Het Ram vs The State

R.S. Pathak, C.J.—In this writ petition the Petitioner has claimed a number of reliefs but the only one pressed by him is the quashing of the order terminating his services.

On September 1, 1964, the Petitioner entered service as a Chowkidar in the office of the Deputy Commissioner, Mahasu district. The contract of employment stipulated that the appointment was temporary and could be terminated by either side at any time on a month''s notice without assigning any reason. The Petitioner worked as a Chowkidar until August 26, 1968 when he was posted as a Peon. It is said that he had served as a Chowkidar for more than 4 years. After serving for about 3 years as a Peon he was served with an order dated March 5, 1971, terminating his services under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965, on payment of a month''s pay and allowance in lieu of notice. The Petitioner challenges the validity of that order.

The case of the Petitioner is that his services were terminated because of an adverse report by the Tehsildar concerning the conduct of the Petitioner and, it is said, the report was motivated by a personal grudge of the Tehsildar on the refusal of the Petitioner to marry one Parvati Devi. The Petitioner says that the order terminating his services is an order by way of punishment and casts a stigma on his reputation, and therefore Article 311(2) is attracted. In as much as the enquiry contemplated by that provision was never held, he submits, the order is invalid.

It is admitted in the return filed on behalf of the Respondents that the Tehsildar made a report regarding the Petitioner''s work, behaviour and general conduct and also reported his absence from duly and failure to carry out orders. The original record produced before me by the learned Advocate-General also shows that complaints were made to the Deputy-Commissioner of the negligent manner in which the Petitioner was discharging his duties and of his misbehaviour. But the material on the record indicates plainly that the action taken in respect of the Petitioner by the impugned order was not intended by way of punishment. The return of the Respondents as well as the original record establish that although the report of the Tehsildar was before the Deputy Commissioner it was not proposed to punish the Petitioner in respect of any of the complaints made in the report and by that reason to dismiss him from service. The record discloses clearly that the Deputy Commissioner proceeded to terminate the services of the Petitioner in accordance with Rule 5(1) of the Central Civil Services (Temporary Service) Rules. There was no intention to punish the Petitioner. What was intended was the termination of the services simpliciter. It is always open to the Government to terminate the services of a temporary public servant if he is found unsuitable for the post held by him, provided that is done in accordance with the terms and conditions of appointment and of any statutory provision in that behalf. No stigma is cast upon the Government servant thereby. As Jong ago as Jagdish Mitter v. The Union of India AIR 1964 SC 440 , it was pointed out that every order terminating the services of a temporary public servant will not amount to dismissal or removal from service within the meaning of Article 311, and that it is only when the termination of those services has been ordered by way of punishment that it can be characterised as dismissal or removal from service. The appropriate authority, it was pointed out, possesses two powers to terminate the services of a temporary public servant; it can either discharge him purporting to exercise its powers under the terms of the contract or the relevant rule, and in that case it would be a straightaway and direct case of discharge and nothing more, and Article 311 will not apply. The authority can also act under its power to dismiss a temporary servant and make an order of dismissal, in which case Article 311 will apply. The mere circumstance that an enquiry was made concerning the government servant would not necessarily imply that an order terminating his services was intended by way of punishment. Generally, an enquiry would be necessary before it can be decided that the government servant is unsuitable for the post held by him and his services should be terminated. Such an enquiry, the Supreme Court said in the aforesaid case, would be held for the purpose of deciding whether the temporary government servant should be continued or not. It is only when the authority chooses to exercise the power to dismiss a temporary government servant that a formal departmental enquiry is necessitated and if such a formal enquiry is held and the order terminating the temporary government servant is passed consequent upon the findings of the enquiry, prima facie the order of termination would amount to an order of dismissal. Quite often the motive operating in the mind of the authority in terminating the services of a temporary government servant is confused with the nature of the order made against the servant. In every case, the Court must ascertain whether the misconduct of the employee is a mere motive for the order or constitutes the very foundation of the order. In Ram Gopal Chaturvedi Vs. State of Madhya Pradesh, the Supreme Court held the termination of the services of the temporary Civil Judge to be a simple order of termination on one month''s notice in accordance with the rules, an order which did not cast a stigma on his character or integrity or visit him with any evil consequences and therefore not an order passed by way of punishment so as to attract Article 311. In The State of Bihar and Others Vs. Shiva Bhikshuk Mishra, the circumstances proved that the order dismissing the Subedar Major was an order of punishment. So also in Madan Mohan Prasad v. State of Bihar 1973 (1) SLR 630 the statement of the Chief Minister in the Bihar Legislative Assembly gave the impression to the public that the services of the Munsif had been terminated on account of inefficiency or misconduct. There will always be cases on either side of the line, and in every case it will be the function of the Court to determine whether the order merely terminates the services of the government servant or is made by way of punishment. The existence of complaints against the government servant and the fact that the authority has taken them into consideration when making the order do not conclusively justify the finding that the order has been made by way of punishment. Conceivably in many cases those circumstances may operate merely as a motive for terminating the services. They may demonstrate the unsuilability of the government servant for continuing in service.

In the present case, I am clear that the Deputy Commissioner did not intend, when he made the impugned order, to make it by way of punishment. As he very plainly says in his return, and the original record bears him out, he proceeded on the basis of the terms and conditions of employment and simply terminated the Petitioner''s services in accordance with law.

No other point was pressed before me. The petition fails and is dismissed, but in the circumstances there is no order as to costs.