Khushal Singh v. Union of India — 1971 DIGILAW 44 (ALL)

JUDGMENT K.B. Asthana, J. - The plaintiff-appellant was appointed as a temporary Chaukidar in the office of the Forest Research Institute of Dehradun by an order of the Registrar of the Institute dated 1-9-1960. A notice dated 11-6-1963, sent by the Registrar of the Institute purporting to terminate the services of the plaintiff under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, was served on the plaintiff on 14-6-1963. The plaintiff was given his dues under the Leave Rules applicable and was given his pay and allowance up to 30th September 1963, though he was actually no longer in service with effect from 14-6-1963. The plaintiff then instituted the suit giving rise to this appeal, impleading Union of India as the defendant and prayed for a declaration that he continued to be an employee of the Institute and the notice dated 11-6-1963 terminating his services was null and void, inoperative and illegal. The plaintiff-appellant claimed a decree for his salary plus usual allowance at the rate of Rs. 93/- per month. The plaintiff alleged that he was not a temporary Government servant but was in quasi-permanent service within the meaning of clause 2 of the Central Civil Services (Temporary Service) Rules 1949, having been in continuous Government service for more than three years, hence his services could not be terminated under Rule 5 of the above-said Rules of 1949. It was further alleged that the so-called termination of the service of the plaintiff amounted to punishment and the plaintiff not having been afforded any opportunity of an explanation the termination order was null and void. A plea was also raised that the service of the plaintiff had been terminated without just and sufficient cause and without giving him an opportunity to show cause against the charges levelled against him. as his dismissal was on account of the fact that some High Officers of the Institute nursed an ill-will towards the plaintiff who did not submit to their undue demands. 2. The suit was contested on behalf of Union of India, who denied the material allegations made in the plaint. It was pleaded that the plaintiff was a temporary Government servant within the meaning of Central Civil Services (Temporary Service) Rules 1949 and his services were validly terminated by a notice dated 11-6-1963 under Rule 5 of the Rules 1949. 2. The suit was contested on behalf of Union of India, who denied the material allegations made in the plaint. It was pleaded that the plaintiff was a temporary Government servant within the meaning of Central Civil Services (Temporary Service) Rules 1949 and his services were validly terminated by a notice dated 11-6-1963 under Rule 5 of the Rules 1949. It was further pleaded that no charge of misconduct was levelled against the plaintiff or investigated, the action was taken by the appointing authority in exercise of its power under Rule 5 and the germination did not amount to any punishment hence no question of affording any opportunity of explanation against any charge arose. 3. On the pleadings of the parties, the learned Munsif, who tried the suit, framed the necessary issues. The learned Munsif dismissed the suit on the finding that the plaintiff was a temporary Government servant and did not acquire quasi-permanent status, that the termination of the plaintiff did not leave any stigma on him, hence it did not amount to punishment and that the order was not bad as violating Article 311 of the Constitution. The plaintiff appealed from the decree of the learned Munsif before the learned District Judge of Dehradun but remained unsuccessful. He has now come up in second appeal before this Court. 4. Learned counsel for the plaintiff-appellant, raised two main contentions in support of the appeal. His first contention was that the plaintiff was a quasi-permanent servant having been for three years in continuous service. It was pointed out by the learned counsel that the lower appellate court was in error in holding that the plaintiff had not completed three years of continuous service on the day when the notice of termination of service was served upon him. Learned counsel submitted that since the plaintiff was admittedly given his pay up to 30th September 1963, it would be deemed that he was in service till that date, thus he would be entitled to claim as being in continuous service of more than three years. I need not go into the question as to what would be the effect of the order of the defendant giving pay and allowances up to 30th September 1963 to the plaintiff on the period of his service. I assume that the plaintiff had been in continuous service of the Government for three years. I need not go into the question as to what would be the effect of the order of the defendant giving pay and allowances up to 30th September 1963 to the plaintiff on the period of his service. I assume that the plaintiff had been in continuous service of the Government for three years. But that circumstance alone would not give him quasi-permanent status under the Rules of 1949. There is no declaration in his favour by the appointing authority that it. was satisfied as to his suitability in respect of age, qualification and character for employment in a quasi-permanent capacity, as required by Rule 3 (ii) of the Rules of 1949. I do not agree with the contention of the learned counsel for the appellant that any one of the conditions mentioned in Rule 3, if fulfilled would confer a quasi-permanent status on a Government servant. I think the requirement of the rule is that both conditions mush be fulfilled, namely, a Government servant must have been in continuous service for three years and the requisite declaration is given in his favour. That is clear from the definition of quasi-permanent service under Rule 2 (b) of Rules 1949. It has been defined as "temporary service commencing from the date on which a declaration issued under Rule 2 (iii) takes effect................... It is clear that unless there is a declaration under Rule 3 and had taken effect, quasi-permanent service will never commence. I endorse the finding of the courts below that the plaintiff was not entitled to claim that he was in quasi-permanent service of the Government. 