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M. Renold Princely Vs. Government of Tamil Nadu and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.P. No. 299 of 1982
Judge
Reported in(1982)IILLJ342Mad
ActsTamil Nadu State Magisterial Service Rules - Rule 13; Punjab Civil Services (Punishment and Appeal) Rules - Rule 9; Tamil Nadu Civil Services (Classification Control and Appeal) Rules - Rule 17; Constitution of India - Articles 14, 16, 311 and 311(2); Government of India Act, 1935 - Sections 240(1) and 240(3)
AppellantM. Renold Princely
RespondentGovernment of Tamil Nadu and ors.
Cases ReferredGovindarajan v. Superintendent of Police
Excerpt:
labour and industrial - termination of temporary employee - section 311 of constitution of india - protection of article 311 available to temporary government servant only in case of discharge and removal when occurs as measure of punishment - government servant whether terminated as measure of punishment or for termination simplicitor depends upon facts and circumstances of each case. - - 4. as regards the second, case he explained that he felt that the sureties offered were not sufficient and, therefore, he passed an order of remand and then later when the counsel appeared and made his submissions, he was satisfied about the sufficiency of surety and, therefore, released the accused. it is equally well settled that the real test for finding out whether the reduction in such cases.....1. the petitioner who was at the relevant time employed as a temporary judicial second class magistrate has filed this writ petition to quash the order passed by the government in g.o.ms. no. 3099, home department dated 30-12-1981 terminating his services and reverting him to his parent department. 2. the petitioner joined the service of the tamil nadu government as a junior assistant in the agricultural department on 13-10-1968. he was then promoted as an assistant and posted in the health and family welfare department on 12-2-1970. his services were regularised in that post with effect from the said date. in 1978 he was selected and appointed as a judicial second class magistrate. he joined duty as such on 11-1-1979. while so, the second respondent, the chief judicial magistrate for.....
Judgment:

1. The Petitioner who was at the relevant time employed as a temporary judicial second class Magistrate has filed this Writ Petition to quash the order passed by the Government in G.O.Ms. No. 3099, Home Department dated 30-12-1981 terminating his services and reverting him to his parent department.

2. The petitioner joined the service of the Tamil Nadu Government as a junior assistant in the Agricultural Department on 13-10-1968. He was then promoted as an assistant and posted in the Health and Family Welfare Department on 12-2-1970. His services were regularised in that post with effect from the said date. In 1978 he was selected and appointed as a judicial second class Magistrate. He joined duty as such on 11-1-1979. While so, the second respondent, the Chief Judicial Magistrate for Coimbatore and Nilgiris, called for an explanation from the petitioner in respect of the following charges :

1) That he has issued a non-bailable warrant to the accused by name Major S. Raye even though he was told that the accused had been admitted as an inpatient in the hospital.

2) That he had remanded on Issac in the custody in spite of the fact that the Sessions Judge had granted anticipatory bail and that later he released Issac on bail.

3. The petitioner submitted an explanation. He stated that his predecessor ought not to have issued fresh summons and, therefore, he had issued a non-bailable warrant, that the counsel for the accused, viz., Major S. Raye had not informed him that the accused was in the hospital and that he had received some intimation by post. He further stated that the language of the letter was impolite and that taking into consideration the nature of the case and the fact that the accused had not appeared in Court for more than a year, he issued the warrant.

4. As regards the second, case he explained that he felt that the sureties offered were not sufficient and, therefore, he passed an order of remand and then later when the counsel appeared and made his submissions, he was satisfied about the sufficiency of surety and, therefore, released the accused. It is, in these circumstances, the impugned order has been passed.

