INDRAKANT M PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner, who was recruited as a Mechanical Overseer temporarily and who was subsequently promoted as an officiating Deputy Engineer, has challenged certain orders passed by the Government of Gujarat against him in certain departmental proceedings initiated against the petitioner and the order of dismissal passed as a result of those departmental proceedings. The order, Annexure, "g" to the petition is dated August 2, 1966. By that order the petitioner was dismissed from service form the date of the Resolution i. e. from August 2, 1966; and it was declared that an amount of Rs. 636. 41 should be recovered from the petitioner, inasmuch as he was found to be negligent in the discharge of his duties as a result of which the Government suffered a loss of 5081. 28 P.

(2.) ON August 27, 1955, the petitioner was appointed as Mechanical Overseer on the establishment of Mahi Mechanical Division, Thasra. This appointment was made as a temporary measure until further orders and was terminable without notice to the petitioner. This appointment was on work charged establishment. Thereafter on August 16, 1958, the petitioner was promoted as officiating Deputy Engineer purely as a stop-gap local arrangement and was posted to Kadhna Mechanical Sub-Division. Kadana Colony Site. The petitioner continued to work as an Officiating Deputy Engineer and on August 26, 1963, he proceeded on leave. During the time that he was on leave he received a letter bearing no date but appearing to have been issued in September, 1963. This letter was from the Deputy Secretary to the Government of Gujarat, Public Works Department, which called upon him to show cause within 30 days from the date of the receipt of the letter why the proposed action of recovering 25% of the value of the contents of a box viz. Rs. 5081. 28, should not be taken against the petitioner and it was alleged in this letter of September, 1963. That the petitioner was negligent in the discharge of his duties hand that this negligence had resulted in the loss of Rs. 5081. 28 P. Sometime in December 1963, by his letter bearing no date, the petitioner tendered his resignation and he stated that this resignation should take effect from September 1, 1963, i. e. , the date of his proceedings on leave and in this letter of resignation he stated that he was required to give one month's notice if he intended to resign and he was, therefore, ready to pay one month's pay in lieu of one month's notice by Chalan in the nearest Government Treasury. At that time the petitioner was staying at Karamsad near Anand in Kaira District. In this in this letter of resignation, Annexure "d" to the petition, the petitioner also stated :-"i shall be highly obliged if my resignation is considered sympathetically and accepted as requested above. " In reply to this letter of resignation a memorandum was issued by the Deputy Secretary to the Government of Gujarat, Public Works Department; it was issued by order and in the name of the Governor of Gujarat. The memorandum was dated January 24, 1964 : and the petitioner was informed that his resignation was not accepted "at present" and it was directed that the petitioner should not be relieved from Government service. On September 7, 1964, a Departmental Enquiry was ordered against the petitioner and one B. P. Prasad regarding the alleged negligence of the petitioner and the said B. P. Prasad in connection with the loss aggregating to R. 5081. 28 P. alleged to have been caused to the Government by the petitioner and Prasad. The enquiry Officer submitted his report on December 7, 1964 and thereafter a show-cause notice was issued to the petitioner asking him to show cause why the proposed punishment of dismissal from Government service should not be passed. The Government came to the conclusion that the charges against the petitioner were established and after careful consideration of the report and the reply of the petitioner to the show-cause notice, the Government decided to dismiss the petitioner from Government service from the date of the resolution and to recover from him an amount equal to Rs. 636. 41 P. On these facts the petitioner has challenged the order dismissing him from service and directing that an amount of Rs. 636. 41 P. should be recovered from the petitioner.

(3.) MR. Daru, appearing on behalf of the petitioner, has contended that in the instant case, the petitioner has never been conformed in Government service and that all along he was a temporary Government servant and that under the terms of his letter of appointment, his appointment was a temporary measure until further orders and was terminable without notice to the petitioner. Mr. Daru has further contended that so far as Government service is concerned, the terms and conditions of a Government employee are directed more by law than by contract and in the light of the provisions of Art. 309 and Art. 311 of the Constitution, it is more a question of statues than a contract. In this connection, Mr. Daru relies upon certain observations of the Supreme Court in Joshan Lal v. Union of India A. I. R 1967 S. C. 1889. At page 1894 of the report, Ramaswami J. delivering the judgment of the Court has observed in para 6 :-