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Shri Harbhajan Singh Bawa Vs. Himachal Pradesh Government and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 20 of 1964
Judge
Reported inAIR1965HP55
ActsCentral Civil Services (Temporary Service) Rules, 1949 - Rule 5; ;Government of Union Territories Act, 1963 - Section 46, 46(2) and 46(3); ;Constitution of India - Article 311
AppellantShri Harbhajan Singh Bawa
RespondentHimachal Pradesh Government and anr.
Appellant Advocate Harish Chander, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionPetition dismissed
Cases ReferredIn Raja Harish Chandra v. Deputy Land Acquisition Officer
Excerpt:
constitution - notice - appellant reverted to his original post - later terminated from service - office memorandum served on petitioner as a months notice for terminating his services - whether officer memorandum can be construed as valid notice - appellant contended that it had not been issued by administrator who was appropriate authority to terminate his service - facts revealed that appellant reversion order was approved by administrator - notice of termination of services were issued after administrator had approved of reversion order - notice in form of office memorandum were defects in form only and did not vitiate notice - held, office memorandum can be validly construed as notice. - .....this petition under article 226 of the constitution of india, is directed against the himachal pradesh government, respondent no. 1 and the secretary, animal husbandry, respondent no. 2. the facts, involved in the petition, are short and may be stated as follows :--2. the petitioner is a permanent veterinary assistant surgeon, in the animal husbandry department, punjab. he was selected for the post of officer in-charge key village scheme, himachal pradesh (later on redesignated as key village officer, himachal pradesh) by the himachal pradesh territorial council. the petitioner joined the post, under the territorial council, on the 31st march, 1961. the terms and conditions of the petitioner's appointment were contained in the letter of the chief executive officer, territorial.....
Judgment:
ORDER

Om Parkash, J.C.

1. This petition under Article 226 of the Constitution of India, is directed against the Himachal Pradesh Government, respondent No. 1 and the secretary, Animal Husbandry, respondent No. 2. The facts, involved in the petition, are short and may be stated as follows :--

2. The petitioner is a permanent Veterinary Assistant Surgeon, in the Animal Husbandry Department, Punjab. He was selected for the post of Officer In-charge Key Village Scheme, Himachal Pradesh (later on redesignated as Key Village Officer, Himachal Pradesh) by the Himachal Pradesh Territorial Council. The petitioner joined the post, under the Territorial Council, on the 31st March, 1961. The terms and conditions of the petitioner's appointment were contained in the letter of the Chief Executive Officer, Territorial Council, dated the 7th October, 1960.

3. The Government of Union Territories Act, 1963, repealed the Territorial Councils Act, 1956, under which the Himachal Pradesh, Territorial Council had been eatablished. The result of the repeal of the Territorial Councils Act, was that the Himachal Pradesh Territorial Council was abolished. The employees, serving under the Himachal Pradesh Territorial Council, were taken over by the Himachal Pradesh Government, with effect from the 1st July, 1963. The petitioner continued to work as Key Village Officer, Himachal Pradesh under the Himachal Pradesh Government, on the same terms and conditions on which he held the post under the Territorial Council. On the 7th July, 1964, the petitioner received an office memorandum which was to the following effect :

'Shri H. S. Bawa, Key Village Officer Himachal Pradesh, is hereby given notice that his service is terminated from the date of expiry of one calendar month commencing with immediate effect.'

4. The aforesaid memorandum was issued, under the signature of Shri Bhagwati Sharan Singh, Secretary (Animal Husbandry), to the Government of Himachal Pradesh.

5. The petitioner, by the present petition, challenges the validity of the aforesaid memorandum, served on him as a month's notice, for terminating his services, on the following grounds: -

(1) The office memorandum cannot be construed as a valid notice.

(2) The notice could not be issued by the Secretary, but could only be issued by the Himachal Pradesh Government, under the orders of the Administrator.

(3) The notice contravened the principle of natural justice inasmuch as it was desired to be operative from the date of issue and not from the date of its receipt by the petitioner.

(4) The petitioner was not merely a temporary employee and his services could not be terminated by a month's notice.

(5) The termination of services of the petitioner was discriminatory and violative of the provisions of Articles 14, 15 and 16 of the Constitution of India.

6. The petition was filed in this Court on the 1st August, 1964. An application for the stay of the operation of the order, terminating the services, was filed, along with the petition. An ex parte interim stay was granted till the 13th August, 1964, for which date the stay application was fixed for hearing. The Government Advocate, Bilaspur, appeared on that date,for the respondents, and stated that he had no objection to the order of interim stay being confirmed tilt the disposal of the petition. Consequently, the interim stay order was confirmed. The petition was posted for hearing for the 7th December, 1964. On that date, the Government Advocate, Bilaspur, put in an application for adjournment, on the ground, that the petition was to be argued by the Government Advocate Mahasu and Sirmur Districts, who was unable to attend the Court as he was lying ill. The hearing of the petition was, therefore, adjourned. The petition was ultimately argued, on behalf of the respondents, by Shri Chhabil Dass Advocate, Simla, on the 28th May, 1965.

