Ved Parkash Vohra vs The State of Punjab

Shamsher Bahadur, J.—This petition under Article 226 of the Constitution of India is directed against the order passed on 21st December, 1962 terminating the services of the petitioner Ved Parkash Vohra with immediate effect.

The petitioner after having passed his B.Sc. (Civil Engineering) Examination in 1960 joined service of the Punjab Government as a Sub-Divisional Officer his selection having been approved by the Punjab Public jService Commission. His appointment letter is annexure ''A'' and was issued by the Secretary to the Punjab Government on the 27th of April, 1961. The appointment of the petitioner was made as a temporary Engineer and his services under paragraph 2 of this letter could have been terminated under the regulations governing the service. According to one of these regulations embodied in annexure R-2, his service was terminable "by 3 months'' notice by the Government of the Punjab."

The petitioner had hardly put in 11 months'' service when he was taken under arre3t on the 24th of June, 1962 for having accepted a bribe of Rs. 100/-. From that date the petitioner was also placed under suspension. He remained in police custody till 13th July, 1962 and thereafter he was attached as a Personal Assistant to the Director at Amritsar during his suspension period. The period, of suspension continued till the 21st of December, 1962 when his services were terminated "with immediate effect". Subsequently the petitioner was brought to trial u/s 5 of the Prevention of Corruption Act and he was acquired by the order of the Special Judge, Ambala, on the 24th of October, 1963. From a perusal of the judgment of the learned Special Judge it appears that the Court in passing the order of acquittal was influenced by the plea taken by the petitioner that the case was brought against him at the instance of Ghanisham Das of Dehota Co-operative Labour and Construction Society as he had recorded in the measurement book that the excavation done by these contractors had been shown to be in excess of the work actually done. According to the petitioner, the contractors feeling aggrieved had trumped up a false case against him out of spite.

The case of the petitioner is that though the order terminating his services was in accordance with the terms of the contract, in effect and substance, the order of discharge amounted to dismissal as it was brought about as a result of the criminal prosecution which was launched against him. It is well settled now that if the order of termination of service is a simple order of discharge in terms of the contract of service, the provisions of Article 311 of the Constitution are not attracted. If on the other hand the order even though it purports to be one of discharge is in fact an order which results in penal consequences, notice would be required under the provisions of Article 311 of the Constitution. In Jagdish Mitter Vs. The Union of India (UOI), Chief Justice Gajendragadkar speaking for the Court observed that

every order terminating the services of a public servant, who is either a temporary servant, or a probationer, will not amount to dismissal or removal from service within the meaning of Article 311. It is only when the termination of the public servant''s services can be shown to have been ordered by way of punishment that it can be characterised either as dismissal or removal from service.

It is also well settled, as observed by the learned Chief Justice, that

the protection of Article 311 can be invoked not only by permanent public servants, but also by public servants who are employed as temporary servants, or probationers and so, if a temporary public servant, or probationer served with an order by which his services are terminated, and the order unambiguously indicates that the said termination is the result of punishment sought to be imposed on him, he can legitimately invoke the protection of Article 311 and challenge the validity of the said termination on the ground that the mandatory provisions of Article 311(2) have not been complied with.

It is farther observed in this judgment of the Supreme Court, that "the motive operating in the mind of the authority in terminating the services of a temporary servant does not alter the character of the termination and is not material in determining the said character." The substance of the order has still to be looked into. It was elucidated by a Division Bench of Miabhoy and J.B. Mehta JJ. in Captain R.S. Saxena Vs. State of Gujarat and Another, , that the Court is not confined only to the contents of the order of discharge but in order to discover as to what the mind of the Government was at the time when the order of discharge was passed, it has to consider the "totality of the circumstances relevant on the subject which would disclose as to what the true position was." In the words of Miabhoy J. who delivered the judgment of the Court, the Constitutional guarantee enshrined in Article 311, clause (2), is a vital guarantee and is intended to afford protection to the class of Government servants from the arbitrary and capricious action of the Government, and to see that the Government was acting in the exercise of its contractual right and not for the purpose of punishing the Government servant concerned for misconduct or for similar other reasons. It is, therefore, both necessary and pertinent to look into the circumstances under which the order of discharge was passed. After the petitioner was placed under suspension and order (Annexure ''C'') was passed by the Government of Punjab through the Secretary to Government, Punjab, Irrigation and Power Departments, that Shri V.P. Vohra, temporary Engineer (under suspension), would be entitled to get subsistence allowance during the first twelve months of suspension at an amount equal to the leave salary and dearness allowance which he would have drawn if he had been on leave on half average pay or on half pay". What happened between the passing of this order sometime in August, 1962 and the order of discharge of the 21st of December, 1962 has not been fully disclosed by the Government. The petitioner asked for the relevant files in connection with the order of removal passed against him and a plea of privilege has been claimed, in respect of them. The learned Deputy Advocate General, however, has produced the relevant files in compliance with the order passed by me on the last date of hearing and it appears from the noting that the opinion in the department was divided about the propriety of terminating the services of the petitioner. There is even an observation of the Minister that the Government should wait for the decision of the Criminal Court before passing any order. There can be no manner of doubt that the order of the petitioner''s termination was passed in consequence of the criminal charge which was yet to be determined in a Court of law u/s 5 of the Prevention of Corruption Act.

Some guidance is to be obtained from the observation of their Lordships of the Supreme Court in The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, . It was observed that "very often employers stay enquiries into the misconduct of the employees pending the decision of the criminal trial Courts dealing with the same facts and that is fair, but it cannot be said that principles of natural justice require that an employer must wait for the decision, at least of the criminal trial Court, before taking action against an employee. However, if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced."

It would hare been better if the Government had awaited the decision of the Criminal Court in the charge brought up against the petitioner u/s 5 of the Prevention of Corruption Act. The order of acquittal passed by the Special Judge is not because of any technical ground or some benefit of doubt being accorded to the petitioner but is based on the failure of the prosecution to have established the charge against him.

In these circumstances I feel bound to say that the order of the petitioner''s termination of services in the context of events was by way of punishment. It may further be observed that Annexure ''B'', to which reference has been made, is indicative of this that the order of suspension, which was followed by the order of removal, was by way of punishment. The petitioner was to be paid during the period of suspension subsistence allowance, which was equivalent to about half the pay to which he was entitled, and the reason for this punishing measure was no other but the criminal prosecution which had yet to be launched. In a Division Bench case of Madras High Court consisting of Chief Justice Ramachandra Iyer and Anantanarayahan, J. (Union of India v. T.L. Dakshinamurty 5), it was held that an order passed to withhold half the salary was by way of punishment and contravened Article 311 of the Constitution. The order embodied in Annexure ''B'' has to be read in conjunction with the subsequent events and looking at the matter in its totality it seems impossible to escape the conclusion that the respondent State had passed the order of removal by way of punishment. A cloud had been raised against the petitioner and it subsequently came to be lifted by the order of acquittal passed by the Special Judge on the 24th of October 1963. The stigma resulting in termination of his services on account of criminal prosecution, however, still remains and fairness requires that it should be removed, there being nothing else against him but the criminal case which resulted in his acquittal. In this view of the matter this petition must be allowed and the impugned order set aside. The petitioner will get the costs of this petition.