1. This is an application by one Harish Chandra under Article 226 of the Constitution of India for the issue of a writ of mandamus or such other directions as may be deemed fit to the respondent. The Chief Commissioner of Himachal Pradesh was the respondent' originally, but after 1-3-1952, on which date Himachal Pradesh became a Lieutenant Governor's State, the description of the respondent was on the application of the petitioner amended into that of the Lieutenant Governor, Himachal Pradesh.
2. The petitioner was appointed Superintendent in the transport department by the then Sirmur State on six months probation by an order dated 24-5-1947. On the expiry of the period of his probation there was neither an order of confirmation nor of extension of the petitioner's period of probation and his services were not terminated, the scale of his salary was raised and on the expiry of one year he was allowed an increment. After the merger of Sirmur State with Himachal Pradesh on 15-4-1948, his services were retained in the transport department, and he was redesignated Works and Traffic Manager, which post he continued to hold until his services were terminated.
The petitioner was on 38 days leave from 10-12-1949 to 16-1-1950, on which latter date he received a notice from the General Manager Himachal Government Transport that the Chief Commissioner had terminated his services on the expiry of his leave, which meant terminated with immediate effect. It appears that in response to a representation from the petitioner which was meanwhile pending the Chief Commissioner extended the petitioner's leave to 80 days from the aforesaid date, 10-12 1949, and terminating on 28-2-1950. This had the effect of postponing the date of termination of the petitioner's services from 16-1-1950 to 28-2-1950.
3. It has been alleged in the present application that the order of removal of the petitioner from the service of Himachal Pradesh Transport Department was illegal, unjust and void inasmuch as he had not been given a reasonable opportunity of showing cause against the action taken in regard to him, whether under Article 311(2) of the Constitution of India or under Rule 55 of the Civil Services (Classification, Control and. Appeal) Rules. It has been further alleged that the petitioner wrote to the General Manager and tried to wait upon the Chief Commissioner to get the illegal order of removal set aside, that he submitted a representation to the Ministry of States seeking his reinstatement, and that there was an exchange of communications between the petitioner and the Finance and Development Sec-retary, Himachal Pradesh Government with the same object in view from 22-5-1951 to 25-8-1951; but to no effect.
Finally, the petitioner sent a telegram to the respondent on 10-9-1951, demanding immediate reinstatement and claiming arrears of pay, but without avail. It was, therefore, contended that there had been a demand of justice and its denial to the petitioner. The petitioner further pleaded that as he was in the permanent employment of the Himachal Pradesh Government, he was entitled for the aforesaid reasons that a writ of mandamus and such other directions as may be deemed fit and necessary be issued to the respondent directing him to withdraw the aforesaid order of termination of petitioner's services, to reinstate him as Works and Traffic Manager in the Himachal Pradesh Transport Department and to pay all arrears of emoluments found due to him on the date of reinstatement.
4. In the reply to the petitioner's application, filed on behalf of the respondent, it was contended that the petitioner was a temporary servant throughout, and a number of other pleas were taken. I do not deem it necessary to set forth all those pleas but only some of them which, in my opinion, are sufficient to justify the dismissal of the present application. These pleas are that the present application is vitiated on account of concealment of a very important fact, namely, that the petitioner went up in appeal to the Government of India in the Ministry of States against the aforesaid order of termination of his services dated 16-1-1950; that under the direction of that appellate authority the petitioner had been called upon by the respondent to show cause why his services should not be terminated, and he has been asked to explain certain charges which have been brought against him; and that while the respondent was carrying on the inquiry under the directions of the appellate authority the petitioner suddenly turned round and filed the present application in this Court. It was, therefore, contended by the respondent that the petitioner has had no cause of action for the filing of the present application, and that as he was pursuing another remedy the extraordinary remedy by writ is not open to him.
5. The above contentions put forward on behalf of the respondent are well founded. The documents filed by the parties show that after the termination of the petitioner's services by means of the aforesaid notice dated 16-1-1950, he made a representation against that notice to the Ministry of States on 4-7-1950. On 5-8-1950, the petitioner was directed by the Ministry of States to submit his representation through the Chief Commissioner, which the petitioner did on 11-8-1950. As a result of this representation the Ministry of States wrote to the respondent on 12-4-1951, that the manner in which the petitioner's services had been terminated was not correct and directed him to comply with the requirements of Article 311(2) of the Constitution of India, and follow the procedure laid down in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. With regard to the question of reinstatement of the petitioner the direction given to the respondent was in the following words:
'It may not be necessary to reinstate Mr. Harish Chandra at this stage as that question can be decided after a decision has been taken on the question whether the present orders of the termination of his services should stand or be quashed as a result of the revised proceedings to be taken in the matter.'
6. On receipt of the above directions from the Ministry of States the Finance Secretary, Himachal Pradesh Government sent a notice to the petitioner on 22-5-1951 formulating detailed charges against him and calling upon him to show cause within a week from the date of receipt of the notice why his services be not terminated. In response to this notice the petitioner showed cause by means of a communication dated 1-6-1951, addressed by him to the Finance Secretary, in which he submitted detailed replies to the various chaxges and asked for some further information. This further information was sent to him by the Finance Secretary by means of a communication dated 22-6-1951, which was followed by further communications dated 14-7-1951 and 8-8-1951 from the petitioner to the Secretary, the latter being again a very detailed reply to the various charges levelled against him.
