Collector and District Magistrate, Varanasi vs Mataru Ram

G. C. Mathur, J.

This is an appeal by the State Government against the judgment of a learned Single Judge, allowing the writ petition filed by the respondent and queshing an order discharging the petitioner from service.

The respondent was a temporary Government servant and was employed on the post of Health Assistant (Family Planning Department) at Varanasi in 1968. A circular letter dated March 23, 1971 was issued by the Joint Director of Medical Health Service (F.P.O.), U.P. Lucknow to all District Medical Officers of Health in U.P., the relevant portion of which reads thus:

"Now that the year 197071 is at the end, I hope you will review the progress of the total achievement of your district as well as the workwise achievement. I reiterate to say that no leniency should be shown to a delinquent worker and names of those who have failed to achieve at least 25% of the target should be reported to the District Magistrate for immediate termination."

A memorandum dated May 12, 1971 was received by the respondent from the Chikitsa Adhikari, Provincial Health Centre, Varanasi, informing him that the employees who failed to achieve 25% of the target fixed during the year 197071 would be discharged from service. He was warned that during this year the petitioner was required to procure 15 persons for vasectomy and tubectomy but that he had secured only two persons for vesectomy and none for tubectomy. He was further warned that he must secure 13 more cases in order to make good the the deficiency in his output. Another memo dated May 24, 1971 was received by the respondent informing him that his achievement in procuring persons for vasectomy and tubectomy was nil in the current year and that in the preceding year he had procured only two persons. He was warned that if he failed to achieve the target fixed, severe action will be taken against him. By order dated July 19, 1971 passed by the District Magistrate, the petitioner''s service were terminated. He challenged his termination order on the ground that it was passed by way of punishment and, therefore, amounted to dismissal or removal from service and that the provisions of Article 311 (2) of the Constitution of India were attracted which were not complied with. This contention found favour with the learned Single Judge with the result that he allowed the writ petition and quashed the termination order.

It is not disputed that the respondent was a temporary Government servant. It is also not disputed that under the rules, the services of a temporary Government servant can be terminated by giving one month''s notice or one month''s pay in lieu of notice. The impugned order is an order of termination simplicitor and casts no stigma on the respondent. It merely informed him that his services were no longer required and were terminated from the date of receipt of the order on payment of one month''s pay in lieu of notice. The learned Single Judge was of opinion that the termination was for a specific fault, that is to say, for failure to achieve the target prescribed and, therefore, amounted to punishment. The view taken by the learned Single Judge is challenged in this appeal.

The learned Standing Counsel referred to several paragraphs of the counteraffidavit wherein it is stated that the respondent''s work was found most unsatisfactory since the date of his joining the post. He has contended that if the work of a temporary Government servant is found unsatisfactory, his services can legitimately be terminated and the termination cannot amount to dismissal or removal from service. There can be little doubt that the services of the respondent were terminated for the reason that his work was considered unsatisfactory. The main part of his work was procuring persons for vasectomy and tubectomy. From Annexure ''B'' to the counteraffidavit, which is a chart of the achievement of the various persons employed in the Family Planning Planning Programme at Varar it is clear that the respondent had failed to procure the number of persons which he was expected to do. In the year 196869, he procured only one person, in the year 196970 he procured two persons and in the year 197071 again he procured two persons. From the memoranda issued to him it appears that he was unable to procure any person after the year 197071. Since he was unable to satisfactorily discharge his duty procuring persons for vasectomy and tubectomy, the authorities were entitled to take the view that his work was unsatisfactory. It is to be noticed that the termination was not for any misconduct of the respondent but for his failure to fulfil the quote of work fixed for all employees doin''s this type of work. It was urged by learned counsel for the respondent that even if that he so, the termination would still amount to punishment since it was based on a specific fault, namely, the failure to achieve the target. We are unable to accept this contention. If Government finds that the work of a temporary servant is unsatisfactory either generally or in any particular aspect, it is entitled to terminate his services and such termination cannot amount to punishment.

We may notice some of the decisions of the Supreme Court which were cited before us. In Parshottam Lal Dhingra v. Union of India 1972(9) S.C.L.J. 164=A.I.R. 1958 S.C. 36. S.R, Das, C.J., who delievered the majority judgment, observed:

"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 Satish Chancier v. Union of India. 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 punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh A.I.R. 1954 S.C. 369. In either of two abovementioned 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 fact or 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 Shriniwas Ganesh v. Union of 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."

