MANOHARLAL DAVE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition under Art. 226 of the Constitution of India is directed against the order of the Commercial Taxes Officer, Jodhpur by which the services of the petitioner were terminated under R. 23 (A) (1) of the Rajasthan Service Rules. The petitioner Manoharlal was appointed as a Lower Division Clerk in the office of the Commercial Taxes Officer, Jodhpur in a temporary capacity on 18-10 1966 vide Ex. R- 1 for one month on the condition that his service shall be liable to be terminated at any time without any prior notice. The term of one month was extended for another one month on 22-11-1966 vide Ex. R.

(2.) ON 18 4 67 the term of his employment was further extended till further orders. The petitioner on 3 2 69 submitted an application for granting him five days' casual leave with effect from 3 2-69 to 7-2-69. The leave was refused by the Commercial Taxes Officer. The petitioner then on the same day made another application praying that he may be granted privilege leave for one month with effect from 3 2-69 to 1-3 69. The petitioner after submitting this application for grant of privilege leave left the office. ON receipt of the application for privilege leave, the matter was examined by the Commercial Taxes Officer, who on 7-2-69 decided to terminate his services after giving him a month's notice. The order to that effect was actually passed on 12-2-69. It reads as under- ************ This order is marked as Ex. 1. ON the same day i. e. 12-2-1969 another application was received in the office of the Commercial Taxes Officer in which the petitioner asked for grant of medical leave from 3-2-1969 to 21-2-1969 Along with this application a medical certificate of a Vaidya was attached. Yet another application was presented by the petitioner on 22-2-1969 for the extension of leave from 21-2-1969 to 1-3-1969. Along with this application also a medical certificate from the same Vaidya was attached. ON 7-3-1969 the Commercial Taxes Officer passed another order terminating the services of the petitioner with effect 7-3-1969. The petitioner protested against this order dated 7-3-1969, and denied having left the Headquater and asserted that throughout the period he was at Jodhpur. The petitioner then filed an appeal to the Deputy Commissioner (Administration) Commercial Taxes on 9-5-1969 which was disposed of on 1-11-69 holding that the appeal was not maintainable. The petitioner then moved this writ petition and prayed inter alia that the orders dated 12-2-1969, 7-3-1969 and the appellate order dated 1-11-1969 be quashed. 2. The learned counsel for the petitioner confined his arguments on two points: firstly, that the temporary services of the petitioner were not liable to be terminated without complying with the provisions of R. 23 (A) (1) of the Rajasthan Service Rules viz. either by giving the petitioner one month's notice in writing or by making the payment to him of a sum equivalent with the amount of emoluments for the aforesaid notice period. The second contention is that there has been infringement of Art. 311 of the Constitution of India for no opportunity to show cause was afforded to the petitioner against the alleged illegal termination of the petitioner's services.

(3.) IN P. L. Dhingra vs. Union of INdia (l) their Lordships laid down two tests for determining whether an order was by way of punishment or otherwise: firstly whether the servant had a right to the post or the rank and secondly whether the order visits the servant with evil consequences. IN the present case neither of these two tests is satisfied.