G P OAK Vs. STATE OF BOMBAY

JUDGEMENT

(1.) IT was also urged by Mr. Bhabha that the petitioner as a temporary employee of the State cannot challenge the order of dismissal on the plea that it violated the constitutional protection granted to civil servants under Article 311 of the Constitution, it being open to the State Government or to an officer competent in that behalf to dismiss the petitioner from service having regard to the precarious nature of the tenure of his employment. According to Mr. Bhabha, Article 311 of the Constitution confers a protection only upon civil servants who are permanently employed in certain posts and a temporary servant cannot claim protection of Article 311 against dismissal or discharge from service. We are not impressed by that argument. Article 310 of the Constitution provides that every member of a civil service of the Union or of an all-India service or who holds any civil post under the Union holds office during the pleasure of the President and every person who is a member of a civil service of a State or who holds any civil post under a State holds office during the pleasure of the Governor of the State. By clause (2) of Article 311 it is provided that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Articles 310 and 311 do not appear to make a distinction between civil servants who are permanently employed and those who are temporarily employed. The expression "no person" in Clause (1) of Article 311, in our Judgment, includes all civil servants, whether they have been appointed temporarily as members of a civil service or as permanent employees : and there is nothing implicit In the context of Article 311 or in "its content which supports the plea that protection is conferred only upon persons who have been permanently appointed to a post in the civil service of the Union or of the State.

(2.) IN the view we are taking we are supported by the observations made in a judgment of this Court, Shrinivas Ganesh Chandorkar v. Union of India, 58 Bom LR 673 : ( (S) AIR 1956 Bom 455) (A ). In that case the plaintiff. Who was a temporary employee of the Military Accounts Department, was discharged from service on the ground that ho was declared medically unfit for further service. The plaintiff then filed a suit challenging the order and he invoked the provisions of S. 240 (3) of the Government of India Act, 1935; and contended that he was dismissed from service without any reasonable opportunity being given to him to show cause against the charge that he was permanently incapacitated. It was held by this Court that the order was not an order of dismissal or removal from service and, therefore, the plaintiff could not contend that he was entitled to the rights given to an employee under Section 240 (3) of the Government of India Act. It was observed in that case that "it is only in cases falling within Article 311 or Section 240 (3) that the Government as an employer is bound to conform to certain rules of natural justice indicated in that article and that section. But if the case does not fall either within the ambit of Article 311 or Section 240 (3), then the relationship of master and servant is governed by the rules if there are any which would constitute the contract of employment, or it would be governed by the Common law if the rules do not provide for the employment of the particular person. " At p. 676 (of Bom LR): (at p. 58 of A I R) of the report, the learned Chief Justice, in dealing with the contention that a temporary employee of the Government was entitled to the benefit of the guarantee under Section 240 (3) of the Government of India Act, observed : "therefore, in order to succeed, Mr. Vakharia must satisfy us that the Union of India, which is the employer in this case, acted in such a manner that its action came within the ambit, of Section 240 (3) of the Government of India Act. In other words, its action was tantamount to dismissing or removing the plaintiff from service. If Mr. Vakharia satisfies us on that count, then undoubtedly if reasonable opportunity has not been afforded to the plaintiff, the plaintiff would be entitled to succeed. " it is evident from these observations that the Court took the view that even in respect of temporary employee if an order of dismissal or removal from service is passed, the employee is entitled to claim the benefit of Article 311 of the Constitution : and if no reasonable opportunity is afforded to him to show cause against the proposed action, the dismissal or removal from service wilt be regarded as ineffective.

(3.) MR. Bhabha on behalf of the State con-tended that the observations made by the Court in Shrinivas Ganesh's case (A) are mere dicta and are not binding upon this Court. Mr. Bhabha invited our attention to certain unreported judgments delivered by Mr. Justice Tendolkar in which it was opined that the observations set out by us are mere dicta and that the true rule applicable to temporary employees of a Government department is that they are liable to be dismissed or discharged from service without being afforded an opportunity of showing cause against the action proposed to be taken against them. Now the order passed against the plaintiff in Shrinivas Ganesh's case was one of discharge from service: it was not in terms an order of dismissal or removal from service, nor was it an order terminating the employment of the plaintiff. The Court on the Interpretation of the order held that the order was one merely terminating employment and did not fall within Section 240 (3), of the Government of India Act, 1935. If the order was one of dismissal or removal from service, the provisions of Article 311 of the Constitution and Section 240 (3) of the Government of India Act were, it was observed, attracted and the plaintiff was entitled to the benefit of an enquiry and of being afforded an opportunity of showing cause against the action proposed to be taken against him. Even assuming that these observations were not strictly necessary for the decision, we may respectfully state that these observations correctly state the true rule applicable to termination of employment of temporary employees. Articles 310 and 311 of the Constitution do not make any distinction between members of a civil service who are permanently employed in certain posts and those who are temporarily employed. When an employee of the State or the Union is dismissed or removed from service or reduced in rank, the order necessarily involves some stigma and the Constitution Has provided that before that stigma attaches to the employee he must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The plea that a temporary employee may not be given that opportunity of showing cause and a permanent employee alone may be given that opportunity is not sought to be sustained on any rational principle. A temporary civil servant has also some expectation of being continued in his employment and so long as his employment continues he must in our judgment, have the same rights and privileges as the civil servants holding permanent posts have. It is always open to the State Government or the Union Government to terminate the employment of a civil servant and a bona fide termination of employment does not attract the operation of Article 311 of the Constitution. It is only when an order of dismissal, removal or reduction in rank is passed that the civil servant can claim an opportunity of showing cause.