5. The learned counsel for the petitioner urged two contentions : (1) On the date of the impugned order no doubt the petitioner was holding the post of a temporary Judicial Second Class Magistrate. Undoubtedly under Rule 13(e) of the Tamil Nadu State Magisterial Service Rules, the Government had a right to revert him to his substantive post. However, any such order of reversion of a temporary Government servant could not be sustained if the foundation of the order was an alleged misconduct on the part of the Government servant and if the order not only cast a stigma on the Government servant but also resulted in loss of emoluments and it amounted to a punishment. According to the petitioner's counsel, the foundation of the order of termination of the services, though innocuously worded as an order of termination under Rule 13(e) of the Tamil Nadu State Magisterial Service Rules is the charge of misconduct found against the petitioner. Therefore, the order amounted to a punishment. If the order is construed as an order of punishment then, the removal of the petitioner from service without holding an enquiry would violate Art. 311 of the constitution of India and consequently the impugned order will have to be quashed. The second contention urged by the learned counsel for the petitioner was that even if the order of reversion were construed as an ordinary reversion simplicitor of the Government servant then the order would be hit by violation of Art. 14 and 16 of the Constitution of India. This was because there were 35 persons juniors to the petitioner and before the petitioner could be reverted, those juniors should have been reverted.

6. The stand of the respondents is that the petitioner was only appointed as a temporary Judicial Second Class Magistrate and rule 13(e) of the Tamil Nadu State Magisterial Service Rules empowered the authorities to terminate the services of a temporary incumbent and a temporary appointment would not create any right in the petitioner to the post to which he was temporarily appointed. Inasmuch as the order of reversion was passed in exercise of the powers under Rule 13(e) of the Rules and not on the face of it cast any stigma on the petitioner, it would not amount to any order of punishment as contended by the learned counsel for the petitioner. The question for consideration is whether the impugned order of termination of the service of the petitioner is not a termination simpliciter in exercise of the powers conferred under Rule 13(e) of the Rules or would in effect be an order of punishment.

7. It is now settled law that the mere fact that a civil servant has no title to the post or the rank and the Government has by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. It is equally well settled that the real test for finding out whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. In Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC the Supreme Court observed as follows :

'The mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowance or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstances may indicate that although inform the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression 'termination' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to If the case satisfied either of the two tests, then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or remove from the service'.

8. The following principles have been laid down by the Supreme Court with regard to the termination of a temporary servant State of Punjab and another v. Shri Sukhraj Bahadur : (1970)ILLJ373SC .

'On a conspectus of these cases the following proposition are clear :

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 Art. 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 proceeded by an enquire launched by the Superior authorities only to ascertain whether the public servant should be retained in service, does not at tract the operation of Art. 311 of the Constitution.

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

9. In Jagdish Mitter v. The Union of India : (1964)ILLJ418SC the order discharging a temporary servant in the office of post Master General of Ambala read as follows :

'Shri Jagdish Mitter, a temporary 2nd division clerk of this office having been found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November 1, 1949'. The short question arose in the above case was whether the order passed by the Director of Postal Services on October, 28, 1949, terminating the services of the appellant amounts to his dismissal under S. 240(1) so as to attract the provisions of S. 240(3) of the Government of India Act, 1935. Gajendragadkar, j., as he then was, observed as follows : 'When the order referred to the fact that the servant was found undesirable to be retained in Government service, it expressly cast a stigma on the servant and in that sense must be held to be an order of dismissal and not a mere order discharge. To say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first deseana stigma attaches to the servant, while in the second case, termination of service is due to be consideration that a temporary servant used not be continued, and in that sense, no stigma attaches to him. Anyone who reads the order in a reasonable way, would naturally conclude that the servant was found to be undesirable and that must necessarily import and element of punishment which was the basis of the order and was its integral part. When unauthority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. As the impugned order was construed as one of dismissal, the servant had been denied the protection guaranteed to temporary servants under S. 240(3) of the Government of India Act, 1935 or Art. 311(2) of the Constitution, and so, the order could not be sustained.'

10. In oil and Natural Gas Commission v. DR. M. D. S. Iskander Ali, 1980 II L.L.J. 115 the Supreme Court again observed as follows :

'Whether the short history of the service of the probationer appointed in a temporary post clearly showed that his work had never been satisfactory and he was not found suitable for being retained in service and that was why though some sort of an enquiry was started, it was not proceeded with no punishment was inflicted on him and in these circumstances, if the appointing authority considered it expedient to terminate the services of the probationer it could not be said that the order of termination attracted the provisions of Art. 311, when the appointing authority had the right to terminate the service without assigning any reasons. In such a case even if misconduct, negligence, inefficiency might be the motive or the inducing factor which influenced the employer of terminate the services of the employee a power which the employer undoubtedly possessed, even so an under the terms of appointment of the employee such a power flowed from the contract of service, termination of service could not be termed as penalty or punishment. Further adverse remarks in the assessment roll and recommendation therein to extend the probationary period could not be said to indicate that the intention of the appointing authority was to proceed against the employee by way of punishment'.

