Gujarat High Court
Ghanshyam vs State on 8 July, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
Print
SA/216/1983 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 216 of 1983
With
SECOND
APPEAL No. 217 of 1983
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
GHANSHYAM
MOHANDAS
Versus
STATE
GOVT. OF GUJARAT
=========================================
Appearance
:
MR MD RANA for Appellant
MS
VANDANA BHATT AGP for
Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 08/07/2010
COMMON
ORAL JUDGMENT
1. Since common issue is involved in both these Second Appeals and both the Second Appeals are arising out of common judgment rendered by the Appellate Court, the same are disposed of by this common judgment and order.
2. Second Appeal No.216 of 1983 is filed by the appellant original plaintiff under Section 100 of the Civil Procedure Code challenging the judgment and order passed by the learned District Judge, Jungadh in Regular Civil Appeal No.11 of 1979 confirming the judgment and decree passed by the learned Joint Civil Judge (S.D.), Junagadh in Regular Civil Suit No.185 of 1975 dismissing the plaintiff's suit.
3. Similarly, Second Appeal No.217 of 1983 is filed by the appellant original plaintiff under Section 100 of the Civil Procedure Code challenging the judgment and order passed by the learned District Judge, Jungadh in Regular Civil Appeal No.12 of 1979 confirming the judgment and decree passed by the learned Joint Civil Judge (S.D.), Junagadh in Regular Civil Suit No.186 of 1975dismissing the plaintiff's suit.
4. For the sake of convenience the facts are taken from Second Appeal No.216 of 1983.
5. The brief facts giving rise to these two Second Appeals are that the plaintiff of Regular Civil Suit No.185 of 1975 was taken up as a Police Constable on 31st December, 1971 and his services came to be terminated on 11th October, 1974. On 5th October, 1974, he came to be transferred to Madhupur Police Station. There was an entry in his service book, Ex.27 that he was indulged in black marketing of cinema tickets. Similarly, the plaintiff of Regular Civil Suit No.186 of 1975 was taken up as Police Constable on 29th January, 1973 and his service came to be terminated on 11th October, 1974. He was transferred to Malia-Hatia on 5th October, 1974. In his case also there was an entry in his service book that he was indulged in black marketing in cinema tickets. In both these cases, their initial recruitment was on probation and on temporary basis and in their depositions, they have admitted that they were never confirmed. Thus, their services came to be terminated before they were confirmed. As per Regulation No.78 of the Bombay Police Manual, 1959, which was in force at the relevant time, the Deputy Superintendent of Police was empowered to terminate their services. Only requirement was that the person concerned was to be given one month's notice, or in lieu thereof one month's notice pay. In both these cases, there was no dispute that one month's notice was not issued and both of them were paid one month salary.
6. When this termination order came to be challenged by way of filing the suit, the learned trial Judge after framing the issues and after considering the evidence on record has observed that the plaintiffs have failed to prove that the impugned orders passed by the authorities were in violation of Articles 14, 16 and 311(2) of the Constitution of India. The plaintiffs have also failed to prove that their services have been terminated by measure of punishment or that it was against the principle of last come first go. The trial Judge, therefore, dismissed the suits and termination orders passed by the authorities were confirmed. Being aggrieved by these judgments and decree, the plaintiffs have challenged the said orders by way of filing respective Regular Civil Appeals before the learned District Judge, Junagadh and the learned District Judge while confirming the orders of the learned trial Judge has held that except for oral say of the plaintiffs in their respective depositions in the respective matters, there is nothing else on record to show that the impugned orders were penal in nature. The learned District Judge confirmed the judgments and decree passed by the learned trial Judge.
7. It is these orders which are under challenge in the present Second Appeals.
8. These two Second Appeals are admitted by this Court and at the time of admission, the following substantial questions of law were framed by the Court.
(1) Whether in the facts and circumstances of the case the learned District Judge erred in not looking to Rule (2) of the Bombay Police Punishment and C & Appeal Rules, 1956 ?
(2) Whether in the facts and circumstances of the case the learned District Judge erred in not holding that the order of discharge is penal in nature but only an order of discharge simpliciter ?
