R.N.Misra, J. -
(1.) PETITIONER was appointed as a Typist in the Copying Department of the District Court of Koraput at Jeypore with effect from 24th of June, 1967, and came to be posted in the Court of the Additional District Magistrate (Judicial). He claims to have put in satisfactory service. In October, 1972, Petitioner suffered from chest pain, cold and cough and was obliged to ask for earned leave of thirty days with effect from 31 -10 -1972. He supported his application for leave by enclosing a medical certificate from the authorised medical attendant. The Additional District Magistrate (Judicial) intimated the Petitioner on 31 -10 -1972, that his prayer for leave was not being recommended and he should join duty forthwith. On 2 -11 -1972, Petitioner made a representation indicating that he got the attack severe chest pain, fever and other ailments and pressed for sanction of medical leave. Thereupon, Petitioner was intimated on 2 -11 -1972:
... Shri P. Venkata Rao, Typist is hereby informed that the District Judge, Jeypore, has been pleased to reject his application. He is therefore recalled to duty with immediate effect failing which his services will be terminated by the District Judge.
The aforesaid communication was followed by another under Annexure -7 to the following effect:
The services of Shri P. Venkata Rao, Typist, A.D.M.'s (Judicial) Office, Koraput, Jeypore are hereby terminated with effect from the 30th October, 1972 i.e. the date of his unauthorised absence from duty.
Petitioner preferred an appeal to this Court on the administrate side and the following order was communicated to the District Judge, Koraput, with a direction that the Petitioner may be informed, vide letter of the Court dated 24th September, 1974 (Annexure -9):
With reference to your office letter No. 1458 dated 6 -3 -1973 on the above subject, I am directed to say that the Court after careful consideration are pleased to direct that the case of Shri P. Venkata Rao, ex -Typist, be disposed of in accordance with the provisions of Article 311(2) of the Constitution of India.
Shri Rao may be informed accordingly.
and Petitioner was as a fact given a copy of the order. Petitioner alleges that while he was waiting for appropriate disciplinary proceedings to be initiated, he was communicated yet another order dated 30th of April. 1975, running thus:
In continuation of Court's letter No. 876 dated 24 -9 -1974 on the above subject. I am directed to say that on a reconsideration of the matter, the Court are pleased to direct that the order of termination of service passed against Shri Rao would take effect from 14 -11 -1972, but not from 30 -10 -1972 as the service cannot be terminated with retrospective effect. The appeal is allowed only to this limited extent.
Shri Rao may be informed ,accordingly.
Petitioner assails the second order under Annexure -10 as being without jurisdiction as also being contrary to rules of natural justice. He also maintains that as his service was terminated by an order attaching stigma, the termination could not have been made without a disciplinary proceeding.
(2.) IN a counter affidavit filed by the opposite parties, the action taken in the case has been justified. Petitioner was admittedly a temporary hand and his services could have been done away with by an order of termination simpliciter. In the order terminating his service, it was clearly indicated that termination was on account of unauthorised absence from duty. This in our view certainly amounted to a stigma. In the case of The State of U.P. v. Ram Chandra Trivedi : A.I.R. 1976 S.C. 2547 three learned Judges dealt with almost every case of the Court bearing on the point. One of the cases referred to therein is that of The State 01 Punjab and Anr. v. Sukh Raj Bahadur : A.I.R. 1968 S.C. 1089 where Mitter, J. who spoke for the Bench laid down the following propositions:
(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 a 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 any 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 be was a mere probationer or a temporary servant.
(4) An order of termination of service in unexceptionable from 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, and order of termination of service made thereafter will attract the operation of the said article.
A seven Judge Bench in the case of Samsher Singh v. State of Punjab and Anr. : A.I.R. 1974 S.C. 2192, dealt with the same question and observed:
The fact of holding an Inquiry is not always conclusive. What IS decisive is whether the order is really by way of punishment....
An order terminating the services of a temporary servant or probationer under the rules of Employment and without anything more will not attract Article 311, where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct....
Referring to the facts of its own case, the three -Judge Bench The State of U.P. v. Ram Chandra Trivedi1 held:
Keeping in view the principles extracted above, the Respondent's suit could not be decreed in his favour. He was a temporary hand and had no right to the post. It is also not denied that both under the contract of service and the service rules governing the Respondent, the State had a right to terminate his services by giving him one month's notice. The order to which exception is taken is ex facie an order of termination of service simpliciter. It does not cast any stigma on the Respondent nor does it visit him with evil consequences, nor is it founded on misconduct. In the circumstances, the Respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution.
Law is fairly well settled that if the order of termination is not in innocuous term but attaches a stigma, a disciplinary proceeding is necessary for the termination even in the case of a temporary servant. The order of termination of service as framed in this case, in our view, did attach a stigma against the Petitioner. There is no force in the contention of learned Government Advocate that the words "the date of his unauthorised absence from duty" had reference to the time -factor. This Court had, therefore, rightly taken the view while disposing of the appeal that the procedure laid down under Article 311(2) of the Constitution should be followed:
(3.) AFTER the appeal had been disposed of, steps were taken to review the order. Learned Government Advocate contends that the order of review was in exercise of powers vested in Rule 32 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962. That rule provides:
The authority to which an appeal against an order imposing any of the penalties specified in Rule 13 lies may, of its own motion or otherwise, call for the records of the case in a disciplinary proceeding, review any order passed in such a case and, after consultation with the Commission, where such consultation is necessary, pass such orders as it deems fit, as if the Government servant had preferred an appeal against such order;
We do not think, Rule 32, covers a case where the same authority would seek to review its own final order disposing of an appeal. Even if we agree with learned Government Advocate that there may be some power of review, we cannot accept his stand that rules of natural justice have no application and after the Petitioner bad been communicated a final order of the Court on his appeal, it would still be open to the Court to recall the order and pass an order more prejudicial to the Petitioner without giving him an opportunity of being heard either in person or by making a representation. We are, therefore, satisfied that the second order made by this Court is contrary to law and could not have been made. The same has got to be quashed.;