11. In Commodore Commanding, Southern Naval Arka, Cochin v. V. S. Rajan : (1981)IILLJ1SC the Supreme Court speaking through Varadarajan, J., observed as follows

'We agree with the learned Judges who constituted the Division Bench of Kerala High Court that the respondent was only a temporary Government servant and that even as a temporary Government servant he is entitled to the protection of Art. 311(2) of the Constitution where termination involves a stigma or amounts to punishment.

12. In State of Bihar and others v. Shiva Bhikshuk Mishra 1971 S.C. 1011 the Supreme Court observed as follows :

'For applicability of Art. 311 of the constitution it is not necessary that there should be express words of stigma attributable to the conduct of Government servant in the impugned order. There is no rigid principle that one has only to took 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 is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstances or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a more motive or is the very foundation of the order'.

13. In Samsher Singh v. State of Punjab and another 1974 I L.L.J. 465 A. N. Ray, C.J., stated he ratio thus :

'No abstract proposition can be laid down that where the services of a probationer terminated it can never amount to a punishment. 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 temperament or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. If on the other hand, the probationer is faced with an enquiry on charges of misconduct of inefficiency or corruption, and if his services are terminated without following the provisions of Art. 311(2) he can claim protection.

The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to the protection of Art. 311. The substance of the order and not the form would be decisive'.

14. That was a case where the services of one Samsher Singh, Subordinate Judge, on probation, under Rule 9 of the Punjab Civil Services (Punishment and Appeal) rule S.1952 were terminated with immediate effect. The order on the face of it did not disclose any stigma.

15. In State of Maharashtra v. Veerappa R. Saboji and another : (1979)IILLJ393SC Pathak, J., in his concurring judgment observed as follows :

'Where the services of a temporary Government servant or a probationer Government servant are terminated by an order which does not ex facie disclose any stigma or penal consequences against the Government servant and is merely a termination order simplicitor, there is no case ordinarily for assuming that it is anything but what it purports to be. Where, however, the order discloses on the fact of it what a stigma is cast on the Government servant or that it visits him with penal consequences, then plainly the case is one of punishment. There may still be another kind of case were although the termination of services is intended by way of punishment, the order is framed as a termination simplicitor. In such a case, if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Art. 311(2) of the Constitution have not been satisfied. In a given case, the Government servant may succeed in making out a prima facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the records for determining the truth. It is in such a case generally that the official records may be called for by the Court. It is not open to the Court to send for the official records on a mere allegation by the government servant that the order is by way of punishment. For unless there is material on the record before the Court in support of that allegation, an attempt by the Court to find out from the record whether the termination of service is based on the unsuitability of the Government servant in relation to the post held by him or is in reality an order by way of punishment will in effect be an un-warranted attempt to delve into the official records for the purpose of determining the nature of the order on the basis of a mere allegation of the Government servant. On a sufficient case being made out on the merits before the Court by the Government servant it is open to the Court to resort to scrutiny of the official records for the purpose of verifying the truth. The Court should not decline to peruse the official records in an appropriate case and where considerations of privilege and confidentiality do not suffer, the information set forth in the records should be made available to the Government servant. The mere possibility that the official records could confirm what the Government servant had set out to prove and prima facie had, indeed, proved should not shut out disclosure of the information'.

This observation of Pathak J. has been extracted in commodore Commanding, Southern Naval Area, Cochin, v. V. N. Rajan (supra), already referred to.

16. The ratio laid down by the Supreme Court in Gujarat Steel Tubes Limited v. Mazdoor Sabha, : (1980)ILLJ137SC , is as follows :

'The form of the order of termination or the language in which it is couched is not conclusive. The Court will lift the veil to see the true nature of the order ... If two factors co-exist, an inference of punishment is reasonable though not inevitable. If the serverance is effected, the first condition is fulfilled and if the foundation or cause casuanas of such serverance is the servant's misconduct the second is fulfilled. If the basis or foundation for the order of termination is clearly not turpitudinous or stigmatic or rooted in misconduct or visited with evil pecaniary effects, the inference of dismissal stands negated and vice versa,, The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is, A termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the Standing Order or otherwise. Whether in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature.

