D R MENON Vs. DIRECTOR OF HARIJAN WELFARE

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for the quashing of an order of removal for misconduct passed by the opposite party No. 1 against the applicant.

(2.) The applicant was admittedly in the temporary service of the State of Uttar Pradesh as Senior Electrical Inspector at Government Technical Centre, Bakshi-Ka-Talab, Lucknow. It appears that one Sri Hasan Zaffar was the Superintendent of the State Government Technical Centre in November, 1953. A loan of Rs. 25/- is said to have been taken by Sri Zaffar from the applicant and in connection with the demand for this amount it was alleged that the applicant had misbehaved with Sri Hasan Zaffar. A report was lodged to the authorities and a notice was given to the applicant to show cause why his services should no be terminated. He was suspended with immediate effect for gross misconduct and for assaulting Sri Hasan Zaffar. The applicant was required to submit his explanation to the Superintendent of the Centre. In the same order it was mentioned that the applicant was to draw subsistence allowance at 1/4th of his pay during the period of suspension. The applicant submitted his explanation which did not appeal to the officer conducting the enquiry and he reported for the termination of the services of the applicant. Thereupon the Director of Harijan Welfare. Uttar Pradesh, opposite party No. 1, considered the allegations made against the applicant and the explanation submitted by him as also the report of the Superintendent. He came to the conclusion that the applicant was guilty of gross misconduct and he was ordered to be removed from service with effect from 1st of September, 1955, This order was passed on the 13th September, 1955, and the order of removal was to take effect retrospectively. The applicant then moved the petition for writ which is before us.

(3.) The learned counsel for the applicant has urged that in a case in which action is taken for misconduct and a person is moved after enquiry under the Disciplinary Rules the provisions of Article 311 Of the Constitution are attracted even though the service of the servant may be terminable under the contract of service by one month's notice on either side. The question as to whether Article 311 is attracted in such cases has been the subject of discussion in a number of reported cases of the various High Courts. The first case relied upon by the learned counsel for the applicant is Kamta Charan Srivastava v. Postmaster-General, Bihar, (S) AIR 1955 Pat 381 (A). In this reported case a temporary employee of postal department was served with a notice discharging him from the service on the expiry of the period of one calendar month from that date. There was, it appears, in the rules a clause which empowered the appointing authority to dispense with the services of a temporary employee after giving him a month's notice The conduct of the applicant in this reported case was made the subject of enquiry and certain findings were arrived at and these findings were incorporated in the notice but it was clearly mentioned that the applicant in that case was to be discharged from the department on the expiry of one month from that day. The discharge on the face of it under the. notice served upon the applicant in that case was under the rules which enjoined a notice of one month. Das C. J., as he then was, and Imam J. observed that the courts should look to the substance of the matter and not only to the form and if it appears that a servant though he maybe a temporary servant, liable to be discharged on a month's notice, is charged with misconducts ana if disciplinary proceedings are taken against him, lie will be entitled to the protection of Article 311 of the Constitution of India and if the provisions of Article 311 have not been observed the order of termination will not be a good and valid order. In a Bombay case, Shrinivas Ganesh v. Union of India, (S) AIR 1956 Bom 455 (B), Chagla C. J. and Dixit J. also have taken more or less the same view and have drawn a distinction between an order of removal on the basis of misconduct and a discharge simpliciter under the terms of a contract. A master or an employer, in the very nature of the relationship of a master and servant has the right to dismiss an employer on account of misconduct or indiscipline even though it may not be a term expressed in the terms of contract under which the servant is employed. Apart from this general right of an employer, the parties, namely, the master and servant, may enter into a contract by means of which the two may agree to have the service terminated on a month's notice on either side, and although the master may have no good reason to do away with the services of his employee. It is open to him under the terms of the contract to terminate the services of the employee, after giving him a month's notice. If, however, the servant happens to be a servant of the State of the Union his rights have been safeguarded by the Constitution. If, therefore, the State or the Union of India proposes to do away with the services of a servant or the Government on account of misconduct certain well defined procedure indicated in the Constitution has to be followed. No Government servant can be dismissed, discharged or removed from service unless opportunity has been given to him to show cause against such dismissal, discharge or removal. This provision of the Constitution is applicable to temporary Government servants also. If the Government, therefore, chooses to dismiss, discharge or remove a temporary Government servant under its rules of disciplinary action it will be bound to adopt the procedure laid down by the Constitution and by the rules framed in connection therewith. If, however, the Government does not choose to dismiss, discharge or re move a servant for misconduct but chooses to take advantage of the terms of the contract it is open to the Government to do away with the services of the servant under the terms of the contract. Such a termination will not amount to discharge or removal but wpuld be a termination of the service simpliciter.