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R.L. Gupta Vs. the State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 1 of 1953
Judge
ActsConstitution of India - Articles 226 and 311
AppellantR.L. Gupta
RespondentThe State of Himachal Pradesh
Appellant AdvocateParty in person
Respondent Advocate Bakshi Sita Ram, Govt. Adv.
Cases ReferredThe B. B. Light Rly. v. The District Board Patna
Excerpt:
.....them in face of administration itself of which he was only subordinate official - said attitude is most objectionable in government servant and amounts to insubordination - it is not for petitioner to level charges against them on grounds of corruption or inefficiency in memorials, petitions and routine representations - government official who makes no bones about leveling charges indiscriminately against his superiors not sparing even head of state is too insubordinate in his outlook and behaviour to be tolerated by any administration - reliefs claimed by petitioner would be rendered nugatory by respondent taking action under terms of contract - petition dismissed. - .....various places.3. the petitioner then goes on to describe how be incurred the displeasure of the general manager transport. he cites an instance of the general manager haying abused his powers in passing an order regarding leave which he had applied for, and he attributes his failure to receive annual increment after the expiry of one year to the antagonistic behaviour of the general manager. he further alleges that the general manager had good entries in his character roll destroyed and adverse entries fabricated in their place. the petitioner thereupon made a representation to the government on 21-1-1952 but failed to receive any reply despite a reminder to the p. w. d. minister. he alleges that suddenly he received a communication dated 25-8-1952 from the secretary transport stating.....
Judgment:
ORDER

Chowdhry, J.C.

1. This is a petition by one R. L. Guptaunder Article 226 of the Constitution against the State of Himachal Pradesh for relief from an order of the Secretary Transport Himachal Pradesh Government, dated 1-11-1952, terminating his services as Costing and Statistics Superintendent Himachal Pradesh Government Transport.

2. The petitioner's case is that he was selected and appointed substantively to the permanent civil post of Costing and Statistics Superintendent in the Himachal Pradesh Government Transport by the then Chief Commissioner on 11-7-1950 without any condition superimposed; that the appointment was subsequently communicated to him by means of a letter dated 13-7-1950 from the Registrar for the Secretary Finance and Development containing certain conditions as a matter of routine, two of the conditions being that he will be on probation for a period of one year in the first instance and that his services were liable to termination at any time without any notice during the probationary period, but a month's notice of termination of his employment will ordinarily be given if possible; and that even if it be deemed that he was appointed on a year's probation the legal presumption is that he was confirmed since he was allowed to continue in service after the expiry of the probationary period, and since during that period he worked to the satisfaction of his superior officers, drew his monthly salary regularly, was granted leave and was transferred to various places.

3. The petitioner then goes on to describe how be incurred the displeasure of the General Manager Transport. He cites an instance of the General Manager haying abused his powers in passing an order regarding leave which he had applied for, and he attributes his failure to receive annual increment after the expiry of one year to the antagonistic behaviour of the General Manager. He further alleges that the General Manager had good entries in his character roll destroyed and adverse entries fabricated in their place. The petitioner thereupon made a representation to the Government on 21-1-1952 but failed to receive any reply despite a reminder to the P. W. D. Minister. He alleges that suddenly he received a communication dated 25-8-1952 from the Secretary Transport stating that his work, conduct and behaviour during the probationary period had been adversely commented on by the General Manager Transport and also by all the three Works and Traffic Managers under whom he had worked, and enumerating ten charges against him. The communication ended by repeating that the work and conduct of the petitioner having been found unsatisfactory and the charges in question being of a serious nature, he was considered to be unfit for confirmation or for retention in service any longer, and by calling upon him to show cause within a week why he should not be discharged or his services terminated forthwith. The petitioner complains that the charge-sheet was not in proper form, that he was not apprised of the oral or documentary evidence in support of the various charges, and that, in con-travention of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, he was not required to state whether he desired to be heard in person.

