Amar Singh vs The Commandant, 5th H.P. S.S.B. Battalion

T.R. Handa, J.—The Petitioner Shri Amar Singh prays for the issuance of a writ quashing the order of termination of his service passed by the Commandant, 5th H.P. S.S.B. Battalion, Shamshi, Kulu, Respondent No. 1, and as found at Annexure ''B'' to the petition.

The Petitioner was appointed as a temporary constable in the 5th H.P. S.S.B. Battalion, Shamshi, Kulu, with effect from 24-4-1972. On 1-6-1974 Respondent No. 1 served the Petitioner with a notice purporting to be under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965, stating therein that the services of the Petitioner would stand terminated with effect from the date of expiry of the period of one month from the date on which the notice was served upon the Petitioner. The notice is found at Annexure ''B'' to the petition.

On receipt of this notice the Petitioner requested Respondent No. 1 to furnish him with the detailed reasons which led to the termination of his service. This request was made by the Petitioner in his letter found at Annexure ''D''. An English transliteration of this letter is found at Annexure ''D-l'' to the petition. The Petitioner, however, received no response to this letter. It appears that the Petitioner apprehended that his services had been terminated on the basis of some report of the C.I.D. pertaining to his past service with the Himachal Pradesh Government Transport, Mandi. The Petitioner accordingly approached Respondent No. 1 with his letter of 24-6-1974 a copy of which is found at Annexure ''E''. In this letter the Petitioner had brought to the notice of Respondent No. 1 that he had joined the Himachal Government Transport, Mandi as conductor on ad-hoc basis during the N.G.Os. strike of 1970 and his services were terminated after two months vide order of the Regional Manager, Himachal Government Transport, Mandi, dated 12-6-1970, which stated that the services of the Petitioner were no longer required (copy at Annexure ''F''). The Petitioner clarified before Respondent No. 1 that there was nothing adverse against him and his earlier ad-hoc service with the Himachal Government Transport was terminated only on the plea that his services were no more required as he had been appointed to fill a temporary vacancy during the N.G. Os. strike. Respondent No. 1, however, without considering the genuine plea of the Petitioner passed his order found at Annexure ''C stating that the Petitioner was deemed to have been relieved with effect from 30-6-1974 consequent upon the service of termination notice referred to above.

The grounds on which the Petitioner seeks to challenge the order of termination of his service and as appear in the writ petition are as under:

(i) that the Petitioner has been picked up arbitrarily for termination of his service whereas his juniors, amongst others being, S/Shri Bakhtawar Singh constable No. 67780 and Ami Lal constable No. 67442 of the 5th H.P. S.S.B. Battalion, Shamshi, Kulu, have been retained in service. The Petitioner has in this manner been discriminated against in violation of the provisions of Articles 14 and 16 of the Constitution.

(ii) that the order of termination of service of the Petitioner has been passed as a punitive measure without complying with the mandatory provisions of Article 311(2) of the Constitution.

(iii) that the order of termination of service of the Petitioner was passed by Respondent No. 1 who had no jurisdiction to pass the same as the Petitioner had been appointed by the Divisional Organizer who is admittedly an authority higher in rank than Respondent No. 1.

(iv) that notice Annexure ''B'' was served on the Petitioner on 1-6-1974 and he was relieved of his job on the after-noon of 30-6-1974 before the expiry of the period of one month mentioned in Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.

