Ishar Dass Mehta vs The State of Pepsu and another

Teja Singh, C.J.—This is a petition by Ishar Dass Mehta under Article 226 of the Constitution of India for a writ of Mandamus or other order or direction against the State and the Director of Civil Supplies, Patiala. The petitioner was appointed Assistant Procurement Officer in the Civil Supplies Department of the Patiala & East Punjab States Union on 21-7-1949. Originally his appointment was temporary for six months and the order making the appointment was to the effect that his services were liable to be terminated at any time without notice "If the Pay & Cadre Committee fix up any other suitable hand" in his place. Later on, his appointment was extended from time to time and he continued to hold different posts till 29-8-1950 when he was suspended by the Additional Director of Civil Supplies subject to the approval of the Director of Civil Supplies which was given on 3-10-1950. On 12-7-1951, orders were made terminating the services of the petitioner with immediate effect on the ground that he had not been selected for appointment by the Public Service Commission. The petitioner maintains inter alia that the orders suspending and removing him from service were made mala fide and without any reason and since they contravened the mandatory provisions contained in Article 311 of the Constitution of India, they were inoperative and ineffective and were liable to be set aside by means of an appropriate writ.

The petition is opposed by Mr. Chetan Dass, Assistant to the Advocate General, on behalf of both the respondents. He admits that the petitioner''s appointment which was temporary to start with was extended from time to time but urges that it was liable to be terminated without notice and consequently the Government were entitled to put an end to it with immediate effect. He denies that the Government or the Officials who dealt with the petitioner''s case at different stages were actuated by any kind of malice or improper consideration and pleads that the actions taken by the Government against the petitioner were legal and no relief whatsoever could be granted to the petitioner by this Court.

Before giving my finding on the various points raised by the petitioner and the Assistant to the Advocate General it appears to be necessary to refer briefly to the Government orders that have been made available to the Court by the respondents'' counsel and by which the petitioner''s tenure of office was extended on various occasions. I have already observed that the appointment of the petitioner as temporary Assistant Procurement Officer was made on 21-7-1949. That order was signed by Mr. Amar Nath Kashyap. Director of Civil Supplies. Since the appointment was for six months in the first instance and it is admitted by Mr. Chetan Dass that in spite of the lapse of six months the petitioner continued in service, it can be taken for granted that order for extending it must have been made by the competent authority. Mr. Chetan Dass says that in spite of the efforts made by the department they have not been able to trace that order. The earliest order after the order of 21-7-1949 that we have before us is that of 6-5-1950 (No. 2/Spl-Est-G.) appointing the petitioner as A. P. O. Faridkot "on provisional basis with immediate effect" in the grade 90-6-120-8-160. On 8-5-1950 the matter came up before the Hon''ble the Chief Minister who wrote to the Director of Civil Supplies (D. O. No. 7919) that he approved of all the appointments referred to in his above mentioned order but added that they were on purely officiating and ad hoc basis and were subject to the confirmation of the Home Department which was being applied for. The confirmation of the Home Department was conveyed to the Industries, Supplies and Rehabilitation Department by means of their letter No. F. 15(35)/A-50 dated 21-6-1950.

I am in entire agreement with Mr. Chetan Dass that when a person is appointed for a fixed period or when there is an express condition under which he is appointed that his services are terminable by so much notice, his case does not fall within the ambit of Article 311 of the Constitution and. no notice under that Article need be given to him, because his services terminate automatically after the expiry of the period for which he was employed or of the notice, as the case may be. The question, however, is whether the present is a case of that kind. It is true that the petitioner was originally appointed for six months but when his term was extended after the expiry of the six months and has been extended since then, the period of appointment was not fixed, and it cannot be said that he held the appointment for a fixed period. As regards the condition contained in the order by which he was first appointed that his services were liable to be terminated at any time without notice, it was not repeated in any of the subsequent orders. Moreover, even as regards his first appointment, it was to be terminated only if the Pay and Cadre Committee fixed up another suitable hand in the petitioner''s place. It is not even contended that the said Committee preferred another person to the petitioner. This means that the appointment that the petitioner held by virtue of the order of the Director dated 6-6-1950, approved by the Chief Minister and confirmed by the Home Department, stands on the same footing as appointments of other persons on temporary posts which are not for any fixed period. Mr. Chetan Dass has not been able to quote any rule or law authorising the dismissal, discharge or removal of persons holding such temporary posts without any notice, nor has he been able to convince me that they are outside the ambit of Article 311 of the Constitution. Clause (1) of the said Article lays down that

no Person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

Clause (2) is to the effect that no such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. There is a proviso attached to Clause (2) enumerating cases to which the Clause shall not apply, but we are not concerned with it here.

