Amar Singh v. District Magistrate, Fatehpur — 1976 DIGILAW 507 (ALL)

JUDGMENT K.B. Asthana, C.J. - The appellant, Amar Singh, filed a petition under Article 226 of the Constitution questioning the validity of the order dated 31-3-1968, passed by the Collector of Fatehpur by which the petitioner's services were terminated with effect from the date of service of the order and the petitioner was directed to receive one month's pay in lieu of notice. This order was served on the petitioner on 4th April, 1968. 2. The petitioner was brought on the approved list of paid apprentice in the year 1962. Thereafter he was appointed in a temporary capacity on the clerical staff of the Collector, Fatehpur. In February, 1968, the petitioner was posted at Bindki as Assistant Wasul Baqi Navis in the office of the Tahsildar, Bindki. He took leave for three days from 3-2-1968. On the expiry of his leave he did not join and sent an application that he was suffering from serious illness and was unable to attend the office and prayed for grant of 45 days medical leave. This application was supported by certificate of a registered medical practitioner. It transpires that the petitioner was asked to appear before the Civil Surgeon who was asked by the Collector to certify about the state of health of the petitioner and send his recommendations as to the period of leave required. The petitioner did not appear before the Civil Surgeon as the intimation sent to him at his home address could not be served, the petitioner having been reported to have left for Allahabad for treatment. On 13-3-1968, an order was passed by the Collector to the effect that the petitioner should come and hand over charge formally. The order of the Collector containing the said direction could also not be served as the petitioner was not available at his home. Thereafter there were some correspondence between the Tahsildar, Bindki, and the Officer-in-charge of the Combined Offices at Fatehpur, and ultimately the Collector passed the impugned order. 3. The learned single Judge who heard the writ petition, as his judgment shows, considered two points raised in support of the petition. The first point was that the action of the Collector in terminating the service of the petitioner was discriminatory and hit by Article 16 of the Constitution. 3. The learned single Judge who heard the writ petition, as his judgment shows, considered two points raised in support of the petition. The first point was that the action of the Collector in terminating the service of the petitioner was discriminatory and hit by Article 16 of the Constitution. The other point considered by the learned Judge was that the impugned order violated the provisions of Article 311 (2) of the Constitution as in fact the impugned order amounted to infliction of punishment. The learned single Judge repelled both the points and dismissed the petition. 4. Being aggrieved the petitioner has come up in appeal. In this appeal before us, learned counsel for the petitioner-appellant did not raise any ground based on Article 16 of the Constitution and conceded to the finding of the learned single Judge on that point. We need not, therefore, consider the attack made against the impugned order based on Article 16 of the Constitution. Learned counsel for the appellant, however, strenuously urged that the learned single Judge clearly erred in reply the attack on the impugned order based on Article 311 (2) of the Constitution. Learned counsel submitted that the order though on the face of it was innocuous and did not by itself attach any stigma on the petitioner, but this Court can go behind that order and the antecedents and surrounding circumstances established on the record will show that the so called order of termination was directly the result of the misconduct attributed to the petitioner in absenting himself without leave and in not complying with the direction of the Collector to come and hand over charge formally. 5. At the earlier hearing of this appeal we directed the learned Standing Counsel to produce the original records. The original records have been placed before us today. We find that on 29-3-1968, a long note prepared by the Office Superintendent and approved by the Officer in-Charge of the Combined Offices was placed before the Collector. In the note after tracing the whole episode of the petitioner's going on leave and then not complying with the order for handing over charge formally and then further absenting himself from duty, a recommendation was made that the petitioner being a temporary Government servant a notice terminating his service be served upon him. In the note after tracing the whole episode of the petitioner's going on leave and then not complying with the order for handing over charge formally and then further absenting himself from duty, a recommendation was made that the petitioner being a temporary Government servant a notice terminating his service be served upon him. The Collector approved this recommendation and directed that service of notice be effected at the earliest. Then a notice was issued. In paragraph 9 of the petition it has been sworn by the petitioner on personal knowledge that the Collector was very much annoyed with him on some wrong reports having been placed about his conduct by the Taihsildar. A letter, dated 13-3-1968, sent by the office of the Collector to the petitioner, Annexure 'F' to the writ petition, shows that an observation of the sender of that letter to the effect that the Collector was very much annoyed, has been cut out by an ink line, but it can be very clearly read. The averment made in paragraph 9 of the petition on personal knowledge to the effect that the Collector was very much annoyed has been. denied in paragraph 11 of the counter-affidavit sworn by the Office Superintendent, but that denial is based, as the swearing clause shows, on a perusal of the record. Even if we ignore Annexure 'F', as the words attributing annoyance to the Collector have been cut out by the sender of the letter, the averment made on persona] knowledge does not appear to us to have been satisfactorily refuted. The Collector has not filed any counter-affidavit. Moreover, we