The case of the Respondents as found in the reply affidavit filed by Respondent No. 1 is that the Petitioner was appointed as a temporary constable and his services were terminated in accordance with the provisions of Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965, which governed the conditions of his service. Respondent No. 1 claimed that it was within his rights to terminate the service of the Petitioner by giving him one month''s notice and without assigning any reason therefore in terms of the said rule. Without specifically admitting or denying the allegation that there were other persons similarly placed which were junior to him and who had been retained in service while the services of the Petitioner were terminated, Respondent No. 1 stated that there were no constables of the description as given in the writ petition who were junior to the Petitioner. With regard to the allegation that the service of the Petitioner had been terminated as a punitive measure in violation of the provisions of Article 311(2) of the Constitution, this Respondent asserted that the service of the Petitioner was terminated by an innocuous order in accordance with the provisions of Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965. The impugned order, according to the case of the Respondents, does not amount to removal, dismissal or reduction in rank of the Petitioner nor does it visit him with any penal consequences and as such it does not fall within the mischief of Article 311(2) of the Constitution. The Respondents further refuted the contention of the Petitioner that the latter had been appointed by the Divisional Organizer and not by Respondent No. 1. According to the Respondents, the Petitioner at the time of his appointment was in terms of the relevant rules over-age and the power to relax the rules with respect to age vested only in the Divisional Organiser. It was only for the purposes of obtaining relaxation of the rule pertaining to age limit in the case of the Petitioner that his case was referred to the Divisional Organizer and after the rule was so relaxed in favour of the Petitioner, his actual appointment was made by Respondent No. 1 alone. This Respondent, therefore, was fully competent to terminate the services of the Petitioner. As regards the contention of the Petitioner that he had not been given full month''s notice or pay in lieu thereof, the Respondents asserted that the Petitioner had been served with notice of termination of service on the fore-noon of 1-6-1974 and that he had been paid his salary for the full month of June, 1974, that is, upto 30-6-1974. He could, therefore, have no grievance that the notice period was short.

When this petition came up for hearing before this Court on 28-12-1981, this Court at the request of the learned Counsel for the Petitioner directed the counsel for the Respondents to make available in Court the entire record which could suggest the circumstances in which the impugned order terminating the services of the Petitioner was passed. The case was then adjourned for that purpose.

In the meanwhile the Petitioner on 3-3-1982 moved an application being C.M.P. No. 250 of 1982 wherein he alleged that by inadvertance he had in paras 9 and 13(b) of the writ petition wrongly mentioned the names and numbers of the constables who were junior to him and who had been retained in service while his services were terminated. The Petitioner in these circumstances prayed that either he be allowed to amend the original writ petition by giving the correct names of the constables who were junior to him and were retained in service at the time of his termination or, in the alternative, the names given in the G.M.P. of such juniors of the Petitioner be taken as the correct names. In reply to this petition the Respondents inter alia made the following averment for the first time:

This office had made re-verification from C.I.D. in accordance with departmental instructions in which C.I.D. Department, H.P., Simla, intimated vide their letter No. F-3/SB/74-(III)-12606, dated 23-5-1974 that the Petitioner was removed from H.G.T., Mandi on corruption cases in a departmental penalty w.e.f. 12-6-1970. Hence, the Petitioner was terminated from service w.e.f. 30-6-1974 (A.N.) being unsuitable for retention in service and he had not been picked up for termination of service as alleged as against his juniors viz., No. 67 780 Const. Bakhtawar Singh and No. 67443 Const. Ami Lal.

Before I proceed to discuss the various contentions raised before me on behalf of either side, I would like to point out that from the record produced in Court by the Respondents it was found that in the service book of the Petitioner only two entries had been made in respect of his work and conduct and which pertained to the periods 1972-73 and 1973-74. These reports were made by the Dy. S.P./adjutant and approved by the Commandant, 5th H.P. S.S.B. Battalion, Shamshi, Kulu, i.e. Respondent No. 1. The report for the year 1972-73 reads:

A smart and well disciplined constable, who is quite loyal and sincere worker. He is calm and quite type. His conduct and relations with his fellow men remained quite good during the period under report.

The other report which pertains to the period 1973-74 reads like this:

An intelligent and smart constable, who works quite hard in the discharge of his duties. Conduct and discipline remained good during the period under report. He is loyal and sincere type and bears good relations with his fellow men.

It is also conceded that the two constables named in C.M.P. No. 250 of 1982 were junior to the Petitioner and they had been retained in service when notice terminating the service of the Petitioner was issued.