5. The second contention on behalf of the appellant was that in fact the action was taken against him for alleged negligence or misconduct and though the termination order on the face of it did not cast any stigma, yet it would be bad as the said order was a mere camouflage for punishing him for the alleged misconduct and the provisions of Article 311 of the Constitution were thus attracted. The learned counsel relied on the statement of Sri Dua, the Registrar of the Institute, who appeared as a witness in the suit. Sri Dua stated that he had terminated the services of the plaintiff as he found him unsuitable. The learned counsel relied on the statement of Sri Dua, the Registrar of the Institute, who appeared as a witness in the suit. Sri Dua stated that he had terminated the services of the plaintiff as he found him unsuitable. It was further elicited from Sri Dua that on the record there was some material on the basis of which he concluded that the plaintiff was unsuitable to be retained in service. My attention has been drawn to certain documents on record which have been exhibited. One of such documents dated 6-2-1962 shows that the plaintiff's increments were stopped for one year after he was found guilty of certain minor charges. Then there is an entry dated 5-2-1963, in his character roll, showing that the plaintiff was indisciplined and quarrelsome and not sincere to his duties. The plaintiff appears to have made a representation for expunction of the adverse entries but the representation was rejected on 18-4-1963. The order of termination was then passed on 11-6-1963. It was submitted by the learned counsel for the appellant, that Sri Dua, the Registrar of the Institute, on his own showing took all the above material into consideration which served as the basis for passing the order of termination of service and such order could not be a mere administrative order passed in due course as the plaintiff was a senior Chawkidar having nineteen or twenty Chawkidars below him in the scale of seniority. It was suggested by the learned counsel that had the order of termination been merely an administrative order, then the junior most Chawkidar should have been asked to go and not the plaintiff as he was the senior Chawkidar. Reliance was placed by the learned counsel on two decisions of the Supreme Court in the case of State of Punjab v. Sukh Raj Bahadur, A.I.R. 1968 SC 1089) and the State of Bihar v. Shiva Bhikshuk Misra, (1970) 2 SCC 871 : A.I.R. 1971 SC 1011). Reliance was placed by the learned counsel on two decisions of the Supreme Court in the case of State of Punjab v. Sukh Raj Bahadur, A.I.R. 1968 SC 1089) and the State of Bihar v. Shiva Bhikshuk Misra, (1970) 2 SCC 871 : A.I.R. 1971 SC 1011). Learned Standing Counsel for the respondent Union of India, contended that the order of termination of service having been passed under the rules applicable and ex facie did not cast any stigma on the plaintiff it would be deemed to have been passed in due course of administration and its validity cannot be questioned on the basis of Article 311 of the Constitution as the motive for passing the order would be irrelevant and the Court cannot go be hind the order and examine the motive. Reliance was placed on the case of I.N. Saxena v. State of Madhya Pradesh, A.I.R. 1967 SC 1264. 6. Having given my serious consideration to the learned arguments made at the bar, I find that the law as declared by the Supreme Court and the principles applicable to such cases are clear, but the real difficulty arises in applying those principles and the declaration of the Supreme Court to the facts of a particular case. In the case of a temporary civil servant of the Central Government under Rule 1949 it is always open to the Government to terminate his services by serving upon him the requisite notice under Rule 5 of 1949 Rules, that is, one of the terms of service by which the temporary civil servant is bound. It is always open to the appointing authority to judge the suitability of a temporary civil servant with a view to continue him, in service. The Supreme Court observed in the case of A.I.R. 1968 SC 1089 (supra) that it is open to the appointing authority to make enquiries to judge the suitability of a civil servant for continuation in service and such an enquiry may not form the basis of the order. In the light of these observations of the Supreme Court if Sri Dua, the Registrar of the Institute, who was the appointing authoirty, perused the record of the service of the plaintiff in order to judge his suitability to be continued in service he would not be deemed to have made the material on record as the basis of order of termination. No doubt, it was argued with some ten-ability by the learned counsel for the appellant that the circumstances, preceding the passing of the order and other circumstances attending thereon must be taken into consideration and if they revealed that the action taken against the Civil Servant was on account of misconduct on his part, then no matter the order terminating his services was innocuous, yet the action will cast a stigma and the termination in those circumstances would be nothing but a punishment, thus attracting the provisions of Article 311 (1) of the Constitution. The problem arising in this case thus reduces itself to this whether the termination of the plaintiff's services by the order dated 11-6-1963 casts a stigma on him? The chapter of punishing him for some minor misconduct closed on 6-2-1962 when the punishment of stoppage of increment for one year was imposed. Then in due course when the character roll of the plaintiff was written the adverse remarks were made on 5-2-1963 to the effect that he was in disciplined. quarrelsome and not sincere to his duties. Such remarks were made in the ordinary course of administrative business. Under the rules, the plaintiff had a right to make a representation when the adverse remarks were conveyed to him. He did make representation. The representation was rejected. Thus there does stand against the plaintiff an adverse remark that he is quarrelsome, in disciplined and not sincere to his duties. Certainly if the character roll of a civil servant were a document for public view