CAPTAIN R S SAXENA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This writ petition is filed by Captain R.S. Saxena against the State of Gujarat which is respondent No. 1 and Shri G. L. Sheth Secretary to the Government of Gujarat Public Works Department who is respondent No. 2. The petition is under Articles 226 and 227 of the Constitution of India read with Article 311 clause (2) of the same. By this petition petitioner impugns an order dated 24th of November 1961 which terminated his service with immediate effect. after granting him an amount equal to one months pay and allowances from the date of his relief upto 31st December 1961 in lieu of notice.

(2.) The facts leading up to the petition are as follows:-Petitioner was selected by the Public Service Commission Gujarat as a candidate for appointment as one of the two Port Officers Class 1 in the grade of Rs. 800-40-1 200 plus special pay of Rs. 150.00plus usual allowances. On 24th of July 1961 petitioner was appointed in the Ports Organisation against a permanent and pensionable post as Port Officer Class I on probation for two years in the aforesaid scale of pay and allowances. Petitioner was however given two advance increments and his initial pay was fixed at Rs. 880/per month. The terms of appointment of petitioner were stated in the Resolution No. APP 5961-.E dated 24 of July 1961. By the same resolution one Captain E. Gopalan was also appointed in the same service. Clause 5 of the aforesaid resolution which was applicable to both the aforesaid servants reads as follows:-- The service of the candidates is terminable by giving usual notice in case of unsatisfactory work during part or whole of the probation period. The question of confirmation of the two officers as Port Officers will be decided in the light of the report submitted by the Director of Ports on their work. In case of unfavourable reports Government will issue such orders as may be deemed necessary on the merits of each case. Petitioner took charge of the above post on 26th of July 1961. On 22 of November 1961 petitioner received a telegram from the second respondent that he was required to see him at Ahmedabad on 24th of November 1961. Thereupon petitioner arrived at Ahmedabad on 24th of November 1961 bringing with him certain files. Petitioner on that day was directed to see the second respondent at his residence. Petitioner and the second respondent met on that day. Respondent No. 2 asked petitioner if he was prepared to resign his post. Petitioner asked the reasons as to why he was expected to resign. Respondent No. 2 refused to give him any reasons. Respondent No. 2 also further told petitioner that the Government had already decided to terminate the services of petitioner and that if he did not resign his post the Government would give effect to its aforesaid decision. Petitioner thereupon asked for time to consider his position. Respondent No. 2 gave him two hours time. Petitioner then rang up respondent No. 2 and asked for extension of time on the ground that the time was too short for him to take a decision which involved his future career. The time was refused. Petitioner intended to see the Minister in charge of the portfolio relating to Port Organisation but he was unable to see him on 24th November 1961 as the Minister was out of Ahmedabad. Petitioner saw the Minister on 25 of November 1961 and showed him the files which he had brought with him specially in regard to the complaints which he had made against one Virkar who was then his subordinate and who formerly held charge of the Port Officer. The Minister thereupon asked petitioner as to why he had not shown that file to respondent No. 2. Petitioner told the Minister that he was not given any opportunity to show the files to the second respondent and that instead he had been straightway asked to resign. The Minister thereupon asked Petitioner to go back to Bhavnagar but said that he would speak to the second respondent and that petitioner should await further instructions in the matter. Petitioner reached Bhavnagar on the 26th of November 1961. On reaching there he read a report in the local newspapers that his services had been terminated Thereupon petitioner came back to Ahmedabad on the 27th of November 1961. The second respondent was on leave on that day. Therefore petitioner called upon one Mr. Bhatt who was in charge of the office of the Secretaryship Public Works Department. The latter told petitioner that the second respondent had already passed an order terminating petitioners services giving him one months pay in lieu of notice and directing him to hand over charge to Virkar. Petitioner handed over charge to Virkar and thereafter presented the present petition in this Court. In this petition petitioner prays for the issuance of a writ of or in the nature of certiorari or mandamus or any other appropriate writ direction or order for quashing or setting aside the order of the second respondent dated 24th of November 1961 purporting to terminate his services as a Port officer and prays for a declaration that petitioner continues to hold the post of Port officer at Bhavnagar.

(3.) Shortly the case of the respondents is that petitioner was holding his post on probation and that he has neither been dismissed nor removed within the meaning of Article 311(2) of the Constitution. According to them the services of petitioner were terminated under the contract of employment as the Government after review of the work done by the petitioner till then took the decision that the services of petitioner were not necessary to be continued. Therefore according to the respondents this is a case of termination of service pure and simple and it is not a case of either dismissal or removal of petitioner.