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

2. The appellant, A. G. Benjamin, was temporarily employed as a stores officer in the Central Tractor Organization with effect from 14 September, 1949. As he was not a confirmed Government servant his services could be terminated under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, with one months notice on either side. Under this rule the services of the appellant were terminated on 23 April 1954, the date on which the notice was served upon him. It appears that there were certain complaints made against the appellant while he was employed as stores officer in the Central Tractor Organization. In respect of these complaints Chairman of the Central Tractor Organization sent a notice to the appellant asking him to show cause why disciplinary action should not be taken against him. At first Sri Bhagwan Singh Deputy Chairman of the organization was appointed as enquiry officer, but on his transfer Sri R. N. Mathur was appointed on 13 August 1953 to conduct the enquiry. Before the enquiry could be completed, the Chairman recommended that the services of the appellant should be terminated under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, by granting him one months salary in lieu of notice. In his note to the Secretary, the Chairman observed that :"The departmental proceedings will take a much longer time and we are not sure whether after going through all the formalities we will be able to able to deal with the accused in the way he deserves"3. The Chairman, therefore, suggested that action should be taken under rule 5 for termination of the services of the appellant after one months notice or salary in lieu thereof. The recommendation was accepted by the Minister and in consequence the impugned order, dated 23 April, 1954, was passed by the Chairman. The material part of this order reads as follows. G. Benjamin, Stores Officer, Central Tractor Organization, is informed that his services are no longer required in this organization. His services will accordingly stand terminated with effect from the date on which this notice is served on him. In lieu of the notice for one month due to him under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, Benjamin will be given pay and allowances for that period."R.S.A. No. 2492 which was allowed by Jindra Lal, J., who granted a decree to the appellant that the order of the Union Government, dated 23 April, 1954, terminating the services of the appellant was ultra vires and illegal. The Union of India took the matter in appeal under Letters Patent and the order of Jindra Lal. J., was set aside by the Letters Patent Bench and the suit of the appellant was dismissed.

Reasoning: 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.