Decided on June 18,1973



- (1.) The petitioner challenges the order dated 31-10-69 passed by the Chairman, Notified Area Council Kantabanji and prays for quashing the same and for other consequential reliefs. The facts laid in the writ petition may be stated. The petitioner, a member of Scheduledcaste, was appointed as a clerk-cum-tax Daroga under the Notified Area Council, Kantabanji, on 28-7-61, temporarily for a period of 3 months on experimental basis and his appointment was expressly stated to be liable to be terminated at any time. The appointment order (Annexure-1) was issued by the Chairman, Notified Area Council. On expiry of 3 months, the petitioner was leappointed temporarily in the said post on 12-10-61. His service was liable to be terminated at any time subject to one month's notice (Annexure-2). He was subsequently promoted on 1-8-64 as U. D.Clerk-cum-Tax Daroga with effect from 1-8-64 (Annexure-3). The promotion post was purely temporary and the petitioner's services in that post were liable to be terminated without any notice. On 30-6-69, the Executive Officer of Notified Area Council issued a notice to the petitioner (Annexure-4) charging him with certain dereliction of duties and calling upon him to explain the charges and to show cause why disciplinary action should not be taken against him. By Annexure-5 dated 30-6-69, the Executive Officer again charged the petitioner that he had left headquarters without prior permission and asked him to submit explanation within 2 days and that in default of explanation other appropriate steps would be taken against him, Thereafter the petitioner applied for 15 day's leave on medical ground and then wanted to extend the leave on the same medical ground by his application dated 14-7-69. The extension applied for was refused and the petitioner was asked to join immediately and was also asked to produce the medical certificate in support of his illness (Annexure-6). The petitioner replied to this letter of the Executive Officer by Annexure-7 wherein he expressed his inability to join his duty. He also requested the Executive Officer to send a requisition to the Medical Officer, Kantabanji for necessary medical certificate as he himself was unable to produce the same due to his illness. This reply was sent on 21-7-69. On 22-7-69 i.e. the next day, the petitioner was placed under suspension by the Chairman, Notified Area Council with effect from that date. The petitioner represented against this suspension order to the District Magistrate as per Annexure-9. Thereafter on 31-7-69 the petitioner wrote to the Executive Officer reiterating his earlier request that a requisition be sent to the Medical Officer, Government Hospital, Kantabanji for the Medical certificate regarding his illness for the purpose of sanctioning his leave. By another letter (Annexure-11) dated 1-8-69 he formally reported himself for duty. Thereafter, on 1-8-69, the Chairman issued a notice to the petitioner to explain within 48 hours as to why he should not be removed from service for gross negligence, misconduct and mala fide action as per Annexure-12. He gave reply to the notice to the Executive Officer vide Annexure-13 and thereafter the Chairman of the Council framed 18 charges against the petitioner as per Annexure-14, called upon him to meet those charges and to submit his explanation as to why the actions proposed therein may not be taken against him within 15 days of the receipt of the notice. The petitioner explained those charges by Annexure-15. Thereafter, a resolution was passed by the Notified Area Council to discharge him from service with effect from 28-10-69. A copy of this resolution is annexed as Annexure-17. In pursuance of this resolution, the Chairman issued the order of termination of the services of the petitioner (Annexure-16), which runs as follows: "Office of the Notified Area Council, Kantabanji. Order The services of Sri P. N. Sipka, U. D. C. cum-Tax Daroga (under suspension) is no longer required by the N. A. C. Kantabanji as decided by the Council in their meeting held on the 28-10-69 with effect from 28-10-69. Sd/- Chairman Notified Area Council, Kantabanji. Memo No. 970 (3) NA. Dated the 31st Oct. 69. Copy to person concerned for information and necessary action. Copy to Cashier for necessary action. Copy to order Book. By order of the Chairman Sd. 31-10-69. Executive Officer, Notified Area Council, Kantabanji."
(2.) This Court has decided in the case of Promod Ranjan Das v. Cuttack Municipality,1973 1 CutWR 541 , that no writ lies as Article 311 has no application to the removal of the petitioner, an employee of the Notified Area Council, Kantabanji, and as there are no statutory Rules or procedure imposing any duty on the Chairman to follow in the matter of removing any employee from service, which can be said to have been violated. That was a case which arose in regard to Cuttack Municipality but the principles are equally applicable to this case as nothing has been shown to us to distinguish that case from this one. This Court has further laid down that if the order of termination has been passed by way of penalty, principles of natural justice must be observed though what principles of natural justice are to be followed would depend on the facts and circumstances of each case. In view of the aforesaid decision the petitioner's learned counsel has confined his argument to two points namely (1) the order of termination having been passed by way of punishment the petitioner was entitled to be given an opportunity to show cause against it, and as such an opportunity was not afforded, the order of termination though couched in an innocuous form is bound to be quashed; (2) the Notified Area Council is an industry and at least its tax department is an industry and the petitioner employed therein is a workman as defined in Industrial Disputes Act. Therefore, without compliance of Section 25-F of that Act, the petitioner's services cannot be terminated.
