MOHD RAYAZ Vs. STATE

JUDGEMENT

(1.) THE fact which is not disputed is that the petitioner was dismissed from service when he was serving in the Border Security Force. This fact was not brought of the petitioner now have been brought to an end. The reason given is that he was earlier dismissed from service from the Border Security Force and this fact was concealed by him. Taking note of the above fact, an order of termination has been passed. It has been observed that the petitioner having been dismissed from service of the above Force, is not likely to prove a good police constable. It is this order which is the subject matter of challenge in this petition. The challenge is being made interalia on the following guards: i. That the petitioner was entitled to an opportunity of hearing as hearing as he was visited with the penal order of dismissal. ii. That even if he was dismissed from the service of Border Security Force, this would not stand in his way of getting employment in the State service, iii. That as principles of natural justice have not been complied with therefore, the order of termination passed on 17th July99 is liable to be quashed.

(2.) THE distinction between the order of dismissal and removal was pointed out way back by the Supreme Court of India in the case of AIR 1953 SC 250. Satish Chandra Anand Vs. The Union of India. As a matter of fact there is a definite distinction between the terms "dismissal" and "removal" from service. This distinction was noticed by a constitutional Bench of the Supreme Court in State of Bombay Vs. Subjagh Chand AIR 1957 SC 892. It was observed that under the service rules an order of dismissal is a punishment imposed on a Government servant when it is found that he has been guilty of misconduct or inefficiency or the like and it is penal in character because it involved loss of pension which under the rules would have accrued in respect of the service already put in. An order of removal also stands on the same footing as an order of dismissal. And involves the same consequences the only difference between them being that while a servant who is dismissed is not eligible for reappointment, one who is removed. The same distinction was noticed in the case of Trikha Ram vs. V.K. Seth AIR 1988 SC 285. The provisions of Probation of offenders Act 1958 were commented upon it was in this regard observed that instead of dismissing the delinquent from service he should have been removed from service so that the order of punishment did not operate as a bar and disqualification for further employment with the Government, under the circumstances, the impugned order of dismissal was converted into an order of removal from service.

(3.) SEE also Mohammad Abdual Salam Khan vs. Sarfaraz Air 1975 Sc 1065. Wat was said in para 9 is reproduced below: "The expression "dismissal" and "removal" look alike for the lay man but in law they have acquired technical meanings sanctified by long usage in service rules. In Khem Chand vs. Union of India 1958 SRC 1080 at page 1089 (AIR 1958 SC 300 at page 304 this court observed: "... the expression "dismissed". Removed" and "reduced in rank" are technical words taken from the service rules where they are used to denote the three major categories of punishment." As has been rightly pointed out in a recent book. The civil servant under the law and the constitution by Dr. N. Narayan Nair - The Academy of legal Publications, Trivandrum -1 Kerala (1973) the words "dismissal" and "removal" have one distinction viz that the former disqualifies from further employment while the latter does not. Likewise there is reference to this distinction in Shyamalals case AIR 1954 SC 369 at page 374 wherein was said: "The position therefore is that both under the rules and according to the last mentioned decision of the Judicial Commission (I.M. Lals case AIR 1948 PC 121) there is no distinction between a dismissal and a removal except that the former disqualifies from further employment while the later does not... and it my safely be taken for reasons stated above, that... removal and dismissal stand on the same footing except as to future employment. In this sense removal is but a species of dismissal. "Rule 49 of the civil service (Classification, Control and Appeal) Rules 1930 provides interalia: "Removal is termination of service which does not disqualify from future employment, "dismissal is removal from service which ordinarily disqualifies from future employment. It follows that "dismissal" is removal with a prohibited superadded."