State Of Punjab And Another v. Darshan Singh .

Mehar Singh, C.J:— The respondent, Darshan Singh, was employed temporary Inspector of Shops and Commmercial Establishments in leave reserve vacancies. On September 29, 1960, the Labour Commissioner Punjab, wrote to the respondent that there had been a number of complaints about his work and conduct from different quarters, that on inspection the Chief Inspector had found violations of the provisions of the Panjab Shops and Commercial Establishments Act, 1958 (Punjab Act 15 of 1958), in his jurisdictional area, and that on account of his doubtful integrity and inefficient work he was considered unfit for retention in Government service any more. The respondent was asked to give his written reply to this letter, which the respondent did on October 6, 1960. By another communication of December 7, 1960, the Labour Commissioner withdrew the earlier letter of September 29, 1960. He then on December 15, 1960, proceeded to make this order—

“Since your work and conduct, during the period you have worked as Shop Inspector in this Department has not been found satisfactory, your services are hereby terminated in accordance with the terms and conditions of your employment as contained in the appointment letter issued to you with this office letter No. 9953, dated 27-5-1957, with effect from the date your substitute reaches Kot Kapura to take over the charge from you.”

2. So the service of the respondent was terminated. It was this order terminating his service that is impugned by the respondent in his petition under Articles 226 and 227 of the Constitution, which has been accepted by the learned Single Judge by his order of November 14, 1963, quashing the impugned order terminating the respondent's service. This is an appeal under clause 10 of the Letters Patent from the order of the learned Single Judge by the appellants, the State of Punjab and the Labour Commissioner, Punjab.

3. The question for consideration in the case whether the statement in the order terminating the service of the respondent to the effect that your work and conduct……………….has not been found satisfactory, leaves a stigma on him and thus is by way of penalty so that the termination amounts to dismissal? If so, admittedly in this case the provisions of Article 311(2) of the Constitution were not complied with. There are three cases which bear on the facts of the case. The first case is The State of Orissa v. Ram Narain Dass, A.I.R 1961 S.C 177. There the respondent Ram Narayan Das was a probationer and the order discharging him from service said— “Probationary S.I Ramanarayan Das of Cuttack District is discharged from service for unsatisfactory work and conduct with effect from the date the order is served on him.” This had been preceded by a show cause notice under Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, calling upon him to show cause why he be not discharged from service and detailing the basis on which the notice proceeded, which included allegations of fabrication of public records and acceptance of illegal gratification. Their Lordships held that the order discharging the respondent did not amount to a penal consequence and so his claim failed. In Jagdish Mitter v. Union Of India , A.I.R 1964 S.C 449, a temporary Government employee's service was terminated by an order which read— “Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November 1, 1949.” The mention of the word ‘undesirable’ in relation to the appellant in that case was held by their Lordships to cause a stigma upon him and so the order amounted to dismissal. The order terminating his service was set aside. There is obvious difference in the phraseology in the order terminating the service of Jagdish Mitter in the last mentioned case and that of Ram Narayan Das in the first mentioned case, but in Jagdish Mitter's case the learned Judges considered what was decided in the first case and explained it in this manner—

“In the State of Orissa v. Ram Narayan Das, AIR 1961 SC 177, this Court was dealing with a case of a Sub-Inspector on probation in the Orissa Police Force, who had been discharged. His case that the discharge amounted to dismissal had been upheld by the Orissa High Court, but was rejected by this Court in appeal, because this Court came to the conclusion that the Impugned order of discharge could not properly be held to be an order of dismissal. It is true that the impugned order of discharge did refer to the adverse comments made against the probationer's conduct and did say that it was, therefore, no good retaining him further in service and that, prima facie, would amount to attaching a stigma to the probationer who was discharged; nevertheless, the order was construed by this Court to be an order of discharge simpliciter and no more, because Rule 55(b) of the Civil Service (Classification, Control and Appeal) Rules required that before the services of a probationer were terminated, an enquiry had to be held about his competence after giving him an opportunity to show cause against the grounds alleged against him; and it was because such an enquiry had to be held that the result of the enquiry was communicated to the probationer when he was disharged. In other words, the statements in the order of discharge on which the probationer had relied for the purpose of showing that the said order amounted to dismissal, bad to be made in the order as a result of the requirements of Rule 55(b), and so, this Court came to the conclusion that merely on the strength of the said statements, the impugned order could not be characterised as an order of dismissal. In dealing with this question, this Court observed that the enquiry against the respondent (probationer) was for ascertaining whether he was fit to be confirmed, and so, ‘an order discharging a probationer following upon an enquiry to ascertain Whether he should be confirmed’ could not, in law, be treated as an order of dismissal. Thus, the decision illustrates the importance of the character of the enquiry held against a temporary servant which may ultimately lead to the termination of his services. It also emphasises that if the probationer's contention had been upheld, it would virtually have meant that every order of discharge pissed against a probationer a ter complying with the requirements of Rule 55(b) would have to be treated as an order of dismissal and that obviously cannot be right.”

4. The third and the last case is The State of Uttar Pradesh v. Madan Mohan Nagar, AIR 1967 S.C 1260, in which a permanent Government servant was compulsorily retired according to the rules of service applicable to him with a statement in the order of retirement— “as he has outlived his utility.” Their Lordships held that statement in the order of compulsory retirement contained a stigma against Madan Mohan Nagar respondent, following in this respect Jagdish Mitter's case, and relying from that case on this observation— “No doubt the order purports to be one of discharge and as such can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in Government service, it expressly casts a stigma on the appellant and in that sense must be held to be an order of dismissal and not a mere order of discharge.

5. It seems that any one who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily important an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal.”

6. Now, the decision in Ram Narayan Das's case has been explained in Jagdish Mitter's case that the statement in the order had been made in the wake of the requirements of Rule 55-B of the Civil Service (Classification, Control and Appeal) Rules. Therefore, that case was not followed in Jagdish Mitter's case as also in Madan Mohan Nagar's case. It has been admitted on both sides in the present case that to the respondent no rule like rule 55-B as in Ram Narayan Das's case has any application. The letter written by the Labour Commissioner to the respondent asking him to explain his conduct was not pursuant to any such rule. It was withdrawn without any probe into the allegations made in it. Its effect was then reproduced in the order terminating the service of the respondent when it said that his work and conduct were not found satisfactory, thus justifying termination of his service. Now, anybody reading this order of termination of the service of the respondent would reach the immediate conclusion that the respondent is not a person who is entitled to employment, because not only his work but his conduct also was not found satisfactory. This attaches a stigma to him and casts an aspersion against his capacity for work as also against his conduct. This case would have come within the ratio of Ram Narayan Das's case but for the fact that the latter case proceeded under rule 55-B of the Civil Service (Classification, Control and Appeal) Rules, and no such rule is applicable in the present case, a distinction which was drawn by their Lordships when considering Ram Narayan Das's case in Jagdish Mitter's case.

7. There is no other case which has been referred to having somewhat direct bearing on the fact of the present case.

8. In view of the approach as above, this appeal fails and is dismissed, but there is no order in regard to costs.

Bal Raj Tuli, J.:— I agree.

9. Appeal Dismissed.