7. In the reply, filed, on behalf of the respondents, to the petition, it was admitted that the petitioner was appointed as Officer Incharge Key Village Scheme, under the Territorial Council Himachal Pradesh and that on the abolition of that Council, the petitioner was taken over, by the Himachal Pradesh Government on the same terms and conditions. The claim of the petitioner that he was not a merely temporary employee and his services could not be terminated with one month's notice was refuted. It was pleaded that the petitioner was on deputation, with the Himachal Pradesh Government, and was its temporary employee and that according to the .-terms and conditions of his appointment, his services could be terminated with one mouth's notice. It was, further, pleaded that prior approval of the Administrator had been obtained for terminating the services of the petitioner and that the Secretary respondent No. 2 had the authority to sign the notice in the name of the Administrator. It was denied that the notice was invalid or that the order of termination of services violated any constitutional provision.

8. The first question, which requires decision, in the petition, is whether the service of the petitioner could be terminated with one month's notice. In this connection, it is to be noted that the petitioner does not claim himself to be a permanent government servant of the Himachal Pradesh Government. He, admittedly, is a permanent employee of the Punjab Government and holds a lien on the post of Veterinary Assistant Surgeon, under that Government. The petitioner was only a temporary employee of the Himachal Pradesh Government. The services of a temporary employee can be terminated, by the appropriate authority, according to the terms and conditions of his service or according to the relevant rules vide, Jagdish Mitter v. Union of India, AIR 1964 S C 449. The Central Civil Services (Temporary Service) Rules, 1949, apply to the temporary service of a government servant. Under rule 5, the services of a temporary government servant can be terminated with one month's notice. But the Central Civil Services (Temporary Service) Rules, 1949 will not be applicable to the case of the petitioner as he is holding a lien on a post under the State Government, namely the Punjab Government.

The answer to the question, whether the petitioner could be discharged from service with one month's notice, will depend on the terms and conditions of his service. Those are contained in the letter dated the 7th October, 1960 of the Chief Executive Officer, Himachal Pradesh, Territorial Council Condition No. 3 clearly stipulated that the post was temporary and the services of the petitioner were liable to be terminated with one month's notice, on either side. According to this condition, the petitioner could be discharged from service of the Himachal Pradesh Government with one month's notice.

The contention, on behalf of the petitioner, was that despite condition No. 3, the services of the petitioner could not be terminated with one month's notice as he was a direct appointee. The respondentsrepudiated the claim of the petitioner that he was a direct appointee. Their contention was that he was on deputation, from the Punjab Government. For the purposes of this petition, it is not necessary to decide whether the petitioner was a direct appointee or a deputationist. Even if it be assumed that he was a direct appointee, there was no legal bar to terminate his services, with one month's notice, in accordance with the contract of his service. The learned counsel, for the petitioner, failed to cite any provision of law, or any authority, in support of the proposition that the services of a direct appointee cannot be terminated with one month's notice even though, the contract of service contains a stipulation that his services can be terminated on such a notice. The services of the petitioner could be terminated with one month's notice.

9. The next question, which requires decision, is whether the notice, served on the petitioner, for the termination of his services, was a valid notice. The contents of the notice, headed as an office memorandum, have been set forth, in an earlier part of this order. The main objections, on behalf of the petitioner, against the validity of the notice, were that it had neither been issued under orders of the Administrator, the appropriate authority, who could terminate his services, nor it was expressed to be made in the name of the Administrator and that the Secretary respondent No. 2 had no authority to sign the notice in the name of the Administrator.

A copy of the office noting, relating to the reversion of the petitioner, to his parent department, in Punjab, has been filed, on behalf of the respondents. It is annexure 'F'. From a perusal of the noting, it appears that, on 25-6-1964, the office of the Director of Animal Husbandry, Himachal Pradesh, had put up a note that a decision, with the approval of the Development Minister, had been arrived at that the petitioner be reverted to his parent State. It was proposed, in the office note, that the approval of the Administrator may be obtained for the termination of the services of the petitioner and he may be served with one month's notice. It was also, stated, that the Director of Animal Husbandry, Punjab, had already, been requested to intimate the place of posting of the petitioner on his reversion. This office note was endorsed by the Director of Animal Husbandry and the Secretary (Animal Husbandry). The Administrator gave his approval on 29-6-1964. The notice, terminating his services, was issued to the petitioner, on 4-7-1964.

It is clear, from the above, that the notice oftermination of services, was issued, after the Administrator had approved of the reversion of the petitionerto his parent department, in the Punjab. It is futile tocontend that the notice was not issued under ordersof the Administrator.

