VITHAL MALLAPPA MOPAGAR v. STATE OF KARNATAKA — 1976 DIGILAW 71 (KAR)

SADANANDASWAMY, J. ( 1 ) THIS appeal is presented against the order of Jagannatha Shetty, J passed on 7-1-74 in WP. 618174, dismissing the writ petition. The appellant is the jeep driver in the Office of the Home Guard Commandant, Bijapur District, Bijapur. A notice dt. 30-1-1974 was issued by the Commandant general, Home Guards, Karnataka State, Bangalore, stating that his services would he terminated after a period of one month under Rule 5 of the karnataka State Civil Services (Temporary Services) Rules 1967. The said notice was challenged in the writ petition on the ground that it was issued by way of punishment contrary to the protection guaranteed to civil servants under Art. 311 (2) of the Constitution. ( 2 ) THE appellant was appointed on 11-11-1969 as a Jeep driver. The order of appointment states that it was purely a temporary appointment governed by the Karnataka State Civil Services (Temporary Services) rules 1967. The learned Judge held that the order of the Commandant general did not attract the provisions of Art. 311 (2) of the Constitution. ( 3 ) THE only contention urged in the writ petition was that the termination of the services of the appellant was by way of punishment and would attract the provisions of Art. 311 (2) of the Constn. That is also the only question which will be considered by us in this appeal. ( 4 ) ON 24-12-1973, the Commandant General issued a memo to the appellant which referred to the report of the in-charge Commandant, home Guards, Bijapur, that the appellant has been unauthorisedly absent from duty from 11-11-73 resulting in keeping the departmental jeep idle and causing dislocation in the cfficial duties. By that memo the appellanat was directed to report for duty before the Commandant, Home Guards, bijapur, within 3 days from the date of receipt of the memo failing which, it was stated, suitable action would be taken against him. It was further stated in the memo that the orestion of regularisation of the period of absence from duty from 11-11-73 would be considered only after, he returned to duty. In answer to this memo, the anpellant sent a reply on 28-12-73. It was further stated in the memo that the orestion of regularisation of the period of absence from duty from 11-11-73 would be considered only after, he returned to duty. In answer to this memo, the anpellant sent a reply on 28-12-73. In that reply he stated that he was not absent from duty from 11-11-73, that he had obtained leave of absence from 19-11-73 to 22-11-73 from the commandant since he was ill and that he had joined duty on 23-11-73. He also stated that, according to the direction of the Commandant, he had removed the speedometer and handed it over to the Inspector of the Home guards, that the wires connecting dynamo guage, oil guage, heat guage and petrol guage in the meter of that jeep had been displaced, that the cylinder head valve of the engine was not working and that the engine would get spoiled without repairs, that the batterv had got discharged and there was starting trouble. He further stated that he had affixed his signature to the log book under the directions of the incharge Commandant against his (the appellant) wishes. He also complained about the ill-treatment meted out to him by the in-charge Commandant and stated that he (the latter) had falsely reported that the appellant had been absent from duty. ( 5 ) THE learned Govt Advocate has made available to the Court the relevant records. They show that the remarks of the Commandant, Home guards, Bijapur, were called for by the Commandant General on the various allegations marie by the appellant against the former. The Commandant, home Guards, Bijapur, was a person by name H. T. Sasnur. He sent his report on 9-1-74 setting out in detail his version as to the allegations made by the appellant against him. He demed the truth of the allegations made by the appellant. He also stated that the appellant behaved very rudely in the office by abusing the Commandant and others on 1-12-73, that two clerks and two peons had submitted their statements to the Commandant on that date after the incident. Copies of the statements were enclosed to his report. He demed the truth of the allegations made by the appellant. He also stated that the appellant behaved very rudely in the office by abusing the Commandant and others on 1-12-73, that two clerks and two peons had submitted their statements to the Commandant on that date after the incident. Copies of the statements were enclosed to his report. He also, stated that the appellant was found to be lazy and indifferent in his work and used to make allegations against any one to suit his convenience and that he (the Commandant) has been tolerating him (the appellant) on the ground of sheer humanity; and that he (the Commandant) left it to the Commandant General to take any action that he' deems fit. The concluding part of the report stated that in the best interests of the. Home Guards Organisation in that district, the appellant should not continue to work in that office any longer, that he might be transferred to any other place and that his staff officers have strongly represented to him in this regard. The office notes maintained by the office of the Commandant General, home Guards, Bangalore, show that a note was prepared setting out the contents of the letter of the Commandant, Bijapur District, dated 9-1-74 for consideration of the Commandant General and suggesting that the services of the appellant might be terminated under Rule 5 of the myrore State Civil Services (Temporary Service) Rules 1967. It is thereafter that the commandant General came to the conclusion that the appellant was indisciplined and indifferent and that mere