As stated earlier, the writ petition mentions four grounds of attack against the impugned order. The last two of such grounds were not seriously pressed on behalf of the Petitioner at the time of hearing and, in my view rightly so, as they appear to be without substance. The contention raised in ground No. 3 that the order of termination of service of the Petitioner was passed by an authority lower in rank than the appointing authority of the Petitioner, is based on a complete misapprehension of facts. The Respondents placed the original record in the court which revealed that the Petitioner at the time of his appointment was, in terms of the relevant rules, over-age. The power to relax such rules with regard to age limit vested only in the Divisional Organizer. It was for this reason that Respondent No. 1 before making the appointment of the Petitioner referred the matter to the Divisional Organizer for obtaining the approval of the latter for relaxation of the rule pertaining to age limit in the case of the Petitioner. The Divisional Organizer on such a reference being made to him only relaxed the rule pertaining to age limit in favour of the Petitioner. After such relaxation of rule, the actual appointment of the Petitioner was made by Respondent No. 1 who is the appointing authority of constables to which rank the Petitioner was appointed. It is not thus correct to say that the impugned order was passed by an authority lower in rank than the appointing authority of the Petitioner.

Similarly, ground No. 4 is also without substance. The impugned notice of termination of the service of the Petitioner is found at Annexure ''B''. It specifically mentions that the service of the Petitioner would stand terminated with effect from the date of the expiry of the period of one month from the date on which the notice is served on the Petitioner. Obviously no fault can be found in the language of this notice. The notice was served on the Petitioner on the forenoon of 1-6-1974. Consequent upon the service of this notice, the Petitioner was relieved with effect from the afternoon of 30-6-1974 and he was paid salary and allowances for the full month of June, 1974. In these circumstances, it cannot be said that the notice period was short or the notice was otherwise bad.

Dealing with other two grounds, Shri Goel, the learned Counsel for the Petitioner argued that in the light of the undisputed facts of this case, there can be no escape from the conclusion that the impugned order not only violates the equality clause enshrined in Articles 14 and 16(1) of the Constitution, but also violated the mandatory provision of Article 311(2) of the Constitution. According to the learned Counsel, if the contention of the Respondents, as finds mention in reply affidavit, is accepted that the impugned order is an order of termination simplicitor for which no reason need be assigned and no reasons were actually assigned, then it would be hit by Articles 14 and 16(1) of the Constitution inasmuch as admittedly persons junior to the Petitioner and whose names find mention in C.M.P. No. 250 of 1982 were retained in service when the service of the Petitioner was terminated. In this connection, the learned Counsel further relied upon the admitted facts that during the course of his two years of service with the Respondents, the Petitioner had earned good reports and was found suitable for the post held by him and there was no suggestion whatsoever if the juniors of the Petitioner who had been retained in service were in any manner more suitable than the Petitioner. In these circumstances, proceeds the arguments of the learned Counsel, it was not competent for Respondent No. 1 to pick up arbitrarily the Petitioner for termination of his service when other persons similarly placed and junior to the Petitioner had remained untouched.

In the alternative the learned Counsel for the Petitioner contended that in case the plea of the Respondents as finds mention in reply to C.M.P. No. 250 of 1982 is accepted that the service of the Petitioner was terminated as a result of the adverse report received from the C.I.D. Department of Himachal Pradesh that the Petitioner was removed from the service of Himachal Government Transport, Mandi, as a result of a departmental penalty imposed on him in a corruption case, the impugned order would be obviously punitive in nature and as such could not be passed without complying with the mandatory provisions of Article 311(2) of the Constitution. In this connection, the learned Counsel further argued that the report of the C.I.D. relied upon by Respondent No. 1 in passing the impugned order was patently incorrect and false and this fact had been duly brought to the notice of Respondent No. 1 by the Petitioner when he interviewed this Respondent on 24-6-1974 along with his letter Annexure ''E'' which contained the factual position. The true position according to the Petitioner is that he had been appointed in the Himachal Pradesh Government Transport, Mandi, on ad-hoc basis during the N.G.O.''s. strike of 1970 and his services were terminated after two months vide a simple order, dated 12-6-1970, found at Annexure ''F'' which reads:

Your services are no longer required by the department.

The Respondent No. 1 in relying upon the false report of the C.I.D. Department and ignoring the factual position as was brought to his notice by the Petitioner, both orally as well as in writing, threw all cannons of justice into the winds and acted capriciously in passing the impugned order. Fair play and natural justice demanded that he should have probed further into the matter and offered the Petitioner an opportunity to prove his contention that his services were terminated by the Himachal Government Transport on the ground that the same were not required and not for any misconduct as reported by the C.I.D.