Thereupon the Finance Secretary wrote to the petitioner on 25-8-1951 that if he had anything additional to say in support of his defence it should be stated with the least delay. The last communication sent by the petitioner to the Finance Secretary by way of his defence was on 28-8-1951. Before however any orders could be passed as a result of the inquiry, the petitioner through his counsel suddenly sent the aforesaid telegram dated 10-9-1951, and on 17-9-1951 he filed the present petition. The telegram was addressed to the Chief Commissioner and worded as follows: 'Service of my client Harish Chandra, Works and Traffic Manager, Himachal Transport wrongfully terminated. Orders without compliance with mandatory rules hence illegal and inoperative Service permanent. Notification declaring him probationary after seven months of termination of service afterthought and without legal authority. Notice of 22nd May 1951 illegal since served after termination of service. Client entitled to immediate reinstatement with all arrears of pay and allowances up-to-date. Reinstatement and arrears demanded in justice. Failure to allow the same within fortyeight hours from the time of receipt of this would be denial of justice. Communicate orders care K. C. Pandit Advocate Brahmo Samaj Simla (3).'
7. It is clear therefore that what has been glossed over as mere exchange of communications in the present application was nothing but an inquiry as to whether the services of the petitioner should, or should not, be terminated. True the Government of Himachal Pradesh was initially in error in terminating the petitioner's services without prior inquiry by means of the notice dated 16-1-1950; but the petitioner made a representation to the Ministry of States against it on 4-7-1950, and this led to the institution of an inquiry by the said Government.
There is no suggestion that this inquiry was not being made in accordance with the prescribed procedure, or that the petitioner hadnot been given reasonable opportunity of Showing cause against the action proposed to be taken in regard to him. In fact, from what has been stated above it is clear that the inquiry had lasted about three months from the first notice to the petitioner dated 22-5-1951 to the final explanation submitted by him to the Finance Secretary on 28-8-1951, and that during that inquiry the petitioner was supplied with all the necessary particulars as regards the charges formulated against him and he had submitted detailed replies to those charges. The Finance Secretary asked the petitioner by his communication dated 25-8-1951 to submit without delay anything additional he might have to say in support of his defence, and this the petitioner did by means of his final explanation dated 28-8-1951 without asking for more time for doing so or for elucidation of any further facts.
It only remained therefore for the authority concerned to record a finding as a result of the inquiry and, considering the numerous charges brought against the petitioner and the lengthy answers submitted thereto by him, it cannot certainly be said that the recording of the finding had been unduly delayed between the termination of the inquiry on 28-8-1951, & the sending of the aforesaid telegram only 13 days Tater i.e., on 10-9-1951, by the petitioner to the Chief Commissioner. It is noteworthy that there was no allegation in this telegram of any delay in the matter of the recording of a finding as a result of the inquiry, but immediate reinstatement of the petitioner and payment of all arrears of salary and allowances was insisted upon.
Nothing, however, could be more arbitrary and improper than for the petitioner to have submitted to Hie inquiry and then, without giving the authority holding the inquiry the necessary time to arrive at a conclusion, to have given that authority an ultimatum to give immediate decision in his favour. It is quite patent therefore that a reasonable opportunity was in fact given to the petitioner to show cause against the action proposed to be taken in regard to him as required by Article 311 of the Constitution or Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and where that is the case this Court would have no jurisdiction under Article 226 of the Constitution to grant any relief to the petitioner.
8. The present application for a writ or order under Article 226 must be refused for the additional reason that the petitioner has made a deliberate concealment and misstatement of facts by pleading that an inquiry according to the prescribed procedure had not been held by the authority concerned in regard to the action proposed to be taken against him. And this deliberate concealment was in regard to a material fact, for if the inquiry had in fact taken place no cause of action arose to the petitioner for filing the present application on the allegation of want of such an inquiry. There could be no doubt therefore but that the deliberate concealment of the material fact was with a view to misleading this Court, and where that is the case it would be an abuse of the process of this Court to allow an application for a writ.
9. Great stress was laid by the learned counsel for the petitioner on the fact that theservices of the petitioner had been terminated before the inquiry. He insisted that the Ministry of States, while directing the Himachal Pradesh Government on foot of the petitioner's representation to hold an inquiry according to the procedure prescribed by the law, should have also ordered the reinstatement of the petitioner pending the inquiry. The learned counsel was unable however to refer to any provision which rendered such reinstatement mandatory. On the contrary, there could be no doubt that if the result of the inquiry be in favour of the petitioner it would be open to the authority concerned to reinstate him retrospectively with effect from the date of termination of his services. If, on the other hand, the inquiry goes against the petitioner it was not suggested that he would still be entitled to reinstatement. Insistence on reinstatement pending the inquiry was therefore either unnecessary or unjustified.
10. For reasons recorded above, I am clearly of the opinion that the petitioner is entitled to no relief. His application under Article 226 of the Constitution is therefore rejected. He will pay costs of the respondent whichI fix at Rs. 60/-/-.