Case: Benjamin (A. G.) Vs. Union of India

such cases the order of termination of services of the temporary Government servant which in form and in 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. The point has been clearly stated by Gajendragadkar, J. (as he then was) in Jagdish Mitter v. Union of India [1964 - I L.L.J. 418] as follows at pp. 423-424 :"... Take a case where the authority initiates a formal departmental inquiry against a temporary servant, but whilst the enquiry is pending, it takes the view that it may not be necessary or expedient to terminate the services of the temporary servant by issuing an order of dismissal against him. In order to avoid imposing any stigma which an order of dismissal necessarily implies, the enquiry is stopped and an order of discharge simpliciter is served on the servant. On the authority of the decision of this Court in the case of Parshotam Lal Dhingra [1958 - I L.L.J. 544] (vide supra) it must be held that the termination of services of the temporary servant which in form and in 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 for some alleged misconduct. That is why in dealing with temporary servant against whom formal departmental enquiries may have been commenced but were not pursued to the end, the principle that the motive operating in the mind of the authority is immaterial, has to be borne in mind." 7. Let us now turn to the facts of the present case. There were several complaints made against the appellant and in July 1951 a memorandum was issued to the appellant under the signature of the Chairman of the Central Tractor Organization asking him to reply to the allegations. By the memorandum the appellant was informed that he failed to maintain stores and record properly, that he did not make adequate fire-fighting arrangements and that he also failed to carry out the orders given by superior officers. It was also alleged that the appellant had been handing over, without authority, Government stores to representatives of the supply companies. The appellant was asked to submit his explanation as to why disciplinary action should not be taken against him. Reference was made by Sri Mani on behalf of the appellant to Ex. D. 1. which is the note of the Chairman dated 19 April 1954 wherein it is mentioned that the appellant was found guilty of failing to maintain properly the stores and records and of not exercising sufficient vigilance in performing his duties. It was argued for the appellant that there was a definite finding with regard to the guilt of the appellant. It is, however, not possible for us to accept the contention of the appellant that any formal finding was recorded against him. The note of the Chairman, Ex. D. 1, itself shows that the enquiry was not completed and it was thought that if proper departmental enquiry was to be completed it would take much longer time. In para 5 of the note, Ex. D. 1, the Chairman recommends that"services of the appellant should be terminated under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, by paying a months salary in lieu of notice" and that "the departmental proceedings will take much longer time." 8. It is, therefore, manifest that the formal departmental enquiry was dropped against the appellant before it could be completed and the intention of the authority was not to impose a stigma against the appellant by making an order of dismissal but to make a simple order of discharge of the services of the appellant under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. Indeed, the order of discharge, dated 23 April, 1954, Ex D. 2, makes no imputation, whatever, against the appellant and it simply states that "his services are no longer required in the organization." As we have already stated, the note of the Chairman, Ex. D. 1, dated 19 April, 1954, also shows that departmental proceedings were dropped and it was decided not to take punitive action against the appellant but to make a simple order of discharge under rule 5. In this state of facts the appellant is not entitled to invoke the protection of Art. 311(2) of the Constitution. 9. Strong reliance was placed on behalf of the appellant on the decision of this Court in Madan Gopal v. State of Punjab [1964 - I L.L.J. 68]. In that case, Madan Gopal was a temporary Government servant. A chargesheet was served with having taken bribes in two cases. He was also asked to explain why disciplinary action should not be taken against him and he was further asked to state if he wanted to be heard in person and also to put forth any defence. An enquiry was held by the Settlement Officer who submitted his report to the Deputy Commissioner. On the basis of this report the Deputy Commissioner passed an order that it had been established that bribes had been taken by Madan Gopal and, therefore, the services of Madan Gopal were terminated on payment of one months pay in lieu of notice. In these circumstances, it was held by this Court that the order was really one of dismissal or removal and passed as a punishment after inquiry and, therefore, the provisions of Art. 311(2) should have been complied with. The material facts in the present case are obviously different and the principle of Madan Gopal case [1964 - I L.L.J. 68] (vide supra) cannot be held applicable.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Even in a case where a formal departmental inquiry is entitled against a temporary Government servant it is, we think, open to the authority to drop further proceedings in the departmental enquiry and to make an order or discharge simpliciter against the temporary Government servant. We do not accept the contention of counsel for the appellant that once the formal departmental proceedings have been initiated it is not open to the authority concerned to drop them and to take the alternative course of discharging the temporary Government servant in terms of the contract of services or the relevant statutory rule. It is possible that the authority takes the view that the stigma of the order of dismissal should be avoided in the individual case. As we have already said, the appropriate authority possesses two powers to terminate the services of a temporary Government 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 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 Government servant, it is still open to the authority to make an order of discharge simpliciter is terms of the contract of service or the relevant statutory rule. In such cases the order of termination of services of the temporary Government servant which in form and in 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.8. It is, therefore, manifest that the formal departmental enquiry was dropped against the appellant before it could be completed and the intention of the authority was not to impose a stigma against the appellant by making an order of dismissal but to make a simple order of discharge of the services of the appellant under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. Indeed, the order of discharge, dated 23 April, 1954, Ex D. 2, makes no imputation, whatever, against the appellant and it simply states that "his services are no longer required in the organization."As we have already stated, the note of the Chairman, Ex. D. 1, dated 19 April, 1954, also shows that departmental proceedings were dropped and it was decided not to take punitive action against the appellant but to make a simple order of discharge under rule 5. In this state of facts the appellant is not entitled to invoke the protection of Art. 311(2) of the Constitution9. Strong reliance was placed on behalf of the appellant on the decision of this Court in Madan Gopal v. State of Punjab [1964I L.L.J. 68]. In that case, Madan Gopal was a temporary Government servant. A chargesheet was served with having taken bribes in two cases.He was also asked to explain why disciplinary action should not be taken against him and he was further asked to state if he wanted to be heard in person and also to put forth any defence. An enquiry was held by the Settlement Officer who submitted his report to the Deputy Commissioner. On the basis of this report the Deputy Commissioner passed an order that it had been established that bribes had been taken by Madan Gopal and, therefore, the services of Madan Gopal were terminated on payment of one months pay in lieu of notice. In these circumstances, it was held by this Court that the order was really one of dismissal or removal and passed as a punishment after inquiry and, therefore, the provisions of Art. 311(2) should have been complied with. The material facts in the present case are obviously different and the principle of Madan Gopal case [1964I L.L.J. 68] (vide supra) cannot be held applicable.