- Bookmark
- Share
- CaseIQ
Bhagwat Saran Srivastava v. Collector And District Magistrate
Comprehensive Summary of the Opinion
Factual and Procedural Background
The petitioner, Bhagwat Saran Srivastava, was appointed as a consolidator on 11-11-1955. On 20-4-1957 a Settlement Officer inspected the petitioner's circle and required the petitioner's fortnightly diary, which was held by the Consolidation Officer. At that time the petitioner had been recording daily work on loose sheets and was also required to submit further documents which the opposite party alleged were not in accordance with rules. He was immediately asked to apply for one month's leave and was also asked to get himself transferred. On the same day opposite party No. 2 instructed opposite party No. 3 to take charge in anticipation of leave. On 22-4-1957 the petitioner was asked to hand over charge to Sukhdeo Lal Amin (Consolidation). The petitioner rejoined on 22-5-1957 in the forenoon and was served with a notice terminating his services with immediate effect but allowing one month's pay in lieu of notice. The petitioner sent a representation to the Director of Consolidation but did not know the outcome.
The petitioner filed a writ petition under Article 226 of the Constitution claiming that he had been afforded no opportunity to meet charges against him, that the termination contravened Article 311 of the Constitution, and that the decision was tainted by bias and contrary to principles of natural justice. The petition sought all writs (certiorari, mandamus, quo warranto or any other writ or direction). The State filed a counter-affidavit alleging that the petitioner's appointment was temporary, that his services were terminated because they were no longer required and not as punishment, and that there were no charges requiring a hearing.
Legal Issues Presented
- Whether the termination of the petitioner's services amounted to a "dismissal" or "removal" within the meaning of Article 311 of the Constitution (i.e., whether Article 311 protections apply).
- Whether the authority which terminated the petitioner's services (Deputy Director of Consolidation) had the power to appoint or to terminate the petitioner, having regard to delegation notifications under Section 44 of the Uttar Pradesh Consolidation of Holdings Act, 1953.
- Whether the petitioner was entitled to summoning of the departmental record and/or issuance of writs such as certiorari in respect of the termination order, particularly given the petition's prayer for all writs.
Arguments of the Parties
Petitioner's Arguments
- The petitioner alleged he had worked satisfactorily and had a clean service record.
- He contended he was afforded no opportunity to meet the charges against him and that the termination violated Article 311 of the Constitution.
- He asserted the decision was based on bias and was in breach of natural justice.
- The petitioner maintained he had a right to have the departmental record summoned (linked to a writ of certiorari), and he asserted that the appointing authority was the Director of Consolidation (although this was not expressly stated in the petition/affidavit).
State's Arguments
- The State alleged the petitioner was a temporary appointee and that his services were innocuously terminated on the ground that they were no longer required; no punishment was imposed.
- Because no charge had been levelled, there was no question of affording an opportunity of defence.
- The State relied on a notification of 22-12-1957 under Section 44 of the Uttar Pradesh Consolidation of Holdings Act, 1953, delegating appointment power to Deputy Directors (Consolidation); the State argued that delegation of appointment power carries with it relevant administrative powers concerning termination.
- The State also contended that factual questions (such as whether the petitioner was temporary or permanent) were better addressed in a regular suit rather than a writ petition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. T.R. Varma, AIR 1957 SC 882 | Where a question of fact arises (e.g., permanency or entitlement to arrears), the better course may be to file a regular suit because the petitioner there can seek quashing and arrears of pay. | The court relied on this authority to observe that the question whether the petitioner was temporary or permanent is primarily a question of fact more suitably resolved in a suit, particularly since the present case concerned arrears of pay rather than restoration. |
| North West Frontier Province v. Suraj Narain Anand, AIR 1949 PC 112 | Authority cannot evade Article 311 protections by delegating appointment powers to a subordinate so as to circumvent safeguards against dismissal/removal. | The petitioner relied on this Privy Council decision to argue that delegation of appointment to a subordinate cannot be used to avoid Article 311; the court described these authorities but distinguished them on the basis of whether the termination amounted to punishment. |
| Ramchandra Gopalrao v. D.I.G., Police, AIR 1957 Madh Pra 126 | Discussed prior authorities where power of appointment was delegated to a subordinate and the subordinate then dismissed employees; held such delegation could not circumvent Article 311. | The court noted this case supported the petitioner's reliance on authorities that aimed to prevent circumvention of Article 311 by re-delegation of appointment powers. The court nevertheless proceeded to examine whether the present act was a dismissal/removal by way of punishment. |
| Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 | Explained that the words "dismissed", "removed" and "reduced in rank" are technical terms denoting the three major punishments in service rules; Article 311 protections apply to punishments and incorporate procedural safeguards. | The court cited this decision to support the proposition that Article 311 protects against punishment (dismissal/removal) and that ordinary termination under contract does not fall within the technical meaning of "dismissal" or "removal". |
| Khem Chand v. Union of India, AIR 1958 SC 300 | Reiterated that 'dismissal', 'removal' and 'reduction in rank' in Article 311(2) are technical words from service rules denoting major punishments. | The court relied on this case to reinforce that termination not constituting punishment does not attract Article 311 protections. |
| State of Bihar v. Gopi Kishore Prasad, Civil Appeal No. 488 of 1957 (AIR 1960 SC 689) | Where an employer terminates the services of a probationer without an inquiry and without a reasonable chance to show cause, the probationary civil servant normally has no cause of action; motive of employer (unsuitability, misconduct, inefficiency) does not by itself create a remedy. | The court quoted this authority to underscore that a termination for temporary employees or probationers, even if motivated by dissatisfaction, does not automatically entitle the employee to relief where Article 311 protections are not engaged. |
Court's Reasoning and Analysis
The court proceeded through a structured analysis anchored on two central considerations: (1) the legal meaning and scope of "dismissal" and "removal" in Article 311, and (2) the question of delegation of appointment power to the Deputy Director by statutory notification.
On the first point, the court assessed the nature of Article 311 protections by reference to authoritative precedents (Parshotam Lal Dhingra and Khem Chand). It observed that the technical terms "dismissed" and "removed" used in Article 311 are understood, in the service context, to denote punishments — the three major categories of punishments under service rules (dismissal, removal, reduction in rank). The court emphasized that Article 311's procedural protections operate only when a dismissal or removal is by way of punishment. Consequently, termination of service that occurs pursuant to the contract of employment (for example, because services are no longer required) is not a "dismissal" or "removal" within Article 311, and thus Article 311 will not apply to such a termination.
Applying that principle to the facts, the court found that the order terminating the petitioner's services (with one month's pay in lieu of notice) did not, on its face, operate as a punishment. The State's case was that the petitioner was a temporary employee and that the Deputy Director gave notice that the petitioner's services were no longer required. The court concluded that this was termination under the contract of employment, not dismissal or removal by way of punishment.
On the second point concerning authority, the court reviewed the history of delegation under the Uttar Pradesh Consolidation of Holdings Act, 1953. Under Section 42 the power of appointment statutorily rested with the State Government; Section 44 authorised delegation of the power of appointment. The record showed that an earlier notification (May 17, 1956) had delegated appointment power to the Director of Consolidation, and that a later notification dated 22-12-1957 superseded that earlier notification, delegating the power of appointment to Deputy Directors (Consolidation). The State argued that if the Deputy Director had appointment power, relevant administrative powers to terminate would also follow; if not, the Deputy Director could not have validly dismissed the petitioner.
The court did not find it necessary to resolve every nuance of delegation in order to dispose of the petition because its primary finding — that Article 311 protection against dismissal/removal by a subordinate authority was not engaged — meant that the termination did not attract Article 311. The court further observed that even if the Deputy Director were not the original appointing authority for dismissal under Article 311(1), the notification delegating appointment power to Deputy Directors (if operative) would make the Deputy Director the appropriate authority to terminate services (though not necessarily to effect a dismissal or removal by way of punishment).
The court also rejected the petitioner's request to have departmental records summoned for certiorari on the ground that an order of termination of service is not a judicial or quasi-judicial order and that certiorari to summon records is appropriate only in certiorari proceedings; thus, the remedy to summon records in that context was not available where the order is purely administrative termination.
Finally, the court recognized the petitioner's contention that the true motive could have been displeasure or perceived inefficiency, but declined to probe the employer's subjective motive. It relied on State of Bihar v. Gopi Kishore Prasad to observe that termination of a probationer or temporary employee without inquiry does not necessarily give rise to a cause of action where Article 311 is not engaged.
Holding and Implications
Holding: The petition was dismissed. The court concluded that the termination of the petitioner's services did not amount to a "dismissal" or "removal" within the meaning of Article 311 because the termination was not punishment but a termination under the contract/temporary employment arrangements. Accordingly, Article 311 did not apply.
DISPOSED OF — The petition was dismissed with costs.
Immediate implications for the parties:
- The termination as effected (notice with one month's pay in lieu of notice) stands and is not voided on the ground of Article 311 protections.
