Abdul Razak vs The Principal, Madras Veterinary College, Madras-7

Srinivasan, J.—The petitioner was employed as a temporary attendant in the Madras. Veterinary College. On 7th March 1960 there appears to have been some dispute between him and some other officer, as a result whereof, the petitioner was handed over to the police. He was released three days later on bail. On 12th March 1960, when he reported himself for duty, he was served with a notice placing him under suspension pending enquiry into his conduct. He made certain representations to his superior officers, to which it is not necessary to refer. He was directed to appear before the Vice Principal on 4th April 1960. He appeared before him and gave a statement. As far as the petitioner it aware, no charges were framed against him and no enquiry was conducted to his knowledge. But on the 3rd June 1960 an order purporting to be one of dismissal of the petitioner was made and this order stated that a departmental enquiry had been conducted and on the basis of the evidence adduced therein, the petitioner had been found unfit to be retained any longer in Government employ and that he was consequently dismissed. The petitioner claims that no charges were framed against him, no opportunity was given to him to meet any charge and so enquiry conducted to his knowledge or in his presence. The order of dismissal is thus attacked on the ground that the protection guaranteed to a Government servant under Art. 311 of the Constitution has been violated and further that the principles of natural justice have not been given regard to. In the counter affidavit filed on behalf of the respondent, the Principal, Madras Veterinary College, the facts leading to the dismissal of the petitioner have bean set out. It is stated therein that the petitioner had assaulted the House Surgeon and that this was witnessed by several other persons. Coming to the enquiry, the counter affidavit indicates that an enquiry the officer examined the House Surgeon on 2nd April 1960, the compounder Sri Lakshminarasimhan on 4th April 1960 and 5th April 1960 and Sri S.I. Seshadri on 5th April 1960. Following this enquiry, the enquiry officer submitted his report on 7th April 1960. It was on the basis of this report that the petitioner was dismissed from service. It is claimed that the petitioner has been validly dismissed and cannot maintain the petition.

If any one fact stands out clearer from the rest, it is that no charge or charges were framed against the petitioner, no copy of any charge was served upon him, nor was he given an opportunity to defend himself. It is practically admitted in the counter affidavit that the so called enquiry was conducted in the absence of the petitioner, so that the petitioner had no opportunity of knowing what the witnesses are supposed to have said against him. Mr. Mohan, learned Counsel for the respondent, conceded that the procedure contemplated by Art. 311 of the Constitution has not been followed. It is manifest in what has been set out above that there has been a gross violation of the principles of natural justice as well.

It is, however, contended on behalf of the respondent, that the petitioner is only a temporary Government servant and that If his service could be terminated on notice by the employer, the employer cannot be in a worse position when he finds that the employee has misconducted himself in the manner set out. If it was only a case of a mere termination of service of a temporary employee involving nothing more, I would have been willing to agree that no justiciable issue could be raised. But that is not the case here. The order was one of dismissal, that is to say, one of the punishments contemplated in the relevant Article of the Constitution, and before a Government servant can be dismissed and a proceeding can end in dismissal as a result of disciplinary action against him, it is mandatory that the procedure laid down should be followed. It is even more elementary that natural justice requires that a person being penalised in this manner should have an opportunity of defending himself against any charge. What is further contended by the learned Counsel is that in a case where the Government servant is paid out of contingencies, that is an employee on contingency staff and not in the regular employment, he is not entitled to the protection of Art. 311. Reliance has been placed in this regard upon Kartar Singh v. State of Pepsu (1). I am unable to accept this authority. In a decision of the Supreme Court in Sukh-bans Singh v. State of Punjab (2) it has been clearly laid down that Art. 311 makes no distinction between permanent and temporary posts or officiating in any of them and that that protection can be availed of only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. This decision is clear authority for the position that where a Government servant, in whatever capacity he might be employed, as permanent or temporary, is proceeded against by way of disciplinary action and dismissed from service, the application of Art. 311 cannot be questioned. That the servant was paid from out of contingency funds makes no difference to the principle involved. It followed that the order stands vitiated and has to be quashed. It will be open to the departmental authorities to hold an enquiry afresh in accordance with the approved procedure. The petitioner will be entitled to his costs. Counsel''s fee, Rs. 100.