Gostha Behari Nayak vs District Magistrate

Arun K. Mukherjea, J.—This is an appeal from a judgment and order dated June 24, 1969, passed by Basu J. discharging a Rule nisi which had been obtained by the Petitioner-Appellant Gostha Behari Nayak in an application under Article 226 of the Constitution of India. The short facts of the case are as follows:

On or about December 28, 1960, the Appellant was temporarily appointed as a Gram-Sevak and posted to the Burdwan Block in the district of Murshidabad. The Appellant was told at the time of his appointment that he would subsequently have to undergo a prescribed training, which may extend upto two years duration and his continuance in the port will be subject to his successful completion of the said training.

The Appellant joined his post on December 30, 1960. On June 1962 the Appellant was deputed to complete a prescribed training for two years in the Gram Sevak Training Centre at Coochbehar. It appears that there was a lot of trouble at the Training Centre at Coochbehar and the Principal of the Training Centre reported the name of five persons who were according to him the leading trouble-shooters disturbing the course of training and discipline at the Training Centre. The Appellant was one of these five. There are various allegations, namely, that he avoided (i) training in co-operative farming from the very beginning, (ii) avoided the practical classes, (iii) showed great disrespect of the teachers and the Principal in the class-room, (iv) annoyed the teachers by throwing filthy things at the doors of the quarters of the teachers, (v) violated openly the orders of the Principal, and so on. Ultimately the Principal expelled the Appellant from the Training Centre. On August 31, 1963, the Principal served an order upon the Appellant by which he was directed to join his place of posting without availing any joining time except the days required for joining.

He was further directed to leave the hostel within 24 hours from �he service of the notice.

The Appellant then went back to his place of posting and joined ''there on September 3, 1963. On the same day he sent a representation to the District Magistrate who was Respondent No. 1 in the petition through proper channel. In that letter of representation the Appellant asked for protection from the District Magistrate. The District Magistrate apparently made a reference to the Principal enquiring as to the reason why the Principal had refused to have the Appellant in his Training Centre. The Principal by a letter dated September 4, 1963, explained to the District Magistrate the reasons for which he had expelled the Appellant from the Training Centre. There was another letter from the District Magistrate to the Principal �a copy of that letter is not on records. But from the Principal''s reply to that letter on October 9, 1963, one can easily see that the District Magistrate had requested the Principal to take back the Appellant again for giving him the necessary training in his Centre. The Principal apparently refused to do that. On November 16, 1963, the District Magistrate, Murshidabad, served a notice upon the "Appellant by which he was informed that his services ''will no longer be required from the 1st January 1964''. The Appellant at once made a representation against the said order of discharge. As nothing was done on that representation the Appellant moved this High Court and obtained a Rule nisi which was discharged by Basu J. on June 24, 1968. The Appellant in his petition asked, inter alia, for a writ of mandamus commanding the Respondents to quash or set aside the impugned orders (i) discharging the Appellant from the Training Centre at Coochbehar and (ii) dismissing or removing the Appellant from service. The prayers are not strictly in the correct form but we need not take any notice of these defects.

The Appellant''s contention before Basu J. was that the District Magistrate of Murshidabad terminated his service without giving him any hearing so that this termination amounts to a removal or dismissal under Article 311(2) of the Constitution and consequently had since the Appellant been given no opportunity to show cause against such action. Basu J. relying on an earlier decision of his in another case and also relying on certain decisions of the Supreme Court formulated the following propositions:

(a) Where the order itself contains a stigma or adverse remark, the order becomes penal so as to attract Article 311(2) of the Constitution.

(b) Where the order by itself does not contain a stigma, Article 311(2) of the Constitution would not be attracted merely on the ground that an adverse remark or an allegation of misconduct served as the motive for the termination of service or reversion. This would be the case even where subsequent to the passing of the order the authorities inform the employee that the order was made because of the unsatisfactory nature of his work or conduct.

On the basis of these propositions Basu J. refused to interfere with the order which expressly contained no stigma.

Mr. Sinha appearing for the Appellant argued that the Appellant had been discharged by the District Magistrate on the grounds of alleged unsuitability. He drew our attention to the statements made by Sushil Chandra Chakravorty, District Magistrate of Murshidabad, in para. 6 of his affidavit dated April 16, 1964. That paragraph gives a summary of the various allegations against the Appellant. I have already referred to these allegations in the judgment. He also pointed out that in para. 9 of the same affidavit Sushil Chandra Chakravorty states that the Appellant being a temporary Government servant and he being found unworthy and unsuitable of holding Government service, the notice terminating his service was issued.

According to Mr. Sinha these paragraphs prove unmistakably that the Appellant was discharged because of some alleged delinquency. There is no doubt, according to Mr. Sinha, after reading that paragraph as to what was the real motive or ground behind the order terminating the services of the Appellant. On these facts, Mr. Sinha contended that in the light of the following observations of the Supreme Court in S.R. Tewari Vs. District Board Agra and Another, it is incumbent on us to treat the District Magistrate''s order as a penal order which comes within the ambit of Article 311(2) of the Constitution of India:

It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee.

Mr. Sinha also relied on certain observation made by Gajendragadkar J., as his Lordship them was, in the case of Jagdish Mitter Vs. The Union of India (UOI), . The observations on which Mr. Sinha relied in particular are as follows:

But since considerations of motive operating in the mind of the authority have to be eliminated in determining the character of the termination of services of a temporary servant, it must be emphasized that the form in which the order terminating his services is expressed will not be decisive. If a formal departmental enquiry has been held in which findings have been recorded against the temporary servant and as a result of the said findings his services are terminated, ostensibly purports to be a mere order of discharge would not disguise the fact that in substance and in law the discharge in question amounts to the temporary servant. That is why the form of the order is inconclusive ; it is the substance of the matter which determine the character of the termination of services. In. dealing with this aspect of the matter, we must bear in mind that the real character of the termination of services must be determined by reference to the material facts that existed prior to the order.

