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The Principal, Medical College, Pondicherry and anr. Vs. M.J. Vincent - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 103 of 1965 (P)
Judge
Reported inAIR1970Mad424; (1970)2MLJ307
ActsConstitution of India - Articles 226 and 311; Pondicherry (Administration) Act, 1962 - Sections 9
AppellantThe Principal, Medical College, Pondicherry and anr.
RespondentM.J. Vincent
Appellant AdvocateHabibullah Badsha, Adv.
Respondent AdvocateN.G.R. Prasad, Adv.
DispositionAppeal allowed
Cases ReferredIn K. S. Ramamurthy v. Chief Commr.
Excerpt:
constitution of india, article 226--jurisdiction and application--extension to pondicherry--de jure merger in 1972--article 226 has no retrospective effect--dismissal of state employee before merger--no writ will issue. ; the order of termination was, in the particular circumstances, one of punishment. ; the order of termination was, in the particular circumstances, one of punishment. ; inasmuch as the respondent had not been given an opportunity to show cause against termination, the order against the respondent violated the principles of natural justice. for that reason the order would be in violation of article 311 of the constitution of india as well. ; section 9 of the pondicherry (administration) act (xlix of 1962), which extended the jurisdiction of this court to pondicherry, came..........territory of india was comprised of which, as the article stood originally, did not take in the pondicherry territory. that was made part of the territory of india by the constitution (14th amendment) act, 1962, which was effective, as we said, from 16th august 1962.the result of this is that article 226, though remedial and procedural in character, would not vest in this court jurisdiction to quash an order made in pondicherry in respect of a civil servant there being the de sure merger and also before the coming into force of section 9 on and from 6th november 1962. under article 226 this court has power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority directions of the nature specified. since this court's jurisdiction.....
Judgment:
1. This appeal by the Union Government arises from an order of Ramakrishnan J., quashing the termination of the respondent from service by an order dated 23-9-1960, of the Principal of the Pondicherry Medical College. It was found that the respondent had misappropriated as on 9-5-1960, a sum of Rs. 841-46 when he was serving as a cashier. He was placed under suspension immediately pending enquiry. By an order dated 22-9-1960, of the Principal, the respondent was directed to make good the money and, pursuant to that direction, the sum was adjusted against his security deposit in the form of savings bank account pledged with the Principal. The next day the termination order was made. It said that the services of the respondent were terminated with effect from the date of service of the order and that he would be paid a sum equivalent to the amount of his pay plus allowances for one month, which was the period of notice due to him. There was an appeal and a revision by the respondent which were all unsuccessful. The order rejecting the revision was dated 27-7-1962. Ramakrishnan J. quashed the order on the view that the Principal of the College had terminated the respondent's services without giving him a reasonable opportunity to show cause against it and that the order was, therefore, vitiated as being in violation of the principles of natural justice. The learned Judge also rejected the contention for the Union that Article 226 was not retrospective. It was also considered by him that the order of termination was by way of punishment and that Article 311 would be applicable to the case.

2. We agree with Ramakrishnan J., that the order of termination was, in the peculiar circumstances, one of punishment. Though the order did not ex fade read in that way, having regard to the fact that on the day preceding the termination the respondent has been found guilty of the charge of misappropriation and the order of termination followed within a few hours, there can be no doubt that the termination was as a result of that finding. Whether a given order is a case of punishment or not would depend no doubt on the facts. In this case, we find that no emoluments were paid to the respondent for the period covered by the suspension and before termination. He was only allowed the usual subsistence allowance under the rules. That apart, the two orders of the Principal read together without doubt left a stigma on the respondent. It follows, therefore, that the order of termination amounted to punishment.

3. It Is equally clear that, inasmuch as the respondent had not been given an opportunity to show cause against termination, the order against the respondent violated the principles of natural justice. It goes without saying that for that reason the order would be in violation of Article 311 as well.

4. But the point is whether inasmuch as the order of termination was made before the de jure merger of Pondicherry with the territory of India with effect from 16th August 1952, it could be quashed in exercise of this court's jurisdiction under Article 226 of the Constitution. Section 9 of the Pondicherry Administration Act, which extended the jurisdiction of this court to Pondicherry, came into force on 6th November 1962. It seems to us, therefore, that the Constitution itself would have no operation to Pondicherry State before its de jure merger. Article 1(3) of the Constitution defined what the territory of India was comprised of which, as the Article stood originally, did not take in the Pondicherry territory. That was made part of the territory of India by the Constitution (14th Amendment) Act, 1962, which was effective, as we said, from 16th August 1962.

The result of this is that Article 226, though remedial and procedural in character, would not vest in this court jurisdiction to quash an order made In Pondicherry in respect of a civil servant there being the de Sure merger and also before the coming into force of Section 9 on and from 6th November 1962. Under Article 226 this court has power, throughout the territories in relation to which It exercises jurisdiction, to issue to any person or authority directions of the nature specified. Since this court's jurisdiction was extended only by Section 9 of the Pondicherry Administration Act, 1982, we are of the view that It could not be applied retrospectively, that is to say, in such a manner as to reach administrative or quasi-judicial orders which were passed before and had become final prior to 6th November 1962. State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86 held that Article 226 and Article 227 had no retrospective operation and transactions which were past and closed and the rights and liabilities which had accrued and vested would remain unaffected.

That was a case of dismissal of a civil servant based on a departmental enquiry and, as in this case, the appeal and revision arising had been rejected. The Supreme Court held that although the order of dismissal was passed without complying with the principle of natural justice, the High Court could not properly be asked to exercise its newly acquired jurisdiction and powers under Article 228 to correct errors, irregularities committed by the Inferior departmental tribunal before the commencement of the Constitution. In fact it appears the appeal and revision there were dismissed after the Constitution came into force, but, in the view of the Supreme Court, it made no difference to the jurisdiction of the High Court. Apart from the fact that Article 226 had no retrospective effect, as we observed earlier, the Constitution itself was not in operation in the territory of Pondicherry before its de jure merger because it was not then a part of the territory of India. N. Masthan Sahib v. Chief Commr., Pondicherry, .

In K. S. Ramamurthy v. Chief Commr., Pondicherry, it was held that special leave to appeal to the Supreme Court under Article 136 could not be granted from an order which was passed by the appellate authority in Pondicherry under the Motor Vehicles Act at a time when Pondicherry was not within the territory of India.

5. On the view, therefore, we have expressed on the jurisdiction of this court under Article 226 of the Constitution in respect of the impugned order, the appeal is allowed and the petition for certiorari will stand dismissed. We make, however, no order as to costs.


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