10. Notification No. S. R. O. (H. P.) 3 shows that, in exercise of the powers, conferred by Sub-section (3) of Section 46 of the Government of Union Territories Act, 1963, the Administrator had made Rules, laying down that orders and other instruments, made or executed in the name of the Administrator, shall be authenticated by the signature of the Chief Secretary, Secretary, Additional Secretary, etc. etc., in any of the departments of the Government. Under these Rules, the Secretary respondent No. 2 had the authority to sign the notice in the name of the Administrator.

11. It is true that the notice is not expressed to be issued in the name of the Administrator, as required by Sub-section (2) of Section 46 of the Government of Union Territories Act. But this defect and the defect that the notice was headed, as an office memorandum, were defects, in form only, and did not vitiate the notice. Reference in this connection may be made to the pronouncement of their Lordships of the SupremeCourt in State of Rajasthan v. Sripal Jain, AIR 1963 S C 1323. In that case, an order of compulsory retirement of a Police Circle Inspector, though passed by the Government of Rajasthan, was communicated to him by the Director General of Police. It was held, by their Lordships, that though the order communicated was not in the form required under Art. 168 of the Constitution, but the defect was of form only and did not necessarily make the order illegal. Their Lordships observed that the only consequence of the order, not being in proper, form, as required by Art. 168, was that the burden was thrown on the Government to show that the order was in fact passed by it. Their Lordships perused the relevant file, in order to come to the conclusion, whether the order of compulsory retirement was in fact passed by the Government.

The principles, enunciated by their Lordships, in the aforesaid case, are applicable to the instant case. The notice, served on the petitioner, was defective inasmuch as it was not expressed to be made in the name of the Administrator. The consequence of this defect was that the burden was thrown on the respondents to show that the order of termination of services was, in fact, passed by the Administrator. As already discussed, the respondents have, by producing the relevant office noting, shown that the Administrator had given his approval to the termination of services of the petitioner.

12. It was contended, on behalf of the petitioner, that the approval, accorded by the Administrator, was not a valid one as it was based on an incomplete record. There is nothing to show that complete record had not been placed before the Administrator when he had given approval to the termination of services of the petitioner. Moreover, as the order of the Administrator was properly authenticated, within the meaning of Sub-section (3) of Section 46 of the Government of Union Territories Act, its validity cannot be called in question on the ground that the order was made on an incomplete record.

13. Another objection, raised on behalf of the petitioner, against the validity of the notice, was that it did not give one month's time to the petitioner. The notice was issued on 4-7-1964. It reached the petitioner on 7-7-1964. The notice stated that the services of the petitioner were terminated from the date of expiry of one calendar month commencing with immediate effect. The contention, on behalf of the petitioner, was that the words, 'commencing with immediate effect' in the notice, meant commencing with the date of issue of the notice i.e. 4-7-1964, and not from the date of its receipt i.e. 7-7-1964, and that the petitioner was not, thus, granted a month's time. This contention does not appear to be well founded.

It is true that, in the reply filed on behalf of the respondents, it was stated that the notice was operative from the date of its issue; but at the time of arguments, the learned counsel for the respondents, conceded that the notice could be operative only from the date on which it was served on the petitioner and not from the date of its issue and that the expression 'commencing with immediate effect' meant commencing from the date of receipt. This appears to be the correct position. The notice adversely affected the rights of the petitioner. It could be operative, against him, after it had been communicated, actually or constructively, to him.

In Raja Harish Chandra v. Deputy Land Acquisition Officer, AIR 1961 S C 1500, their Lordships of the Supreme Court were considering the significance of the expression 'the date of the award' used in proviso (b) of Section 18 (2) of the Land Acquisitiou Act. Their Lordships held that according to the requirement of fair-play and natural justice, the expression could only mean the date on which the award wasactually or constructively communicated to the party affected. On the same analogy, it can be said that the notice of termination of services, which adversely affects the employee, will take effect from the date, on which it is actually or constructively, communicated to him. The words 'commencing with immediate effect' in the notice, served on the petitioner, could only mean commencing from the date on which the notice was served on the petitioner. The notice was, admittedly, served on him on 7-7-1964. The period of one month commenced from 7-7-1964. It is not the case of the petitioner that he was relieved, or threatened to be relieved, from his post, before the expiry of one month, from 7-7-1964. It is, therefore, to be held that the notice gave one month's time to the petitioner.

14. Though, in the petition, the constitutionality of the notice and the order of the termination of services was challenged on the ground that they violated the provisions of certain Articles of the Constitution, yet the point was not pressed at the time of arguments.

15. The conclusion, from the above discussion, is that there is no justification for holding that the services of the petitioner were not liable to be terminated with one month's notice or that the notice served upon the petitioner was invalid. The petition is dismissed.

16. The notice served on the petitioner was defective in form. On his reversion to his parent State, the petitioner would get much less emoluments than what he is getting at present. Taking into consideration these facts, I would leave the parties to bear their own costs of the petition.


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