(3.) I will now take up the first point. It is argued that having regard to the circumstances preceding and attendant on the order of termination it is clear that the said order despite the fact that it is disguised as an order of termination simpliciter, is one of dismissal or, in other words, has been passed by way of punishment. Reliance is placed on Annexures-13, 14, 15 and 17 as such circumstances. There is no controversy that the petitioner had no right to the post of U.D.C.-cum-Tax Daroga and Chairman had the right to terminate the petitioner's services in that post by contract read with Sec. 76 of the Orissa Municipal Act. No Rules have been brought to our notice providing any procedure in matters covered by Section 76. It merely says that the Chairman is the appropriate authority in passing an order of removal. Thus, there was no lack of power or competency in the Chairman to pass the impugned order. The question to determine, therefore, is whether the character of the impugned order is punitive. It appears on a perusal of Annexures 14, 15 and 17 that for various laches and lapses on the part of the petitioner, the Executive Officer used to call for explanations from him from time to time to those laches and also as to why disciplinary action should not be taken against him. The petitioner was also suspended with effect from 22-7-69 from administrative point of view. Ultimately the Chairman framed a consolidated charge sheet (Annexure-14) and served it on the petitioner calling upon him to submit his explanation within 15 days of the receipt of the charges by him. He gave his explanation. Then legal advice was taken in the matter from the Law Officer of the Council, and all those papers together with the legal opinion were considered by the Notified Area Council, which passed an unanimous resolution deciding to terminate the services of the petitioner. The resolution is in oriya and the relevant portion thereof states that the legal opinion was read and explained to the Council members and then that matter was discussed and thereafter it was unanimously decided to terminate his services. The resolution contains nothing derogatory against the petitioner nor does it cast any stigma on him. The preceding circumstances show that some charges had been framed against the petitioner and explanation had been obtained from him. The Annexure-14 (notice of charges) called upon the petitioner to explain "why action should not be taken against you to discharge or dismiss you for your above such offences from the service". The alternative action proposed indicates that the next course of action, whether it was to be a simpliciter termination or dismissal, which involves a pre enquiry into the charges, and finding of guilt, had not been decided upon. On receipt of the explanation no disciplinary proceeding was set on foot but the impugned order was passed. To determine whether these antecedent circumstances impart to the impugned order, a punitive character, the five principles laid down by the Supreme Court may be noted. The Supreme Court in the case of the State of Punjab v. Sukh Raj Bahadur, 1968 AIR(SC) 1089 , after considering all earlier cases made the following propositions in the matter of determination of the character of a simple order of termination of a temporary servant. (1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. (2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. (3) If the order visits the public servant with an evil consequences or casts 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 Article 311 of the Constitution. (5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article. These principles shall apply mutatis mutandis to the present case, as a part and parcel of the principles of natural justice. The proceedings indicated in Annexures 14, 15 and 17 show that the superior authority of the petitioner initiated a preliminary enquiry to decide whether the next course or action was to be taken for dismissal of the petitioner or for his mere discharge. The idea in calling for explanation was to decide whether or not to start a full-scale departmental enquiry or simply to discharge him. In this case no full-fledged disciplinary enquiry was set on foot, no enquiry officer was appointed and no evidence led in support of the charges and no finding has been rendered by any enquiry officer. The impugned order has not been passed consequent upon an enquiry into the alleged misconduct and on the basis of any adverse finding against the petitioner rendered in the enquiry. The case in hand is a better case than the facts of the case of AIR 1968 SC 1089 = (1968 Lab IC 1286), where the departmental enquiry did not proceed beyond the stage of submission of a charge-sheet followed by respondent's explanation thereto and the enquiry was not proceeded with and there were no evidence recorded and no conclusion arrived at on the enquiry and in such circumstance the Supreme Court held that the impugned order could not be held to be one passed by way of punishment. In the present case the contemplated disciplinary proceeding never materialised and no enquiry officer had been appointed. Since the character of the impugned order is not punitive, the question of violation of principles of natural justice does not arise. It is also well settled that in the preliminary fact finding enquiry a delinquent officer is not entitled to be given a notice. In the instant case, the Chairman, on the other hand, asked for his explanation to the charges framed against him and he was thus given a better chance than could be given on this score. In para 11 of the counter-affidavit filed by the Opp. Parties 1 and 3 it has been asserted that the petitioner's explanation was considered and it was found to be unsatisfactory and the Chairman acted in good faith. Even for the limited purpose of terminating his services the petitioner was given an opportunity to submit a full explanation regarding the charges. There was no bar to pass a simple termination order even the explanation was not believed. It has been said in the case of (1973) 1 Cut WR 541 = (1974 Lab IC 292), that what principles of natural justice would be followed in a particular case would depend on the facts and circumstances of that case. In my opinion, it can be held that principles of natural justice as are warranted in the circumstances of the present case have been complied with. For the aforesaid reasons the first contention must fail;

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