then those remarks would cast a stigma, But if for judging the suitability of the plaintiff to be retained in service the appointing authority perused the service record, including entries in the character roll, that would not mean that in doing so the appointing authority was casting a stigma or publishing what was in the confidential records. The Registrar, as the appointing authority, came to the conclusion that the service record of the plaintiff was such that he did not deserve to be continued in service. His judgment in this regard cannot be questioned in a court of law. It was for him to form his opinion in the matter and unfortunately for the plaintiff he formed an adverse opinion. His judgment in this regard cannot be questioned in a court of law. It was for him to form his opinion in the matter and unfortunately for the plaintiff he formed an adverse opinion. It was then that in June 1963 that the order of termination, in exercise of powers under Rule 5 of Rule 1949, was passed. It was certainly motivated by an opinion that the plaintiff was unsuitable for retention in service. 7. It is difficult, rather may appeal sometime to be impossible to distinguish between the motive for passing an order and the basis for passing an order, yet the Supreme Court has cast upon us that difficult task to accomplish and one can only at best apply the dictum of the Supreme Court by analogy, that is to say, finding out from the facts and circumstances of various cases which went up before the Supreme Court and in which declaration was given that the permingly (sic) innocuous order terminating the services of a temporary civil servant was a mere cloak or camouflage but in reality was based on the alleged misconduct of the civil servant. From an analysis of various cases I have come to the conclusion that when any enquiry on a charge of misconduct is held against a civil servant under the rules of service before an enquiry officer and instead of completing the enquiry recourse is taken to the provisions of Rules of service permitting termination by notice or where it is found from the record that some superior officer's adverse comment on the conduct of the civil servant is made the basis of such an order, then the action though apparently innocuous in terms of the order will cast a stigma and will attract the provisions of Article 311 (1). It would be seen that in the case of A.I.R. 1971 SC 1011 (supra) which is the latest case of the Supreme Court placed before me it was found that the order of reversion was made owing to the note of the Deputy Inspector General of Police following the report of the Commandant. The order of reversion was directly and proximately founded on what the Commandant and the Deputy Inspector-General of Police said relating to the respondents conduct generally and in particular with reference to the incident of assault by him. The order of reversion was directly and proximately founded on what the Commandant and the Deputy Inspector-General of Police said relating to the respondents conduct generally and in particular with reference to the incident of assault by him. In the instant case I do not find any such circumstance as would be covered by what I have discussed above. 8. It was then submitted for the appellant that Sri Dua. the Register, himself gave the adverse remarks in the character roll and then acted upon those remarks, therefore the order of termination was directly and proximately founded on the adverse remarks against the plaintiff that he was indisciplined, quarrelsome and not sincere to his duties thus stigmatising the plaintiff. I have already observed above that the entries in the character roll of a civil servant are always made in due course of administrative routine. There are established rules under which the civil servant against whom the adverse entries are made can represent against those adverse entries. Even after such representation if the adverse entries are allowed to remain then it will be only the misfortune of the civil servant being a normal incident of service. It is not the case of the plaintiff that Sri Dua, the Registrar, had any malicious motive against him. A vague and general allegation was made in paragraph 7 of the plaint suggesting that some superior officers were adverse to the plaintiff but nothing specific was stated in the plaint against Sri Dua. No issue was got struck by the plaintiff and neither could the court strike any such issue on mere vague and laconic allegations. Sri Dua, as the appointing authority would be within his rights then to take into consideration the adverse entries in the character roll of the plaintiff for judging his suitability to be retained in service. Merely because the plaintiff was one of the senior most Chawkidars, the termination of his service under Rule 5 of the Rules of 1949 in face of continued retention of the junior Chawkidar by itself would not be a circumstance to make the order mala fide. 9. Lastly, the learned counsel for the plaintiff appellant contended that Sri Dua, the Registrar of the Institute, not being the appointing authority of the plaintiff, the order of termination dated 11-6-1963 was invalid and ineffective. 9. Lastly, the learned counsel for the plaintiff appellant contended that Sri Dua, the Registrar of the Institute, not being the appointing authority of the plaintiff, the order of termination dated 11-6-1963 was invalid and ineffective. The Civil Service Classification and Appeal Rules applicable to the plaintiff, as found by the court below, have made the Registrar of the Forest Research Institute Dehradun the appointing authority for Class IV officers to which class the plaintiff admittedly belonged. Moreover, the appointment letter on which the plaintiff based his claim is under the signature of Sri Dua, the Registrar of the Institute. If what the learned counsel for the appellant argues before me were the correct position then the appointment of the plaintiff itself is invalid and he was never a civil servant of the Government. This argument to my mind is extremely fallacious and has no substance. 10. For the reasons given above, I do not find any force in this appeal and dismiss it. In the circumstances of the case I make no order for costs.