AMRITLAL HARIBHAI DESAI Vs. STATE OF BOMBAY NOW GUJARAT
HIGH COURT OF GUJARAT
AMRITLAL HARIBHAI DESAI
STATE OF BOMBAY
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(1.)This is a Second Appeal by the original plaintiff who filed a suit against the State of Bombay for a declaration that the order terminating his services with effect from 1/11/1951 passed on 29/09/1951 was ultra vires and for other incidental reliefs. The suit was dismissed by the trial Court whose judgment was confirmed by the First Appellate Court. The appellant was a temporary Government Servant employed in the Rationing Department and on 29/09/1951 an order was passed terminating his services with effect from 1/11/1951. No reason was given in the order. The learned Assistant Judge Surat in First Appeal held that although temporary Government Servants were entitled to the protection of Article 311 of the Constitution of India the order in question amounted merely to a termination of services that it was not by way of punishment and that it did not amount to dismissal. His attention was drawn to the Office Departmental Notes in Exhibit 34 and the orders Exhibits 37 to 40. After considering these documents the learned Judge came to the conclusion that the order of termination was not by way of punishment and the Government merely dispensed with his services as he was a temporary servant under the term. of the contract. He also observed that merely because at one time it was thought desirable to hold a departmental enquiry against him it cannot be said that his services were terminated by way of punishment. He also relied on 58 Bom. L. R. 673 Shrinivas Ganesh v. Union of India (1). He therefore held that the order terminating the services of the appellant did not amount to dismissal and therefore dismissed the appeal.
(2.)In Second Appeal the same point and one other point are urged. In regard to the first contention viz that the order of termination of services passed on 29/09/1961 amounts to dismissal it must be noted that it is a finding of fact of the First Appellate Court that services of the appellant were terminated and that the appellant was not dismissed by way of punishment. Even on merits I agree with the view taken by the First Appellate Court that the order in question does not amount to removal from service by way of punishment. In order to ascertain whether an order of termination of service amounts to a dismissal or termination from service by way of punishment we have to look only at the order whatever may have been the real cause of the order or the motive of the person who passed the order. It is true that when we look at the order we have to look at the substance of the order and even if the word discharge or termination of service is mentioned in the order the order itself might/may amount to dismissal if there are other words in the order indicating that the termination of service was by why of punishment for example for reasons like incompetence inefficiency or corruption. The learned counsel for the appellant relied on 58 Bom. Law Reporter 673 in support of his contention that we have to look not merely at the order but at the actions which preceded the passing of that order In my opinion the judgment of the Bombay High Court does not support his contention because it is observed on page 677 as follows :
(3.)It is from that point of view that we must again look at the order discharging the appellant. It cannot be disputed that if the Government had discharged the appellant without giving any reasons at all that order could not have been challenged by the appellant because the appellant being a temporary servant he had no security of tenure he could not claim to continue in Government service for any length of time and the Government like any other employer would be entitled to dispense with his services at any time it thought proper. The question is whether the fact that the Government has given a reason for dispensing with the services of the appellant alters an order of discharge into an order of dismissal or removal. It is true that we must look at the substance of the matter and we should not be influenced by the language used in the order. The mere fact that Government chooses to use the expression 6discharge is not conclusive of the matter and notwithstanding the use of that expression it may still be an order of dismissal or removals
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