Mr. Chetan Dass draws my attention to Article 310 which lays down that except as expressly provided by the Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor or as the case may be, the Rajpramukh of the State. Relying upon the words of Clause (1) of the Article, Mr. Chetan Dass argues that because every servant of the Government holds office during the pleasure of the President, Governor or the Rajpramukh, as the case may be, he is liable to be removed, discharged or dismissed from service at the sweet-will of the appropriate authority and he cannot as a matter of right demand that before he is dismissed etc. he should be given any kind of notice. In my opinion, the contention is wholly devoid of force, because Article 310 is to be read along with Article 311, the provisions of which are imperative, and notwithstanding the wide words of Article 310. before a person who is a member of a civil service of the Union or of an all-India service or holds any post connected with any civil post under the Union or a State is removed or reduced in rank, opportunity must be given to him to show cause against the action proposed to be taken in regard to him. I am further of the opinion that every civil servant of the Union or the State whether he holds a permanent or a temporary post, is entitled to the protection afforded by Article 311. This view is supported by a Bench decision of the Allahabad High Court, Jayanti Prasad Vs. The State of Uttar Pradesh, which was cited by Mr. Chetan Dass and in which I shall have the opportunity to refer hereafter.

It was also urged by Mr. Chetan Dass that since the services of the petitioner were terminated because he was not selected for appointment by the Public Service Commission and under the rules the Government could not keep him in service any longer, it cannot be said that he was either dismissed or re moved from service within the meaning of Article 311 and, therefore, the article had no applicability to his case. The terms ''dismissal'' or ''removal'' from services are not defined in the Constitution. In fact counsel have not been able to point out any law in which they are defined. Mr. Chetan Dass urges that they are used in Clause (2) of Article 311 in a technical sense and refer only to cases where a man''s services are put an end to for misconduct. In this connection he relies upon Jayanti Prasad Vs. The State of Uttar Pradesh, mentioned above. The applicant in that case was a temporary employee in the Civil Supplies Department of the State of Uttar Pradesh and he was served with a notice under the signature of the District Magistrate of his district notifying that his services were to be terminated on the expiry of one month''s notice. The applicant applied to the High Court for the issue of a writ of mandamus against the State not to terminate his services without complying with Article 311 Sub Clause (2) of the Constitution and further prayed that the notice terminating his services be declared to be inoperative and bad in law. The learned Judges while dismissing the application held that since the applicant was a temporary employee whose contract of service laid down that his services were liable to terminate within one month''s notice and that notice was duty given to him, his services automatically terminated on the expiry of the month and accordingly the case did not come within the ambit of Article 311. This is what they observed:

One month''s notice was duly given to him & in accordance with the conditions of service, his services would terminate upon the expiry of the period specified in the notice. From the 26th May 1951, the applicant cannot claim to remain as an employee of the State. He would no longer after that date hold a "Civil post"-it is conceded that he is not a member of the civil service of the State or of the Union. Article 311 applies only to a case in which a person is dismissed or removed or reduced in rank. These are technical words used in cases in which a person''s services are terminated for misconduct. They do not apply to cases in which a person''s period of service determines in accordance with the conditions of his service. It is not so much a question of the post being held temporarily or it being of a permanent nature; the real question is whether a person''s services are being dispensed with before his normal period of service has terminated by reason of misconduct on his part, or otherwise. If a person''s services are sought to be terminated before the period of his service has expired, on account of some misconduct, then whether the employee is temporary or permanent, the procedure prescribed in Article 311 has to be followed unless of course the case falls within any one of the three provisos to clause (2). If, on the other hand, a person''s services are sought to be terminated at the expiry of the term for which he was engaged or at the expiry of the period of notice by which, in accordance with the conditions of his service, his services could be terminated, there is; no question of dismissal, removal or reduction in rank and Article 311 does not come into operation.

As regards the applicability of Article 311, to the cases where a man''s services are terminated on the expiry of the term for which he was employed or on the expiry of the notice given to him in accordance with the terms of service. I am in respectful agreement with the above observation, but the dictum of the learned Judges that Article 311 comes into operation only when a man is dismissed or removed from service for misconduct, if I may say so with respect, unduly restricts its scope because as I read the words of the Article it appears to me that it is meant to cover all kinds of cases irrespective of the fact whether a man''s services are terminated because of his misconduct or otherwise. Let us take the case where it is sought to terminate man''s services because he is inefficient. Inefficiency strictly speaking does not amount to misconduct and can it be said that action can be taken against him without giving him an opportunity under Article 311? Let us then take the case where a certain post is brought under reduction and it is intended to terminate the services of the person holding the post on that account. Is he not entitled to an opportunity under Article 311? In my judgment, the answer can only be in the negative (sic. affirmative?) because to hold otherwise would be tantamount to narrowing down the scope of the Article for which there is no justification. It cannot be, denied that the object of Article 311 is to guarantee the security of service to all persons holding civil posts in the Union and different States and if the terms ''dismissal'' or ''removal'' are so interpreted as to be confined to cases where persons'' services are terminated because of misconduct, the effect would be that it will become very easy for the authorities to avoid Its operation. I may also point out that the services of Jayanti Prasad having been terminated in accordance with the condition of his service and after giving him one month''s notice, the remarks of the learned Judges about the scope of terms ''dismissal'' or ''removal'' are of the nature of obiter dictum.

