Patna High Court
Nageshwar Prasad And Ors. vs State Of Bihar And Ors. on 11 July, 1958
Equivalent citations: AIR1959PAT192, 1958(6)BLJR593, AIR 1959 PATNA 192
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT R.K. Choudhary, J.
1. This is a batch of twenty-four writ applications made by twentyfour discharged Karamcharis. Originally, all of them filed one joint petition which is M. J. C. No. 687 of 1957. This petition has now heen confined to the case of petitioner No. 22 only and the other twenty-three petitioners have filed separate petitions which are numbered as M. J. C. 100 to 106, 114 to 127, 204 and 205 of 1958. All of them have been heard together and this judgment will govern them all. In the course of the judgment reference will he made to the petitioners and annexures as given in the original application, namely, M. J. C. No. 687 of 1957.
2. The petitioners were Karamcharis in the district of Patna employed in the Land Reforms Department, Government of Bihar. They have been discharged from their services. They have, therefore, made these applications under Article 225 of the Constitution of India for issu'e of writs quashing the orders of discharge passed against them and directing the respondents to pay to them their emoluments. Cause has been shown by the State of Bihar (Respondent No. 1) on whose behalf a counter-affidavit sworn by one Ramadhya Dwivedi, law clerk of Dinapore Subdivisional Office in the district of Patna, has been filed.
3. Letters of appointments were issued to the petitioners by the Additional Collector of Patna, respondent No. 3. In most of these letters it is stated that the appointments have been made by the Collector of Patna, respondent No. 2, but in some of them there is no such statement. According to the case of the petitioners, however, all of them were appointed by the Collector, respondent No. 2, and this fact has not been challenged by the respondents. All these letters clearly recite that the appointments were purely on temporary basis and liable to be terminated on one month's notice.
It will be convenient to reproduce, by way of sample, the contents of one of those letters in which it is stated that the appointment was made by the Collector and also the contents of one of those letters in which there is no such statement, because in all other respects and especially with regard to the terms of the appointment they are practically similar. Annexure "C" is the appointment letter of Sri Kameshwar Singh, petitioner No. 8 and it runs as foilows :
"Memo No. 420/L. R. District Land Reforms Office, Patna. Patna, the 2nd February, 1956. To, Sri Kameshwar Singh, Ranipur, P. O. Paliganj, Patna. Subject:- His absorption as Karamchari in the district of Patna.
Collector has been pleased to appoint him as a temporary Karamchari in the scale of pay of Rs. 35/2/45-EB-1-55 per month plus the usual cost of living allowance (so long as admissible). He is posted to Bihar Subdivision and is directed to report himself for duty before the Sub-divisional Officer, Bihar, latest by 15-2-1956, after which the appointment will be cancelled.
The post is purely temporary and liable to be terminated on one months notice without assigning any reason therefor.
Sd. Illegible.
Additional Collector, Patna."
Annexure "B" is the appointment letter of Sri Kedar Nath Sharma, petitioner No. 2, and it runs as follows :
"Memo No. 1231/L. R. District Land Reforms Office, Patna.
Dated Patna, the 9th March, 1955.
To, Sri Kedarnath Sharma, Karamchari. You are hereby appointed as Karamchari in the scale of Rs. 35-2-45-EB-1-55 (plus the usual cost of living allowance for so long as it is admissible) with effect from 1-3-1955, on a purely temporary basis and on the distinct understanding that your appointment is liable to be terminated at any time and that you are liable to be discharged after a month's notice.
Sd. Z. Ahmad, Additional Collector, Patna."
The contents of the above letters clearly show that the posts were temporary, the appointments were made on a temporary basis on the distinct understanding that the same were liable to be terminated 1959 Pat. D.P./13 at any time and the petitioners were liable to be discharged after a month's notice.
4. It appears that the State Government was considering the desirability of weeding out of unwilling workers in the rank of Karamcharis, and for that purpose reports were called for from different Revenue Officers who submitted their reports in due course and recommended for the discharge of certain Karamcharis. So far as the petitioners are concerned, the Sub-divisional Officer of Biharsariff submitted his report by D. O. letter No. 655, dated 27-11-1957, and recommended for the immediate discharge of the petitioners and some other Karamcharis in the course of weeding out of Karamcharis, and, in view of that recommendation, the Additional Collector wrote to him by letter No. 6366, dated 1-12-1957, that the petitioners along with others had been weeded out and had been discharged from service with effect from 30-11-1957, on account of their being unwilling, undesirable ana unsuitable workers (vide annexure "F"). Thereafter, letters of discharge were issued to the petitioners which are almost similar in terms, and it will be better to reproduce one of them say, annexure "F3," which runs as follbws :
"Memo No. 2092.
