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Case Number

Civil Writ No. 1733 of 1963

Judges

Dua, J.

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Smart Summary

Structured Summary of the Opinion delivered by Dua, J.

Factual and Procedural Background

The petitioner, claiming to be a displaced person, was appointed as a Patwari in the Revenue Department on 10 January 1955. It is admitted he was a temporary and officiating Patwari. In 1963 the petitioner was functioning as a helper to Shri Sohan Lal (the Patwari actually in charge of Halqa Nawach, District Karnal) though officially posted to Halqa Dohla, Tehsil Kaithal. A murder occurred in the Patwar Halqa of Nawach; during investigation it was found that wrong entries had been made in certain khasra girdawaris allegedly to support the claim of one Jagir Singh.

The Deputy Superintendent of Police (Kaithal) made an endorsement which was forwarded to the Deputy Commissioner, who sought a report from the Sub-Divisional Officer. The Sub-Divisional Officer's material indicated that Sohan Lal was the Patwari in charge and that the petitioner was working with him as a helper. On the basis of the Sub-Divisional Officer's report, the Revenue Assistant proposed that the petitioner be reverted as an "unpaid candidate." The Deputy Commissioner issued an order dated 25 June 1963 (communicated to the petitioner on 18 July 1963) approving this proposal. That order is the impugned order challenged in the present writ petition.

Annexure 'A' to the writ petition (reproduced in the opinion) contains the police endorsement, the departmental reports (including statements by Sohan Lal and the Tehsildar), and internal departmental notes and endorsements dated between 11 December 1962 and 25 June 1963, discussing potential departmental action, criminal proceedings and the possibility of reverting the patwaris as unpaid candidates pending Session Court decision.

Procedurally, the petition was admitted on 19 September 1963 and directed to be heard early, but was finally disposed of much later. During the Court's consideration, additional departmental steps and enquiries took place (including show-cause notices, a charge-sheet called for by the Collector in September 1964, and a later order dated 4 February 1966 removing the petitioner from the list of Patwari candidates). The Court ultimately allowed the petition and quashed the impugned order dated 25 June 1963, awarding costs to the petitioner. The Court expressly declined to decide on the consequences of the later order dated 4 February 1966.

Legal Issues Presented

Whether the order of the Deputy Commissioner dated 25 June 1963 (reverting the petitioner as an unpaid candidate) was in substance punitive and stigmatic such that it must be treated as an order of dismissal or punishment attracting the protections available to government servants.
Whether a temporary servant (such as the petitioner) is entitled to the protection of Article 311(2) of the Constitution when an order amounts to dismissal, removal or reduction in rank (i.e., when punishment is inflicted rather than a merely administrative discharge).

Arguments of the Parties

Petitioner's Position

The petitioner challenged the Deputy Commissioner's order dated 25 June 1963 reverting him as an unpaid candidate and relied on the contents of Annexure 'A' to show the background and character of the order.
The petitioner relied on authorities (drawn to the Court's attention by counsel) which, as applied, showed that an order which casts an aspersion and attaches stigma must be treated as an order of dismissal/punishment and thus attracts protection applicable to government servants.
The petitioner sought quashing of the impugned order; he also participated in departmental proceedings (received show-cause notice and submitted reply and asked to be heard in person).

Respondents' Position

The respondents' counsel (at different times) offered limited opposition. One contention recorded was that the motive of the authority in passing the impugned order was immaterial.
Earlier in proceedings, learned counsel for the respondents (Shri Pannu) suggested that because the petitioner was said to be no longer in Government service, there was no possibility of an enquiry being held into alleged misconduct.
At the final hearing, learned counsel for the respondents (Shri M.S. Pannu) had "practically nothing to urge" and "virtually conceded" that the order dated 25 June 1963 was by way of punishment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagdish Mitter v. Union of India, A.I.R. 1964 S.C. 449	The Court held that when an order states the servant was "undesirable to be retained in Government service" it causes a stigma and must be treated as an order of dismissal (i.e., punitive) rather than a mere discharge for administrative convenience.	The Court applied this principle to the Deputy Commissioner's order dated 25 June 1963, finding that the order, read reasonably in its context (including antecedent endorsements and reports), imported an element of punishment and stigma and therefore could not be treated as a simple discharge.
Chambaklal Chimanlal fat Shah v. Union of India, A.I.R. 1964 S.C. 1854	Temporary servants are entitled to the protection of Article 311(2) if action against them amounts to one of three punishments (dismissal, removal or reduction in rank). The Court must apply two tests (whether the servant had a right to the post or whether he has been visited with evil consequences) to determine if an order is punitive. Motive is irrelevant where the contract or rules give a right to terminate.	The Court used this ratio to determine whether the impugned order imposed punishment on a temporary servant. Applying these tests to the facts and documents (including Annexure 'A'), the Court concluded the order amounted to punishment attracting protection.
State v. Sohan Singh (Sessions Trial No. 43 of 1963; Order of Additional Sessions Judge, Karnal dated 27 June 1963)	In that sessions judgment the learned Additional Sessions Judge remarked that the Patwaris (Sohan Lal and Khushi Ram) had not discharged their official duties diligently and appeared to have changed entries in the khasra girdawaris; the judge left the matter to be dealt with by the department concerned.	The Court noted this Sessions Court remark (produced to the Court during earlier hearings) as part of the record indicating departmental concerns about the patwaris' official conduct and relied on it in assessing the departmental material that led to the Deputy Commissioner's impugned order.

