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R.N. Mohindra Vs. State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 1 of 1952
Judge
Reported inAIR1953HP125
ActsConstitution of India - Articles 226 and 311; ;Civil Service (Classification Control and Appeal) Rules - Rule 55
AppellantR.N. Mohindra
RespondentState of Himachal Pradesh
Appellant Advocate K.C. Pandit, Adv.
Respondent Advocate C.L. Puri, Ag. Govt. Adv.
DispositionPetition dismissed
Cases ReferredWaman v. State of Madhya Pradesh
Excerpt:
.....226 and 311 of constitution of india - petition against termination order - impugned order challenged on grounds of non-compliance of rule 55 and article 311 - petitioner terminated due to past improper conduct leading to his reduction in rank and to his subsequent misconduct - subsequently show-cause notice issued to petitioner asking him as to why his services should not be terminated - instead of availing himself of opportunity granted to him by authority concerned to show cause against proposed action, petitioner tendered his resignation - so contingency of holding inquiry never arose - authority concerned was left with no alternative but to terminate his services - now it is not open to petitioner to contend that his termination was wrongful - petition dismissed. - .....by one b. n. mohindra, one time employee of the respondent, the state of himachal pradesh, in the medical department, whose services were terminated by an order of the director of health services dated 26-3-1951, for a writ of mandamus and such other directions as may be deemed fit to the respondent for restoration of the petitioner to the office of the head clerk in the medical department of the state and for payment to him of arrears of his emoluments till the date of his reinstatement. the application has been opposed on behalf of the state.2. it appears that the petitioner was appointed a head/ clerk in the medical department of the former sirmur state on six months probation in june 1944 and confirmed on that post on 6-3-1945. after formation of himachal pradesh, which took place.....
Judgment:
ORDER

Chowdhry, J.C.

1. This is a petition under Article 226 of the Constitution by one B. N. Mohindra, one time employee of the respondent, the State of Himachal Pradesh, in the medical department, whose services were terminated by an order of the Director of Health Services dated 26-3-1951, for a writ of mandamus and such other directions as may be deemed fit to the respondent for restoration of the petitioner to the office of the Head Clerk in the medical department of the State and for payment to him of arrears of his emoluments till the date of his reinstatement. The application has been opposed on behalf of the State.

2. It appears that the petitioner was appointed a Head/ Clerk in the medical department of the former Sirmur State on six months probation in June 1944 and confirmed on that post on 6-3-1945. After formation of Himachal Pradesh, which took place on 15-4-1948, the petitioner's services were continued in the medical department by the respondent. One of the points urged by the petitioner is that the respondent will be deemed to have retained his services as a permanent Head Clerk in the medical department. It is however not necessary to go into that question since it would be material only if his reinstatement were to be ordered.

3. After certain charges had been levelled against the petitioner, with the reasonability or otherwise of which charges this Court is not concerned, the petitioner was reduced in rank with effect from 1-6-1950 by an order dated 14-5-1950. Subsequently, he was suspended by an order dated 27-1-1951, and on 9-2-1951 a notice was issued to him to show cause why his services be not terminated within a week of the receipt of the notice. Reference was made in this notice to the allegedly past improper conduct of tine petitioner leading to his reduction in rank and to his subsequent misconduct in October 1950 and immediately before the issue of notice. At the end it was stated that as in spite of previous warnings the petitioner had not taken care to reform himself it was proposed to terminate his services, but that before such action was taken he was being given an opportunity of showing cause against it. As already stated, the services of the petitioner were terminated by an order dated 26-3-1951.

4. The contention of the learned counsel for the petitioner was that the removal of his client from service was wrongful in that the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and of Article 311 of the Constitution had not been complied with. The two provisions just cited require the official concerned to be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him before he is either dismissed, removed or reduced in rank. The learned counsel also argued that the aforesaid notice dated 9-2-1951 was defective since the petitioner was not only asked thereby to show cause but it even mentioned the punishment sought to be imposed upon him. He also argued that there was no mention in the notice whether the petitioner desired to be heard in person, as required by Rule 55. It was also contended that the aforesaid order of termination of services was passed without holding any inquiry.

5. Now, there is no doubt that if the present petitioner's services have been terminated in contravention of the said provisions, he has a legal right to come to this Court for appropriate relief under Article 22S of the Constitution, and the mere facts that he has the alternative remedy of a suit, or that the action taken by him in this Court was a delayed one, would by themselves be no ground for denying him that relief. But, as held in a ruling cited by the learned counsel for the petitioner himself, i.e., in--'Ram Prasad v. State of Bihar', AIR 1952 Pat 194 (A), it is essential that the alleged legal right should have been actually violated. That cannot be said to have happened in the present case. And this appears from facts disclosed in the respondent's reply in this case. Incidentally, it may be stated here that these facts were not stated in the petitioner's application, and as these were material facts, this concealment alone would be a sufficient ground for throwing out the present petition. 'Harish Chandra v. Lt.-Governor of Himachal Pradesh', AIR 1952 Him P 43 (B). I would however not throw out the present petition on that short ground but would refer to the material facts just mentioned in order to show that there has really been no violation of the petitioner's rights.

6. It appears that in reply to the aforesaid notice dated 9-2-1951, which notice was admittedly received by the petitioner, the petitioner, within the week allowed by the notice, instead of making any attempt to show cause against the action proposed to be taken against him, submitted his resignation on 15-2-1951. This letter of resignation is strongly worded, but that is not a matter which need be considered. What is material is that, instead of availing himself of the opportunity granted to him by the authority concerned to show cause against the proposed action, the petitioner tendered his resignation. That being so, the contingency of holding an inquiry never arose and the authority concerned was left with no alternative but to terminate his services. The right which is alleged by the petitioner to have been violated in the matter of the termination of his services is that his services were terminated without his having been given an opportunity to show cause against that action. But by sending in his resignation the petitioner made it impossible for the authority concerned to do anything else but to terminate his services. It is not open to the petitioner therefore to contend that his removal was wrongful.

On the contrary, this is a case like the one reported as--'Waman v. State of Madhya Pradesh', AIR 1953 Nag 69 (C), where no attempt was made by the applicant to show cause against his dismissal, and therefore it was held that the notice which had been given to him complied with the provisions of Article 311(2) of the Constitution. In fact, the present is a stronger case since it is not only that no attempt was made by the petitioner to show cause against the termination of his services, but he actually tendered his resignation in reply to the notice. In the circumstance, if the petitioner had any right, he himself cut the ground from under it and it cannot be said that the respondent was responsible for its violation. The present petition is accordingly dismissed. I make no order as to the costs of the petition since admittedly certain costs awarded to the petitioner on a previous date have not yet been paid.


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