SHEFALI SARKAR Vs. DIVISIONAL ENGINEER TELEGRAPHS

JUDGEMENT

(1.) IN this Rule, the order of termination of service of the petitioner sm. Shefali Sarker, a Time Scale Clerk in the Posts and Telegraphs Department, Government of India, after one month from the date of service of the notice of termination is under challenge the petitioner was appointed as a Temporary Time Scale Clerk in the Burdwan telegraphs Engineering Division under the Posts and Telegraphs Department. The petitioner contends that the petitioner was initially posted as a Time Scale clerk in the office of the divisional Engineer, Telegraphs calcutta West Division, but subsequently she was transferred to the office of the Divisional engineer, Telegraphs, Burdwan in the same post and on same scale of pay on account of bifurcation of the Calcutta west Division. The petitioner contends that as she was a young unmarried girl and as she had to look after her parents, it was difficult for the petitioner to go to burdwan on transler and the petitioner made representation to the General manager, Telecommunication, West bengal Circle through the Divisional engineer, Telegraphs, Burdwan Division for the cancellation of her transfer order. The petitioner contends that on such representation of the petitioner, the Divisional Engineer, Telegraphs, burdwan Division got annoyed with the petitioner and expressed his displeasure. The petitioner further contends that having understood the displeasure of the said superior officer, the petitioner begged apology of him and joined at her new place of posting at Burdwan. Thereafter, on 20th December, 1977, The Divisional Engineer, Burdwan division asked the petitioner to accept the impugned order of termination of her service after putting her signature on the said notice of termination of service. The petitioner alleges that the petitioner no. 1 verbally told her that he had received many petitions and letters alleging that the petitioner's Matriculation certificate was forged. Although the petitioner requested the respondent No. 1 not to take any penal measure without making any enquiry into the matter, but the respondent No. 1 did not pay heed to such request. The petitioner contends that such termination of service of the petitioner is illegal and malafide.

(2.) MR. Ganguly the learned Counsel appearing for the petitioner contends that although prima facie the order of termination of the petitioner appears innocuous exfacie but this Court should look to the antecedent circumstances to find out the real nature of the order. Mr. Ganguly contends the text of the order is not always decisive and real nature of the order is to be judged in the backdrop of surrounding circumstances. He contends that even in the the case of a temporary servant or in the case of a probationer, the protection under Article 311 of the Constitution of India is equally available if the order of termination is, in reality, an order passed for inflicting punishment on the temporary Government servant and/or the probationer. In this connection, mr. Ganguly refers to the decision of the Supreme Court made in the case of Purusottamlal Dhingra vs. Union of India, reported in, A. I. R, 1958 s. C. page 36. The Supreme Court has laid down in the said decision that there is no distinction between a temporary or a permanent Government Servant in the matter of an application of Article 311 of the Constitution of India. It has been laid down that if a punishment is inflicted on a Government servant then provisions of Article 311 are to be complied with. Mr. Ganguly also Contends that to find out as to whether or not an order of termination has been passed for inflicting punishment, the test is as to whether or not there are some charges against the government servant and whether or not the order could have been passed in the absence of those charges. For this contention, Mr. Ganguly relies on the decision made in the case of Nirmal kanti Kanjilal vs. Senior Manager, Posts and telegraphs Motor Services, Calcutta, reported in 1974 Calcutta Law journal, page 444. Relying on the said decision, Mr. Ganguly contends that respondent No. 1, namely, the Divisional Engineer Burdwan Division told the petitioner that he had received various complaints against the petitioner to the effect that she had used forged matriculation Certificate for getting her job and as such he intended to terminate the service of the petitioner. Mr. Ganguly contends that in the aforesaid circumstances, some charges were levelled against the petitoiner by the said respondent No. 1, but without starting any departmental proceeding against the petitioner and without giving the petitioner any opportunity of being heard, the said order of termination of service of the petitioner was made. Mr. Ganguly also contends that the allegation of misconduct against the petitioner, namely, using forged Matriculation Certificate and/or suppressing some fact about the educational career of the petitioner as disclosed in the affidavit-in- opposition had no nexus with the discharge of duties of the petitioner and or her efficiency as a Clerk in the Postal Department. Mr. Ganguly contends that the petitioner was a temporary government servant and unless it is found that the petitioner was insufficient in discharging her duties and functions as a Clerk in the Postal Department, there was no occasion to terminate the temporary service of the petitioner. Mr. Ganguly, however, submits that if for some misconduct not connected with the efficiency of the petitioner in discharging her duties and functions, the authority concerned intended to punish the petitioner, then a departmental proceeding was required to be started against the petitioner and the petitioner should have been given all reasonable opportunities of being heard and to defend herself against the charges levelled against her in such departmental