Nor the fact that, after being satisfied the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.

On the contrary, even if there is suspicion of misconduct, the master may say he does not wish to bother about it and may not go into his guilt but may feal like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter if no injurious record or reasons of punitive pecuniary cut back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge.'

17. Though this is a case of an industrial dispute the principles stated herein are equally applicable to the present case.

18. In R. Govindarajan v. Superintendent of Police, Salem, ( : (1982)1MLJ117 ) Sathiadev, J. has considered the validity of the order of compulsory retirement passed on the Government servant under R. 56(d) of the Fundamental Rules. The learned Judge considered the various decisions of the Supreme Court bearing on the subject including the decisions relating to termination of the services of a temporary government servant or a probationer in exercise of the powers conferred on the government under the relevant rules. The learned Judge observed as follows :

'The conspectus of these authorities leads to the conclusion that in an order passed under F.R. 56(d) what has to be looked into is, whether the order on the face of it discloses misconduct etc., and if it does not contain any stigma, normally the Court sustains such an order, It does not ordinarily and usually delve into the files to find out whether there is any motive for the passing of the order on mere general statements made by petitioner unless a strong case or specific materials is placed by him. It is not as if the affected person cannot, if a fit matter, challenge the order on the ground that it had been passed on 'no materials' or was passed for collateral purposes or requisite opinion was not formed, or was arbitrary, or passed with 'mala fide' intentions.

'If the State to cast aspersions or stigma on a compulsorily retired servant, initiates or continues disciplinary proceedings and thereby discloses alleged acts of corruption, misconduct or lack of integrity as against him then can it be held that the order was not punitive and passed on bona fide exercise of powers.'

Again the learned Judge has observed as follows :

'As stated earlier, unless the impugned order is the final curtain drawn resulting in the Government servant honourably being relieved from service, the report to F.R. 56(d) cannot be allowed to act as a transitional or intermediary step before other punishments are imposed. Under these circumstances it has to be held that the order lacks 'Bona fides' and passed in colourable exercise of powers as reflected by the follows up conduct of the respondents. The continuance of the proceedings after the impugned order, has already vitiated the impugned order, and hence on this ground itself, it deserves to be set aside'.

The learned Judge has further observed as follows :

'When a catena of decisions have held that an order of compulsory retirement would be vitiated, if it is to result in casting on the government servant aspertions or reflections on his character or integrity or constitute a stigma, would these factors be relevant only to test how the form of the order exists or should they be considered also with reference to how he is affected by actions taken by the State following the Order. The contentions of the Government Pleader is that, if the words used in the impugned order do not bring about any of these reflections on the Government servant, whatever other acts done or actions done or actions taken by the state cannot in any manner vitiate the order. If such is the restricted approach to be made, then, if for instance the State is to come forward immediately or later on with a press note or a statement being made by persons in charge of the affairs of the Government, that the order of compulsory retirement passed was issued because of his lack of integrity and that such a corrupt officer had been relieved of the post, can in then be held by a Court that the petitioner had not been stigmatised by the action under Fundamental Rule 56(d). What is pertinent and top be assured for the ejected Government servant is, that in the eyes of the public, he should, not figure out, as a person, who has been relieved of the officer because of misconduct or due to lack of integrity, etc.'

Then again in paragraph 32 the learned Judge has stated thus :

'There is yet another point on which also by itself the impugned order cannot be sustained. The order is founded on acts of misconduct alleged against the petitioner which are yet to be established. No doubt, the motivating factor cannot be relevant as held by the Supreme Court in the decisions above referred to, but if it be established that the misconducts alleged are the foundation of the order and a short circuit is adopted for achieving what perhaps could not be achieved in the disciplinary proceedings, such orders of compulsory retirement cannot be upheld, when the records show that in spite of what was suggested for the charges to be dropped and thereafter the petitioner was compulsorily retired, the disciplinary proceedings have been unabatedly pursued, and in the mean-while, the order having been passed, it has turned out to be a punitive measure of a transitional nature, and it would be dependent on the outcome of the disciplinary proceedings in which he may be visited with grave punishments, which would deprive him of what are assured by an order under Fundamental Rule 56(d). Therefore, the impugned order, in this view has to be treated as punitive in nature.'

