PRAKASH OJHA Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition under Art. 226 of the Constitution, arises out of a service matter.

(2.) The petitioner Sriprakash Ojha was appointed as a Rakshak (Railway Protection Force) on Jan. 10. 1967 and was placed on probation for a period of two years. He received a notice (Annexure 1), dated Sept. 12, 1968 intimating that although a particular residential quarter had been allotted to Rakshak Surendra Singh, the latter had delivered possession over it to the petitioner in June, 1968 and although the petitioner was required to vacate it, he had failed to do so and continued his unauthorised possession which rendered his conduct unsatisfactory. It further mentioned that taking in view the above lapse on his part, it was considered that his further retention in service was not in the interest of the department and as such it was proposed to terminate his probation under Rule 25 (ii), Railway Protection Force, Rules, 1959. Before, however the proposed action was taken, the petitioner was allowed seven days' time from the date of the receipt of the notice to make any representation against the proposed action. The petitioner received the notice on Sept. 17, 1968 and on that very date, he submitted his reply (Annexure 2). The Circle Inspector was appointed as an Inquiry Officer, and as a result of that inquiry, the Assistant Security Officer, Opposite party No. 2, passed an order (Annexure 3) on November 19, 1968 imposing the penalty of discharge from service with effect from that date. A copy of the order sheet was made an enclosure to Annexure 3. The petitioner submitted an appeal to the Security Officer but the appeal was dismissed on Dec. 20, 1968. The appellate order was communicated by the Assistant Security Officer to the petitioner, vide Annexure 4, on Dec. 23, 1968. The petitioner then instituted the writ petition on March 17, 1969 praying for the issue of a writ of certiorari quashing the Assistant Security Officer's order discharging him from service and the Security Officer's order dismissing his appeal and for a writ of mandamus commanding the Union of India and the Assistant Security Officer, opposite parties Nos. 1 and 2, to treat the petitioner as still in service. It is rather surprising that even though there is the prayer for the quashing of the Security Officer's order, he has not been impleaded as an opposite party.

(3.) The contention of the learned counsel for the petitioner is that the two orders cast a stigma and, therefore, amount to punishment. His further contention is that the impugned orders have imposed (as ) a punishment and even though they are camouflaged as innocuous orders of discharge, they are, in fact and reality, orders of dismissal or removal from service and these orders could not have been passed without compliance with the provisions contained in Art. 311 (2) of the Constitution and since no second show cause notice was ever issued, therefore, these unconstitutional orders require to be quashed.