transfer would not improve him and decided that a notice of termination of his service should be issued. It is as a consequence of this decision that the notice dt. 30-1-74 was issued to the appellant. On 30-1-74, the Commandant General also addressed a memo to the Commandant, Home Guards, Bijapur, stating that in view of the persistent misconduct of the appellant, it is not desirable to consider his transfer and that therefore, a notice of termination of his services under Rule 5 of the Karnataka Civil Services (Temporary Services) rules, 1967, had been issued, copies of which were enclosed for service on the appellant. Thereafter, the Commandant General ordered the termination of the service of the appellant with effect from the forenoon of 5-3-1974. Thereafter, the Commandant General ordered the termination of the service of the appellant with effect from the forenoon of 5-3-1974. It is clear, therefore, that the Commandant, Bijapur Dist, had recommended only transfer of the appellant to some other district giving his reasons why it is undesirable to retain his services in his office, but that the Commandant General took the view that it was not desirable to continue the appellant in service and therefore decided to terminate his services. It is on these facts that we have to consider whether the provisions of art. 311 (2) of the Constitution are attracted. ( 6 ) IN Champaklal Chimanlal Shah v. Union of India (1964) 5 SCR. 190 , the principles applicable to the termination of the service of a temporary Govt servant, were considered and it was stated as follows" Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused. Even where Govt does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy Govt that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already govt does not usually take action of this kind without any reason. Therefore, when a preliminary enquiry of this nature is held in the case of a temporary employee or a Govt servant holding a higher rank temporarily it must not bo confused with the regular departmental enquiry (which usually follows such a preliminary enquiry) when the Govt decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the Government servant. * * there must therefore be no confusion between the two enquiries and it is only when the Govt proceeds to hold a departmental enquiry for the purpose of inflicting on the Govt servant one of the three major punishments indicated in Art. 311, that the Govt servant is entitled to the protection of that Article. * * there must therefore be no confusion between the two enquiries and it is only when the Govt proceeds to hold a departmental enquiry for the purpose of inflicting on the Govt servant one of the three major punishments indicated in Art. 311, that the Govt servant is entitled to the protection of that Article. * * * the mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e g. R. 5 in this case) would not mean that the termination of service amounted to infliction of punishment or dismissal or removal within the meaning of Art. 311 (2 ). Whether such termination would amount to dismissal or removal within the meaning of Art. 311 (2) would depend upon the fads of each case and the action taken by govt which finally leads to the termination of service. "in Jagdish Prasad Shastri v. State of 17. P. AIR. 1971 SC. 1224, which was a case of reversion of en officer holding a superior post in an officiating capacity to the substantive post, it was observed as follows :" An order of reversion made due to exigencies of the service in consequence of which an officer who was temporarily appointed or appointed in an officiating vacancy may not be challenged. But the order passed maliciously or on collateral consideration or which involves penal consequences, or denies to the civil servant the guarantee of the Constn or of the rules governing his employment, is always open to challenge by appropriate proceedings. "in A. G. Benjamin v. Union of India 1967 SLR, 185, the principles stated in Champak- lal's case (1) were approved and it was observed as follows :" As we have already said, the appropriate authority possesses two powers to terminate the services of a temporary Govt servant. It can either discharge him purporting to exercise its power under the terms of contract or the relevant rule, and in that case, the provisions of Art. 311 will not be applicabe. Alternatively, the authority can also act under its power to dismiss a temporary servant and make an order of dismissal in which case the provisions of Art. 311 will be applicable. Alternatively, the authority can also act under its power to dismiss a temporary servant and make an order of dismissal in which case the provisions of Art. 311 will be applicable. If therefore the authority decides, for some reason, to drop the formal departmental enquiry even though it had been initiated against the temporary Govt servant, it is still open to the authority to make an order of discharge simpliciter in terms of the contract of service or the relevant statutory rule. In such cases the order of termination of services of the temporary Govt servant which in form and substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct. "in that case, in respect of certain complaints, the employee had been served with a notice asking him to show cause why disciplinary action should rot be taken against him. An enquiry officer had been appointed to conduct an enquiry, but before the enquiry could be completed, the Chairman recommended that the services of the employee should be terminated u|r. 5 of the Central Civil Services (Temporary Service) Rules 1949, whiie granting one month's salary in lieu of notice. In his note to the Secretary, the chairman had observed that the Departmental proceedings would take a much