19. It may be stated that in that case a charge memo was served on the Government servant on 25-2-1976 under Rule 17(b) of Tamil Nadu Civil Services (Classification Control and Appeal) Rules. The Enquiry was held by the Superintendent of Pollce, Dharmapuri and later it was transferred to the Superintendent of Police, Salem, who issued charge memo. While so on 13-10-1977 the government passed an order of compulsory retirement under Fundamental Rule 56(d) of the respective rules. Within two months of the order, the Superintendent of Police, Salem issued a further memo stating that he intended to proceed with the enquiry in respect of the charges framed. It was under those circumstances the petitioner filed the Writ Petition.

20. The following principles amerge from the above decisions :

(1) Even temporary Government servants are entitled to be protection of Art. 311 of the Constitution of India. In the same manner as a permanent Government servant, (2) The protection of Art. 311(2) will be available to temporary Government servants only in case where the discharge, removal or reduction is rank by way of punishment and not otherwise. If the services of a temporary Government servant are terminated in accordance with the conditions of his service, on the ground of unsatisfactory conduct or his unsuitability for the job he will be entitled to the protection of Art. 311(2) of of the Constitution of India.

(3) The test to find out whether the order of termination of a temporary Government servant is an order of termination simplicitor or it amounts to a punishment will be to find our whether the order casts a stigma on the Government servant or visits him with civil consequences. If the order discloses on the face of it with a stigma cast on the Government servant or visits him with penal consequences, then the case is one of punishment. Normally and generally one has to look at the order on the fact of it and find out whether it case any stigma on the Government servant. There is no presumption in such cases that the order of termination of a temporary Government servant is either arbitrary or mala fide. It does not, however mean that in all cases where an order on the face of it is innocuous it is not a case of punishment. If a given case the temporary Government servant succeeds in making out a case that the order was by way of punishment, and it becomes necessary for the Courts to call for the official reports, it will be then open to the Court to scrutinise the official records for the purpose of verifying the truth. In other words the Court should not hesitate to peruse the official records in an appropriate case and where consideration of privilege and confidentiality do not suffer.

The fact that any other misconduct or negligence of duty on the part of the Government servant was the notice for the termination of services would not attract the applicability of Art. 311(2) of the Constitution. However, where, the alleged misconduct is the very foundation which results in the order of termination of services of a temporary Government servant, then certainly Art. 311(2) would be attracted. The position will depend on the facts and circumstances of each case.

21. It is in the background of the above principles of law that the question whether the termination of the petitioner's services in this case is termination simpliciter in exercise of the powers conferred under rule 13(e) of the Tamil Nadu State Magisterial Service rules or it is by way of punishment has to be considered.

22. Rule 13(e) of the Tamil Nadu State Magisterial Service Rules reads as follows :

'A Person appointed under Clause (a)(b) or (d) shall not be regarded as a probationer in such category or be entitled by reason only of such appointment to any preferential claim to future appointment to such category. The service of a person appointed under any of the said clauses, shall be liable to be terminated by the appointing authority at any time without notice and without assigning any reason'.

23. Therefore, this rule empowers the appointing authority to terminate the service of temporary Government servant at any time without any notice or without assigning ant reason. It is in this context it is necessary to refer to the averments in the counter-affidavit filed by the Register of the High Court. In paragraph 3 of the Counter Affidavit it is stated that the second respondent herein had forwarded to reports enclosing relevant correspondence against the petitioner for action. In the first report the second respondent has stated that the issue of a non-bailable warrant against the accused Major S. Raye in C.C. No. 313/81 even after the accused sent a stamped petition to the Court together with a medical certificate showing his admission in the hospital as an inpatient is totally unwarranted and that the conduct of the petitioner has been rash and hasty besides being in utter disregard to Court procedure. In the second report the second Respondent has stated that the conduct of the petitioner as magistrate in remanding the accused. A Issac In Cr. Nos. 815 to 818 of 1981, 822 of 1981, 823 of 1981 and 826 to 828 of 1981 to jail custody in total disregard of the grant of anticipatory bail to the said accused by the sessions Judge, Coimbatore clearly amounts to abuse of powers besides contempt of the orders of the Superior Court. Paragraph 4 of the counter affidavit clearly levels to charges of serious misconduct against the petitioner. Paragraph 6 of the Counter affidavit states that after taking into account the nature of the allegations levelled against the petitioner the High Court finding that it is not conducive to continue the petitioner in service as Judicial Second Class Magistrate, addressed the Government recommending the termination of services of the petitioner as temporary Judicial Second class Magistrate under Rule 13(e) of the Tamil Nadu Magisterial Services Rules.