4. The petitioner submitted a written statement dated 3-9-1952 controverting the charges and praying for copies of the adverse reports on which the charges were based and for an opportunity of defending himself and producing evidence. He also demanded an inquiry under the Public Ser-vants (Inquiries) Act, 1850. None of these prayers was acceded to and, after considering the petitioner's written statement and recording findings that seven of the ten charges were proved against him, the Secretary Transport terminated his services by the said order dated 1-11-1952. In passing the order the Secretary Transport remarked that the petitioner's behaviour had been particularly objectionable, that his work had not been satisfactory, and that he was therefore unfit for Government service and there was no case for any further extension of his probationary period. The petitioner appealed from this order, but the appeal was dismissed by the Lt.-Governor on 19-2-1953. The present petition was thereupon filed on 2-3-1953.

5. The allegations of the petitioner are that as be was appointed by the Chief Commissioner, which authority now vests in the Lt.-Governor, his removal from service by the Secretary Transport, an authority subordinate to that by which he was appointed, was a nullity as it contravened clause (1) of Article 311 of the Constitution; that he was given no reasonable opportunity of defending himself, as required by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, or of showing cause against the action proposed to be taken in regard to him, as required by clause (2) of Article 311 of the Constitution; that he was con-demned unheard in violation of the principles, of natural justice; and that there was also infringement of Article 320 (3) (c) of the Constitution in that the Union Public Service Commission was not consulted on the disciplinary matter affecting the petitioner which resulted in the passing of the aforesaid order of termination of his services. He therefore prays that the order be declared illegal and ultra vires the Constitution, and that a writ of certiorari be issued quashing that order and a writ of mandamus restoring the petitioner to his post of Costing and Statistics Superintendent Him-achal Government Transport. He also prays that the respondent be ordered to pay him the emoluments due to him from the date of termination of his service till the date of restoration.

6. The petition has been opposed by the respondent, the state of Himachal Pradesh. The allegation that the petitioner was appointed substan-tively to a permanent civil post by the Chief Commissioner was traversed. It was contended, on the contrary, that the Chief Commissioner was only a member of the Selection Board, and that the petitioner was appointed by the Secretary Finance and Development to the said post on one year's probation on terms and conditions contained in the letter of appointment dated 13-7-1950 which were accepted by the petitioner. The allegations of malice against the General Manager and of his having tampered with the petitioner's character roll were denied. It was pleaded that the petitioner was not entitled to the benefit of Articles 811 and 320 (3) (c) of the Constitution as the same were not applicable to Part C States in view of the provisions of Article 308; that the Articles of the Constitution and the rule relied upon by thfr petitioner prescribed only administrative acts which were not open to challenge in this Court: that the necessary procedure prescribed for a probationer was followed; that the proper remedy for the petitioner was by a suit rather than by a writ petition, especially in view of the prolonged inquiry which the determination of disputed facts in the present case will necessitate; and that the order of dismissal was legal and valid and the discretion regarding confirmation of the petitioner which has been exercised against him could not in any: case be challenged.

In the course of arguments it was further contended by the learned Government Advocate that the Civil Services (Classification, Control and Appeal) Rules did not apply to Himachal Pradesh inasmuch as there was no express enactment or notification applying those Rules in this State after its formation, & he relied in this connection on --'Advocate-General of Bengal v. Ranee Surnomoye Dossee',. 9 Moo Ind. App. 387 (P C) (A). This last proposition put forward by the learned Government Advocate is a startling one since rules relating to Class III and IV services purport to have been made by notification A. 83-53/49-B, dated 28-2-1951, and those for the Himachal Pradesh Secretariat Subordinate Services by notification A/88/1/51, dated 2-2-1951, in exercise, inter alia, of the powers conferred by Rules 44 and 54 of the said Rules. After conclusion of arguments the Govt. Advocate filed an affidavit of the General Manager in support of his contention, while the petitioner filed notification P. 41-108/50, dated 7-6-1951, from the Pi-nance Secy. to all Heads of Departments and Offices in this State to the effect that the Fundamental Rules had been made applicable to Himachal Pradesh with effect from 15-4-1948. A further communication was received from the petitioner several days after the conclusion of the arguments challenging the stand taken by the Government Advocate. In the view that I take of this case, however, it is not necessary to consider this matter.