In Champak Lal Chiman Lal Shah v. Union of India 1964(8) F.L.R. 421=A.I.R. 1964 S.C. 1854 the services of a temporary Government servant were terminated after holding a preliminary enquiry against him. The Supreme Court held that the termination was not by way of punishment and did not amount to dismissal. It quoted with approval the remarks made by it in Dhingra''s case (supra) which have been quoted above. It further observed:

"......The Government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and for his work. The same may apply to the reversion of a public; servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and or conduct of a temporary servant may arise on a complaint against him. In such cases, two courses are open to Government. It may decide to dispense with the services of the servant or revert him to substantive post without any action being taken to punish him for his bad work and ]or conduct or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of Article 311 (2) ....''...

Even where Government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy Government that there is reason to dispense with the services of a temporary .employee or to revert him to his substantive post, for as we have said already Government does not usually take action of this kind without any reason......In short, a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a Government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein."

In A. G. Benjamin v. Union of India, 1967(15) F.L.R. 347= (195067) 2 S.C.L.J. 1258= (1967) I L.L.J. 718, disciplinary proceedings were started against a temporary Government servant on the basis of certain complaints received against him. Before the enquiry could be completed, it was dropped and a simple order terminating his services was passed. The Supreme Court held that the order was not by way of punishment and did not amount to dismissal.

In Ram Gopal Chaturvedi v. State of Madhya Pradesh A.I.R. 1970 S.C. 158, an enquiry was made by the Chief Justice against'' a temporary Civil Judge on charged of moral turpitude and lack of integrity. The Chief Justice found these charges established. The High Court then passed a resolution recommending that Government should terminate the services of the temporary Civil Judge. The Government passed such an order. The Supreme Court held that the termination was not by way of punishment and did not amount to dismissal or removal.

In these cases even though there were specific complaints against the conduct of temporary Government servants and some sort of enquiries were held before the termination orders were passed, the Supreme Court held that they could not be said to be by way of punishment. It thus appears that the services of a temporary Government servant can be terminated legitimately even for a fault, whether the fault indicates inefficiency, unsatisfactory work, misconduct or negligence. A preliminary enquiry may or may not precede such termination.

Learned counsel for the respondent placed strong reliance upon the following observations of Ray, C.J., in Samsher Singh v. State of Punjab and another A.I.R. 1974 S.C. 2192.

"There are, however, two important observations of Das, C.J., in Dhingra''s case (supra). One is that if a right exists under a contract or service rules to terminate the services, the motive operating on the mind of the Government is wholly irrelevant. The other is that if the termination of the service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Article 311 of the Constitution. The reasoning why motive is said to be irrelevant is that it inheres in the State of mind which is not discernible. On the other hand, if termination is founded on misconduct, it is objective and is manifest."

In the same judgment, a little later, Ray, C.J., has observed:

"Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect, the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other defect not involving moral turpitude, the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an enquiry. But in those cases, the authority may not hold an enquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection."

In this case, the High Court had requested the Government to depute the Director of Vigilance to hold an enquiry into 15 specific charges of misconduct against Ishwar Chand Agarwal, a temporary judicial Officer, and his services were terminated on the basis of the recommendations in the enquiry report. Ray, C.J. observed:

"Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar illegal and must be set aside."

We are unable to see how this case helps the respondent. A to see how this case helps the respondent. A Division Bench of this Court has, in State of Uttar Pradesh and others v. Tilak Singh 1975(1) A.L.R. 11=1975 A.L.J. 31 laid down that termination of service on an overall assessment of service record, when it is found that the temporary Government servant is not fit to be confirmed in service, does not amount to a punishment or dismissal or removal as contemplated by Article 311. In the present case also the termination is based upon an overall assessment of respondent''s services. The work of the respondent was found unsatisfactory and the termination was on account of his unsatisfactory work. The mere fact that before passing the order of termination an opportunity was given to the respondent by way of a notice warning him to remove his shortcomings, will not make the order one of punishment, we are clearly of opinion that the termination was not by way of punishment.

Learned counsel for the respondent then urged that there were several other Health Assistants at Varanasi who had also not achieved the target but their services were not terminated. The allegations to this effect are contained in paragraph 14 of the writ petition. In reply to this assertion, a chart was filed along with the counteraffidavit, which shows that the respondent''s performance was the poorest amongst the Health Assistants. That being so, he cannot complaint of hostile discrimination. He being the worst the authorities were entitled to terminate his services. No other point was urged.

The appeal is according allowed. The judgment of the learned Single Judge is set aside and the writ petition is dismissed. Parties will bear their own costs throughout.