Circle Office, Chandi.
Bihar, dated the 3rd December, 1957.
To, Sri Chandradip Singh, K. C. incharge Halka NO. 2. In pursuance of Additional Collector, Patna's order received with memo No. 672 L. R., dated 2-12-1957, from the S. D. O. Bihar, you have been discharged from the Government service with effect from 30-11-1957.
Sd. Illegible. 2-12-1957.
Circle Officer, Chandi."
5. Annexure "E" of the petition shows that some of the temporary posts including those of the Karamcharis in the Land Reforms Organisation were sanctioned to be converted into permanent ones with effect from the 1-3-1956. In Patna there were 308 Karamcharis out of whom 280 Karamcharis were made permanent and the remaining 28 remained on temporary basis. The case of the petitioners is that they were amongst the 280 Karamcharis who were made permanent. This has, however, been challenged by the State of Bihar, and it is stated in paragraph 11 of the counter-affidavit that the petitioners were not made permanent.
No material has been placed before us on be half of the petitioners to show that they were made permanent or that they were included amongst the 280 Karamcharis who had been made permanent.
The question whether they were made permanent or not is a question of fact and it is not possible for this Court to go into disputed questions of fact in a writ application, especially when there is no material on the point for coming to a definite deci sion. Mr. P. R. Das appearing for the petitioners, has, therefore, proceeded on the footing that the petitioners' were only in temporary service.
6. Counsel for the petitioners has made two submissions, namely, (1) that the Additional Collector had no authority to pass the orders of discharge and (2) that no opportunity was given to the petitioners for showing cause as to why they should not be discharged. It is submitted that the orders of discharge infringed Article 311 (1) and (2) of the Constitution of India and are, therefore liable to be quashed.
7. The first contention appears to have been raised under misapprehension of fact. As already stated, the appointments of the petitioners were made by the Collector. The letters of discharge, however, had been issued by the Additional Collector who is subordinate to the Collector. It has, therefore, been argued that the orders of discharge violate Article 311 (1) of the Constitution and are, therefore, void. This article runs as follows :
"No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed."
8. There is no doubt that if the orders of discharge have been passed by the Additional Collector, they infringe the provisions of the above article and they are void. In the present case, however, that question does not really arise. There is nothing to show that orders of discharge were actually passed by Additional Collector though letters of discharge were issued by him. A reading of the letters of discharge makes it perfectly clear and by those letters the Additional Collector has only communicated the orders of discharge to the Sub-divisional Officer.
In paragraph 20 of the original petition the petitioners have stated that the authorities making the orders terminating their services are subordinate to their appointing authority. This statement has been controverted in paragraph 18 of the counter affidavit wherein it is stated that the contents of paragraph 20 are not correct and that the authority terminating their services was not subordinate to their appointing authority as it was the Collector who directed the Additional Collector (Respondent No. 3) to take necessary action in discharging the petitioners.
A reply to the counter-affidavit has been filed on behalf of the petitioner and with regard to the statement in paragraph 18 of the counter-affidavit referred to above it is only said that the discharge orders do not show that the Collector has discharged or dismissed the petitioners; on the other hand, it shows to the contrary that it is the Additional Collector and other subordinate authorities who have discharged or dismissed the petitioners. As already stated, the above letters do not, in my opinion, show anything more than this that the orders of discharge have been communicated to Sub-divisional Officer by the Additional Collector.
The learned Government pleader has produced before us a copy of D. O. Letter No. 655 written by the Sub-divisional Officer of Biharshariff to the Additional Collector with regard to the weeding out of unwilling workers in the rank of Karamcnaris, a copy of which was forwarded to the Collector, Sri SVN. Baku, I. A. S., Patna, for information and necessary action. It appears that the Collector discussed the matter with the Additional Collector and passed orders for discharging the petitioners EIS stated above in paragraph 18 of the counter-affidavit. The order of the Collector is in the margin of that letter directing the Additional Collector to take necessary action as discussed.
It is, therefore, perfectly clear that the orders of discharge were passed by the Collector and not by the Additional Collector or at least there is nothing on the record to come to a definite conclusion that they were passed by the Additional Collector. In that view of the matter, there is no merit in the first contention and it must, therefore, fail.
9. The second contention presents some difficulty and requires careful consideration. Mr. Das has contended that as regards the applicability of Article 311 of the Constitution there is no difference between a permanent service and a temporary service, and, as such, the petitioners should not have been discharged without having been given Opportunities to show cause against the action proposed to be taken in regard to them. He has also contended that in this regard there is no difference between, an order of discharge and an order of dismissal. His further contention is that the Orders of discharge are based on the allegation that the petitioners were unwilling, undesirable and unsuitable workers and are thus made lay way of penalty on the above grounds.