7. One of the terms of the petitioner's contract of service was, as adverted to above, that his services were liable to termination at any time without any notice during the probationary period, but a month's notice of termination of his employment would ordinarily be given if possible. Had the respondent terminated the petitioner's services in accordance with this term, the present petition would not have lain on the ground of infringement of Article 311 of the Constitution or of any of the rules of the Civil Services (Classification, Control and Appeal) Rules. -- 'Jayanti Prasad v. State of Uttar Pradesh', AIR 1951 All 793 (B); -- 'Dr. Krishnamoorthy v. State of Madras', AIR 1951 Mad 882 (C); and -- 'Venkata Rao R. v. Secy. of State for India', AIR 1937 PC 31 (D). The respondent proceeded however to terminate the petitioner's services on the ground of misconduct. Be that as it may, there is at least one o'f the charges found proved against the petitioner by the inquiring authority which it is not possible to ignore, namely, the charge of insubordination. In support of this charge the following three extracts from certain representations made to the Government by the petitioner were cited in the charge-sheet dated 25-8-1952 as instances of use of objectionable language even veiling threat of violence against superior officers:

'(1)Inefficiency and insubordination were rampant most probably due to their being related with high officer and early access to the General Manager;

(2) such persons, what to say of holding positions in free India, have no right of existence in free India;

(3) and ignoring all the canons of justice, equity and good conscience, the General Manager for reasons best known to him had caused some adverse entry to be made in my character roll without giving me the least opportunity to present (sic) the so concocted case.'

In his reply to this charge the petitioner justified the use of the said language, pleading that all he did was to place true facts before higher authorities in clear and simple words, and claiming 'liberty and equality' to do so. The petitioner asked in his reply for an opportunity 'to explain it more lucidly in person'. The finding of the inquiring authority on this charge was as follows:

'That explanation rendered by Shri Gupta is to say the least very unconvincing. The use of such words that 'such persons have no right of existence in free India' and similar expressions are very objectionable. This type of behaviour and language it is difficult to pass over if we mean business. In my view Shri Gupta stands condemned from his own mouth. Accordingly I hold this charge proved against him.'

8. I agree with the finding of the inquiring authority that the language used by the petitioner in his representations stood self-condemned. There was therefore no question of his being given an opportunity 'to explain it more lucidly in person'. The matter does not however stop there. He went one better in the written statement filed by him before the inquiring authority, as shown by its concluding paragraph reproduced below. In trying to meet the charge therefore he succeeded only in further establishing it against himself. The paragraph in question runs as follows:

'In the end, I respectfully beg to request you that an 'INQUIRY COMMITTEE' may kindly be instituted as prayed for in my representationsdated 21-1-1952 and 14-7-1952 to go through this case and the working of this Nationalised Asset which has been taken over by the Popular Government--Government of the people by the people for the people --in the name of the Nation and for the Nation.

It will be quite clear to the committee:

i. how inefficient the administration of thisdepartment is;

ii. how corrupt, inefficient and dishonest Ji Hazuries get encouragement;

iii. how fraudulently even the responsible officers of this department exploit this National Asset for their own benefits, as also of their friend and relatives;

iv. how the departmental vehicles are misused;

v. how cases of corruption like forgery etc. etc. of certain employees are hushed up.

vi. how false entries are made in the Government record to screen their acts;

vii. how the department is bamboozled;

viii. how the administration of this department be improved for efficient running;

ix. how revenues of the department be enhanced; and

x. who is who and what is what.

In case, I fail to establish the facts before the committee, I subject myself to any penalty upto death sentence.'

9. The correctness of the charge of insubordination is further confirmed by the language used by the petitioner and the insinuations made by him in the present petition itself. Much of it was ordered to be struck out as scandalous at the instance of the Government Advocate, but reference may be made here to those portions of the petition in support of the point under consideration. It may be mentioned that the allegations in question have hardly any relevancy for the disposal of the petition. In paras. 7 and 13 of the petition allegations of corruption, favouritism and nepotism have again been made in downright language against the General Manager. Evidently, so far as the petitioner and the General Manager are concerned it appears to be a case of two swords which cannot remain in the same scabbard. The Secretary Transport, who made the inquiry and passed the order of termination of the petitioner's service, comes in for criticism in para. 24 of the petition. It was certainly open to the petitioner to criticize the inquiry and the order according to law, but he questions the integrity of the Secretary and in effect alleges existence of a conspiracy between him and the General Manager in order to harm him. Witness the following sentence appearing in the paragraph:

'It is further established that before issuing the charge-sheet, the Secretary (Transport) has not gone through the record & framed false charges at the instance of the General Manager without any inquiry as required by the Rules.'

