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Gauhati High Court · body

1991 DIGILAW 134 (GAU)

Manohar Lal Ray v. Union of India

1991-07-18

M.SHARMA, R.K.MANISANA SINGH

body1991
M. Sharma. J.- This is an application under Article 226 of the Constitution of India for issue of an appropriate writ of direction quashing the order dated 20th October, 1986 passed by the Assistant Inspector General of Police, Arunachal Pradesh, Itanagar, terminating the services of the petitioner. 2. The fact of the case is that in response to a paper advertisement for the post of Despatch Rider at the office of Superintendent of Police (Telecom), Naharlagun, Arunachal Pradesh the petitioner submitted application for the said post in the office of the Assistant Inspector General of Police (R), Arunachal Pradesh, Itanagar. The petitioner was called for interview and he appeared for the same. During the interview many things were examined ; such as, medical examination, sports, motor cycling and verbal test etc. The motor cycle driving licence was also examined during the interview. From amongst the candidates, the petitioner alone was selected for the post and appointment letter was issued vide letter dated 11.2.86. The petitioner joined duties and he worked as a Despatch Rider till October 1986, i.e. till his termination. In the appoint­ment letter it was mentioned that the appointment is purely temporary and may be terminated at any time without assigning any reasons thereof. It was further mentioned therein that other conditions of service which are not specified will be governed by relevant rules and orders in force from time to time. 3. The petitioner alleged that he had a driving licence for motor cycle and the licence was produced before the Interview Board at the time of inter­view as the Despatch Rider had to drive motor cycle in performing his duties. But during his service, he was not allotted a motor cycle and to perform his duties without the help of any motor cycle or any vehicle. On 21.10.86 while the petitioner was going by a motor cycle with one Sri H.K.. Gogoi as a piliion rider, the Assistant Inspector General of Police Mr. P.R.S. Brar happend to see them. When the petitioner returned from his duties after delivering the letters about 12 noon he was called by the respondent No.2, Mr. Brar to his room and enquired why the petitioner was not driving the motor cycle himself rather than going on somebody else's motor cycle. The petitioner answered that as Mr. Gogoi was on the way he accompanied him. When the petitioner returned from his duties after delivering the letters about 12 noon he was called by the respondent No.2, Mr. Brar to his room and enquired why the petitioner was not driving the motor cycle himself rather than going on somebody else's motor cycle. The petitioner answered that as Mr. Gogoi was on the way he accompanied him. Further the petitioner told that he was not allotted any motor cycle or any vehicle to perform his duties. Being angry, the respondent No.2, threatened him by saying that he would be charged for mis-appropriating the money which was being saved on the petrol by going on other's motor cycle. The next day i.e. on 22.10.87 at about 3 PM a letter of termination was handed over to him. Petitioner's further allegation was that his representation to review the termination order was not considered by the respondents in spite of repeated reminders. 4. The Deputy Inspector General of Police Mr.Seva Dass, filed affidavit-in-opposition on behalf of the respondents. In the affidavit-in-opposition, the deponent averred that the petitioner was appointed in a purely temporary capacity and the services can be terminated at any time, in terms of his appointment without assigning any reasons thereof. As the petitioner was appointed in a purely temporary basis, the termination order was a termina­tion simpliciter. 5. This Court while admitting the writ petition, directed the respondents to dispose of the pending representation filed by the petitioner within a period of two months. Accordingly, the Inspector General of Police, respondent No.4, before disposing of the representation of the petitioner constituted a Board of Officers for the purpose of testing the proficiency in motor cycle driving by the petitioner. The Board consisted of Superintendent of Police (Telecom), Superintendent of Police (SB) and the Foreman of State Transport Corporation, Arunachal Pradesh. After the proficiency test the Board was of the opinion that the petitioner could not drive a motor cycle with his present experience. On the basis of this report, the Inspector General of Police disposed of the representation of the petitioner by order dated 23.5.88. 6. Mr. Yadav, learned counsel for the petitioner has submitted that the impugned order of termination by way of punishment was in violation of Article 311 of the Constitution of India and as the order cast a stigma visiting civil consequences, the principles of natural justice has been violated. 6. Mr. Yadav, learned counsel for the petitioner has submitted that the impugned order of termination by way of punishment was in violation of Article 311 of the Constitution of India and as the order cast a stigma visiting civil consequences, the principles of natural justice has been violated. Mr.Yadav has further submitted that the form of the order of termination was merely a camouflage of an order of dismissal for a misconduct. The only allegation was made by the respondent No.2 was that the petitioner had misappro­priated the money which was being spent on the petrol for motor cycle and on the basis of this allegation his service was terminated without making any enquiry and no proceeding was drawn up against the petitioner. Mr. Yadav has urged that as the termination order was passed due to malafide intention by the respondent No.2, it is always open to the Court to go behind the form of the termination order and ascertain the character of that order and in doing so, the circumstances proceeding of attendant on the order of termination of service have to be examined. 