failed to assign any reason as to be he could proceed to Jaipur and appear at the examination at the end of July 1971 but he could not proceed to Sirohi and join his duties at the new place of posting. Even if the failure of the petitioner to join his duties at the new place of his posting may have been the motive for the termination of his services yet, as held by their Lordships of the Supreme Court, it is not material.

11. Learned Counsel for the petitioner be argued that because the Inspecting Assistant Commissioner threatened the petitioner that disciplinary proceedings would be taken against him and therefore it must be considered that the order of termination of his service was not a simple order under Rule 5(1)(a) but it was a cloak for punishing the petitioner for his alleged misconduct. After considering the entire correspondence which has been placed on record, I am unable to arrive at this conclusion. In his letter Ex. 6 dated September 14, 1971, the Inspecting Assistant Commissioner stated that the petitioner's assure from duty appeared to smack of insubordination and on that ground he ordered that the petitioner would not be entitled to any leave alary for the period of his absence. Yet, even then he asked the petitioner to join his service at Sirohi and added that the withholding of leave salary was without prejudice to am action that may be taken against the petitioner. However, it is a fact that no disciplinary proceedings were ever taken against the petitioner. No enquiry was instituted nor any charge sheet was served upon him at any time nor any punishment appears to have been intended to be inflicted upon the petitioner. In these circumstances, it cannot be held that the alleged misconduct was the basis or foundation for the termination of the service of the petitioner.

12. I may here consider the cases cited by the earned Counsel for the petitioner The case of Jai Shankar v. State of Rajasthan : (1966)IILLJ140SC related to the removal of a permanent Government employee and whose service could not be terminated otherwise than by way of punishment, has no application to the facts of the case before me. Their Lordships were pleased to observe in that case that a removal is a removal and it it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order it proposed, in accordance with the protection afforded by the provisions of Article 311 In N. Yellaiah Sawmy v. The Director of Industries and Commerce Government of Andhra Pradesh and Ors. 1971 SLR 730, their Lordships of the Andhra Pradesh High Court held that the domimant consideration in passing the order of termination in that case appeared from the subject indicated in the impugned order, which stated that the services of the petitioner in that case were terminated on account of absence from duty From the subject matter indicated in the impugned order, their Lordships came to the conclusion that the termination of the employee was not innocuous in nature. In R.K. Bhatt v. Union of India and Ors. 1970 SLR 867 their Lordships of the Supreme Court remanded the case to the High Court for reconsideration in the light of the test laid down in Shiv Bhikshu Mishra'e case 1970 SLR 863 because the High Court had not gone into the circumstances and had not come to the conclusion whether the terminate on of the service of the appellant in that case was ordered in the ordinary course or by way of punishment. In K.H. Phadnis v. State of Maharashra 1971 (2) SLR 345, the prominent features, which their Lordships of the Supreme Court noticed were that the appellant in that case was faced with certain charges of receiving money and gifts at the time if his daughter's marriage which allegations he denied The Secretary to the Government virtually threatened to repatriate him to his parent department The Minister visited the office of the appellant and said that there were complaints against him The police conducted ah enquiry. The appellant himself asked for an enquiry and subsequently, the investigation indicated that the appellant was totally free from blame or taint. In these circumstances, their Lordships of the Supreme Court came to the conclusion that the order of reversion of the appellant in that case was by way of punishment although the order was innocuous in nature. However, there are no such attendant circumstances in the present case In Shamshersingh v. State of Punjab 1974 (2) SLR 701, an enquiry was initiated and enquiry officer was appointed, who recorded the statements of witnesses behind the back of the appellant in that case. Neither the report of the enquiry nor the statements recorded by the Enquiry Officer were supplied to the appellant in that case and the report was accepted by the High Court, which wrote to the Government that in the light of the report the appellant was not a suitable person to be retained in service. Thereafter, the order of termination was passed and in these circumstances, their Lordships of the Supreme Court concluded that the order of the High Court, as the facts and circumstances of the case established that an enquiry info the allegations of service and grave misconduct involving stigma was the basis of the action taken against the delinquent officer.

13. Although the principles followed in the above cases are those which have been laid down by their Lordships of the Supreme Court in Sukh Raj Bahadur's case : (1970)ILLJ373SC and Shiv Bhikshu Misra's case 1970 SLR 863, yet the faces and circumstances of the above referred cases are entirely diff rent from those of the case before me as in those cases the order of termination appeared clearly to emanate from the alleged misconduct or the enquiry conducted in respect thereof.

14. In Union of India v. Prem Prakash Midha 1969 SLR 655 the respondent From Prakh Midha was granted one day's leave. He applied for extension of leave but the extension was refused. The respondent did not report for duly and a notice was issued to him to show cause why disciplinary action should not be taken against him for absenting himself from duty. The respondent explained and no disciplinary action was taken against him, but then his server were terminated in exercise of the powers under the 1949 Rules. In these circumstances, it was held that although a threat that disciplinary action would be taken against the respondent was held out in one of the letters, yet no disciplinary action was commenced against him and his services were terminated under the 1949 Rules, giving him one month's notice Their Lordships observed that there was nothing in the order to indicate that it was passed with the object of punishing the respondent and that from the mere threat of disciplinary action, it could not be inferred that the order of termination was issued by way of punishment. In these circumstances, the order of termination was upheld and further it was held that the said order was not in violation of the provisions of Article 311 of the Constitution. In my view, the facts of Prem Prakash Midha's case 1969 SLR 655 are much similar to the facts of the present case From all the attendant circumstances, I am unable to conclude that any misconduct on the part of the petitioner was the basis of the order of termination dated October 28, 1971 and therefore, it cannot be said that the said order was violative of the provisions of Article 311 of the Constitution.

15. Lastly, one more argument was sought to be advanced by the learned Counsel for the petitioner that the Inspecting Assistant Commissioner of Income-tax, Ajmer Range, Ajmer, was not the Appointing Authority so far as the petitioner was concerned and that be had no power to terminate the serviced of the petitioner under Rule 5(1)(a) of the Rules. No such objection has been taken in the writ petitioner However, from a perusal of the order of appointnent of the petitioner, it is apparent that he was appointed by the Income-tax Officer, Headquarters, attached the office of the Commissioner of Income-tax, Rajasthan. Mr. S.C. Bhandari, who appeared on behalf of Income tax Department, explained that according to the rules in force, the Appointing Authority for the purpose of making appointments to the posts of Upper Division Clerks in the office of the Commissioner of Income-tax is the Inspecting Assistant Commissioner or the Income-tax Officer, Head quarters attached to that office and the Inspecting Assistant Commissioner of the Range was the Appointing Authority in respect of Upper Division Cheks employed in offices other than that of Commissioner of Income-tax. He further submitted that in the present case, as there was no Inspecting Assistant Commissioner attached to the office of the Commissioner of Income-tax and as such, the appointment, of the petitioner was also made by the Income-tax Officer, Headquarters attached to the office of the Commissioner of Income-tax, Rajasthan who had the same jurisdiction in respect of making appointment to the posts of Upper Division Clerks as the Inspecting Assistant Commissioner bad in respect of offices under his control. Thus, there is no doubt that the Inspecting Assistant Commissioner Ajmer was fully competent lo pass an order of termination of the services of the petitioner under Rule 5(1)(a) of the Rules.

16. No other point was argued before me.

17. The writ petitioner has no merit and is dismissed, However, the parties are left of bear their own costs.


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