LAWS(BOM)-1969-6-14

UNION OF INDIA Vs. GOPALKRISHNA K SALELKAR

Decided On June 25, 1969
UNION OF INDIA Appellant
V/S
Gopalkrishna K Salelkar Respondents

JUDGEMENT

(1.) This cause has been carefully instructed with affidavits by both counsel who have had the conduct of it, and has been argued at some length. It arises out of a decision given by my brother quashing the order passed by the petitioners terminating the services of the respondent. The petition now is for the certificates under Articles 132 and 133 of the Constitution.

(2.) It is necessary to glance for a few moments at the background of facts out of which this cause arises before considering its merits. The respondent Dr.Gopalkrishna K. Salelkar was appointed as a temporary lecturer in Medicine in the Goa Medical College on the 15th March, 1966. On 5th November, 1967, a patient by name Vithal. was admitted and treated in the Hospital attached to this College. He expired on the 8th November, 1967 at about 11-00 p.m. A preliminary enquiry after some time was ordered by the petitioners in order to ascertain whether the respondent was negligent in treating the deceased Vithal. In fact two committees were appointed for this purpose. The petitioners presumably were not satisfied with the report of the first committee and hence the appointment of the second committee. The services of the respondent were later terminated by an order dated 15th June, 1968 in terms of Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965 without assigning any blame for the alleged negligence. The respondent felt aggrieved by this order and by way 6% redress he approached this Court in the exercise of its writ jurisdiction under Article 226 of the Constitution. In the application filed under this Article, broadly stated, his case was that his services were terminated by way of punishment without giving him a reasonable opportunity of being heard within the meaning of Article 311(2) of the Constitution and, therefore, the order terminating his services is bad and inoperative. It was also his case that this action taken is mala fide. In the counter-affidavit filed on behalf of the petitioners, the allegation that Article 311(2) was violated was denied. The order of termination, according to them, was in exercise of the contractual right under the said Rule 5(1) and, therefore, compliance with Article 311(2) was not necessary. The allegation of mala fides was also denied. In denying these allegations the petitioners affirmed in their counter-affidavit that the respondent was very negligent in the matter of treatment of the deceased. This approach was regarded by the learned Additional Judicial Commissioner as representing "the working of the mind of the Government before and at the time the impugned order was made." In this view of the matter he concluded that the Impugned order was made by way of punishment for the alleged or the assumed negligence on the part of the respondent in the discharge of his duties, without complying with , the requirements of Article 311(2) and, accordingly, it was quashed and the application filed by the respondent was allowed on 6th February, 1969. The petitioners felt aggrieved by this decision and hence their prayer for certificates under Articles 132 and 133 of the Constitution.

(3.) Shri Tamba, learned Government Pleader, argues that the true scope and ambit of Article 311 was misconceived by my brother and his decision is clearly erroneous. The admitted facts may first be stated. There was a preliminary enquiry against the respondent for ascertaining whether he was negligent in the treatment of the deceased patient; (2) that there was no formal departmental enquiry against him in accordance with Article 311(2) read with the relevant service rules; and (3) that the order of termination does not attribute any negligence to the respondent but the counter-affidavit does it pointedly. Shri Sorabji, learned counsel for the respondent, contends that the said decision is correct, but assuming it is erroneous even then the petitioners have failed to make out a case for the certificates applied for Article 132(1), to the extent it is material for the present purpose, provides that an appeal shall lie to the Supreme Court from any judgment..... or final order of a High Court.....whether in a civil.... or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. Shri Tamba was asked to satisfy this Court as to how this Article is attracted. He repeated his argument that in view of the admitted facts and settled law, Article 311(2) was not attracted and therefore the decision is erroneous. According to him, what was stated in the counter-affidavit by way of reply is not decisive. What is decisive are the material facts existing upto the time of termination of the services of the respondent. In other words, if I may put it differently, if an undisclosed misconduct or negligence as a motive is not relevant when formal departmental enquiry is not held and the order of termination of services is in the exercise of contractual right under Rule 5, would it make any difference for the purposes of Article 311(2) if such motive is disclosed in the counter-affidavit Shri Sorabji contended that assuming the decision is erroneous, the application of well settled principles to a particular set of facts does not raise a substantial question of law nor an erroneous application of these principles to the facts of a particular case. In the connection he invited my attention to 'State of J. & K. v. Ganga Singh, 1960 AIR(SC) 356 (360), where, in relation to Article 14 of the Constitution, the Supreme Court observed: