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1958 DIGILAW 140 (ALL)

Mahesh Prasad Goel v. District Magistrate and Collector

1958-05-01

MOOTHAM, SRIVASTAVA

body1958
JUDGMENT Mootham, C.J. - This is an appeal from an order of Mr. Justice Mehrotra dated the 20th August, 1957. The appellant was a temporary clerk employed by the State Government, his contract of service being terminable by a month's notice or by payment of a month's salary in lieu of notice. On the 25th October, 1955, the collector of Rampur made an order terminating the services of the appellant. The concluding paragraph of that order reads thus: "Considering all the aspects of the matter I think the best course for us is to get rid of him and leave him free to find employment elsewhere if he can. Shri Goel is a temporary employee whose services are liable to termination on one month's notice on either side. His services are, therefore, terminated on giving one month's notice. An order to this effect will be served on him with immediate effect. Instead of allowing him to work during the period of notice he may be given a month's pay in lieu of notice." 2. The appellant says that a copy of this order was supplied to him on the 24th November, 1955, and on the 14th February, 1956, he filed a petition in this Court challenging the validity of the order substantially on the ground that it amounted to an order of dismissal, and that as he had not been afforded the requisite opportunity of showing cause against the action proposed to be taken against him the provisions of Article 311 of the Constitution were contravened. The learned Judge dismissed the petition and the appellant now appeals. 3. It will he observed that in the portion of the order which we have quoted the Collector states that an order "will be served" on the appellant terminating his services, and upon our asking the learned Advocate for the appellant whether any such order was in fact issued he has furnished the Court with the actual order which was served upon the appellant. It reads thus: ".....................No. 496/31-10-1955 Sri M. P. Goel, Head Clerk Kham. Under his orders dated 28-10-1955 the Collector has ordered that your services may be terminated on one month's notice. It has been decided to give you one month's pay in lieu of notice and to terminate your services forthwith. You may please hand over charge immediately on receipt of this notice. O. C. Kham". 4. Under his orders dated 28-10-1955 the Collector has ordered that your services may be terminated on one month's notice. It has been decided to give you one month's pay in lieu of notice and to terminate your services forthwith. You may please hand over charge immediately on receipt of this notice. O. C. Kham". 4. We further understand that the copy of the Collector's order of the 28th October, 1955 which was supplied to the appellant in November was furnished at the request of the latter. 5. The appellant's contention is that the order served upon him dated the 31st October must be read in conjunction with the Collector's order of the 28th October and that when so read it will be apparent that although technically his services were terminated in accordance with the provisions of his contract he was in fact dismissed for misconduct, the particulars of which are recited in the earlier part of the Collector's order. He contends therefore that he has in law been dismissed and the provisions of Article 311 of the Constitution were attracted. 6. Now the meaning and effect of Article 311 of the Constitution were considered at length in Parshotam Lal Dhingra v. Union of India, 1958 ALJR 372, and the law laid down there was summarised by the Supreme Court in the later case of P. Balakotaish v. Union of India, 1958 A.I.R SC 232 where it is pointed out that Article 311 has application only where there is an order of dismissal or removal, and that it is only when the order is by way of punishment that it can be one of dismissal or removal within the meaning of that Article. Their Lordships then proceeded to say that. "The question as to what would amount to punishment for purposes of Article 311 was also fully considered in Parshotam Lal Dhingra's case. It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement, a premature termination of his services would be a punishment. And likewise, if the order would result in loss of benefits already earned and accrued, that would also be a punishment." 7. It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement, a premature termination of his services would be a punishment. And likewise, if the order would result in loss of benefits already earned and accrued, that would also be a punishment." 7. In the case before them their Lordships pointed out that the terms of employment of the appellant provided for his services being terminated on a proper notice and accordingly no question of premature termination arose. In that case the appellant's services had been terminated by an order in these terms: "I have considered your representation to me in reply to this office letter No. Con/F/21/MP/82 dated 6-7-1950 and am of opinion that you are engaged and associated with others in subversive activities in such manner as to raise doubts about your reliability and am satisfied that your retention in public service is prejudicial to national security. I have decided with the prior approval of the President that your services should be terminated under R. 3 of the Railway Services (Safeguarding of National Security) Rules, 1949." 8. The Supreme Court held that that was a notice which did not attract the provisions of Article 311 of the Constitution. It is not disputed that in the case before us the appellant's services were terminated in accordance with the provisions of his contract of service. There is therefore no question of a premature termination of his services. Nor is there anything to show that the termination of his contract resulted in the forfeiture of any accrued rights or other benefits to which he was entitled, and we are therefore of opinion that the order terminating his services is not an order dismissing or removing him from service within the meaning of Article 311. Stress has been laid by learned counsel for the appellant on the fact that the Collector in his order of the 28th October, 1955, has stated at some length the reasons which led him to the conclusion that the appellant's services should be terminated. We do not think that that is sufficient to convert the order of the 31st October into an order of dismissal. We do not think that that is sufficient to convert the order of the 31st October into an order of dismissal. It is to be observed that the Collector's order was not served upon the appellant by the Collector but was sent to him in November at his own request. In our opinion the earlier part of the order of the Collector amounts to no more than a statement of the considerations which led him to the conclusion that the appellant's services were no longer required and as pointed out by the Supreme Court in Dhingra's case, the motive is wholly irrelevant. Such also, it is to be observed, was the position in Balakotaish's case where the reasons which led to the making of the order terminating the appellant's services were stated in the order itself. 9. For these reasons we are of opinion that this appeal must fail and it is accordingly dismissed.