- The court left open the factual question of permanency versus temporariness (and attendant remedies such as arrears of pay), observing that such factual disputes would be more appropriately resolved in a regular suit, following Union of India v. T.R. Varma.
- The court indicated that if the delegation notification effectively vested appointment power in the Deputy Director, the Deputy Director would be the proper authority to terminate services (though the court stressed this is distinct from the power to dismiss/remove as a punishment under Article 311).
The opinion does not announce a new legal principle beyond applying existing Supreme Court authority: it applies established interpretations of Article 311 and existing delegation notifications to the facts and disposes of the writ petition accordingly.
1. This is a petition under Article 226 of the Constitution filed by one Bhagwat Saran Srivas-tava, who had been appointed as a consolidator on 11-11-1955.
2. According to the petitioner, he had worked satisfactorily and that his record has been clean throughout. According to him on 20-4-1957 the Settlement Officer happened to be on an inspection tour in the petitioner's circle. He required the Petitioner's fortnightly diary which was in the custody of the Consolidation Officer, for inspection. During that period the petitioner had been recording, all the daily work on loose sheets of paper. He was also required to submit some further documents and the documents, according to the opposite party were not in accordance with rules.
He was asked immediately to apply for leave for one month. Thereafter he was asked to get himself transferred. The same day opposite party No. 2 asked opposite party No. 3 to take charge from the petitioner in anticipation of leave. On 22-4-1957 the petitioner was asked to hand over charge to one Sukhdeo Lal Amin, (Consolidation). The petitioner again joined on 22-5-57 in the forenoon. He was served with a notice to the following effect:
"Please take notice that your services are no longer required in the department of Consolidation of Holdings and are terminated with immediate effect. You are however allowed one month's pay in lieu of notice."
The petitioner sent a representation to the Director of Consolidation, Lucknow, but he does not know what happened to it.
3. The petitioner's complaint is that he was afforded actually no opportunity to meet the charges against him, and that the termination of services was in direct contravention of Article 311 of the Constitution. He further contends that the decision of the opposite party is based on bias against the petitioner and is against the principle of natural justice, (4) The petition and the affidavit do not expressly state as to what was the authority that appointed the petitioner. For that purpose the petitioner asked the record to be summoned of the case, because, according to him, in a writ of certiorari it is the right of the parties to get the record summoned. So far as summoning of record is concerned, it can of right only be summoned in a case of certiorari. An order of termination of service is not a judicial or quasi-judicial order and under the circumstances there is no question of summoning of the record and issuing a writ of certiorari. In the prayer all the writs are asked for -- certiorari, mandamus, quo warranto, or any other writ or direction.
5. In the counter affidavit it has been alleged that the appointment of the petitioner was on a temporary basis and his services have been terminated. It was not in any way by way of punishment but was innocuous, because his services were no longer required. As no charge was levelled against him there was no question of giving opportunity to him. According to the petitioner, he was a permanent employee and not a temporary one, though he has not specifically said so.
In this petition the question whether he was a temporary employee or a permanent employee is a question of fact which could better be gone into if the petitioner had filed a suit. In the case reported in Union Of India v. T.R Varma ., (S) AIR 1957 SC 882 it has been observed by their Lordships of the Supreme Court that where a question of fact arises, the better course for the petitioner would have been to file a regular suit, because there he would not only be entitled to set the order quashed but he would also be entitled to the relief of arrears of pay. In the present case also it is more a question of arrears of pay rather than restoration to the service.
6. The main argument of learned counsel for the petitioner is that under Article 311(1) "No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
7. According to the petitioner, he had been appointed by the Director of Consolidation of Holdings. This fact again has not been asserted anywhere. But this fact is not denied in the counter affidavit. It also appears from the record that the appointment was made by the Director of Consolidation. The termination of service has been made by the Deputy Director and, therefore, learned counsel for the petitioner argues that since the removal was ordered by an authority subordinate to that by which the petitioner was appointed that removal is an improper removal.
8. On behalf of the State reliance has been placed on a notification of the State Government dated 22-12-1957 No. 8310/I-A-815-1956 which reads as follows:
"In supersession of notification No. 1740(1)/I-A. 815-54 dated May 17, 1956 and in exercise of the powers conferred by Section 44 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (U. P. Act No. V of 1954), the Governor, Uttar Pradesh is pleased to delegate to the Deputy Directors (Consolidation) of the Consolidation districts the power under Section 42 of the said Act, of making appointment of consolidator."
