V.P. Rehabar vs The Punjab State

Shamsher Bahadur, J.—The petitioner V.P. Rehbar has challenged the order passed by the respondent State of Punjab through its Financial Commissioner on 1st of July. 1963, terminating his services as a Block Development and Panchayat Officer, Bhunga. on the ground that these were ''''no longer required". In his petition under Articles 226 and 227 of the Constitution of India, the petitioner has made a mention of his sacrifices as political sufferer in the cause of struggle for independence of the country and to the improvement which he made in his qualifications after the partition. The petitioner was appointed a Block Development and Panchayat Officer in the scale of Rs. 250-25 350/2.-500 by the order of the Punjab Government of 21st of September, 1961. The post of Block Development and Panchayat Officer, though temporary, was "likely to continue" in terms of the appointment order and the period of probation was to be two years provided the post continued to exist. It was also a term in his appointment order, which is Annexure ''A'' that the services "could be terminated without notice if administrative exigencies so dictate". In other respects the Punjab Civil Services Rules were made applicable to the post to which the petitioner was appointed.

On 17th of February, 1962, the petitioner, when he was posted as Block Development and Panchayat Officer, Lehra Gagga, addressed letter directly to the Director-General, National Employment Exchanges, New Delhi, in which he made certain complaints about the departmental matters and also suggested improvements to ameliorate the lot of those who were unemployed. This is Annexure ''B''. On 7th of May, 1962, the Director, National Employment Exchange Punjab, at Ambal wrote to the Secretary, Punjab Government, in the Labour and Employment Departments (Annexure ''C'') that the petitioner had addressed a fetter directly to the Government of India on a matter concerning the Employment Exchanges. The petitioner was further stated to have addressed a public meeting of Panches and Sarpanches at Nilokkeri in which Employment Exchanges were described as "institutions of unemployment" created with the object of showing "work-load". The petitioner is said to have crticised not only the Department of Employment Exchanges but his own.

In this letter, it was suggested to the Punjab Government that the "officer concerned should be asked to explain his action in criticising his own department which he asserted was doing bogus work and also and her department of the Government'' and also to explain why he had addressed directly to the Government of India. A letter (Annexure ''D'') was sent on 30th of June, 1962, from the Secretary to the Punjab Government to the Deputy Secretary and the action of the petitioner as Block Development and Panchayat Officer in addressing directly to the Government of India ignoring the prescribed channel of correspondence was stated to be ''objectionable". The Deputy Secretary was asked to administer a warning to this officer and to ensure that such a thing did not happen in future. A copy of this letter was sent by the Deputy Secretary to the petitioner for an explanation and to show cause why disciplinary action should not be taken against him as provided under the rules. Reference may also be made a letter of 17-4-1963 addressed by the Financial Commissioner, Development, to the petitioner when he was Executive Officer. Panchayat Samiti, Hoshiarpur (Annexure ''1'') in which the language used by the petitioner is his letter to the Assistant Accounts Officer, Simla, was described to be "offensive" and he was required to submit an explanation for the use of such language within 15 days. The petitioner has complained about the behaviour meted out towards him by the Financial Commissioner Shri Fletcher and the Minister Shri Darbara Singh in a meeting held in the Zila Parishad Hall at Hoshiarpur. on 23rd of may, 1963. According to the return of the respondent Punjab Government, the Minister (Shri Darbara Sing) never insulated the petitioner. All that happened according to this return was that in reply to certain questions put by the Minister, the petitioner gave answers which were described to be ''foolish'' revealing that he did not have ''the requisite knowledge of his work and responsibilities."

Without assigning any cause the order of termination of services was passed under the signatures of Shri Fletcher on 1st of July, 1963 (Annexure ''J'') and the ground stated was that the services of the petitioner were "no longer required."