And again,

'The Secretary (Transport) has stated in respect of charges Nos. 7 and 10 that the petitioner has not proved his statement and failed to produce any evidence which is ridiculous and is grossly a misstatement of facts, and it is a marvel that the officer of the position of Secretary (Transport) is led to do so.'

In paras. 28 and 27 there are insinuations against the Lt.-Governor himself: in the former there are allegations of deliberate, unreasonable delay in the disposal of the petitioner's appeal, and in the latter he is alleged to have acted merely as an instru-ment in the hands of subordinate officers, hostile to the petitioner, in dismissing the appeal.

10. Thus, it is apparent that the petitioner holds strong views against the entire administration of Hirnachal Pradesh, not excluding its head, and against the Transport department in particular, and that he does not hesitate to give vent to those views whenever he can and in as strong a language as he can. He does not hesitate to throw them in the face of the administration itself of which he was only a subordinate official. Whatever may possibly be said in support of such an attitude in any other walk of life, it is certainly most objectionable in a Government servant and no doubt amounts to insubordination. If there be corruption or inefficiency amongst officers superior to the petitioner, there certainly are those whose business it is to find it out, but it is not for the petitioner to level charges against them on those grounds in memorials, petitions and even routine representations. I have no doubt but that a Government official who makes no bones about levelling charges indiscriminately against his superiors, not sparing even the head of the State, is too insubordinate in his outlook and behaviour to be tolerated by any administration.

11. Now, in the matter of issuance of writs or orders under Article 226 of the Constitution if there is one principle no less well established than any other it is that it is a matter for the discretion of the Court, so that no one can claim the grant of a prerogative writ as a matter of right. Of course, the discretion exercised by the Court must be judicial discretion. Judicial discretion has therefore been exercised against the grant of prerogative writs where there is an alternative specific remedy at law which is not less convenient, beneficial and effective, or where, even though the alternative remedy be less convenient, beneficial and effective, there is something in the circumstances of the particular case which does not warrant the granting of the writ. For instance, the right of the party applying for the writ may not be clear, or there may not be any clear legal duty of the party against whom the writ is applied for. I find support for this view in -- 'Baga Ram v. The State of Bihar', AIR 1950 Pat 387 (PB) (E), and especially in -- 'The B. B. Light Rly. v. The District Board Patna', AIR 1952 Pat 23 (P), and the English decisions cited in the latter. It may be stated that this - 'AIR 1952 Pat 23 (P)', was one of the decisions relied upon by the petitioner himself. Prom what I have stated above it is manifest that, having in view at least the charge of insubordination, the right of reinstatement claimed by the petitioner is not at all clear. I am therefore not inclined to grant any of the extraordinary writs prayed for by him.

12. There is one other cogent reason for refusing relief to the petitioner. A mandamus will not go when it appears 'that it would be futile in its result. Accordingly it will not be granted if the party complained of has powers which would enable him to make the writ inoperative. Likewise, even though grounds be made out upon which the Court might grant a writ of certiorari, it will not do so where no benefit could arise from granting it. See paras. 1308 and 1482 of Vol. IX of the Second Hailsham edition of Halsbury's Laws of England. In the present case, as already seen, the petitioner's services are terminable under his contract of service on a month's notice. That being so, even if the reliefs I prayed for by the petitioner were to be granted to him, the same will be rendered nugatory by the respondent taking action under that term of the contract. The albatross of an unwanted official will thus be cast off by the respondent the moment it is put round its neck.

13. The present petition is accordingly liable to dismissal on the above two grounds, and it is not necessary to go into the other matters raised by the parties. I would however make the costs easy since, were it necessary to do so, I would have held that the petitioner was entitled to the benefit of Article 311(2) of the Constitution and that its provisions had been infringed.

14. The, petition is rejected, but I make no order as to costs.


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