The case for the Respondents, as placed by their learned Counsel Shri P.A. Sharma, is simple. The contention of the Respondents is that the Petitioner was a temporary government servant governed by the Central Civil Services (Temporary Service) Rules, 1965. In terms of Rule 5(1), the services of the Petitioner could be terminated by giving him one month''s notice or one month''s pay in lieu thereof and without assigning any reason. Though in the original reply filed on the affidavit of Respondent No. 1, the Respondents had taken the plea that the termination order passed against the Petitioner was an innocuous one and did not assign any reason nor was it required to assign any such reason, in their reply to C.M.P. No. 250 of 1982 the Respondents made it clear that the impugned order terminating the services of the Petitioner was passed as a result of the adverse report received from the C.I.D. showing that the Petitioner was removed from the Himachal Government Transport, Mandi, on a corruption charge by way of a departmental penalty. According to the learned Counsel for the Respondents, it was for this reason that the Petitioner was found unsuitable for retention in service and his services were terminated. In these circumstances, it could not be said that the Petitioner was picked up arbitrarily or capriciously for termination of his service while his juniors were allowed to continue. Nor could it be said, according to the learned Counsel, that the termination of the Petitioner was by way of punishment.

Now it is an admitted position that the Petitioner was a temporary Government servant and his conditions of service were governed by the Central Civil Services (Temporary Service) Rules, 1965. It is also not disputed that in terms of Rule 5 of such rules, the service of the Petitioner could be terminated by the competent authority by giving him one month''s notice or one month''s pay in lieu thereof. The Petitioner, however, was not the only temporary Government servant of his kind. Admittedly there were other temporary Government servants also belonging to the cadre of the Petitioner and similarly placed who were likewise governed by the same Central Civil Services (Temporary Service) Rules, 1965. At least two of such Government servants, namely, Bakhtawar Singh Constable No. 67780 and Shri Ami Lal Constable No. 67442 were junior to the Petitioner and they were allowed to continue in service when the service of the Petitioner was terminated. The impugned order ex-facie assigns no reason for termination of the Petitioner''s service except that it was in accordance with the Central Civil Services (Temporary Service) Rules, 1965. It is in these circumstances that a charge of arbitrary discrimination has been levelled by the Petitioner against the Respondents. To meet this charge it was incumbent upon the Respondents to show that the Petitioner stood as a class by himself as distinguished from his juniors who had been retained in service and for that reason he could be picked up for termination of his service as against his juniors. On the basis of the averments made in the reply filed to the writ petition on the affidavit of Respondent No. 1, no such case for discriminating against the Petitioner is made out. I may remark that it is no answer to a charge for hostile discrimination of the instant type to say that Articles 14 and 16 of the Constitution have no application to the case of a temportay Government servant governed by the Central Civil Services (Temporary Service) Rules, 1965, because such a Government servant has no right to the post and the duration of his employment depends upon the pleasure and discretion of the employer. It must be remembered that a temporary Government servant is as much entitled to protection of Articles 14 and 16(1) of the Constitution as any other citizen. Rules governing the conditions of service of such temporary Government servants do confer discretion on the competent authority to terminate the service of a temporary servant by giving him one month''s notice or one month''s pay in lieu thereof, but this discretion like any other statutory discretion, has to be exercised on well recognised principles based on reason and fair play and not arbitrarily. In the absence of any special circumstance or reason justifying discriminatory treatment against the Petitioner as a class apart from his juniors who had been retained in service, the impugned order must be struck down being violative of Articles 14 and 16(1) of the Constitution. It must not be forgotten that as per the material placed before the Court, the Petitioner during the course of his two years of service with the Respondents, had earned good reports and proved himself fully suitable for the post held by him. There is no suggestion if his juniors who were retained in service were in any manner more suitable or had a better service record than the Petitioner. In these circumstances, on the basis of the reply filed by the Respondents to the writ petition, the discriminatory treatment meted out to the Petitioner in terminating his service while retaining his juniors in service cannot be justified. In this connection the case of the Manager, Govt. Branch Press and Anr. v. D.B. Belliappa reported in 1979 (1) S.L.R. 351, may be referred to with advantage. In this case Shri Belliappa was appointed as temporary junior Compositor in the Government Branch Press. His service was terminated by a short order reading as under:

Office of the Manager, Government Branch Press,

Mercara Memoranda

As per instructions contained in Head Office Order No. 5 70/65-67, dated 3-1-1967, Shri B.D. Belliappa, Junior Compositor of this Office is hereby informed that your appointment is purely temporary and terminable at any time without any previous notice and without reasons being assigned therefore are not required. Therefore your services are hereby terminated with immediate effect.

