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Dr. B.K. Gupta Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Special Appeal No. 195 of 1976
Judge
Reported in1977WLN124
AppellantDr. B.K. Gupta
RespondentUnion of India (Uoi) and ors.
DispositionAppeal dismissed
Cases ReferredIt State of Bihar v. Mishra (supra
Excerpt:
.....is simpliciter and article 311 is not attracted.;it is well settled that an order terminating the services of a temporary employee under the rules of employment or under the contract of service and without any thing more will not attract article 311. there is nothing to show that although the order is in unexceptionable from the termination of service of the petitioner was by way of punishment. in the present case there is a simple order of discharge without casting any aspersion against the temporary employee or attaching any stigma to his character. if a screening was made by the authority concerned for the purpose of deciding the question of further retention of the petitioner in service and it was found on such screening that it was not desirable to continue the petitioner in..........such an enquiry is actuated solely by the desire to decide the simple question as to whether the temporary servant should be continued or not and is undertaken, for that purpose alone without any desire to attach any stigma to him. an enquiry of this character must be distinguished from a formal departmental enquiry which is undertaken for the purpose of punishing an employee. in case after such an enquiry, the authority decides to terminate the service of the temporary employee such termination would not amount to dismissal or removal, as. no stigma attaches to it. the test in such cases must be, does the order cast an aspersion or attach a stigma to the person when it purports to discharge him. if the answer to this question is in affirmative, then notwithstanding, the form of the.....
Judgment:

D.P. Gupta, J.

1. We have heard learned Counsel for the petitioner. The petitioner was appointed as a temporary Assistant Medical Officer, on an ad hoc basis, and his services were liable to be terminated at any time without assigning any reason, on giving a month's notice on either side. The petitioner appeared for selection before the Union Public Service Commission for appointment to the post of Assistant Medical Officer, in accordance with the provisions of the Indian Medical Department (Assistant Medical Officers Class II Recruitment) Rules, 1967, but he could not be selected. Even after the rejection of his candidature by the Union Public Service Commission, the petitioner was allowed to continue on the aforesaid post in a purely temporary capacity on ad hoc basis and his term was extended from time to time. By the order of the General Manager, Northern Railway, issued in March 1996 the petitioner's service was terminated with effect from the date of expiry of one month's notice from the date of service of such notice. The case of the petitioner before this Court is that he was removed from service without recourse to proceedings under Article 311 of the Constitution, and the order of termination, is in fact one of removal from service and is, therefore, bad in law. It has also been argued by the learned Counsel that the petitioner was unlawfully discriminated against as other persons who were also not selected by the Union Public Service Commission, were allowed to continue on the posts of Assistant Medical Officer in a temporary capacity on ad hoc basis, although the petitioner's service was terminated by the order Ex. 2.

2. The order of termination of service of the petitioner (Ex. 2) is innocuous in nature and does not cast any stigma. But the contention of the learned Counsel is that merely the form of the order is not conclusive but its true nature must be considered by this Court. In the writ petition a show cause notice was issued to the respondents and in the reply filed by the Railway Administration it has been stated that the services of temporary Assistant Medical Officers, working on ad hoc basis were extended from time to time by the Railway Board and for such extension review of the performance of the persons working on the posts of Assistant Medical Officer on ad hoc basis was undertaken. The competent authority on review found the service of the petitioner to be unsatisfactory and the service of the petitioner was terminated not by way of penalty but purely for administrative reasons.

3. The law relating to the discharge of temporary employees has now been well settled by a catena of cases decided by their Lordships of the Supreme Court. In the case of Jagdish Mitter v. Union of India : (1964)ILLJ418SC it was held that the appropriate authority may make an enquiry whether the temporary employee deserves to be continued. Such an enquiry is actuated solely by the desire to decide the simple question as to whether the temporary servant should be continued or not and is undertaken, for that purpose alone without any desire to attach any stigma to him. An enquiry of this character must be distinguished from a formal departmental enquiry which is undertaken for the purpose of punishing an employee. In case after such an enquiry, the authority decides to terminate the service of the temporary employee such termination would not amount to dismissal or removal, as. no stigma attaches to it. The test in such cases must be, does the order cast an aspersion or attach a stigma to the person when it purports to discharge him. If the answer to this question is in affirmative, then notwithstanding, the form of the order, termination of service must be held in substance to amount to dismissal. But if the answer is in the negative, then it is discharge simpliciter.

