State of Bihar vs Ajodhya Jha

M.P. Verma, J.—This appeal has been filed by the State of Bihar, against which Title Suit No 38/12 of 1959-61 had been brought by the respondent, Ajodhya Jha. The facts leading to the present appeal may be briefly summarized as under.

Ajodhya Jha (hereinafter referred to as plaintiff) was appointed a temporary Sub-Deputy Collector in the Bihar Subordinate civil Service on 12 December 1947. Subsequently he was taken on probation against a substantive post with effect from 4 June 1949. on 28 July 1952 he was served with an order of discharge (Ex. 2). On 11 August 1949 the Collector of Darbhanga demanded explanation from him under Ex. 1(e) concerning three Irregularities alleged to have been committed by him while he was posted at Madhubani. The irregularities were-

(1) that on receipt of his transfer order he had distributed a lot of kerosene-oil permits as well as issued special permits for foodgrains which were against Government orders;

(2) that he did not inspect a single minor irrigation work entrusted to his charge and he sanctioned four irrigation schemes in his own village without getting even the order of the Subdivision Officer when according to the Government instruction the project ought to be selected by a committee on the recommendation of the president, District Congress Committee or the president of the Thane Congress Committee ; and

(3) that he had antedated an order passed in Rent Commutation Case No. 4166 of 1917-48 relating to village Bharha police station Phulparas.

Plaintiff was called upon to give his explanation by 17 August 1949. On 18 August 1949 he submitted his explanation under Ex. D refuting the allegations made against him and Justifying his action in these matters. Then, an enquiry was conducted by the Collector of Darbhanga and he submitted his report (Ex. E) dated 1 October 1949 to the Commissioner of Tirhut Division. Thereafter, the Commissioner of Tirhut Division sent his letter (Ex. A 2) dated 10 October 1949 to the Under Secretary to the Government of Bihar in the Appointment Department and he expressed his doubt whether the officer was fit to be retained in the Government service. Meanwhile, plaintiff had been transferred to Monghyr and so the Additional Secretary to the Government of Bihar, Appointment Department, sent a letter to the Commissioner of Bhagalpur Division (Ex, 1) dated 11 July 1950 requesting him to ask the plaintiff to show cause as to why his services should not be terminated forthwith. A copy of this letter was forwarded to the District Magistrate of Monghyr, who sent another copy to the plaintiff. On 7 March 1951 plaintiff sent a reply (Ex. 1/a) demanding copy of certain papers and examination of certain records. On 6 July 1951 the Collector of Darbhanga wrote to the Commissioner of Tirhut Division concerning this matter (Ex. A 1). Then, finally a discharge order dated 16 July 1952 (Ex. 2) wan issued by the Government of Bihar in the Appointment Department by which the plaintiff, a Probationary Sub-Deputy Collector, was discharged from service. This order was served on him on 28 July 1952.

On 14 July 1958 plaintiff sent a notice (Ex, 5) u/s 80 of the CPC to the State of Bihar (Ex. 5). In this notice he claimed that the order of discharge passed against him was null and void, ultra vires, arbitrary, unreasonable, mala fide and inoperative. He further claimed that he was entitled to be reinstated to the said poet and was also entitled to his salary and allowance with interest from the date of discharge to the date of his reinstatement. Finally on 29 September 1953 he filed his plaint in the Court of the Subordinate Judge at Patna in forma pauperis. In this suit he claimed that the order of discharge dated 16 July 1952 which was subsequently affirmed on appeal on 4 May 1955 was illegal, mala fide, null and void and violated the principles of natural justice and the provisions of the Constitution of India. He claimed Rs. 18.500 as his salary and allowance for the period from 28 July 1952, i.e., the date on which he was discharged to 27 September 1953 the date on which the salt was filed. He farther claimed salary and allowance pendente lite and calculated the same tentatively at Rs. 475.