Court's Reasoning and Analysis

The Court undertook a fact-sensitive analysis grounded in the material contained in Annexure 'A' (police endorsement, departmental reports and internal notes) and the relevant Supreme Court precedents.

Step-by-step reasoning as reflected in the opinion:

The Court examined the departmental records and endorsements (police endorsement, S.D.O./Tehsildar reports, statement of Sohan Lal, Revenue Assistant's report and the Deputy Commissioner's order of 25 June 1963) to understand the basis of the impugned order reverting the petitioner as an unpaid candidate.
The Court identified the legal test from Jagdish Mitter and Chambaklal Chimanlal fat Shah: where an order expresses that a servant is "undesirable" to be retained, it casts a stigma and is to be treated as punitive; temporary servants enjoy protection under Article 311(2) if the action against them amounts to dismissal, removal or reduction in rank (or otherwise results in "evil consequences" or deprives them of a right to the post).
Applying these principles, and reading the Deputy Commissioner's order of 25 June 1963 in the background of the June 1963 notes and the Revenue Assistant's report, the Court concluded that the departmental action was by way of punishment and that stigma attached to the petitioner.
The Court observed that the respondents' counsel had little to rebut this conclusion; the respondents' only serious contention was that motive was immaterial, but the Court found that Annexure 'A' itself disclosed the infirmity captured by the Supreme Court ratios (i.e., the order's content and context showed punitive character, not merely motive).
The Court also recorded the chronology of events during the litigation (production of Sessions Judge's remarks, subsequent departmental show-cause and enquiry steps, the Collector's communications, and a later order dated 4 February 1966 removing the petitioner from the list of Patwari candidates). The Court refrained from deciding on that later order since no arguments were addressed on it.
Given the conclusion that the impugned order of 25 June 1963 was punitive and caused stigma without compliance with the protections that must attend such action, the Court held that it had to quash that order.

Holding and Implications

Final Disposition: The petition is allowed and the impugned order dated 25 June 1963 (reverting the petitioner as an unpaid candidate) is quashed.

Implications and Consequences:

The direct effect is that the specific departmental order of 25 June 1963 was declared invalid and set aside; the petitioner was awarded the costs of the proceedings.
The Court explicitly stated that its order would not prevent the department from taking "whatever other steps may be open to it under the law." Thus, while the 25 June 1963 order was quashed, the department retained the ability to pursue lawful action consistent with statutory and constitutional protections.
The opinion relied on Supreme Court precedents to determine the legal character of the departmental order; it did not purport to create new precedent but applied established ratios concerning stigma, punishment, and protection available to temporary government servants.
Note: The Court declined to adjudicate on the effect of a later departmental order dated 4 February 1966 (removing the petitioner from the list of Patwari candidates), as no arguments on that order were addressed before it.

Order in the opinion: "Petition allowed." (Costs to the petitioner.)

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Khushi Ram v. The State Of Punjab And Another

Dua, J.:— This writ petition was admitted on 19th September, 1963, and was directed by the Admitting Bench to be heard at an early date. It is unfortunate that in spite of this direction the case should be finally disposed of only today.

2. The petitioner claiming to be a displaced person is stated to have been appointed as a Patwari in the Revenue Department on 10th January, 1955. It is not disputed that he is a temporary and officiating Patwari. Some trouble seems to have arisen in 1963 when the petitioner was appointed as a helper to one Shri Sohan Lal, Patwari of Halqa Nawach, district Karnal, though he was actually posted as a Patwari in Halqa Dohla, Tehsil Kaithal, in the same district. During that period, it is averred, a murder was committed in the Patwar Halqa of Nawach in which one Sohan Singh was challaned for the murder. During investigation of that case, it was found that the Patwari of the Halqa had made some wrong entries in some khasra girdawari with the object of supporting the claim of one Jagir Singh. The Deputy Superintendent of Police, Kaithal thereupon made an endorsement on the report of the Investigating Officer which was forwarded to the Deputy Commissioner who in turn asked for a report from the Sub-Divisional Officer, Kaithal Report of the Sub-Divisional Officer showed that Sohan Lal was the Patwari actually incharge of the Halqa in which wrong entries had been made and that the petitioner was working with him as a helper. The Revenue Assistant on the basis of the report of the Sub-Divisional Officer proposed that the petitioner be reverted as unpaid candidate. This report was approved by the Deputy Commissioner as per his order dated 25th June, 1963 communicated to the petitioner on 18th July, 1963. It is this order which is being assailed in the present proceedings. In order to understand the effect of the impugned order. It is necessary to reproduce the relevant portion of Annexure ‘A’ attached to the writ petition which is in the following terms:—