9. Mr.M. D. Rana, learned advocate appearing on behalf of the appellants in both these appeals has fairly conceded that the question No.1 referred to hereinabove is not required to be decided. In any case, considering the legal position at the relevant time, the question will have to be decided against the respective appellants. He has, therefore, addressed to the Court only with regard to the question No.2. He has submitted that though on the face of it the orders of termination appear to be termination simpliciter, however, there is an entry in the service book which casts aspersion or stigma on the conduct of the appellants. The termination is preceded by these entries in the service book and straightway the order of termination came to be passed. He has, therefore, submitted that such termination order cannot be said to be orders of termination simpliciter when such orders are based on stigma, the authorities are bound to observe the constitutional provisions contained in Article 311(2). Even otherwise, the orders are in violation of principles of natural justice and without following due procedure of law and without issuance of notice or without holding departmental inquiry, the termination orders were passed and as per the settled legal position, the said orders are required to be quashed and set aside. In support of his submission, he relied upon the decision of the Apex Court in the case of Swaran Singh Chand Vs. Punjab State Electricity Board and others, reported in AIR 2010 SC 151. In this case, it is the case of the compulsory retirement and the issue before the Apex Court was as to whether the impugned order was stigmatic or order simpliciter. The said order of compulsory retirement passed on allegation that delinquent lacked integrity and was unfit to be retained in service. The Court considered the said order as stigmatic. Moreover, the said order was passed not strictly within a period of one year preceding date of superannuation but nearabout the same. Thus, fell within teeth of Government directions. Adverse remark prior to his promotion was also considered. On all these circumstances, the Court held that the order suffers even from malice in law and is liable to be set aside.
10. Mr.Rana has relied upon the decision of the Apex Court in the case of State of Uttar Pradesh and others Vs. Sughar Singh, reported in AIR 1974 SC 423. The principles were laid down in that case are as follows;
(1)Article 311 of the Constitution of India makes no distinction between permanent and temporary posts and extends its protection equally to all government servants holding permanent or temporary posts or officiating in any of them.
(2)The protection of article 311 is available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.
(3) If the termination of service or reduction in rank is not by way of punishment article 311 (2) is not attracted. To determine whether the termination or the reduction is by way of punishment one has to consider whether the servant has the right to hold the post from which he has been either removed or reduced. In the case of a probationary or officiating appointment to a permanent or temporary post there is no such right. This does not mean, however, that the termination of service or reduction in rank of a servant who has no right to the post can never be dismissal or removal or reduction by way of punishment. If government expressly chooses to penalise the servant for misconduct, negligence, inefficiency or the like by inflicting on him the punishment of dismissal, removal or reduction, the requirements of Art. 311 must be complied with.
(4)A reduction in rank must be a punishment if it carries penal consequences with it and the two tests to be applied are:
(i) Whether the servant has a right to the post or the rank and
(ii) Whether evil consequences such as forfeiture of pay and allowance, loss of seniority in his substantive rank, stoppage or postponement of future chances of promotion follow as a result of the order ?
Where either of these tests apply, the reduction in rank must be one within the meaning of Article 311 (2) of the Constitution and will attract its protection.
11. Based on this judgment, Mr.Rana has submitted that even if the appellants were on probation, the protection granted under Article 311(2) of the Constitution was available to them and since, the said provisions were not complied with, the termination order passed by the authorities are required to be quashed and set aside.
12. Ms.Vandana Bhatt, learned AGP appearing on behalf of the respondent, on the other hand, has submitted that both the Courts below have taken concrete view and consequently, held that there is nothing else on record to show that the termination orders were penal in nature. The orders do not indicate any punishment, but simply states that their services are not required and hence, the same came to an end with effect from 11th October, 1974. She has, therefore, submitted that such orders cannot be said to be stigmatic orders and since the appellants were on probation, the authorities were within their power to terminate their services without assigning any reason. She has, therefore, submitted that the Court should not interfere in the concurrent findings arrived at by the Courts below, while exercising its jurisdiction under Section 100 of the Civil Procedure Code.