proceeding. Mr. Ganguly further submits that in the instant case, admittedly no such departmental proceeding was ever initiated against the petitioner although the order of termination of service was passed with the sole purpose of inflicting punishment on the petitioner. Mr. Ganguly contends that if, in reality, the order, of termination is by way of punishment then the form of the order may be unexceptionable, but such form will not save the illegality of the order of punishment passed in contravention of the provisions of Article 311 of the Constitution. For this contention, Mr. Ganguly refers to the decision of the Supreme Court made in the case of Samsher Singh vs. State of punjab reported in A. I. R. 1974 S. C. page 2192. Mr. Ganguly in this connection also refers to another decision of the Supreme Court made in the case of Madan Gopal vs. The State of Punjab reported in A. I. R. 1963 S. C. page 531. It was held in the said case that where an enquiry made by the officer was made with the object of ascertaining as to whether disciplinary action should be taken against the Government servant or not for his alleged misdemeanour, it was an enquiry for the purpose of taking punitive action including dismissal or removal from service if the government servant was found to have committed the misdemanour charged against him. It was held by the Supreme Court that in such circumstances, the principle decided by the Supreme court in the case of State of Orissa vs. Ramnarayan Das, reported in A. I. R. 1961 S. C. page 177 was not attracted. In the latter case, the enquiry was held for ascertaining as to whether the government servant should be retained or not. Mr. Ganguly contends that there were certain allegations of misconduct and misdemeanour against the petitioner as will be evident from the affidavit-in-opposition. From the affidavit in-opposition filed by the Respondents, it appears that an anonymous complaint was received by the Department wherein it was alleged that the petitioner sm. Shefali Sarkar had got her job with the help of a forged certificate of the Dacca Board although she actually passed the. School Final Examination held by the West Bengal Board of secondary Education in the third division. It may be noted that the certificate of the Dacca Board is to the effect that the petitioner passed the School final Examination in the First Division. On receipt of the said anonymous complaint, enquiries were made and it transpired on such enquiries that Sm. Shefali Sarkar passed the School Final examination under the West Bengal board of Secondary Education in 1966 and she was placed in the third division. In her application for appointment in the Postal Department, Sm. Shefali sarkar stated that she had passed the matriculation Examination in the first division from East Pakistan Secondary board in the year 1962. In her application she mentioned her date of birth as recorded in the certificate, of the Dacca board as 4th April, 1948. On the basis of the marks alleged to have been obtained by her in the said Matriculation examination of the Dacca Board as stated in her application she was selected and appointed a Clerk in the office of the Divisional Engineer, Telephones, burdwan Division. But as aforesaid, it transpired on enquiries that she passed the School Final Examination of the west Bengal Board of Secondary Education in 1965 in third division and her date of birth as recorded in the said school Final Examination certificate is 9th August, 1948. It has been further stated in the affidavit-in-opposition that such enquiry therefore reveals that Sm. Shefali Sarkar had wilfully and deliberately suppressed the truth for her personal gain when she applied for the job. Accordingly, she was not considered to be a fit person for retention, in the department and her service was tenminated under Rule 5 of the Central civil Services (Temporary Service)Rules, 1965. Mr. Ganguly contends that the affidayit-in-opposition therefore discloses misdemeanour on the part of the petitioner and it is, therefore, clear that the order of termination was made as a punitive measure. He also refers to another decision of the Supreme Court; made in the Case of Jagadish Mitter vs. The Union of India, reported in AIR, 1964 S. C. page 449. In the said decision, the Supreme Court has held that if an investigation is held to determine the suitability to retain a temporary Government Servant for considering his efficiency in discharging his duties and on such investigation if he is found unsuitable and an order of termination is passed, then the said order is not by way of punishment and Article 311 is not attracted. But if the authority chooses to exercise its power to dismiss a temporary Government servent and holds a formal enquiry to find out the misconduct on the part of the Government servant and termination of the temporary Government servant is passed as a result of final report in the said enquiry, then the termination is, in effect, an order of punishment and article 311 is attracted in such case. Mr. Ganguly contends that from the said statements made the affidavit-in-opposition, it is quite clear that the Authority concerned was of the view that the petitioner was guilty of misconduct and she had suppressed material facts and as such she deserved punishment and it was only with a view to inflict punishment on the petitioner, the said order of termination was passed. Mr. Ganguly submits that there is no allegation that the petitioner could not discharge her duties and functions efficiently. On the contrary, the petitioner successfully passed the departmental training. Hence, although the order terminating the service was made in an unexceptionable form, the said order of termination was, in reality, an order of punishment without following the procedure envisaged in Article 311 of the Constitution and, as such, the said order is void.