longer time and that they were not sure whether ater going through the formalities, they would be able to deal with the accused in the way he deserved. The Chairman, therefore, suggested that action should be taken under Rule 5 for termination of the services of the appellant after one month's notice or salary in lieu thereof. The order stated that the appellant's services were no longer required in the organisation and that accordingly his services would stand terminated with effect from the date on which the notice was served on him and that in lieu of the notice for one month due to him under Rule 5, he would be given pay and allowances for that period. It was held that the note of the Chairman showed that departmental proceedings were dropped, that it was decided not to take punitive action against the appellant but to make a simple order of discharge under Rule 5, and that the employee was not entitled to invoke the protection of art. 311 (2) of the Constitution. ( 7 ) IN the present case, after the show cause notice was served on the appellant and his reply had been received, the Commandant General asked for the remarks of the Commandant, Bijapur District. The commandant , Bijapur District, stated that it was undesirable to continue the appellant in his office and that he might be transferred to some other district. On a consideration of the circumstances of the case, the Commandant General came to the conclusion that it was not desirable to retain the services of the appellant and that his services should be terminated under Rule 5. The order of termination does not cast any stigma on the appellant. Under these circumstances, the provisions of art. 311 (2) of the Constn will not be attracted to the present case. ( 8 ) BUT the appellant relied on the decisions in State of Bihar v. Mishra AIR. 1971 SC. 1011. , Phadnis v. State of Maharashtra AIR. 1971 SC. 998. and Madan Mohan v. Slate of Bihar AIR. 1973 SC. 1133. In Madan Mohan v. State of Bihar (6) the simple termination of the services of a Govt servant holding a permanent post though temporarily, without any enquiry against him was held to be violative of art. 311 (2 ). In answer to the question put in the Bihar Legislative Assembly relating to the appellant in that case, the Chief Minister stated that the appellant's services were not satisfactory and that the Govt felt that he should be served with a show cause notice. It was held that the Chief minister's statement in the Assembly that his services were not satisfactory and that the Govt was considering to serve a show cause notice and the fact that his services were terminated without any enquiry being held would inevitably lead the public to believe that his service had been terminated on account of inefficiency or misconduct and that a stigma was cast on his character. But in the present case, it cannot be said that a stigma was cast on the character of the appellant by the report made by the Dist Commandant, Bijapur. That report was addressed to the Commandant General as part of the official correspondence between the office of the Commandant General and the office of the Commandant, Bijapur dist, and no publicity had been given to the contents of that report. ( 9 ) IN State of Bihar v. S. B. Mishra a Govt servant was reverted from the post of Subedar Major to the substantive post of Sargeant. Subsequently an order was made by the Deputy Inspector-General dismissing him from service. The Commandant of the Bihar Military Police, Muzzaffarpur wrote to the DIGP, Armed Forces, mentioning an incident between the respondent and his orderly involving physical assault by the respondent on the orderly. The Commandant made an enquiry into the matter and expressed the opinion that the respondent had actually assaulted his' orderly. The Commandant wrote in his letter to the DIGP that the respondent be censured for his unsatisfactory behaviour. The DIG in turn recommended that the officiating Major should be reverted to the subsantive rank of a Sargeant and that the question whether he should be retained in service would be decided after the Board of Enquiry, which was already investigating into the conduct of the respondent, concluded its work. The igp thereupon approved the recommendation of the DIG. Thereafter, the respondent was asked to attend the enquiry by the Board of Enquiry to answer the charges of misconduct. He was then reverted to his substantive post of Sargeant, on Novr 14, 1950. On April 7, 1953 an order was made by the DIG dismissing the respondent from service. In that case the Supreme court reiterated the following propositions stated in its earlier decision in State of Punjab v. Sukh Raj AIR. 1968 SC. 1089. :" 1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination have to be examined in each case, the motive behind it being immaterial. 3. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of Art. 311 of the Constitution. 5. If there be a full scale departmental enquiry envisaged by art. 311 i. e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article. " in S. B. Misra's cose (4), the Supreme Court held that though there were no express words of stigma attributed to the conduct of the respondent in the order impugned therein it must be held to have been made by way of punishment, that the form of the order was not conclusive of its true nature, it might merely be a cloak or camouflage for an order founded on misconduct, but that the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. It was held in that case that the order of reversion was made owing to the note of the D1gp, that it was directly and proxi- mately founded on what the Commandant and the DIG said relating to the respondent's conduct generally and in particular with reference to the assault by him on his orderly. Since