Gopalan Nambiyar, J. -
(1.) The appeal is by the Director General, All India Radio, New Delhi and the Station Director, All India Radio, Calicut, against the decision of a learned Judge quashing Ext. P1 order issued by the Station Director, Calicut, intimating the writ petitioner respondent that his contract of service in the All India Radio will not be renewed beyond the expiry of his term of three years. The writ petitioner respondent was a Staff Artist, who used to be engaged on short term contracts by the All India Radio and the latest of such contracts is evidenced by Ext. R1 dated 1st March 1972 for a term of three years. The contract was to expire on 28th February 1975. By Ext. P1 memo dated 12th February 1975, the writ petitioner respondent was informed.
"Shri P. M. Ahamad Koya, Staff Artist, All India Radio, Calicut is hereby informed that on the expiry of his existing contract on the afternoon of 28th February, 1975, it has not been proposed to renew his contract beyond 28th February 1975 as per Directorate's decision."
Treating Ext. P1 as notice of termination, the writ petitioner moved to quash the same alleging that it offended the rights of the petitioner under Art.311 of the Constitution. The learned Judge of the view that although Ext. P1 on the face of it, was innocuous and inoffensive, it was really and in fact mala fide, as the ground for taking action against the writ petitioner respondent was his trade union activities which were displeasing to the employer, and as a result of which the employer had decided to send him out of service. In a sense, this was the view and the conclusion reached by the learned Judge on the basis of which the learned Judge allowed the writ petition. The writ petition was heard by the learned Judge on 25th November 1977 and judgement was reserved that day and was pronounced on 22nd December 1977. C. M. P. No. 18358 of 1977 was moved on 25th November 1977 for amendment of the writ petition. That C.M.P. was allowed on the same day. It was stated in that C.M.P. that as per a Government order dated 2nd November 1967 the Staff Artists should be allowed to remain in Government Service up to the age of 55 years which would be extended further up to 58 or 60 years, and that Ext. P1 was in violation of this order. It was further stated that several persons similarly situated as the writ petitioner had been allowed the benefit of extension of service, and among them were those junior to the writ petitioners. It was pleaded that this was violative of Article 16 of the Constitution. The learned Judge in paragraph 6 of the judgment noticed that in the course of the argument he desired the Central Government Pleader, to make the files available to him. As the learned Judge commented rather strongly on the stand taken up by the Respondents we may usefully extract paragraph 6 of the judgement of the learned Judge.
"6. During the course of the argument, I desired the Central Government Pleader to make available to me the files regarding the petitioner. Some papers were made available to me and I have gone through them. I do not know whether the papers submitted form the entire file relating to the petitioner or are only a few of the letters which the Central Government Pleader wanted from the Station Engineer of All India Radio. The letters disclose certain materials which do not find a place in the counter affidavit. They create an impression that the respondents did not want to disclose the full facts that prompted them to terminate the petitioner's services. It is seen from the files that a decision has been taken to introduce a system by which the staff artists of All India Radio will work under contract of service upto the age of 55 years with absolute discretion to the Government to grant extension upto the age of 58 years and in very exceptional circumstances upto the age of 60 years. This is evident from a communication dated 7th May 1968, addressed by the Under Secretary to the Government of India to the Director General of All India Radio, New Delhi.
The question of retaining services/extension of the period of employment beyond 55 years will be taken up in each individual case on merits and proposals in this respect should be sent to the Directorate giving detailed particulars with up to date confidential reports, recommendations, etc., at least six months before the due date. This is seen from the letter dated 22nd November 1967 of the Director General of All India Radio. In paragraph 7, the learned Judge stated that he had every reason to believe that the alleged ground of termination of service viz. the expiry of the contractual term did not reflect the real state of affairs. In paragraphs 8 and 9 again the learned Judge expressed himself in rather strong language as follows
"8. I would have been happy if the authorities concerned had taken this Court into confidence and laid bare before Court all necessary facts which led to the decision to terminate the services of the petitioner. This Court will always help a Department in enforcing discipline when the Court is told about the conduct of a particular employee. This Court will at the same time take serious notice of the fact that the employer attempts to keep back from it important materials and tries to steal an order with insufficient materials. In this case, the counter affidavit should have disclosed the decision of the Government to extend the services of the staff artists up to the age of 55 years and absolute discretion vested in the Government to extend it up to 58 years or 60 years as the case may be. The counter affidavit should have indicated the circumstances under which the authorities were constrained to get rid of the petitioner, not on the ground of efflux of time but on valid and justifiable reasons. If the grounds are justifiable, valid and bona fide, this Court will unhesitatingly support the authorities' stand and hold the Department by upholding the termination. In this case, I regret to state that the real state of affairs has been deliberately cloaked under the mask of the plea that the services are governed by contract.
