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1977 DIGILAW 113 (CAL)

STATE OF WEST BENGAL v. Madan Mohan Bag

1977-04-07

M.M.Dutt, SABYASACHI MUKHARJEE

body1977
JUDGMENT 1. MADAN Mohan Bag the respondent/petitioner herein is a citizen of India. He was temporarily appointed to the post of Cashier-cum-Clerk in the Directorate of Commercial Taxes (Entry Tax Branch), Government of West Bengal by the Directorate of Entry Tax and Commissioner of Commercial Taxes, West Bengal in the scale of Rs. 125-3-140-4-200 plus admissible allowances on the 11th of November, 1970. This was done by an office order dated 11th of November, 1970. On that date the petitioner was given a letter which stated, inter alia, as follows-"the appointment to him hereunder is subject to verification of his character and antecedents by the police and medical examination of his health by the prescribed medical authority". The appointment was originally for a period of three months from the date of joining The respondent/ petitioner, however, continued up to 30th of July, 1971. On that date he received the following communication:- "your term of employment will not be renewed beyond 31. 7. 71 and as such you will not be allowed to work beyond that date". In his application to this Court under Article 226 of the Constitution the petitioner stated that he had come to know that the termination of his service had been ordered due to adverse police report against him The petitioner also annexed to his petition a letter written to the Additional Director of Entry Taxes, West Bengal in which he stated that as far as he could express he had no political activities and the police also had no charge against him. He alleged, further, in that letter that the adverse report might have been due to jealousy of some! persons. It appears from the annexure to the petition that on 19th of August, 1971 the Additional Director of Entry Taxes had written a letter to the Deputy Inspector General of Police by which he forwarded the representation made by the petitioner. Being aggrieved by the said communication dated 30th July, 1971 the petitioner moved an application under Article 226 of the Constitution challenging the order of termination and on 17th of March, 1972 a rule nisi was issued by this Court. In the affidavit-in-opposition filed on behalf of the respondents State authorities it was stated that the petitioner had worked in his employment till the Director considered him unsuitable for employment under Government on the basis of adverse police report. In the affidavit-in-opposition filed on behalf of the respondents State authorities it was stated that the petitioner had worked in his employment till the Director considered him unsuitable for employment under Government on the basis of adverse police report. It was, further, stated that there was no question of termination because the petitioner's appointment was temporary but there was no further extension beyond 31st of July 1971 because the D. I. G. I. B. West Bengal returned the verification role of the petitioner with the following remark : -"the subject is considered unsuitable for employment under Government". The respondents have, further, stated that it was in the aforesaid circumstances that the term of appointment was decided not to be further extended and it has been stated that the decision not to extend the term of appointment was taken by the Director of Entry Taxes on the basis of the police report. The rule came up for hearing before Amiya Kumar Mookerji, J. on the 10th of April, 1974. The learned Judge was of the opinion mat as the report of the police had not been made known to the petitioner there had been violation of the principles of natural justice. Accordingly, the learned Judge directed by the order dated 10th of April, 1976 that the adverse report against the petitioner must be shown to the petitioner and the petitioner should be given an opportunity to make representation against such police report and the learned Judge, further, directed that the appointing authority should either renew or terminate the petitioner's term of employment after considering the representation of the petitioner. He, further, ordered that the petitioner would not be entitled to any salary for the past period but in case the petitioner's appointment was made the same would be considered to be a new appointment. The respondent's State authorities made an application before the learned Judge for clarification and/or modification of the order dated 10th of April, 1974. By an order dated 17th of February, 1976 the learned Judge directed as follows:- "i clarify my order to this extent that within three weeks from the date the respondents shall deliver relevant extracts of the police report to the petitioner. Thereafter the petitioner shall make a representation on the basis of the report and on considering the said representation the appointing authority shall consider the question of fresh appointment". Thereafter the petitioner shall make a representation on the basis of the report and on considering the said representation the appointing authority shall consider the question of fresh appointment". Being aggrieved by the aforesaid orders the state authorities have filed this appeal. 2. ON behalf of the appellants learned Junior Standing Counsel contended before us that the appointment of the petitioner was temporary. The petitioner had no right to continue if the petitioner respondent's appointment had not been extended. It was, further, urged that the order not extending the term of the respondent/petitioner did not exfacie contain any stigma and therefore the Court was precluded from examining whether any punishment had been inflicted upon the respondent/petitioner. It was, further, submitted that in case of public employments it was common knowledge that police verifications are made and if it is ordered that reports of verification should be made known to the party concerned then that would throw an impossible burden on the administration. It cannot be disputed that the appointment of the respondent/petitioner was temporary. The petitioner had no right, statutory or otherwise, to continue in his employment beyond the period he was allowed to do. It cannot also be disputed that the respondent/petitioner had no right statutory or constitutional to claim extension of his employment. The order or the communication informing the petitioner that his period of service would not be extended as noticed before does not contain any stigma. Where there are no express words in the order itself which would throw any stigma on the government servant the Court cannot look into the background resulting in the passing of such order in order to discover whether some kind of stigma could be inferred. See the observations of the Supreme Court in the case of I. N. Saksena v. State of M. P., A. I. R. 1967 S. C. page 1264. In the case of State of U. P. v. Ram Chandra 1976 (2) Services Law Reporter page 869 the supreme Court observed that the order to which exception was taken ill that case was exfacie an order of termination of service simpliciter. It did not cast any stigma on the person nor did it visit the person concerned with any evil consequences nor was it founded on any misconduct. It did not cast any stigma on the person nor did it visit the person concerned with any evil consequences nor was it founded on any misconduct. In those circumstances the Supreme Court was of the opinion that the party could not invite the court to go into the motive behind the order and claim the protection of Article 311 (2) of the Constitution. The Supreme Court was, further, of the opinion that where there were no express words in the impugned order itself which threw any stigma on the government servant the Court should not delve into secretarial files to discover whether some kind of stigma could be inferred on such research. As noticed before in this case the impugn ed communication ex facie does not contain any stigma. Furthermore in this case there is no question of violation of any statutory or constitutional right in not extending the period of employment of the respondent/ petitioner. Therefore no question of setting aside the impugned communication arises. 