7. In Hari Singh Mann vs. State of Punjab, AIR 1974 SC 2263 , the Supreme Court in deciding the issue of termination of service of the appellant, who was a probationer, held that the termination of services on account of inadequacy for the job or for any temperamental or other defect not involving moral turpitude is not a stigma which can be called discharge by punishment. Fitness for the job is one of the most important reasons for confirmation. In this case, the appellant joined in service as a probationer. The period of probation was two years, which was extended for another six months. The object of extension of the period of probation was to find out whether the appellant was a fit person. But the appellant's service was terminated on the expiry of the extended period of probation, having considered him unfit for appointment to the State Police Service. 8. The question which poses for consideration in this case is that whether the impugned order of termination was passed by way of punishment and whether the order cast any stigma on the petitioner. But the appellant's service was terminated on the expiry of the extended period of probation, having considered him unfit for appointment to the State Police Service. 8. The question which poses for consideration in this case is that whether the impugned order of termination was passed by way of punishment and whether the order cast any stigma on the petitioner. In each case, it is necessary to examine the entire range of the facts carefully and consider whether in the light of those facts the authority intended to punish the government servant or, having regard to the character, conduct and suitability relating to the post held by him it was intended simply to terminate his service. If the material against the petitioner, on which the superior authority has acted and constitutes the motive and not the foundation of the order, the order is not passed by way of punishment and is merely an order of termination simpliciter. 9. In view of the fasts and circumstances of the case, we found that the impugned order not ex-facie disclose that it was passed by way of punishment. The impugned order reveals that the service of the petitioner was no longer required, as he was found unfit for the job in which he was appointed To substantiate the order, the respondents held the proficiency test conducted by responsible persons. On the basis of the report, the respondent No. 2 passed the order of termination which shows that the order was not passed by way of punishment. 10. We perused the report of the Board which is annexed in the affidavit-in-opposition. After the proficiency test the Board opined that the petitioner could not drive a motor cycle. He was given trial both on Rajdoot and Bullet Motor Cycles, used by the Police Department, but he could not control and handle the motor cycle properly. The opinion of the Board was recorded in the following terms : "The Board is of the opinion that he cannot drive a Motor Cycle with his present experience. Since he has no confidence and experience, whatsoever, in his own interest and safety, he should not be given a Motor Cycly to drive in a hilly place like Arunachal." 11. Mr. Since he has no confidence and experience, whatsoever, in his own interest and safety, he should not be given a Motor Cycly to drive in a hilly place like Arunachal." 11. Mr. Yadav has submitted that this Annexure (Annexure R/1) shows that there is allegation of imputation to the effect that the petitioner has no knowledge to drive a motor cycle and got himself appointed by giving false particulars about his proficiency and on that basis the respon­dents dismissed the representation by confirming the order of termination. 12. Obviously, the petitioner was appointed to perform a particular job/duty which requires proficiency in driving a motor cycle/two wheeler. It is not disputed that the petitioner owned a motor cycle driving licence but mere holding of a driving licence cannot prove his ability to drive the motor cycle. After this Court's direction to dispose of the representation dated 28.7.87, the respondents conducted a proficiency test by constituting an expert body. Sufficient opportunity was given to prove his ability, but he was found incapable of divining a motor cycle. In view of the matter, action taken by the respondents cannot be said that this was motivated by malafide intention to punish the petitioner. On the same reason, it cannot be held that the or def of termination is based on unreasonable consideration or in reality an order by way of punishment. The allegation that the order was proceeded first by an allegation and thereafter by a proficiency test, with a view to ascertain whether he should be retained in service is immaterial. As the service of the; writ petitioner is entirely depends on his fitness of driving a motor cycle, in such a case no question of -following principles of natural justice arises. The constitution of the Board to test the proficiency was made with a view to asertain his fitness for retaining him in the service. 13. From the above discussions, we find no malafide intention of the respondents in terminating the service of the petitioner and the petitioner failed to show prima facie that the order was passed by way of punishment. 14. In view of the matter, we are of the view that the writ petitioner was a temporary servant and was terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution of India. 14. In view of the matter, we are of the view that the writ petitioner was a temporary servant and was terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution of India. The circumstances proceeding or attending on the order of termination of service shows that the motive behind the termination is immaterial. In such case, the order has not visited with any heavy consequences or cast any aspersion against his character or integrity of the petitioner, and therefore, cannot be considered to be one by way of punishment. 15. For what has been stated above, we do not find any prima facie case to interfere with the order of termination, which is apparently an order of termination simpliciter. In the result the petition is dismissed. No order as to costs.