The suit was contested by the State of Bihar which filed a written statement contending, inter alia, that the plaintiff had behaved in a most irresponsible and unscrupulous manner with scant regard for procedures, moral standards and standard of official conduct while posted at Madhubani and in view of his consistently bad records of service since 1940, the State Government decided after consulting the Public Service Commission that the plaintiff should be dis-charged from service and that he had bean given full opportunity to meet the charges and ha had also been noticed So show cause why he should not tea discharged from service. The course of natural justice was not violated nor any provision of the Constitution of India, It was farther pointed out that a probationer was not entitled to a second notice to show cause before he was discharged from service though the plaintiff was given an opportunity to show cause against the proposed order and his representation was duly considered before the order of discharge was passed. A plea of limitation was also taken.

The learned Subordinate Judge came to the conclusion that the suit was not barred by limitation because the period of limitation would run from 5 May 1953 when the order of discharge was affirmed on appeal by the Government. He further held that the suit was still within time even if limitation runs from 23 July 1952 because the Court was closed from 26 to 23 September 1958 and the plaintiff was also entitled to have sixty days'' time, because of the notice u/s 80, Civil Procedure Code. The suit, therefore, could be filed within six years and two months and in that manner also it was not barred by limitation. He further held that the order of discharge of the plaintiff from service was illegal and void and he was entitled to a declaration that he was still holding and continuing to be in services as claimed. Ha further held that he was entitled to the arrears of pay and allowances for a period of three years before the filing of the suit. He also allowed the pay and allowance for the pendency of the suit as well as till he was recalled by the State Government to join his post. As against this judgment and the decree which followed it, the State of Bihar has come up in appeal to this Court. A cross-objection was also filed on behalf of the plaintiff objection lenging the order of the learned Subordinate Judge disallowing him arrears of salary from 28 July 1952 to 4 May 1955. but at the time of hearing this cross-objection was not pressed.

Sri S. Sarwar Ail, learned Counsel appearing on behalf of the State of Bihar, has strenuously urged that the suit of the plaintiff appellant was barred by limitation and that the judgment and decree of the learned Subordinate Judge could not be sustained because the course of natural justices or any statutory provisions of the Constitution had not been violated in this case. He, farther urged that the plaintiff being a probationer was not entitled to the protection of Article 311 of the Constitution.

As regards the first contention, It may be pointed oat that In such a case Article 120 of the Limitation Act would apply. The main question to be decided is as to from which date the parted of limitation would run. Tie first contention raised on behalf of the respondent is that the period of limitation would run from 5 May 1955 when the order of discharge was confirmed in appeal by the Governor. This appeal had been filed under Rule 57(5) of this Civil Service (Classification Control and Appeal) Rules. This must be taken to be proceeding under the statutory provisions of the aforesaid rule and so the reckoning of the period of limitation from 5 May 1955 be said to be unwarranted by law. second contention urged before us is that, even If it be accepted that the period of limitation would run from 28 July 1952, when the order of discharge was served upon the plaintiff, the suit was still within six years and two months, because the Court was closed from 26 to 28 September 1958 and two mom the time would be granted because of the notice u/s 80, Civil Procedure Code, to the State. The present suit was filed on 29 September 1958. So. even this calculation would pave the suit from the bar of limitation. In my opinion, the finding of the learned Additional Subordinate Judge mast be confirmed on this point.