It is submitted that the reasons given for the discharge of the petitioners attach a stigma to them and they have been denied an opportunity of vindicating their honour by disproving the allegation made against them. It has als.p been contended that, at any rate, the orders of discharge were made without giving them a month's notice. It is true that the report of the Sub-divisional Officer for weeding out of the petitioners as unwilling workers is dated 27-11-1957 and the petitioners have been discharged with effect from 30-11-1957. They, there fore, did not get one month's notice which they should have been given under the terms of the contract under which they entered into service.
That, however, will not make the orders of discharge void. At best, the petitioners may be entitled to one month's salary which they can recover in properly constituted suits. Nothing, therefore, turns in the present case upon their having been discharged without having been given one month's notice.
10. So far as the question of violation of Article 311 (2) of the Constitution is concerned, it will appear, as I will presently show, that the contention in that regard also has no substance. That article runs as follows :
"No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
As already stated, the submission of Mr. P. R. Das, is that for the purpose of this article there is no difference between an order of discharge and an order of dismissal; or removal or reduction in rank and between a permanent servant and a temporary servant and, therefore, it was necessary for the petitioners to be given an opportunity to show cause why they should not be discharged.
It is contended that the orders of discharge passed without giving such opportunity to the petitioners infringed article 311 (2) of the Constitution and are, therefore, void. On behalf of the respondents the learned Government Pleader has, however, argued that the services of the petitioners were contract services under the terms of which they could be discharged at any time and Article 311 of the Constitution has no application to them.
11. In support of the contention raised on behalf of the petitioners reliance has been placed on a Bench decision of this Court in Kamta Charan v. Postmaster-General, Bihar, (S) AIR 1955 Pat 381. But before dealing with that case I would like to notice first the Sunreme Court decision in Satish Chandra v. Union of India, AIR 1953 S C 250, In that case the petitioner was employed by the Government of India in October, 1945, on a five year contract in the Directorate-General of Resettlement and Employment of the Ministry of Labour.
After a short period of practical training, he was posted in January, 1946, at Jabalpur as the Manager of the Sub-Regional Employment Exchange and was later confirmed in this appointment. His contract of service was due to expire in 1950. Shortly befora its expiration the Government of India made him a new offer to continue him in service on the expiry of his contract on certain specified terms one of them being that on the termination of the contract he will be allowed to continue in his post temporarily for the period of the Resettlement and Employment Organization and will be governed by the Central Civil Services (Temporary Service) Rules, 1949, unless he was a permanent Government servant.
He was also asked to intimate to the Ministry of Labour whether he was willing to continue in service on the above terms and he accepted the offer and continued in service. Under Rule 5 of the above Rules the service of a temporary Government servant who is not in quasi-permanent service was liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant and the period of such notice is one month unless otherwise agreed to by the parties.
Therefore, according to the petitioner's contract of further service, his services were liable to termination at any time by one month's notice in writing. A notice was given to him on 25-11-1950, and he was told that his services would terminate on the expiry of one month from 1-12-1950. It was contended on his behalf that he had been removed from his service without having been given any opportunity to show cause in violation of the provisions of Article 311 of the Constitution.
This contention was repelled by their Lordships and it was held that Article 311 had no application because this was neither a dismissal nor a removal from service, nor was it a reduction in rank and that it was an ordinary case of a contract being terminated by notice under one of its clauses. In course of the judgment their Lordships made a very important observation which runs as follows :
"There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him assuming there are any, and to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived."
In this case, therefore, Article 311 of the Constitution was held to have no application.
12. The law on the question at issue has now been well settled by a recent decision of the Supreme Court in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36. It has been held in that case that Article 311 of the Constitution makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts, and both of them are, therefore, within its protections. It has been further held that it is only in those cases where the Government intends to inflict the punishments of dismissal removal and reduction in rank that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, but if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article Clause 311 (2). After giving a detailed consideration to the matter, their Lordships further held the law to be as follows :
"Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal as has been held by this court in AIR 1953 SC 250. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311 (2), as has also been held by this court in Shyam Lal v. State of Uttar Pradesh, 1955-1 S. C. R. 26: AIR 1954 SC 369. In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules.
It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule; nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C. J., has said, in Shrimvas Ganesh v. Union of India, (S) AIR 1956 Bom 455, wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules, then prima facie the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to publish the servant and if the termination of service is sought to be founded on misconduct, ndgligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."
