STATE OF WEST BENGAL Vs. PHANINDRA KUMAR DAS

JUDGEMENT

(1.) IN his judgment appearing hereinafter, my learned brother Ray, J. has decided to dismiss the appeal preferred by the state with costs and I agree with the order proposed.

(2.) THE sombre and solemn declaration in Article 310 (1) of the Constitution proclaiming all civil servants to hold their offices during the pleasure of the president or the Governors is a pompous verbiage and a hyperbole. The president or the Governor, meaning thereby the Central Government or the state Government (Vide, Section 3 (8) and Section 3 (60) of the General Clauses act, 1897, read with Article 367 of the Constitution), cannot terminate the service of a Civil servant at his will or pleasure. Even a temporary servant or a probationer or one temporarily officiating in a higher post cannot be discharged or reverted back at pleasure, if the foundation of the order of discharge or reversion is some alleged inefficiency, incapacity or any other blameworthy conduct of the servant, without giving the servant, concerned an opportunity of being heard against the proposed action.

(3.) IF the order of reversion of a servant to his substantive or permanent post is absolutely innoccuous without any whisper of anything adverse, the Court may not ordinarily go behind the order and send for the official records or "delve into he secretariate files to discover whether some kind of stigma can be inferred on such research", on a mere allegation of the servant to that effect. I say "may not" and "ordinarily", because there are some decisions of the supreme Court which have taken the view that it is open to the Court to go beyond the order to ascertain its true character by looking at the antecedent circumstances and other relevant materials. While a three-Judge Bench of the supreme Court in S. P. Basudev a (AIR 1975 SC 2292 at 2294) has observed that the "whole position in law is rather confustag". another three-Judge bench in Ram Chandra Trivedi (AIR 1976 SC 2547 at 2566) has asserted that it is no longer open to urge that the Constitutional position is not clear".