As to the next point concerning the applicability of Article 311 of the Constitution to the facts of this case, it may be pointed out that there has been a series of decisions by the Supreme Court concerning this article and its applicability to the various categories of Government servant. A plain meaning of Article 311 would clearly indicate that it makes no distinction between a probationer or a Government servant holding a temporary appointment. To limit the protection of Article 311 only to persons who are permanent members of the services or who hold permanent civil posts will be certainly to add qualifying words to this article and that would be contrary to sound principles of interpretation of the Constitution or the (Statute. In the case of The State of Orissa and Another Vs. Ram Narayan Das, it was pointed out that an order discharging a public servant, even if a probationer, In an enquiry on charges of misconduct, negligence and inefficiency or other disqualifications may appropriately be regarded as one by way of punishment and in such circumstances the protection of Article 311(2) of the Constitution would be attracted. Similar views were expressed in the case of The State of Bihar Vs. Gopi Kishore Prasad, . The case of Madan Gopal Vs. State of Punjab, deal with the services of a temporary Government servant and it was pointed out that if the termination of the service puts a stigma on his competence and affects his future career, he is entitled to the protection of Article an (2) of the Constitution. In the case of Parshotam Lal Dhingra Vs. Union of India (UOI), their lordships have very elaborately dealt with the various aspects and situations which may arise in order to attract the protection of Article 311(2) of the Constitution. There is one more feature, however, which has to be borne in mind. The principle is that when a servant has a right to a post or to a rank either under the terms of the contract of employment express or implied, or, under the miss governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by it self and prima facie a punishment, for it operates as a forfeiture of his right to hold that putt or that rack and to get the emoluments and other benefit attached thereto. But, on the other hand, if the servant has no right to the post where he ie appointed, permanent or temporary, either on probation or on an officiating basis, and whose temporary service has not ripened into a quasi-permanent service, the termination of his employment does not deprive him of any right and cannot, therefore, be by itself a punishment. To put it In another way, if the Government has by a contract, express or implied or under the rules, the right to terminate the employment at any time, then each termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of this article. Such. a termination does not carry with it any evil consequences. But in some cases the Government may choose to punish such an employee whether temporary or probationer and if the termination of such a service is sought to be founded on misconduct, negligence, inefficiency, then it is a punishment and the requirements of Article 311 must be complied with. In view of those decisions of the Supreme Court, it cannot but be said that when the termination of service is by way of punishment the Government servant is entitled to two notices. There is no anomaly is the view that the state contemplates a reasonable opportunity at more than one stage. This construction of Article 311(2) is also in consonance with the principle of natural justice embodied in the maxim audi alteran partem. A Division Bench of this Court in the case of Punit Lall Saha v. State of Bihar 1957 BLJR 425 clearly held that the appallant petitioner was a probationer and he was entitled to a second notice under Article 311(2) of the Constitution and is the absence of each a second notice, the final order of discharge must be held to be void and inoperative. It the case of C. Apparao v. Deputy Inspector-General of Police, Northern Range. Waltair AIR 1958 AP 269 a Division Bench of the Andhra Pradesh High Court constating of K. Subba Rao, J. (as he then was) and Mohammad Ahmed Ansari, J. pointed out that there was no express requirement of such notices under the article. But the stage at which Article 311(2) prescribes an opportunity to show cause against the action proposed is when the Government has reached a tentative conclusion as to she punishment which would be appropriate. There are earlier stages when the facts are being gone into, and the punishment then contemplated are of a hypothetical nature. So the first notice should be given when the charges, framed against the employee, have to be enquired into. He then has the opportunity to enter into the defence to disprove the allegations. The second opportunity which should be afforded to him is whom the authority has arrived at a definite conclusion on the charges and then the Government employee should be given an opportunity to show cause against the action proposed to be taken against him. It was further pointed out that the notice of charges may be required by the service rules or dictates of natural justice, but the notice of the proposed punishment is a constitutional injunction, the infringement of which if fatal.

As against this legal background let us examine how the facts of the instant case stand. In the present case, there cannot be an escape from the Pelion that the plaintiff was given a notice to show cause why his services should not be terminated forthwith and this notice is Ex. 1, dated 11 July 1950. The plaintiff gave a reply to this notice which in Ex. 1.1. In this reply he referred to another petition of his which he had sent to the Government on 14 August 1950, for getting copies of eight papers and with a further prayer that certain records should be made available to him far reference. The order of discharge (Ex. 2) was passed after considering the reply of the plaintiff concerning the second notice. But there does not appear from the materials on the record that specific charges had been framed against the plaintiff and he was given an opportunity to meet those charge The learned Additional Sabordinate Judge, while referring to the case of Khem Chand Vs. The Union of India (UOI )and Others, has quoted as follows (at p. 175):

...the reasonable opportunity envisaged by the provision under consideration includes:

(a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him end by examining himself or any other witnesses in support of his defence; and finally,

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant, tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.