13. In the case of (S) AIR 1956 Bom 455, referred to above with approval by the Supreme Court, it was held that whatever may be the motive which may influence the exercise of a legal right, if the legal right exists, then the motive becomes irrelevant, and, if, in a case where Section 240 (3) of the Government of India Act, 1935, or "Article 311 of the Constitution of India does not apply, the Government has the right to disoense with the services of a temporary servant, then it is not open to a temporary servant to say that his services were dispensed with for an ulterior motive or for a motive which was not a proper motive.
14. In the case of Bhuneshwar Prasad Verma v. State of Bihar, AIR 1957 Pat 326, the petitioner was appointed as a Cloth Inspector and by the appointment letter he was informed that his appointment was on a purely temporary basis sanctioned until further orders and subject to the condition that the services may be terminated at any time without assigning any reason & without any notice. Later on his services were terminated by the Deputy Commissioner of Singhbhum, and the letter terminating his services that was sent to him recited that his services as a Cloth Inspector have been terminated.
It was contended on his behalf that the provisions of Article 311 of the Constitution of India, applied to his case, and he should have been given an opportunity to show cause within the meaning o£ that article before his services were dispensed with. This argument was repelled by their Lordships and, on the facts of that case, it was held that it was a contract service and that Article 311 of the Constitution of India had no application to it.
15. In AIR 1955 Pat 381, on which great reliance has been placed by Mr. Das, the petitioner of the case was, on the findings, holding temporary service under contract of service. It appears that before the appointment he had to sit at an examination for being selected for appointment. It was, however, found later on that at the examination somebody else sat for him and he secured the appointment by false personation. There was investigation by the police in regard to this matter and it was said that it was proved that he himself did not sit at the examination.
Accordingly, he was discharged and the relevant portion of the order of discharge that was sent to him is as follows :
"Now, th-at the cases have been established against them, Sri Kamta Charan Srivastava (the petitioner) and Sri Jagdish Prasad Sinha (who did not file a writ application) are informed that being undesirable their services are not required in this department. Under the Rule 5 of the Central Civil Services (Temporary Service) Rules, they are hereby given one month's notice of discharge from this department. This notice will take effect from the date on which it is received by Sri Kamta Charan Srivastava and Sri Jagdish Prasad Sinha and they will be treated as discharged from this department on the expiry of the period of one calender month from that date" It was contended on behalf of the petitioner that the reasons given for the termination of the petitioner's services attached a stigma to him and he has not been able to get any new job by reason of what is stated as the grounds for the termination of his service and that his service was terminated by way of penalty as a disciplinary measure and not in accordance with the terms of the contract of service on the ground that the authority concerned did not require his services. Das, C. J. (as he then was), accepted this contention and held that Article 311 of the Constitution makes no distinction between permanent ,and temporary holders of civil posts under the State and that the termination of the services of the petitioner was passed on the charge of false impersonation which charge, according to the postal authorities, had been proved and that it was obvious, therefore, that the postal authorities acted against the petitioner by way of penalty for misconduct or misbehaviour.
It was further held that before the authority concerned was satisfied that the charge bad been proved, the petitioner should have been given an opportunity of disproving the charge; and furthermore, he should have been given an opportunity of showing cause against the action proposed to be taken against him. Thus, it appears that in this case the termination of service was by way of punishment and on the principle of the Supreme Court decision in AIR 1958 SC 36, the petitioner was rightly he!d to be entitled to be given an opportunity of showing cause as required by Article 311 (2) of the Constitution.
16. On the facts of the present case, however, in my opinion, the petitioners were not entitled to an opportunity for showing cause against the action proposed to be taken in regard to them as required by the above article because the terminations of their services do not appear to be by way of punishment and are simply based on contractual rights under the terms of which appointments were made. True it is that the letter, annexure "F", written by the Additional Collector of Patna to the Sub-divisional Officer of Bihar-shariff shows that the petitioners had been weeded out and discharged from their services on account of their being unwilling, undesirable and unsuitable workers.
This, however, may be a motive for discharging them from their services. That, however, will not invalidate the orders of discharge if they were not passed by way of inflicting punishment on the petitioners. The letters of discharge that were actually issued do not contain these words and they clearly appear to be based on the terms of the contract entered into by the petitioners at the time of appointment. The facts stated above manifestly show that the words "unwilling, undesirable and unsuitable" were used in the letter, annexure "P"' as a motive for weeding the petitioners out and the orders of discharge were not passed by way of punishment. In that view of the matter, according to the decisions referred to above, the petitioners were not entitled to the protection of Article 311 (2) of the Constitution.
17. There is thus no merit in these applications which must, accordingly, be dismissed with costs, Hearing fee : a consolidated sum of Rs. 250 for all these cases.
V. Ramaswami, C.J.
18. I agree.