Darshan Singh Ch. Surjan Singh vs State of Punjab and Another

Harbans Singh, J.—Facts giving rise to this writ petition may briefly be stated as under: Darshan Singh was appointed as an Inspector of shops and commercial establishments in the leave reserve vacancies on 27th of May, 1957. His letter of appointment (annexure ''A'') of that date in Clause (B) of paragraph 2, specifically mentioned that his services "will be purely temporary for the present and liable to be terminated at any time without notice." He worked in his capacity as art Inspector at various places till on 29th of September, 1960, the Labour Commissioner sent him a letter to the effect that his doubtful integrity and inefficient work rendered him unfit for retention in Government service any more, and he was called upon to show cause as to why his services should not be terminated forthwith. The Petitioner submitted his explanation on 6th of October, 1960, in which he asked for the copies of the complaints to enable him to furnish his explanation. On 7th of December, 1960 lie was informed, vide, annexure ''D'' that the aforesaid show-cause notice Issued to him had bean withdrawn. Some 8 days thereafter however, he received the following letter from the labour Commissioner (annexure ''E''):

Since your work and conduct during the period yes have worked as, shop Inspector in this department has not been found satisfactory, your services are hereby terminated in accordance with the terms and condition of your employment as contained in the appointment later issued to you with this office letter No. 9953 dated 27th May, 1957, with effect from the date your substitute reaches Kot Kapura to take over the charge from you.

He made certain representations to the Ministers etc. but having failed to gat redress, he filed the present writs petition.

The point taken, in the return filed is that the services were terminated in accordance with the terms of his appointment and that the termination did not amount to punishment and, consequently, the case did not fall within the purview of Article 311 of the Constitution.

There is no dispute that the post which was held by the Petitioner was purely temporary and in terms of his appointment, the same could be terminated at any time by the State Government without assigning any reason and without giving any notice. The law with regard to temporary Government servants has been laid down in Parshotam Lal Dhingra Vs. Union of India (UOI), and the principles laid down therein have been summarised in another judgment, reported as The State of Bihar Vs. Gopi Kishore Prasad, as follows:

Appointment to a post on probation gives to the; person so appointed no right to the post and his services may be terminated without taking recourse to the proceedings laid down in the relevant rules for dismissing public servant, or removing him from service.

The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.

But, if instead of terminating such a person''s service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.

In the last mentioned case, if the probationer Is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it will amount for a removal from service within the meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down.

But, if the employer simply terminates the services of a probationer without holding an enquiry an without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been? that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause.

The third proposition was further explained in The State of Orissa and Another Vs. Ram Narayan Das, where It was said that "the third proposition in the latter case-refers to an enquiry into allegations of misconduct QF inefficiency with a view, if they we/e found established to imposing punishment and not to an enquiry whether a probationer should be confirmed." The result, therefore, is that if the State Government terminates the services of a temporary Government servant without assigning any reason and without holding any enquiry whatever, the Government servant concerned can have no grievance Again even if the State Government holds an enquiry prior to terminating the services but such an enquiry is made by the State Government only in order to satisfy itself whether the temporary Government servant is efficient and otherwise fit to be retained in service and after such an enquiry, the State Government just terminates the services without assigning any reason, such a termination is also valid and Article 311 of the Constitution is not attracted. As stated by their Lordships of the Supreme Court, the motive, which prompts the State Government to dispense with the services of a tempera/Government servant in terms of his contract, is not material.

In the present case, there was no enquiry. No doubt, there was show-cause notice served on the Petitioner but the same was withdrawn and no action was taken on the same. The real trouble in the present casa is that the order of termination is not siren an order simpliciter but it gives the reasons for termination of the services and the question is whether this statement of the reasons in the order does put a stigma on the competence of the Petitioner and thus affects his future career. In Madan Gopal Vs. State of Punjab, a charge sheet was served on the Appellant Madan Gopal by his superior officer, namely, the Settlement Officer, Bhatinda, alleging that he had received certain illegal gratificttion from various persons. He was asked to show cause why disciplinary action should not be taken against him.

The explanation given by him was considered and the Settlement Officer was of the view that the charge relating to illegal gratification from one of the persons was proved. On this, the Deputy Commissioner terminated his services and gave him one month''s pay in lieu of notice. This Court in Letters Patent Appeal took the view that the impugned order could not be challenged as the, same was in terms of his employment. This view, how ever, was reversed by the Supreme Court, and it was held that the termination, in the circumstances explained above, did cast a stigma affecting his future career. Their Lordships of the Supreme! Court referred to The State of Bihar Vs. Gopi Kishore Prasad, and the propositions enunciated therein and came to the view that the termination of services amounted to punishment. In The State of Bihar Vs. Gopi Kishore Prasad, , inter alia, it was observed as follows:

It is true that, if the Government came to the conclusion that the Respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way, ''without casting any aspersions on his honesty or competence, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore have no grievance to ventilate in any Court.

(Underline (here in '' '') mine).

The words underlined (here in '' '') above make it quite clear that whatever may be the motive behind the termination of services of a temporary Govt. servant, if the Govt. proceeds to terminate the services without casting any as persions on his honesty and competence, then Article 311 is not attracted. Conversely, if, while terminating the services, the Government casts aspersions on the honesty or competence of the servant concerned, then that does cast a stigma on his competence, affecting his future career and, therefore, would amount to punishment. Reference was made to The State of Bombay Vs. F.A. Abraham, There, the order was in the following terms:

Shri F.A. Abraham (Respondent) Deputy Superintendent of Police, Parbhani, is reverted to the rank of Inspector.

When he asked the Government the reasons for his reversion, the Government refused to communicate the reasons. Later, there was some sort of confidential enquiry with regard to the allocations of his misconduct. This enquiry was held behind the back of the Respondent and the finding, however, was that the allegations had not been proved. Notwithstanding this, the order reverting the Respondent was maintained. Nagpur High Court had taken the view that this reversion on account of the unsuitablity of Abraham amounted to punishment but this view was reversed by the Supreme Court. At page 797 of the report it was observed as follows:

He had been reverted in exercise of a right which the Government had under the terms of the officiaing employment. The High Court seems to us to have been in error in thinking that the Government''s refusal to supply the Respondent with the reasons why action was taken against him proved that the reversion was a reduction in rank by way of punishment; the refusal cannot prove that. It may give rise to a suspicion about the motive which led the Government to take the action, but it is now firmly established that if the action is justifiable under the terms of the employment, then the motive inducing the action is irrelevant in deciding the question whether the action had been taken by way of punishment: see Parshotam Lal Dhingra Vs. Union of India (UOI),

* * * * The Government had the: right to consider the suitability of the Respondent to hold the position to which he had been appointed to officiate. It was entitled for that purpose to make enquiries about his suitability. This is all that the Government did in the case.

The State of Bombay Vs. F.A. Abraham, , differs from the present one because, as already indicated, the order of termination of services of the Petitioner does mention the grounds of termination which certainly cast aspersions both on the integrity as well as competence of the Petitioner, and this in view of The State of Bihar Vs. Gopi Kishore Prasad, and other cases, renders the termination a punishment which makes the provisions of Article 311 of the Constitution applicable.

For the reasons given above, therefore, I am of the view that the impugned order is not in accordance with law. This petition is, consequently, accepted, the rule is made absolute and the impugned order quashed. In the peculiar circumstances of the case, however, there will be no order as to costs.