The other case cited by Mr. Chetan Dass is AIR 1936 663 (Lahore) The appeal arose out of a suit brought by Ram Lal Kohli against the Secretary of State for India for the recovery of damages on the ground that his dismissal from service was malicious, unlawful and ''ultra vires''. The pleas of the defendant ''inter alia'' were that the plaintiff had been discharged within the terms of his contract, he being only a temporary hand engaged by the Public Works Department and under para 140 of the P.W.D. Code his contract was that of monthly servants which were terminable at a month''s notice, that the month''s notice had been given to him and he had been duly paid for that month and therefore the suit did not lie. One of the issues framed by the trial Court was whether the plaintiff had been dismissed or discharged but it did not decide it because it held that the procedure followed by the Government in terminating the plaintiff''s services was malicious and wrongful and it granted the plaintiff a decree for Rs. 129/- which was equivalent to his monthly salary. The learned Judges of the High Court set aside the decree in the plaintiff''s favour and held that since he had been discharged and not dismissed or removed he had no cause of action to sue. A perusal of the judgment of the High Court would go to show that the case was decided on the basis of the Explanation to paragraph 3 of the rules contained in P.W.D. Code and it is not relevant for the purposes of the present case. Paragraph 3 as the learned Judges observed, laid down certain penalties that might be imposed upon a member of a subordinate service the relevant ones being (f) and (g), (f) removal from service of Government and (g) dismissal from the service of the Government. The explanation to the rule was to the effect that the discharge of a person engaged under contract in accordance with the terms of his contract does not amount to removal or dismissal within the meaning of this rule. Because of the Explanation and also because of paragraph 140 of the Code, it was held that the plaintiff''s services could be terminated by a month''s notice and since it was admitted by the plaintiff that he had not only received a month''s notice but also had duly been paid for that month, the termination of his service amounted only to a discharge. Mr. Chetan Dass does not even contend that there were any rules by which the present petitioner''s case was governed and the termination of his services was in accordance with those rules.

My own opinion is that terms ''dismissal'' and ''removal'' are used in Article 311 in their ordinary sense. Dismissal though not confined to cases of misconduct generally implies that the person dismissed is blameworthy i.e., either he has done something which is objectionable or improper or he lacks the ability or capacity or the will to discharge his duties as he should. Removal of a man from service on the other hand need not be for any fault on his part. Unlike dismissal, it involves no ignominy, nor does it carry any stigma. It merely means that a man''s services are no longer required or it is not possible to retain him in service.

In the case of the present petitioner, it is admitted by Mr. Chetan Dass that he was asked to quit not because of anything against him but because he was not selected by the Public Service Commission. This means that his case was not of dismissal but of mere removal from service. Accordingly Article 311 applies to him and no opportunity having been given to him under the Article the order removing him from service was illegal. As regards the effect of the Commission''s refusal to select him it only means that the petitioner could not be permanently appointed to the post for which he had applied and the Government were bound to accept the Commission''s decision but with all this they could not remove him from service altogether without giving him an opportunity of showing cause against the action that they proposed to take and they did take, particularly so, when either at the time the petitioner was appointed or the tenure of his post was extended from time to time, he was told that if the Public Service Commission did not agree to his appointment he was liable to be removed from service summarily and without any kind of notice.

As regards the order whereby the petitioner was suspended from service the criticism levelled by the petitioner''s counsel against it is that it could only be made by the Head of the Department i.e., the Director of Civil Supplies but in fact it was made by the Assistant Director. As I have mentioned in the earlier part of this order, it is true that the order in question was made by the Assistant Director but it was subject to the approval of the Director and later on the Director did approve it. This means that virtually the order was of the Director and it was not vitiated by any defect or illegality.

As regards the relief the petitioner''s counsel states that he would be perfectly satisfied if the orders in question are declared to be illegal and inoperative and in addition a declaration is granted to him that he is still in the service of the State. So far as the order of suspension is concerned, my finding being that though it was not vitiated by any kind of illegality or defect no relief can be granted in relation thereto. With regard to the other order i.e., the order whereby the petitioner''s services were terminated, I accept the petition to the extent that I declare that order to be illegal and inoperative. No other declaration appears to be called for, because that follows as a matter of course from the declaration that I am granting. Since the petition has succeeded only partially, I direct that the parties shall bear their own costs. Counsel fee Rs. 100/-.