4. The following observation of Gajendragedkar J., as he then was may be usefully reproduced:

It is true that the tenure held by a temporary public servant or a probationer is of a precarious character. His services can be terminated by one month's notice without assigning any reason either under the terms of contract which expressly provide for such termination or under the relevant statutory rules governing temporary appointments or appointment of probationers. Such a temporary servant can also be dismissed in a punitive way that means that 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 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.

5. The same view was also taken in Champaklal v. Union of India AIR 1964 SC 1954 wherein their Lordships applied the two tests mentioned in Pursottamlal v. Union of India : (1958)ILLJ544SC , vis (1) whether the servant had a right to the post, or 2) whether he has been visited with evil consequences, and if either of the tests is satisfied, it must be held that the servant had been punished. The principle governing such cases was laid down thus by their Lordships of the Supreme Court 'even though misconduct, negligence, inefficiency or other disqualification may be 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, 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.'

6. This matter was again raised before their Lordships of the Supreme Court in State of Punjab v. Sukh Raj Bahadur : (1970)ILLJ373SC , and after a consideration of the entire case law on the subject, their Lordships laid down the following five 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 made there-under will attract the operation of the said article.

7. In our view the case of the petitioner is covered by the fourth proposition, laid down by their Lordships in Sukh Raj Bahadur's case, inasmuch as the order of termination in the case of the petitioner is in unexceptionable form and it was preceded by an enquiry launched by the superior authorities only for the purpose of ascertaining whether the petitioner should be further retained in service.

8. In Ramgopal Chaturvedi v. State of Madras : (1970)ILLJ367SC their Lordships of the Supreme Court held that the temporary Government servant had no right to hold the office and the competent authority could terminate his service in accordance with the service rules or the contract of employment. It was held that in case the impugned order did not involve any element of punishment nor did it deprive the temporary Government servant of any vested right to any office, then the termination was valid.

9. In Samsher Singh v. State of Punjab : (1974)IILLJ465SC their Lordships of the Supreme Court while considering the case of a probationer laid down the law as under:

Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion, that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(3) he can claim protection....

The fact of holding an enquiry, is not always conclusive. That is decisive is whether the order is really by way of punishment.

It was held in the aforesaid case, relying on the decision in Champaklals' case (supra), that a preliminary inquiry to satisfy that there was reason to dispose with the services of a temporary employee does not attract Article 311 of the Constitution.

10. Thus it is well settled that an order terminating the services of a temporary employee under the rules of employment or under the contract of service and without any thing more will not attract Article 311. There is nothing to show that although the order is in unexceptionable form the termination of services of the petitioner was by way of punishment. In the present case there is a simple order of discharge without casting any aspersion against the temporary employee or attaching any stigma to his character. if a screening was made by the authority concerned for the purpose of deciding the question of further retention of the petitioner in service and it was found on such screening that it was not desirable to continue the petitioner in further employment, then it can only be said that the termination of the service of the petitioners was a discharge simpliciter. The unsatisfactory work of the petitioner may only be the motive for termination his service but clearly it was not the basis for the same.

11. The learned Counsel for the petitioner relied upon the decisions in K.H. Phadnis v. State of Maharastra (7) and State of Bihar v. Mishra (8). Both these cases have been considered by their Lordships of the Supreme Court in Samsher Singh's case (supra) and the decision in those cases was based on the peculiar facts thereof and are not applicable to the facts of the present case.

12. It State of Bihar v. Mishra (supra), relied upon by the learned Counsel for the petitioner, it has been laid down that where a departmental enquiry is contemplated and is not in fact proceeded with, Article 311 would not be attracted unless it can be shown that the order though in unexceptionable form is made following a report based on misconduct. In the present case there is no finding of any misconduct on the part of the petitioner but on screening he was found to be unsuitable for further retention in service.

13. As regards the question of alleged discrimination, we do not find any substance in the submission of the learned Counsel as the performance of the temporary Assistant Medical Officers, working on ad hoc basis, including the petitioner, was reviewed for deciding the question of their further retention in service, and if after such consideration the petitioner was not found suitable for being further continued in service, no question of discrimination arises.

14. In view of the aforesaid discussion, we see no merit in the case of the petitioner, and the appeal is dismissed.


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