24. It is admitted in paragraph 7 of the counter affidavit that explanation was called for in respect of the irregularities and illesalities committed by him. In view of the averments in the counter-affidavit it became necessary to peruse the files. It is found from the file that the statement of Mr. Shanavas, advocate was taken by the Chief Judicial Magistrate, Coimbatore. The Chief judicial Magistrate sent a report to the Registrar, High Court, Madras stating that conduct of the petitioner has been rash and hasty besides being in utter disregard to Court procedure. The impugned order refers to D.O. Letter No. 33/1981/Con/E1 dated 7-12-1981 received by the second respondent from the Registrar, High Court, Madras. By the said letter the Registrar, High Court had directed the Chief Judicial Magistrate, Coimbatore and Nilgiris to take disciplinary action against the petitioner. If really the respondents wanted to revert the petitioner on the ground that it would not be conducive to retain him in service, one would have expected then to drop the entire disciplinary proceedings, which were in contemplation as disclosed by the letter of the Registrar, High Court, dated 7-12-1981. On the other hand, on the very next day of the passing of the impugned order on 31-12-1981 the Chief Judicial Magistrate, Coimbatore issued proceedings under Special P.R. No. 2/81. The said order states that the disciplinary proceedings have been directed to be initiated against the petitioner in respect of the matter of the issue of non-bailable warrant against Major S. Raye, accused in C.C. 313/81, even though he has sent a stamped petition to the conduct together hospital with a medical certificate showing his admission in the as an inpatient. The said order contains the identical charge in respect of which the petitioner was asked to explain in the first instance. A form of questionnaire as prescribed under the rules was also sent to the petitioner to be tendered and submitted along with his written statement. I am, therefore, satisfied on a conspectus of the entire circumstances of the case that the impugned order is not so innocuous as it appears to be on the face of it. The charges of misconduct levelled against the petitioner did not constitute the motive for the termination of the services of the petitioner in exercise of the powers conferred on the respondents under Rule 13(e) of the Rules.

On the other hand I have no hesitation in coming to the conclusion that the alleged misconduct was the real foundation for the order of termination. As already stated, if the respondents had been satisfied with reverting the petitioner to his parent department on the basis of the report of the Chief Judicial Magistrate, Coimbatore without initiating disciplinary proceedings against him, the situation might have been different. On the basis of the report of the Chief Judicial Magistrate dated 17-11-1981 the Registrar, High Court, directed the Chief Judicial Magistrate, Coimbatore to initiate the proceedings against the petitioner. This was followed immediately by the impugned order of reversion dated 30-12-1981. On 31-12-1981 a charge memo was served on the petitioner by the Second respondent stating that the disciplinary proceedings have been directed to be taken against him in respect of the very same charge. The facts of this case clearly fit in with the facts of the case in Govindarajan v. Superintendent of Police, Salem (1982) I. MLJ. 117, which arose for consideration before Sathiadev, J. In that case also, even after the order of compulsory retirement, the charges were not dropped but disciplinary proceedings were sought to be continued. The Learned Judge came to the conclusion it was clear on the facts of the case that the order of compulsory retirement was not an order simpliciter within the meaning of Fundamental Rule 56(d) but amounted to an order of punishment. I, therefore, hold that the impugned order is not an order simpliciter in exercise of the powers conferred on the first respondent under S. 13(e) of the Rules but it amounts to a punishment. Once I come to the conclusion that the order amounts to punishment, it must follow that it has to be quashed in as much as the procedure required under Art. 311 of the Constitution of India has not been followed. I, therefore, quash the impugned order and allow the writ petition. The judgment in this writ petition will not in any way prevent the respondents from proceeding with the disciplinary proceeding initiated against the petitioner.


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