R K GUPTA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit for declaration that an order of termination dated November 19, 1963 passed against him was void. The plaintiff was a Bus Conductor. He was employed in 1959 and continued as a temporary hand with occasional breaks in his service. The plaintiff was found carrying certain passengers in a Bus without ticket by the Traffic Superintendent. A report was made against him. The Assistant General Manager, Roadways, examined his record of service and found that it was unsatisfactory and that there were general complaints of corruption against him. Since the appellant was only a temporary hand his services were terminated by the order dated November 19, 1963. The plaintiff appellant filed a suit, giving rise to this appeal, inter alia on the allegations that the order of termination was one of punishment and he had been dismissed from service, hence a show-cause notice under Article 311 of the Constitution was necessary before passing the impugned order. It was further urged that the appellant had been appointed by the General Manager and hence his termination by the Assistant General Manager was by an authority lower in rank than the appointing authority hence the order was bad on that scope as well. The defence delivered was that the plaintiff's services had been terminated by an innocuous order of termination and no punishment was involved therein. It was pleaded that the plaintiff's service record showed that his performance was unsatisfactory and that the services were terminated according to the service conditions as also under the rules governing the services of temporary Government servants, which enabled the Government to discharge a temporary employee by giving him one month's notice. The trial court decreed the suit on the finding that even though the plaintiff-appellant was a temporary hand the order terminating his services was passed by way of punishment on the report of the Traffic Superintendent; hence compliance to Article 311 of the Constitution was necessary. It was further found that he had been removed from service by an authority lower in rank than the appointing authority. On appeal by the State Government the decree was reversed and the plaintiff's suit dismissed. The lower appellate court found that the order of termination was an innocuous order casting no stigma on the appellant and was passed, not as an order of punishment but by way of simple discharge from service. It found that even though a report was made by the Traffic Superintendent the Assistant Manager made an overall assessment of the plaintiff's services in the Department and found that his retention in service was not needed. It held that even though the report might have constituted a motive in assessing the appellant's suitability in service it did not form the basis of the impugned order. It further found that the appellant had been appointed by the Assistant General Manager Roadways and he was the appointing authority of the appellant and not the General Manager: hence the termination order was valid in law. Aggrieved, the plaintiff has come up in appeal. Only one point was pressed in appeal, viz., that the impugned order of termination was in effect an order of dismissal and required to be preceded by a show-cause notice under Article 311 of the Constitution It was urged that since the report of the Traffic Superintendent led to the termination of the plaintiff's services the order was passed by way of punishment on the ground that the appellant had mis conducted himself. We find no force in the submission. It appears that on the termination of the plaintiff's services he made a representation to the General Manager complaining that he had been dismissed from service on a charge without a show-cause notice. The General Manager called for a report from the Assistant General Manager who had massed the impugned order. The Assistant General Manager in his report Ext. 34 informed the General Manager that the service of the plaintiff had been terminated on an overall assessment of his work and conduct. The report said 'Sri R.K. Gupta although in service from 1969 had an unsatisfartory record which will be evident to you from the record of his personal file which had already been sent along with his representation.' It may be that the report of the Traffic Superintendent led the Assistant General Manager to scrutinise the record of the appellant in order to find out whether his continuance in service was desirable and then the impugned order was passed. But it only furnished a motive and not the basis of the impugned order. In. State of U P. v. Ram Chandra Trivedi A.I.R. 1976 S.C. 2547 it was held that when there are no express words in the impugned order itself which throw a stigma on the Government servant the court would not delve into secretariat files to discover whether some kind of stipma could be inferred on such research. It was found in that case that the order was an order of termination and even though there was a charge against the temporary Government Servant that he had impersonated in an examination and his explanation in the preliminary inquiry was found unsatisfactory the order of termination passed against him was not an order of dismissal or removal from service. In Collector and District Magistrate, Varanasi v. Matru Ram 1975 A.L.R. 130, it was held that the mere fact that an impugned order of termination is preceded by a complaint does not necessarily make it an order of punishment. See also A. G. Benjamin v. Union of India 1967 L.L.J. 718 and Ram Gopal Chaturvedi v. State of Madhya Pradesh A.I.R. 1970 S.C. 158. The lower appellate court has found that the order was not passed by way of punishment and the report of the Traffic Superintendent even if it furnished a motive did not constitute the basis of the order. The appeal accordingly fails and is dismissed. But in the circumstances of the case I make no order as to costs.