found from the original record that a sort of representation was sent by the petitioner to the Collector begging pardon and praying that his case be reconsidered with sympathy and he be restored to his post. The noting on the margin signed by the Collector betrays a state of mind which does show that the Collector was thoroughly annoyed with the petitioner. We leave the matter at that inasmuch as the anger of the Collector is not a material circumstance in judging that the impugned order in fact and in law amounts to an order of punishment. It will, however, negative any inference that the Collector passed the impugned order of termination in the normal course of office routine or due to the exigency of service. It will, however, negative any inference that the Collector passed the impugned order of termination in the normal course of office routine or due to the exigency of service. Once the office note of 29-3-1968, is taken into consideration it clearly manifests that the termination order was passed by the Collector on account of the note put up by the subordinate officers blaming the petitioner for being absent from duty without leave and disregarding the orders of the Collector to hand over charge formally. One cannot escape the inference that it is this note of the office which directly led to the passing of the termination order. In the background of the mood of the Collector that he was thoroughly annoyed coupled with the office note, the attack made on the seemingly innocuous termination order assumes force. 6. Learned counsel for the petitioner-appellant relied on the observations of the Supreme Court in the State of Bihar v. Shiva Bhikshuk Mishra, AIR 1971 SC 1011 : 1971 Lab IC 724 and the latest case of the Supreme Court in the Regional Manager v. Pawan Kumar Dubey, 1976 Serv LJ 337 : 1976 Lab IC 1146 (SC). The principles which have been formulated by the Supreme Court in a number of cases decided by it on the question when an otherwise innocuous termination order amounts to punishment have now been well crystallised and the case of Shiv Bhikshuk Mishra (supra) has always been approved as the latest decision of the Supreme Court shows in Pawan Kumar Dubey's case (supra) and it is not necessary for us to repeat in this judgment the observations of the Supreme Court as they are well known. 7. The learned Standing Counsel urged that the Supreme Court has always differentiated between motive for the order and the foundation for the order. He submitted that the office note attributing some misconduct on the part of the petitioner may have served as a motive for the Collector to pass the impugned order, but it cannot be said to be the foundation as the Collector under the terms and conditions of service and the rules governing the service of the petitioner had the power to terminate his service by giving him one month's pay as the petitioner was a temporary Government servant. We have tried to appreciate this argument of the learned Standing Counsel, but we find that on the facts and circumstances of the instant case the difference between what is called the motive and the foundation for the order is blanked out. The approval of the Collector on the recommendations of his office and ordering the service of notice as recommended by the subordinate officers is the very foundation for the order. There is no scope of discerning the motive as separate from the cause for the impugned order. The action taken by the Collector is the direct result or consequence of the recommendations of the subordinate officers and we think the instant case is wholly covered by the declaration of law made by the Supreme Court in Shiva Bhikshuk Mishra's, (1971 Lab IC 724) (SC) (supra). The learned Standing Counsel drew our attention to the case of Raj Kumar v. Union of India, AIR 1975 SC 1116 : 1975 Lab IC 669 and contended that when an action is taken against a Government servant under the relevant rules which enabled the authorities concerned to terminate his service, the Court would not go into the reasons which led to the termination of the service. We do not think that the observations of the Supreme Court made in para. 4 of the Report at page 1119 in any way militate against the declaration of law in Shiva Bhikshuk Mishra's case (supra). It appears that in Raj Kumar's case (supra) the Supreme Court was not considering any argument that the order of termination was punitive in nature and violated Article 311 (2) of the Constitution. In Shiva Bhikshuk Mishra's case the Supreme Court clearly laid down that the Court can always go behind the order and find out the immediate or direct cause or the foundation for the order and if a simple order of termination appears to be founded on misconduct then it would amount to punishment. In Raj Kumar's case (supra) since no such point seems to have been raised, the observations relied upon by the learned Standing Counsel cannot be read as laying down a different principle of law or modifying the declaration of law made in Shiva Bhikshuk Mishra's case (supra). In Raj Kumar's case (supra) since no such point seems to have been raised, the observations relied upon by the learned Standing Counsel cannot be read as laying down a different principle of law or modifying the declaration of law made in Shiva Bhikshuk Mishra's case (supra). This conclusion of ours is further strengthened by the latest decision of the Supreme Cour in Pawan Kumar Dubey's case (1976 Lab IC 1146) (SC) (supra) in which Shiv Bhikshuk Mishra's case (supra) has been noticed and relied upon. 8. Having corm to the conclusion that the impugned order of termination in the instant case was a sample order of termination but was 'founded on alleged misconduct on the part of the petitioner, we are compelled to quash it as it violates the guarantee conferred by Article 311 (2) of the Constitution on civil servants. 9. The result is that this appeal is allowed, the Judgment and order of the learned single Judge are set aside and the impugned order of termination is quashed and the petitioner will be treated to be in service throughout. The petitioner will be entitled to his costs in the petition as well as in this appeal.