All what is available in this case concerning the charges framed against the plaintiff is a letter of the Collector of Darbhanga demanding explanation from the plaintiff. This letter is Ex. 1(c)and is dated 11 August 1949. It is simply pointed out of certain irregularities which were found in his work and he was asked to give his explanation on the three main irregularities within a week of the receipt of the letter. The plaintiff gave his explanation on 18 August 1949 (vide Ex. D), The letter Ex. 1(c) cannot be interpreted to indicate that charges had been framed Against the plaintiff which he was asked to explain. Rather, it appears to be in the nature of an enquiry of fact finding type in order to enable the Collector to find out whether any proceeding against the plaintiff should be started or not. It appears to be a preclude to the holding of further enquiry. On behalf of the appellant the state of Bihar, it has not been shown whether the plaintiff was provided with copies of eight papers referred to in his petition dated 14 August 1950 or whether he was given the recode (fifteen items), which he wanted for reference. He reiterated his demand in his another letter dated 4 November 1950. As pointed out in Para. 17 of the judgment of the learned Additional Subordinate Judge, the allegation of the plaintiff was that in his petition dated 14 August 1950 he had demanded

(i) copies of relevant papers,

(ii) an access to the records, and

(iii) personal hearing.

The State has failed to produce this latter or to show that these demands of the plaintiff were ever met. In such circumstances it must he held that the plaintiff was not given the protection afforded by Article 311(2) of the Constitution. There is no evidence that specific charge had bean levelled against him and he was called upon to meet those charge. The course of natural justice was also violated in not affording an opportunity to the plaintiff to look in to the copies of documents and records.

It has further been argued before us that in the second notice there was no reference to any consistently bad records of his since the year 1949. But, in Para. 2 of the discharge order (Ex. 2), it was pointed out that

in view of the fact that Jha behaved in a most irresponsible and unscrupulous manure with scant regard for procedure, moral standards or standards of official conduct while posted at Madhubani and in view of his consistently bad record of service since 1949, Government have been pleased to order that Jha should be discharged from service.

It has, therefore, been rightly argued that the plaintiff was not given any opportunity to meet the adverse remarks made in the service book since 1949. Evidently the order of discharge was also based on a new ground to meet which no opportunity was afforded to the plaintiff and it cannot be envisaged at this stage as to what part it played in making the Government decide to discharge the plaintiff. In the case of State of Mysore v. K. Manche Gowda AIR 1964 SC 606 it was held that, nothing In law prevented the punishing authority from taking the previous record of the Government servant into consideration during the second stage of the enquiry even though such previous record was not the subject-matter of the charge at the first stage, for essentially it related more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same. Their lordships further expressed the view that it would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by Government in inflicting punishment on him. What the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. If the fact of his bad record is made known to him In the second notice, he may have many explanations to offer. The point is not whether his explanation would be acceptable, bat whether he has been gives an opportunity to give his explanation. In a recent case of a Division Bench of this very Court, Kesho Rai v. State of Bihar 1966 BL JR 732 the abovementioned case of the Supreme Court was followed, and it was memtoned that when the previous record of a public servant is taken into consideration while passing an order of punishment, he ought to be expressly informed about it in the second notice. Failure to provide such an opportunity vitiates the entire departmental proceeding against the public servant as it contravenes Article 311(2) of the Constitution.

So, in the present case, I find that rules of natural justice had been violated and the plaintiff was not served with a copy of the charge framed against him. In other words, he was not given the first notices as contemplated by Article 311(2) of the Constitution. The order of discharge, therefore, cannot be sustained and in such circumstances the judgment of the learned Additional Subordinate Judge must be affirmed.

In the result, this appeal fails and is dismissed with costs.

A.B.N. Sinha, J.

I agree.