13. In support of her submissions, she has relied upon the decision of the Apex Court in the case of Union of India and others Vs. Bipan Bhanjan Gayen, reported in (2008) 11 SCC 314 wherein wrong information was furnished by candidate in attestation form regarding his involvement in criminal cases. The Court, therefore, held that it was a valid ground for termination during probation period, particularly when appointment was made subject to verification of particulars given in the attestation form. Such termination is not stigmatic or penal and question of natural justice does not arise.
14. Ms.Bhatt has relied upon the decision of the Apex Court in the case of Municipal Committee, Sirsa Vs. Munshi Ram, reported in (2005) 2 SCC 382 wherein discharge order ex facie showing discharge simpliciter. There was evidence on record showing act of negligence on part of employee and it was noticed by officer of employer. However, such evidence neither noticed in discharge order nor any finding in discharge order based thereon. The Court, therefore, held that if discharge termination is punitive in guise of discharge the test to be determined as to whether in substance order of termination is punitive. If order of termination indicates that it is a termination simpliciter and does not cast any stigma on the employee nor it is punitive, in such cases, even the principles of natural justice does not apply and there is no need for formal proceedings of enquiry before making such order. Mere fact that there was an inquiry into conduct of employee concerned earlier, would not thereby render the termination invalid.
15. Ms.Bhatt has further relied on the decision of the Apex Court in the case of H. F. Sangati V/s. Registrar General, High Court of Karnataka and others, reported in (2001) 3 SCC 117. In this case, the appellants appointed on probation in the Karnataka Judicial Service as Munsifs. The Administrative Committee of the High Court, after considering their confidential records and remarks given by their superiors on assessment of their work, formed an opinion that their performance as a Judicial Officer was not satisfactory for their confirmation on that post. That opinion was considered and accepted by the Full Court. The High Court made a reference to the State Government which in turn issued a notification discharging them from service on the ground of their unsuitability to hold the post of Munsif. After unsuccessfully challenging the said notification before the High Court, the appellants contended before the Supreme Court that the order of discharge was not an order of discharge simpliciter but was stigmatic as the same declared the appellants to be unsuitable to hold the post of Munsif. They added that having been passed without affording any opportunity the impugned order was bad for non-compliance with the principles of natural justice. The Apex Court while dismissing the appeals held that admittedly, the two appellants have been discharged from service during the period of probation. Moreover, no order was passed declaring the period of probation having been successfully completed and confirming any of the two appellants in service. The Apex Court further held that the order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsif. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to hold any formal proceedings of inquiry before making the order.
16. Based on the aforesaid judgments of the Apex Court as well as the concurrent findings recorded by both the Courts below, Ms.Bhatt has strongly urged that these two appeals deserve to be dismissed.
17. Having heard the learned advocates appearing on behalf of the parties and having gone through the impugned judgments and orders passed by both the Courts below in light of the statutory provisions contained in the Bombay Police Punishment and Conduct and Appeal Rules, 1956 and having considered the various judgments cited before the Courts, this Court is of the view that the impugned orders passed by the authorities cannot be said to be punitive. The termination in question is termination simpliciter and no stigma is cast upon the appellants. Simply because there is an entry in the service book, it cannot be said that the decision to terminate their services was effected only because of that entry. It is an admitted position that both the appellants in these two different appeals are on probation and they were not confirmed till their services were terminated. Both the Courts below have considered the oral as well as documentary evidence and the relevant statutory provisions and while considering the correct legal position, arrived at the conclusion that the termination in question is termination simpliciter and it was not stigmatic. There is no reason for this Court to disturb the said findings. The decisions relied upon by Mr.Rana are not relevant to the facts of the present case of the appellants as in those cases there are several other circumstances which were taken into consideration by the Court. Those circumstances are not present in these two cases.
18. Considering the entire facts and circumstances of the case, the Court does not find any substance in any of these two appeals. Both the appeals are accordingly dismissed. No order as to costs.
[ K. A. PUJ, J. ] (vijay) Top