3. THERE is, however, another aspect of the matter. Article 16 of the Constitution ensures equality of opportunity for all citizens relating to employment or appointment to any office under the State. The employment involved in the instant case is employment under the state. State authorities in respect of such public employment must act reasonably and not whimsically, must act bona fide and not mala fide and must act on relevant objectivity and not on subjective prejudices, and above all State authorities must act in respect of public employment fairly. In the case of State of Behar v. A. K. Mukherji A. I. R. 1975 S. C. page 192, though in the context of a different set of facts, the Supreme Court observed that although the State need not always made a reasoned order of appointment, reasons relevant to the rules under which the appointment is made must animate the order of appointment. In this case it is indisputable, indeed it is the case of the State authorities, that the decision not to extend the appointment of the respondent/petitioner was taken as a result of the report of the police verification against the respondent/petitioner. There is nothing unreasonable or arbitrary for a public authority or a State authority to act in the case of public employment on the result of police verification. There is nothing unreasonable or arbitrary for a public authority or a State authority to act in the case of public employment on the result of police verification. Indeed the respondent petitioner's original appointment stipulated that his appointment was subject to the result of police verification. It is also common knowledge that in most public employments report or verification by police is sought for and relied upon before making the appointments. The State authorities have categorically and clearly stated that in this case action was taken upon the result of the report of police verification and adverse report of police verification would naturally disentitle the person concerned to public employment and deprive him also the chances of future public employment. It, therefore, causes serious prejudice to the person concerned. If the verification report is incorrect or based on wrong data or material or is erroneous or malafide, a person against whom such adverse report is made as a result of police verification suffers greatly and his right of equality in public employment guaranteed under Article1 16 of the Constitution is jeopardised. Verification must be objective. The appointment of the respondent petitioner in the instant case was "subject to verification of his character and antecedents by the police. " Verification means "the action of demonstrating or proving to be true or legitimate by means of evidence or testimony. It also means "the action of establishing or testing the truth or correctness of fact, theory, statement etc. by means of special investigation or comparison of data". See Shorter Oxford English Dictionary, 3rd Ed. Vol 2 page 3247. In the instant case the report of the police verification merely stated that the respondent petitioner was unsuitable for employment under the Government. The respondent petitioner protests that there is no basis for such report. It has, further, to be kept in mind that the report of the police verification is not claimed to be a privileged document in this case. It is also not the case of the State authorities that the disclosure of the report would in any way prejudice the interest or the security of State or would be harmful to government or the public. It is also not the case of the State authorities that the disclosure of the report would in any way prejudice the interest or the security of State or would be harmful to government or the public. It is true that if in all cases it is made obligatory to disclose the report of police verification before action on such report is taken by the concerned authorities that would put the public authorities into disadvantageous position. The government and public authorities can legitimately want to withhold the source of such reports or the names of the persons from whom opinion has been sought for. But police verification in order to be a correct verification must be based on certain objective datas relevant for the post or position concerned. In the facts and circumstances of this case, in our opinion, no prejudice would be caused so to the State authorities if the gist or the extract of the report so far as the same is against the respondent/petitioner is made known, and he is given an opportunity to make representation, if any, against such report on the basis of objective facts and datas. Such a course would be in consonance with the principles that should be followed by public authorities and State authorities in respect of public employments under rule of law. This will eliminate the possibility of arbitrary report and will minimise the risk of erroneous reports. The standard of character and antecedents expected of a public servant must necessarily vary with the character of the post in which he is employed or in respect of which he is seeking employment. The test of character and antecedents must have a real relation to the duties and responsibilities of the post concerned. See in this connection the observations of the Division Bench of Kerala High Court in the case of Balagopalan v. State of Kerala 1964 Vol. 8 Indian Factories and Labour Reports page 72. In that case as there was no indication as to the nature of defects in the character and antecedents of the petitioner in that case that induced the authorities to terminate his services the order of termination was quashed. Learned advocate for the respondent/petitioner also drew our attention to the decision in the case of Kishan Prosad v. Union of India A. I. R. 1960 Cal. Learned advocate for the respondent/petitioner also drew our attention to the decision in the case of Kishan Prosad v. Union of India A. I. R. 1960 Cal. page 264 and also on the decision in the case of Union of India v. Someswar Banerjee 58 C. W. N. page 107. But in view of the facts and circumstances of this case, we are of the opinion, that it is not necessary to discuss the aforesaid decisions in any detail. 4. FOR the reasons aforesaid in our opinion the appropriate order would be to direct the State authorities to disclose to the respondent/petitioner within a period of six weeks from this date the gist or extract of the police verification report so far as the same is against the respondent/petitioner. The respondent/petitioner would be at liberty to make a representation against such report and if he does the State authorities will consider such representation in the matter of any fresh appointment of the respondent/petitioner. This order will not in any way affect the order or communication of termination of the respondent petitioner which was impugned in this application under Article 226 of the Constitution. In the facts and circumstances of this case parties will pay and bear their own costs. The appeal is disposed off as above.