Sd/- Government Branch Press, Mercara.

Shri Belliappa filed a writ petition challenging the order terminating his service. The Manager, Government Branch Press took the stand that the appointment of Shri Belliappa was purely temporary and in terms of the conditions of his service he was liable to be terminated without notice at any time. The High Court allowed the writ petition holding that the impugned order contravened the guarantee of equal treatment embodied in Article 16 of the Constitution. On appeal being taken by the Manager, Government Branch Press to the Supreme Court, the Supreme Court dismissed the appeal holding that the termination of Shri Belliappa''s service was made arbitrarily and not on the ground of unsuitability or other reasons which would warrant discriminatory treatment to him as a class apart from others in the same cadre. While discussing the scope of Articles 14 and 16(1) of the Constitution, the Court in paragraph 18 of the report observed:

The protection of Articles 14 and 16(1) will be available even to such temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors similarly circumstanced. It is true that the competent authority had a discretion under the conditions of service governing the employee concerned to terminate the latter''s employment without notice. But such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the Equality clause in Articles 14 and 16(1). Article 16(1) guarantees "equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". Moreover, according to the principle underlying Section 16 of the General Clauses Act, the expression "appointment" used in Article 16(1) will include termination of or removal from service, also.

The Supreme Court ultimately found that the termination of Belliappa''s service was made arbitrarily and not on the grounds of unsuitability or other reasons which would warrant discriminatory treatment to him as a class apart from others in the same cadre. In case, therefore, we restrict the stand of the Respondents as taken by them in the reply to the writ petition filed on the affidavit of Respondent No. 1, the termination of the Petitioner''s service must be held to be made arbitrarily and not on the grounds of unsuitability or for other reason which could warrant discriminatory treatment to him as a class apart from his juniors who were retained in service.

On the other hand, in case the averments made by the Respondents in their reply to C.M.P. No. 250 of 1982, are taken into consideration and it is found that the impugned order was based on the adverse report received against the Petitioner from the C.I.D. which was to the effect that the Petitioner was I removed from the Himachal Government Transport, Mandi, on charges of corruption as a result of departmental penalty with effect from 12-6-1970, then the impugned order when read with the reply to the C.M.P. No. 250 of 1982 must be taken to cast stigma on the character of the Petitioner, thereby visiting him with evil consequences. In that eventuality, the nature of the impugned order is obviously punitive and the same, therefore, could not have been passed without complying with the mandatory provisions of Article 311(2) of the Constitution. Even otherwise, I am of the view that there was a complete violation of rules of natural justice by Respondent No. 1 in passing the impugned order by relying on the false report of the C.I.D. and ignoring the genuine plea of the Petitioner that his services were terminated by the Himachal Government Transport, Mandi, by a simple order found at Annexure ''F''. When there were two contradictory versions placed before Respondent No. 1 in respect of one and the same incident, it was desirable, rather incumbent, upon him, to hold some sort of enquiry in order to satisfy himself as to which of the two versions was correct. He had certainly no reason to assume that the report of the C.I.D. was correct especially when the Petitioner had produced before him a copy of the order dated 12-6-1970 passed by the Regional Manager, Himachal Government Transport, Mandi, which belied the report of the C.I.D. The Respondent No. 1 in doing so completely violated the rules of natural justice and for this reason also the impugned order deserves to be quashed.

For the reasons stated above, I accept this petition, quash the impugned notice found at Annexure ''B'' and the order found at Annexure ''C by which the service of the Petitioner was terminated and direct the Respondents to treat the Petitioner in their continuous service as if the impugned order had not been passed. The Petitioner shall also be entitled to the cost of this writ petition.

Counsel fee assessed at Rs. 200/.