After having given our most anxious consideration to the facts of the case and also to the principles of law enunciated by the Supreme Court from time to time we find that we cannot accept. Mr. Sinha''s contentions. As we read the various Supreme Court decisions on this point we understand the Supreme Court to say that in general terms the termination of employment of a person holding a post on probation without any enquiry whatsoever does not entitle the Government servant concerned to protection under Article 311(2) of the Constitution for such termination does not deprive him of any right to a post. If, however, the termination is not a straightforward termination and the employer holds an enquiry into any alleged misconduct or inefficiency of the Government servant before passing the order of termination, such termination will be treated as a punishment because ''it puts a stigma on his competence and thus affects his future career'': See Parshotam Lal Dhingra Vs. Union of India (UOI), . In the case of Jagdish Mitter v. Union of India (Supra p. 454 ) Gajendragadkar J. has explained these propositions. His Lordship said that it could not have been the intention of the Supreme Court to lay down in Dhingra''s case a broad and unqualified proposition that wherever any Rind of enquiry is held by the authority before terminating the services of a probationer, the subsequent termination of such a probationer''s services in whatever form it is couched must always be deemed to amount to his dismissal. Thus, Gajendragadkar J. points out that any authority while considering the question of continuing the service of a probationer or temporary servant has to decide the question of suitability of that officer. Such considerations may require an enquiry. An enquiry of this character must be distinguished from the formal enquiry where charges are made out against a Government servant. Gajendiagadkar J. relied in particular on the earlier Supreme Court decision in the The State of Orissa and Another Vs. Ram Narayan Das, . In that case, a Sub-Inspector who had been discharged sought to make out a case that his discharge amounted to dismissal. This plea though upheld by the Orissa High Court was rejected by the Supreme Court on appeal. The impugned order in that case referred to adverse comments made against the Appellant''s conduct and even contained a statement to the effect that it was no good retaining him further in service. This, prima facie, would amount to attaching a stigma to the probationer who was discharged. Nevertheless, the Supreme Court construed the -order to be an order of discharge simplicitor The Supreme Court held that on the strength of the statement contained in the order of discharge it could not be contended that the order became an order of dismissal. After dealing with various other cases, which had been cited before the Supreme Court, Gajendragadkar J. observes:

In dealing with the complaints made by public servants against their discharge from public service, what matters is not the form of the order by which their services are terminated but the'' substance of it.

Let us try to apply the principles as we have understood them to the facts of the present case. The Appellant admittedly was a probationer. He had also been told at the time of his appointment that he would have to complete his training successfully during the period of two years'' probation. In that order, the Appellant even had to give a guarantee that if he left the Training Centre before the completion of the prescribed training he would have to refund the entire costs of his training upto that date. As a part of his training, the Appellant had been deputed to the Training Centre at Coochbehar. The Principal of the Training Centre incidentally was not the Appellant''s employer. He was more or less in the position of the Principal of an academic institution like a college or school. He found it impossible to keep the Appellant in his Training Centre as the Appellant was considered a ''risk'' to the discipline of the institution and he was sent back by the Principal to his headquarters. It is clear from the papers that are on record that the District Magistrate did make an attempt to send back the Appellant to the Training Centre. He had made a request to that affect to the Principal who, however, refused to take him back. In that situation the District Magistrate found that the Petitioner could not possibly complete his training. That made the Appellant unsuitable for further retention. From the very nature of the order of appointment it is clear that the Appellant was intended to be finally appointed to a post where he would require training of a technical nature. He failed to complete that training. There was hardly any point in Government spending more money on him if he could not�ultimately be trained and shaped into a suitable officer. The District Magistrate thought that his services would not be required after this. Thereafter, without throwing any stigma upon the Appellant and without any complaint of misbehavior or misconduct, the District Magistrate merely serves a notice terminating his temporary service. That in serving that notice he had no intention to throw a stigma on the Appellant appears from the fact that he went out of his way to induce the Principal of the Training Centre to accept him for training again. Such an order of discharge, in our opinion, cannot be treated as an order of- dismissal. In our opinion, it was a straightforward order terminating the probationary service of the Appellant. We cannot bring it within the mischief of Article 311(2) of the Constitution.

In this view of the matter, we pass the following order. The appeal is dismissed. The order passed by Basu J. is confirmed. Any interim order passed is vacated. No order is made as to costs.

After this judgment had been delivered in Court Mr. Sinha made a prayer that we should make some observations recommending the re-employment of the Appellant by the District Magistrate in any suitable berth that may become available later on. We have carefully considered this request. We feel that we would be acting beyond our jurisdiction in making such a recommendation. We have treated the District Magistrate''s order as a mere order of termination of services. Such an order is not a bar to his re-employment. We are sure that the District Magistrate is aware of this legal position. If there is any occasion for employment and if the District Magistrate after considering all the facts and circumstances as well as the merits of the Appellant feels inclined to re-employ the Appellant neither our judgment nor the previous order of termination of the Appellant''s services would stand in the way of the District Magistrate''s doing so. It is not for us to make any observation beyond this.

Sabyasachi Mukharji, J.

I agree.