BHUNESHWAR PRASAD VERMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, Bhuneshwar Prasad Verma, was appointed as a Cloth Inspector and deputed to work in the District Supply Office, Chaibassa, under the Control of the Deputy Commissioner. The petitioner worked in that capacity till 1948 when he was appointed as Supply Inspector. The order of appointment is Annexure 4 of the counter-affidavit and is in the following terms :

(2.) The first ground urged in support of the application is that the provisions of Article 311 of the Constitution apply to this case and the petitioner should have been given an opportunity to show cause within the meaning of that Article before his services were dispensed with. But the order of appointment clearly states that the appointment of the petitioner was on a purely temporary basis and subject to the condition that the services of the petitioner might be terminated at any time without assigning any reason and without any notice. In our opinion, the services of the petitioner were terminated in accordance with his contract of service and the provisions of Article 311 did not apply to the case. This view is supported by a decision of a Division Bench of this High Court in Nand Kishore Prasad v. State of Bihar, 1957. BLJR 22 (A), where it has been explained that Article 311 (2) of the Constitution has no application to cases where a person is discharged in terms of the contract of service and that the order of discharge was not tantamount to a dismissal or removal from service within the meaning of that Article. There is, therefore, no question of any violation of any constitutional provision in this case, The matter has been very clearly put by the Supreme Court in Satish Chandra Anand v. Union of India, AIR 1953 SC 250 (B). In that case a civil servant, who had been engaged on the basis of a special contract for a certain term, was, on the expiry of the term, re-appointed by a further contract on a temporary basis. In accordance with the Government rules, which formed part of the contract, he was discharged from service after notice. The petitioner filed an application before the Supreme Court seeking redress for breach of his fundamental rights under Articles 14 and 16 (1). It was argued that the rights infringed were those conferred by Article 311 of the Constitution. It was held by the Supreme Court that Article 311 had no application to the case because there was neither dismissal nor removal from service nor reduction in rank within the meaning of that Article. We consider that the principle of this case has full application to the present case and the petitioner cannot be heard to say that the provisions of Article 311 of the Constitution have been violated. A similar view has been expressed by the Supreme Court in a subsequent case, namely, Shyamlal v. State of Uttar Pradesh, AIR 1954 SC 369 (C). It was held by the Supreme Court in that case that under the Constitution removal and dismissal stood on the same fooling except as to future employment and that removal, like dismissal, no doubt brought about a termination of service but every termination of service did not amount to dismissal or removal. It was held in that case that compulsory retirement from Government Service, though it may be based upon some charge of misconduct which the Government was unable to substantiate, would not amount to dismissal or removal from service within the meaning of Article 311 of the Constitution and the procedure required by that Article was not attracted. On behalf of the petitioner reference was made to a decision of this Court in Kamta Charan Srivastava v. Post-master-General, Bihar, (S) AIR 1955 Pat 381 (D). In view of the decisions of the Supreme Court in AIR 1953 SC 250 (B) and AIR 1954 SC 369 (C), we feel some doubt about the correctness of the decision of the Bench of this Court in (S) AIR 1955 Pat 381 (D). But we express no concluded opinion on this point as the ratio of that case has no application to the present case. In that case the order of discharge of the Government servant expressly mentioned that it was undesirable that the petitioner in that case should be retained in Government service and also that the police report showed that the charge of false personation had been proved against the petitioner. On this important ground the decision in (S) AIR 1955 Pat 381 (D), is distinguishable. In the present case the order of discharge merely states that the service of the petitioner has been dispensed with in terms of his contract of service and not because of any imputation or proof of misconduct. We, therefore, reject the argument of the learned Counsel for the petitioner that Article 311 applies to this case and that there has been a violation of the provisions of that Article.

(3.) The other argument put forward on behalf of the petitioner is that the order of discharge was passed on 21st of April, 1955 and it was ordered that the service of the petitioner was terminated with effect from 13th April, 1955. It was contended by learened Counsel on behalf of the petitioner that the order was retrospective in operation and, therefore, invalid to that extent. We are unable to accept this argument as correct. It appears from the petition and also the counter-affidavit that the petitioner was absent from 13th of April, 1955, till 20th of April, 1955, on the allegation that he was ill. It appears that on 14th of April, 1955, the petitioner was transferred temporarily to Saraikela and directed to go there immediately and to relieve Sri J.N. De, Assistant Godown Manager. On the same date the petitioner received a letter from the District Supply Officer, Chaibassa, asking the petitioner to appear before the Civil Assistant Surgeon of Chaibassa. It is alleged in the application that the petitioner presented himself before the Assistant Civil Surgeon of Chaibassa who recommended the application for a week's leave. The petitioner again appeared before the Assistant Civil Surgeon on 19th April, who, on examination, advised the petitioner to take two weeks' rest. On 20th April, 1955, how ever, the petitioner hurriedly left Chaibassa and left a note addressed to the District Supply Officer for permission to leave the station explaining therein the circumstances in which he could not wait for obtaining formal sanction. It does not appear that formal leave was granted to the petitioner for the period from 13th April, 1955 to 21st April, 1955. It is also the admitted position that the petitioner was not performing his official duties during this period. In these circumstances we do not see how the order of termination of service made on 21st April, 1955, terminating the petitioner's service from 13th April, 1955, can be attacked on the ground of illegality. On behalf of the petitioner reference was made to a decision of the Calcutta High Court in Hemanta Kumar Bhattacharjee v. S.N. Mukherjee, 58 Cal WN 1: (AIR 1954 Cal 340)(E), where it was held that the power of suspension cannot be exercised retrospectively. The reason given was that suspension with retrospective effect was a contradiction in terms and there could be no meaning in suspending a man from work during a period when the period had passed and he had already worked or suspending a man from occupying a position or holding a privilege in the post when he had already occupied or held it. The ratio of this case cannot apply to the present case because the petitioner was admittedly absent from his duties for the period from 13th April to 21st April, 1955, and we see no reason why the Government should not treat this period as absence of the petitioner from duty without leave and, therefore, terminate the services of the petitioner with effect from 13th of April, 1955. No authority has been cited by learned Counsel for the petitioner in support of his argument that such an order is invalid or that the power to terminate service cannot be exercised with retrospective effect.