9. I deliberately refrain from referring to the authorities cited at the bar that a Court will not normally issue a writ in enforcement of a contract of service for the reason that the files before me disclose that the termination is attempted not on the basis of contract of service but for other extraneous reasons without disclosing them in the counter affidavit."
The learned Judge came back of C.M.P. No. 18358 of 1977 in paragraph 10 of his judgment. He referred again to the order of the Government, dated 2nd November, 1967, which on the averments made in the application for amendment gave a right to the writ petitioner to remain in service up to 55 years of age, which might be extended to 58 or even to 60 years. It was observed that the said ground stated in the amendment petition and the averments in ground of the O.P. which gave the names of persons whose services had been extended had not been met by filing a counter affidavit. It was in these circumstances that the learned Judge allowed the writ petition holding that Ext. P1 was bad in law and was liable to be quashed. The learned Judge referred to two decisions of the Allahabad High Court In Raja Zuthi v. The Union of India 1975 (1) SLR 311 and M. A. Chowdhary v. Union of India 1975 (1) SLR 457 . We may straight away say that these decisions have no application to the facts. These were essentially cases where, during the currency of the contract of service of the writ petitioners there was a termination, which, on quite understandable and valid grounds, was held to be bad.
(2.) In this case, we have the undoubted fact that we are faced with Ext. P1 notice which was nothing more than a courteous, if unwanted, intimation to the writ petitioner that at the end of the contractual term, his services would no longer be required. We say unwanted because at the end of the term, his service was to expire, and Ext. P1 notice could neither create rights where there was none, nor augment such rights, as there were. Ext. P1 does not cast any stigma, nor sound in the region of a punitive action, and there is nothing on the face of it to show that it was vitiated by mala fides. The respondent undoubtedly alleged that the action was taken against him for extraneous reasons viz., his trade union activities, which were not quite pleasing to the appellant. But, as pointed out even recently by the Supreme Court in its decision in State of U.P. v. Ram Chandra AIR1976 SC 2547, there is neither allegation nor proof that these extraneous factors and circumstances were the "foundation" of the order and not the "motive" of the order. This Court has recently examined on more than one occasions these aspects of the matter. A Division Bench of this Court in W.A. No. 388 of 1976 and a Full Bench in W.A. No. 450 of 1976 extracted and followed the propositions (3) and (4) laid down by the Supreme Court in the State of Punjab v. Sukh Raj Bahadur AIR 1968 SC 1089 . Those prepositions are:
"(3) If the order visits the public servant with any evil consequences or caste an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art.311 of the Constitution".
Applying these prepositions, we are unable to hold that in this particular case, Ext. P1 offends Art.311 of the Constitution or can be held to be vitiated by mala fides as expounded by the Supreme Court. Assuming that the writ petitioners trade union activities were not quite pleasing to the appellants, we are by no means, satisfied that this was the 'foundation' for Ext. P1 and not merely the 'motive' for it. There is therefore no ground to quash Ext. P1 and we are of the opinion that the learned Judge was wrong in having allowed the writ petition and quashed the same.
(3.) We wish to comment on two matters dealt with by the learned Judge. First, is the amendment petition C.M.P. No. 18358 of 1977, the averments in which the learned Judge stressed, were not rebutted by a counter affidavit. This was of no consequence. The only averment in the petition and affidavit was that according to the Government of India's order dated 2nd November 1967 Staff Artists should be allowed to remain in Government Service upto 55 years, which would be extended to 58 years or 60 years. We need hardly point out the danger of a spelling out the nature and the contents of such an important Government order, even from the uncontroverted averments made in a petition moved on the day on which arguments were heard and closed. Before us the learned Government Pleader made available the copies of the Government of India's order dated 2nd November 1967 and 7th May 1968 and certain other orders and correspondence. The order dated 2nd November 1967 has no application to staff artists like the writ petitioner. Besides, it was expressly superseded by order dated 7th may 1968. This order dated 7th May 1968 again, has no application to the writ petitioner.;