In a very earnest argument addressed by Mr. Hoshiarpuri. the learned counsel for the petitioner, it has been urged that the order of termination of services, though it purports to be a simple order of discharge, has, in the context of events, to be construed as an order imposing a publishment and a stigma being attached to the order of termination of services a notice was required under the provisions of Article 3 1 of the Constitution. Mr. Hoshiarpuri further submits the rule 9 of the Civil Services (Punishment and Appeal) Rules, 952, which are found in Appendix 2:4 of the Punjab Civil Services Rules, Volume 1, Part II, lays down that :

Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of the unsatisfactory record or unfavourable reports implying the unsuitability for the service, the probationer shall be apprised of the grounds of such proposal, and given an opportunity to show cause against it. before orders are passed by the authority competent to terminate the appointment.

It is also to be observed that rule 10 gives a right of appeal to every person to whom these rules are applicable against the order terminating his appointment under rule 9. Admittedly, no appeal was ever preferred and the petitioner has come direct to this court in writ proceedings to question the validity of the order terminating his services.

On behalf of the respondent-State, it is submitted in the written statement that the action against the petitioner has been taken in accordance with the terms contained in the appointment letter and not as a measure of punishment. It is denied that the petitioner was ever given a charge-sheet or that the matters mentioned in the petition have been taken account of in passing the order complained of. The contents of Annexures "B'' ''C'', ''D'' and ''E'' are not denied though the inference drawn there from that the action of the Government was animated by mala fides is strongly controverted.

Before dealing with the legal position the facts as they emanate from the pleas and the documents field with the pleadings may be reitrated. The petitioner was appointed a Block Development and Panchayat Officer on a purely temporary basis. His services were liable to be terminated without notice though he had to undergo a period of probation for two years. The petitioner did have some brushes with the Government as he addressed a public meeting where he ventilated his own view and criticised Government departments and also wrote directly to the Government of India without resort to the recognised channels. The petitioner was asked to explain his conduct which was described as objectionable and was also given warning by the Government through the Deputy Secretary to ensure that he did not resort to such methods again. An explanation was also called for about the letter which he wrote to the Assistant Accounts Officer, Simla. There is nothing on record, however, to suggest that any enquiry was ever held or any other action was taken against the Petitioner beyond the order of termination of his services passed on (sic)st of July 1963 for the reason that his services were no longer required.

The question to determined is whether the facts established in this case justify the issuance of the writ as asked for by the petitioner Mr. Hoshiarpuri has placed great reliance on a Supreme Court decision in Jagdish Mitter v. The Union of India A.I. R. 1959 S.C. 449. In this judgment it was made clear by Chief Justice Gajendragadkar that:

Every or terminating the services of a public servant who is either a temporary servant, or a probationer, wilt 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.... 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... The appropriate authority possesses two powers to terminate the services of a temporary public servant; it can either discharge him purporting to exercise its power under the terms of contract or the relevant rule, and in that case, it would be a straightforward and direct case of discharge and nothing more; in such a case, 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 a straightforward way in such a case, Article 311 apply.

The authority concerned may, however inform itself by an appropriate enquiry about the suitability of a person who has been discharged and "there is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not." It was further observed 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."

I do not think that principles enunciated in this authority can be found to support the contention of Mr. Hoshiarpuri that some kind of enquiry having been held about the petitioner and his removal having been decided upon as a result thereof, the element of punishment has to be a deduced. There was no enquiry and prima facie the order of removal does not refer to any defect or misconduct on the part of the petitioner. Some of the other authorities on which reliance has been placed by Mr. Hoshiarpuri have been fully discussed and experienced in an unreported decision of the Supreme Court in Champaklal Chimanlal Shah v. The Union of India C.A. No. 472 of 1962, Civil Appeal No. 472 of 1962, decided on 23rd of October, 1963. The relvant observations are to be found at page 8 of the "blue print" judgment where protection of Article 311 in the case of temporary Government servant is discussed. In the words of Mr. Justice Wanchoo, the protection of Article 311(2) is only available to temporaey Government servants where "discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise... even though misconduct, negligence, inefficiency or otherwise disqualification may be the motive or the including factor which influences the Government to take action under the terms of the contract of employment or the specific service, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant." His Lordship referred to a preliminary enquiry which is generally held to determine where a prima facie case for a formal departmental enquiry is made out, and observed that "It is very necessary that the two should not be confused." Said Mr. Justice Wanchoo at page 10.

Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispence with the services of a temporary employee or to revert him to his substantive post... Such a preliminary enquiry may even be held ex-parte, for it is merely for the satisfaction of government through usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry... There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indication in Article 311 that the Government servant is entitled to the protection of that Article. That is why this Court emphasised in Parshotam Lal Dhingra Vs. Union of India (UOI), and in Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), that the motive or inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant.

Later it was observed at page 11 that:

The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule would not mean that the termination of service amounted to infliction of punishment or dismissal or removal within the meaning of Article 311 (2). Whether such termination would amount to dismissal or removal within the meaning of Article 3 (2) would depend upon facts of each case and the action taken by the government which finally leads to the termination of service.

In discussing cases on which Mr. Hoshiarpuri has relied, Mr. Justice Wanchoo at page 13 discussed first of all the case of Madan Gopal Vs. State of Punjab, In that case, charges were actually served upon Madan Gopal who was temporary servant. The distinguishing feature in the instant case is that no charge was ever framed against the defaulting petitioner. In Madan Gopal Vs. State of Punjab, case, an explanation was asked why disciplinary action should not be taken against him and in reply the official wanted to he given a personal hearing. This, in Mr. Justice Wanchoo''s view, amounted to the holding of a departmental enquiry and actually the action was taken by the Deputy Commissioner on the report submitted to him by the Enquiry Officer. It was, therefore, held in Madan Gopal Vs. State of Punjab, case that though the order impungned mentioned only termination of services, the order virtually amounted to dismissal and the provisions of the Article 3 (2) were made applicable.

Mr. Hoshiarpuri also relied on the Supreme Court case of the Stale of Bihar v. Gopi Kishore Prasad -00. The proposition stated therein is to this effect:

But instead of terminating such a person''s service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of Article 311(2) of the Constitution.

Mr. Justice Wanchoo in elaborating this proposition, made it clear that not every enquiry held about the conduct of a probationer or a temporary servant would entitle him to the protection of Article 311. It is only when the Government chooses to held an enquiry purporting to act under Article 311, as was done in the case of The State of Bihar Vs. Gopi Kishore Prasad, case that it would afford the Government servant protection which the Article envisages. This was also clarified in the case of State of Orisa v. Ram Narayan Das (1961) I. S.C.R.606, and it was observed that in The State of Bihar Vs. Gopi Kishore Prasad, case the enquiry referred to, was actually'''' an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not an enquiry whether a probationer should be confirmed." In effect, therefore, the provisions of Article 311 would be attracted only if Government purports to hold an enquiry under this Article read with the Rules in order to punish an officer, and the pro The State of Bihar Vs. Gopi Kishore Prasad, case must be read in this context. In the present instance even if the correspondence referred to coupled with the explanation called for imply some sort of enquiry, it has not been found to have been made with the object of punishing the petitioner and there is nothing to convert the assertion made by the respondent State that the Government intended to discharge the petitioner in accordance with the terms of the appointment letter.

Lastly, it may be mentioned that rule 9 of the Punjab Civil, Services (Punishment and Appeal) Rules, to which reference has been made earlier, refers to the case of a probationer who is defined in rule 2.49 of the Punjab Civil Services Rules, Volume I Part I, to mean "a Government servant employed on probation in or against a substantive vacancy in the cadre of a department". This clearly the petitioner was not, being a tempo any Government servant. There is a difference between a "probationer" and a "person on probation". The probationer is one appointed in or against a post substantively vacant with definite conditions of probation, while the ''''person on probation" is one appointed to a post (not necessarily vacant substantively) for determining his fitness for eventual substantive appointment to that post. It is in the latter sense that the petitioner was appointed on probation for two years and the Government was free to make up its mind whether it would retain the services of the petitioner after the expiry of the period. It is in the exercise of that power that the Government decided to dispense with the services of the petitioner on 1st of July, 1963.

This petition must therefore, fail and is accordingly dismissed. There would be no order as to costs.