“D.C may kindly see a copy of report from the Deputy Superintendent of Police, Kaithal endorsed to this office vide endorsement No. 54379, dated 11th December, 1962 at flag ‘A’ by the Superintendent of Police Karnal. The Deputy Superintendent of Police Kaithal has said as follows:—

“It is quite clear from the record that a wrong entry in the name of Jagir Singh was done by the Patwaris with a view to support Shri Jangir Singh (Bad Character). The action of the both Patwaris has resulted in the commission of serious case of murder and attempt to murder wherein one person lost his life and several persons received serious injuries on both sides”.

3. The then Deputy Commissioner asked for a report from the Sub-Divisional Officer, Kaithal within a fortnight. The S.D.O has now forwarded the report of the Tehsildar Kaithal vide flag ‘B’. This report says that Shri Khushi Ram Patwari was the person who made the entries in the Khasra gi-dawari and that he made a vain attempt to involve Shri Sohan Lal Patwari and the Sarpanch (it may be mentioned here that Shri Sohan Lal was the Patwari actually incharge of the halqa and Shri Khushi Ram Patwari worked with him as helper in doing the girdawari of the Kharif 1962 after the last floods).

4. Shri Khushi Ram was a helper and it was the duty of Shri Sohan Lal to have seen that any changes made in the Khasra girdawari were regularly incorporated into the roznamcha waqiati which was in his possession. Shri Sohan Lal Patwari Halqa has given a statement before the Tahsildar on 26th April, 1963 which is at flag ‘C’. In his statement he has said that Shri Khushi Ram gave him no list of changes in khasra girdawari, although Shri Khushi Ram did demand roznamcha from Shri Sohan Lal, for incorporating changes in the girdawari, Shri Sohan Lal, however, said that the roznamcha waqiati was lying in the village and that he could accompany him and make the necessary entries. Shri Khushi Ram did not go with him. Thus changes in the khasra girdawari were not incorporated in the roznamcha waqiati. Towards the end of his statement Shri Sohan Lal said that he made a report to the Naib Tehsildar that the girdawari was full of hundreds of cuttings and over-writings and made the entries in his roznamcha waqiati. He should have got these entries made daily from the Patwari who was helping him and should have communicated to these changes to the Panchayat as required under the Government instructions. If all these instructions had been followed, the murder might have been avoided. Thus the negligence of both the Patwaris is no less grave. Shri Sohan Lal was reverted on account of his being the junior candidate and should be charge-sheeted for the negligence to the extent he is responsible in this case. Shri Khushi Ram the other Patwari continues to be employed as Patwari. I understand that he is also a Patwari candidate and should be reverted as unpaid and charge-sheeted for the negligence on his part. Dishonest intention on the part of either or both cannot be ruled out. A copy of the judgment in the murder case will be seen to find out if there are any “strictures against any Patwari/Sarpanch for further suitable action.

(Sd.) J.S Bhutani,

Revenue Assistant.

18th June, 1963.

5. This is the sort of case in which I propose stern action. Please speak.

(Sd.) Mohinder Singh Bedi,

20th June, 1963.

6. P.P is not in his room. He will operate if a criminal case can be registered against the Patwaris for creating false evidence/culpable negligence. S.K to take this case personally to P.P

(Sd.) J.S Bhutani,

21st June, 1963.

7. May wait till the decision of the Sessions Court on 27th June, 1963 Pending the decision of the Session Court and a departmental enquiry/criminal case that may follow, Shri Khushi Ram the other may also be reverted as unpaid candidate.

(Sd.) J.S Bhutani,

22nd June, 1963.

8. Approved as proposed.

(Sd.) Mohinder Singh Bedi,

25-6-63.”

9. The learned counsel at the Bar have drawn my attention to decisions of the Supreme Court and it is agreed that these two decisions lay down the correct legal position. In Jagdish Mitter v. Union Of India . A.I.R 1964 S.C 449., it was held that when the order refers to the fact that the servant was found undesirable to be retained in Government service, it expressly causes a stigma on the servant and in that sense it must be held to be an order of dismissal and not a mere order of discharge. To say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant while in the second case, termination of service is due to the consideration that a temporary servant need not be continued and in that sense, no stigma attaches to him. Any one who reads the order in a reasonable way would naturally conclude that the servant was found to be undesirable and that must necessarily import an element of punishment which was the basis of the order and was its intergral 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 an the temporary servant, it would be idle to suggest that the order is simple order of discharge. In Chambaklal Chimanlal fat Shah v. Union of India . A.I.R 1964 S.C 1854., it was observed that temporary servants are also entitled to the protection of Article 311(2) in the same manner as permanent Government servants, if the Government takes action against them by meeting out one of the three punishments i.e dismissal, removal or reduction in rank. But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. The mere use of expressions like “terminate” or “discharge” is not conclusive and in spite of the use of such innocuous expressions, the Court has to apply two tests mentioned, namely (1) whether the servant had aright to the post or the rank or (2) whether he has been visited with evil consequences; if either of the tests is satisfied, it must be held that the servant had been punished. Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which causes the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if right exists, under the contract or rules, to terminate the service, the motive operating on the mind of the Government is wholly irrelevant. It is unnecessary to reproduce detailed passages from this judgment because the ratio is quite clear. In the light of this ratio, reading the order of the Deputy Commissioner dated 25th June, 1963 in the background of his order dated 20th Tune, 1963, and the report of the Revenue Assistant, on the basis of which those orders have been passed by the Deputy Commissioner, it is quite clear that action has been taken against the petitioner by way of punishment and this action indisputably causes stigma to attach to him. Indeed, the learned counsel for the respondents had nothing serious to urge in defence of this action. All that he could contend was that the motive in passing the impugned order is immaterial, but as Annexure ‘A’ shows it is not only the motive in the mind of the officer which is relied upon by the petitioner, hut the order itself clearly discloses the infirmity which is hit by the ratio of the Supreme Court decisions mentioned above. It is also not irrelevant to point out that this case was initially posted for hearing before me on 12th November, 1965 when the learned counsel for the respondents produced before me a copy of the order of Shri Munni Lal, Additional Sessions Judge, Karnal dated 27th Jane, 1963 in Sessions Case No. 8 Addl. of 1963 (Sessions Trial No. 43 of 1963) State v. Sohan Singh in which it was remarked by the learned Additional Sessions Judge that Sohan Lal and Khushi Ram Patwaris had, in the Court's view, not discharged their official duties diligently and that they appeared to have changed the entries readily in the khasra girdawaris. The learned Additional Sessions Judge left the matter to be dealt with by the department concerned. The original charge-sheet as given to the petitioner was also produced before me and it appealed therefrom that Shri R.C Kapila, Collector, Karnal had in September, 1964 called for the petitioner's explanation in regard to the alleged tampering with khasra girdawaris of certain numbers Shri Pannu, learned counsel for the respondents, at that time, contended before me that the petitioner being no longer in Government service, there was no possibility of any enquiry being held into his misconduct. In view of the position adopted before me by the learned counsel for the respondents, I adjourned the case for one month to await the final result of the enquiry report. On 7th January, 1966, I was informed that a show cause notice had been given to the petitioner to which he had submitted a reply and also desired to be heard in person. Shri Pannu thereupon asked for another month hoping the enquiry to be finalised during that month. On 11th February, 1966, the proceedings were not finalised and I had to grant another two weeks time for finalising the enquiry. I, however, directed a copy of the order of this Court to be forwarded to the Hon'ble Revenue Minister Incharge of the petitioner's department for information. On 25th February, 1966, I was informed that the petitioner had been served with some additional notices and orders in respect of which he wanted to produce further affidavits and he wanted some more time for that purpose. Today, I have been informed that the Collector has ordered that the petitioner's name be removed from the list of Patwari candidates of Karnal district as per order dated 4th February, 1966. According to the learned counsel for the petitioner, the order passed on 25th June, 1963, reverting the petitioner from the post of Patwari remains as infirm as before. To this part of the case, the learned counsel for the respondents, Shri M.S Pannu has practically nothing to urge in reply, and indeed he has virtually conceded that the order dated 25th June, 1963, is by way of punishment. I have, therefore, no option but to allow this petition and quash the impugned order. As no arguments have been addressed before me about the effect of the order dated 4th February, 1966, I need say nothing about it. The present order will, however, not stand in the way of the department in taking whatever other steps may be open to it under the law. The petitioner is entitled to his costs of these proceedings.

10. Petition allowed.

Khushi Ram v. The State Of Punjab And Another

Structured Summary of the Opinion delivered by Dua, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Position

Respondents' Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Khushi Ram v. The State Of Punjab And Another

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