(3.) MR. Anwar Hossain, the learned counsel appearing for the respondents, contends that usually some sort of preliminary enquiry is made to determine as to whether or not there is a prima facie case for initiating any disciplinary proceeding against a Government servant, but the scope and purpose of such preliminary enquiry is entirely different and one should not get confused for such preliminary enquiry. Mr. Hossain contends that even when Government does not intend to take action by way of punishment against a temporary government servant on a report of bad work or misconduct, a preliminary enquiry is usually held by the Government to satisfy that there is reason to dispense with the service of a temporary employee. He contends that such preliminary enquiry is done simply because the Government does not intend to take action against, a government servant without any cause. But if such enquiry is really intended not to inflict punishment on the Government servant, but to determine as to whether or not a Government servant will be retained in the temporary service and if on such enquiry, an order of termination of the temporary service of the concerned Government servant is passed in an unexceptionable form without attaching any stigma, the order of termination is quite legal and valid. For this contention, Mr. Hossain refers to the decision of the Supreme Court made in the case of Champaklal vs. Union of India reported in A. I. R. 1964 S. C. page 1854. It may be noted in this connection that the Supreme court in the said decision also considered the termination of the service of a Government servant on the ground of unsuitability of the Government servant to be retained further in service not only on the ground of bad work, but also on the ground of misconduct. Mr. Hossain contends that the decision made in the Jagadish Mitter's case (supra) can be distinguished in the facts and circumstances of the instant case. In jagadish Mitter's case, the intention of the government to take a penal action was manifest in the order itself and aspersion against the officer was made in the order of termination. It was mentioned in the order of termination that the Government servant was found to be undesirable to be retained in the Government service and the Supreme court also held that in the said circumstances a stigma was attached against the government servant in the said case. Mr. Hossain contends that if in the order of termination of the petitioner, her complicity in a corrupt practice was mentioned and/or it was stated that on enquiry the government was satisfied that the explanation given by the petitioner against the allegation of misconduct and/or fradulent practice was unsatisfactory, then the order of termination would have been bad, because such observations would have carried a stigma against the petitioner. Mr. Hossain, in this connection, refers to a decision of the Supreme Court made in the case of Sukraj Bahadur vs. State of Punjab reported in A. I. R. 1968 S. C. page 1089. in the said decision, the conspectus of some of the decisions of the Supreme Court were considered and the ratio decided was noted to the following effect:- (1) the service of a temporary Government servant pr a probationer can be terminated under the rules of his employment and such termination, without anything more, will not attract Article 311 of the Constitution and (2) the circumstances preceding or attendant on the order of termination of services have to be examined in each case, the motive behind it being immaterial. Mr. Hossain contends that in the instant case, the order of termination was passed in an unexceptionable form and in accordance with the Central Civil Services ( Temporary service) Rules, 1965. He contends that from the circumstances preceding or attendant on the order of termination of service, it is quite clear that the preliminary investigation was made only for the purpose of deciding as to whether or not it was desirable that the Government servant concerned should be retained any further in the service and the concerned Government servant was also given an opportunity to explain the facts and circumstances of her case. Hence, it cannot be held that simply because a preliminary investigation about the misconduct of the Government servant was made, such enquiry was made only for the purpose of inflicting punishment oh the Government servant and, as a matter of fact, in reality, a punishment was passed on the Government servant, Mr. Hossain also submits that even in Jagadish Mitter's case, the Supreme court held that in dealing with the temporary government Servant against whom a formal departmental enquiry might have been commenced, but such departmental enquiry was not pursued to the end, the principle that the motive operating in the mind of the authority was immaterial should be borne in mind. But since consideration of motive operating in the mind of the authority was to be eliminated in determining the character of termination of service of a temporary servant, it must be emphasised that the form in which the order terminating service was expressed would not be decisive. Mr. Hossain contends that since the challenge was thrown in the writ petition that the order of termination was passed malatide with the sole intention of inflicting punishment on the petitioner, it was disclosed in the affidavit-in-opposition that the said order was not passed with any intention to inflict punishment on the petitioner but on receiving a complaint against the petitioner, some enquiries were made wherein it was revealed that the petitioner made false representation in her application for getting appointment and after giving the petitioner an opportunity to explain the facts and circumstances of the case, it was held that the petitioner resorted to false representation and she was not fit to be retained any further in the Government service because of the said misconduct. But such enquity was made only for the purpose of deciding about the suitability or otherwise to retain the petitioner any further in the Government service and in the order of termination no stigma was also attached. Mr. Hossein contends that in the aforesaid facts and circumstances, no exception can be taken to the said impugned order of termination and the Rule must fail.