Under section 42 the power of appointing of consolidates was with the State Government. Under section 44 the State Government is authorised to delegate its power of appointment to any subordinate authority. It appears that by noti-
fication dated May 17, 1956 the State Government delegated the power of appointment of consolidator to the Director of Consolidation and by notification noted above that notification was superseded and the power of appointment was given to Deputy Direc-
tors.
9. According to learned counsel for the State, at the time when the services of the petitioner were terminated the Deputy Director had no power of appointment, and if he had no power of appointment he would be deemed to have had no power of dismissal or termination either. Therefore it was contended that if a new power has been given to the Deputy Director of appointment it will also include the power o removal and, therefore, the termination of the service was correct.
10. Learned counsel for the petitioner has relied on certain decisions of the Privy Council as well as of the Madhya Pradesh. Inter aha, he has relied on North West Frontier Province v. Suraj Narain Anand, AIR 1949 PC 112 and Ramchandra Gopal-rao v. D.I.G., Police, AIR 1957 Madh Pra 126. The latter authority has discussed the previous authorities. Those were cases where formerly the power of appointment vested with the Inspector General of Police; later on by rules, the power of appointment was delegated to the Deputy Inspector General of Police.
The plaintiff in those cases had been dismissed by the Deputy Inspector General of Police under the new rules. The Privy Council as well as the Madhya Pradesh Court held that by making a new rule the authority could not circumvent the provisions of Article 311. By this means, at any time, the authority concerned could take away the protection which has been given to the employee by making new rules.
11. The sole question for determination in the case is whether the termination of service amounts to "dismissal" or "removal". Both Clauses (1) and (2) of Article 311 use the word "dismissed" (removed). Article 311, in my opinion, gives protection to an employee against any sort of punishment being inflicted on him. Whether it is Clause (1) or Clause (2), it will come into operation only when a 'dismissal' or 'removal' is by way of punishment. If the services of an employee have been terminated not as punishment, but just under the contract, then in that case it cannot amount either to "removal" or 'dismissal'. In the case reported in Parshotam Lal Dhingra v. Union Of India., AIR 1958 SC 36 their Lordships observed as follows:
"It follows from the above discussion that both at the date of the commencement of the 1935 Act and of our Constitution the words "dismissed" "removed" and "reduced in rank", as used in the service rules, were well understood as signifying or denoting the three major punishments which could be inflicted on Government servants. The protection given by the rules to the Government servants against dismissal, removal or reduction in rank, was incorporated in sub-secs. (1) and (2) of Section 240 to give them a statutory protection by enacting a procedure which had to be followed before the punishment of dismissal, removal or reduction in rank, could be imposed on them and which could be-enforced in law. These protections have now been incorporated in Article 311 of our Constitution.....
Thus under Article 311(1) the punishment of dismissal, or removal cannot be inflicted by any authority subordinate to that by which the servant was appointed and under Article 311(2) the punishment of dismissal, removal and reduction in rank cannot be meted out to the Government servant without giving him a reasonable opportunity to defend himself."
From the above observation of their Lordships-of the Supreme Court it is quite clear that the removal whether it is under Article 311(1) or 311(2) means only removal from, service by way of punishment and not removal by way of termination of service.
12. In another case reported in Khem Chand v. Union of India, AIR 1958 SC 300 their Lordships of the Supreme Court have again expressed the same opinion. They have said:
"The expressions 'dismissal', 'removal' and 'reduction in rank' in Article 311(2) are technical words taken from the service rules where they are used to denote the three major categories of punishments."
In the present case, so far as the order shows the termination of service was not by way of punishment at all. But since he was considered a temporary employee the Deputy Director of Consolidation gave notice that his services were no longer required.
13. It has been contended by learned counsel for the petitioner that it was really the displeasure of the opposite parties and certain acts, which according to the opposite parties, were not to their liking and it was really on account of the supposed Inefficiency of the petitioner, that he was dismissed. That may be so. But we cannot go into it and find out what was in the mind of the employer. In a Civil Appeal No. 488 of 1957 : (AIR 1960 SC 689), State of Bihar v. Gopi Kishore Prasad, their Lordships of the Supreme Court have observed as follows:
"But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause."
Since in my view the present termination of services does not come within the definition of the technical words used in Article 311, i.e., "dismisal" or "removal", Article 311 will not apply, and if Article 311(1) does apply and according to the notification now the power of appointment vests with the Deputy Director of Consolidation, he will be the proper authority for terminating the services, though he may not be the proper authority for dismissing or removing the petitioner.
14. Under the circumstances I see no force in this petition; it is accordingly dismissed with costs.
Alert