the order of reversion was void, the order of dismissal was held to be violative of Art. 311 (1) of the Constn. In K. H. Phadnis v. State of Maharashtra a Govt servant was reverted from a temporary officiating post to his substantive post. Since the order of reversion was void, the order of dismissal was held to be violative of Art. 311 (1) of the Constn. In K. H. Phadnis v. State of Maharashtra a Govt servant was reverted from a temporary officiating post to his substantive post. The appellant in that case was faced with certain charges of receiving monies and gifts at the time of the marriage of his daughter which charges were denied by him. The Secretary to Govt threatened to repatriate him to his parent dept. The Minister himself visited the office of the appellant. The appellant himself asked for an enquiry. At the time of the passing of the order of reversion the appellant not -only protested but also asked the Govt to wait for the completion of the investigation which was being held. The govt did not accede to that request. Subsequently, the investigation indicated that the appellant was totally free from blame or taint. It was in those circumstances that the Supreme Court held that the order was in the nature of punishment and attracted Art. 311 of the Constitution. ( 10 ) IN Samsheer Singh v. State of Punjab AIR. 1974 SC. 2182. the services of two probationers were terminated under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules 1952. It was held that no abstract propor sition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case, and that if a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Art. 311 (2) of the Constitution, and, after a review of the earlier decisions, the Supreme Court observed as follows :" The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of miscoduct or inefficiency or corruption, and if his services are terminated without following the provisions of Art. 311 (2) he can claim protection. * * * * the fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. (See state of Orissa v. Ramnarain Das ( (1961) SCR 606= air 1961 SC 177 ). If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance. (See Modem Gopal v. State of Punjab (1963) SCR 716- air 1963 SC 531 ). In R. C. Lacy v. State of Bihar (CA. No. 590 of 1962) decided on 23-10-1963 (SC) it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of that case was in the nature of preliminary inquiry to enable the Govt to decide whether disciplinary action should be taken. A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Art. 311 (2) (See B. C. Banerjee v. Union of India ( 1964 (2) SCR 135 = air 1963 SC 1552 ) ). A preliminary inquiry to satisfy that there was reason to dispense with the service of a temporary employee has been held not to attract Art. 311 (See Champaklal G. Shah v. Union of India ( ( 1964 5 SCR 190 = air 1964 SC 1854 ) ). On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to. import an element of punishment (See Jagidish Mitter v. Union of India ( AIR 1964 SC 449 ) ). On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to. import an element of punishment (See Jagidish Mitter v. Union of India ( AIR 1964 SC 449 ) ). "after referring to its earlier decision in Phadnis v. State of Maharashtra the Supreme Court observed as follows :" If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Art. 311. The substance of the order and not the form would be decision. (See K. H. Phadnis v. State of Maharashtra ( (1971) Supp SCR 118= air 1971 SC 998 ) ). "after referring to its another earlier decision in State of Bihar v. Mishra , the Supreme Court further observed as follows :" An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Art. 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with, Art. 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. (See state of Bihar v. Shiva Bhikshuk ( (1971) 2 SCR 191 - AIR 1971 SC 1011 ) ). "it is therefore clear that where the departmental enquiry is contemplated and if an enquiry is not proceeded with, Art. 311 would not be attracted, and that the impugned order in State of Bihar v. Mishra though unexceptionable in form, violated Art. 311 of the Constn since the order was made following the report based on misconduct. ( 11 ) THE order of reversion in Phadni's case (5) was held to violate art. 311 since the facts of the case indicated that the substance of the order was that the termination was by way of punishment. ( 12 ) IN the present case, the order of the Commandant General was not based on the report of the Commandant, Bijapur Dist, who recommended only a transfer. There are no circumstances in the present case, as in phandi's case (5), to show that the order of the Commandant General is by way of punishment. ( 12 ) IN the present case, the order of the Commandant General was not based on the report of the Commandant, Bijapur Dist, who recommended only a transfer. There are no circumstances in the present case, as in phandi's case (5), to show that the order of the Commandant General is by way of punishment. On the other hand, the Commandant General decided to exercise his right to terminate the service of the appellant under Rule 5. ( 13 ) THE allegations of malafides against the Commandant, Bijapur dist, are vague and without basis. The fact that the Commandant, Bijapur dist, recommended not the termination of the services of the appellant but transfer to another district, shows that he only expressed his dissatisfaction with the conduct of the appellant. The decision to terminate the services of the appellant was entirely that of the Commandant General and not that of the Commandant, Bijapur District. ( 14 ) WE do not see any reason to interfere with the finding of the learned single Judge. This appeal is accordingly dismissed. No costs. --- *** --- .