BHAVE J. - (1.) THIS petition under Article 226 of the Constitution is directed against an order, dated 1st September 1965, passed by the Additional Collector, Jabalpur (respondent No. 2).
(2.) SHRI J. D. Dixit (respondent No. 1) was a temporary teacher in the employment of the Janapada Sabha, Sihora. His services were terminated on 4th June 1965 under the orders of the Chief Executive Officer Janapada Sabha, Sihora (the petitioner). The respondent No. 1 thereupon preferred an appeal before the second respondent. The petitioner raised an objection before the second respondent as to the maintainability of the appeal. In support, the petitioner relied on a decision of this Court in Chief Executive Officer, Janapada Sabha, Sihora v. Sughram Choudhary M. P. No. 359 of 1961 decided on the 12-12 1962.. In that case, it was held by this Court that no appeal could be filed under section 71 (5) of the C. P. and Berar Local Government Act, 1948 (hereinafter referred to as 'the Act') because the applicant was a temporary servant. The respondent No. 2 was of the view that an appeal did lie under section 156 (1) of the Act, but reluctantly decided to follow the decision of this Court, referred to above. The respondent No. 2, however, decided to act under section 100 (1) (a) of the Act and suspended the execution of the order passed by the petitioner and made a reference to the State Government for confirmation of the order as required by section 100 (2), This is what the respoudent No. 2 has observed in paragraph 9 of the order: "Even though my personal view is that an appeal does lie tinder section 156 (1) ibid, I will not question the decision of the High Court in the case cited by the Sabha. However, in my opinion, the order of removal is arbitrary. It is based merely on some allegations and if it is not called in question will put the services of all the temporary employees of the Janapada Sabha in jeopardy. Under section 100 (1) (a) of the Local Government Act, 1948, I hold that the resolution and order in question are illegal and improper and, therefore, execution is suspended. It is further ordered under section 100 that SHRI J. D. Dixit should be reinstated from the date of his termination and should be entitled to full pay and allowances for the period from the date of his termination to date. As required by subsection (2) of section 100 a copy of the order be forwarded to the State Government for confirmation. Of course the Sabha is free to hold a regular enquiry and if the allegations are substantiated the Sabha may take such action as it deems fit but without such an enquiry the order can only be considered to be arbitrary." In our judgment, the petition must be allowed. When the respondent No. 2 held that the appeal was not competent, then the proper course which he should have followed was to dismiss the appeal on that ground. The proce- dure adopted by the respondent No. 2, namely, that of resorting to the provisions of section 100 of the Act was, to say the least, unwarranted. Even in the exercise of his powers under section 100, the respondent No. 2 has acted illegally and in excess of his authority. Under sub-section (1) of section 100, the Deputy Commissioner may, by an order in writing, suspend the execution of any resolution passed or order issued in pursuance of or under the Act or under any rule or bye-law made thereunder, if in his opinion such resolution, order etc. has not been legally passed or issued or is in excess of the powers conferred by the Act. It is thus clear that in order to exercise the jurisdiction under section 100 the Deputy Commissioner must come to the conclusion that the order was not legally passed or that it was in excess of the powers conferred under the Act. The observation of the respondent No. 2 that the order of removal is arbitrary; that it is based merely on some allega- tions; and that if it is not called in question, it will put the services of all the temporary employees of the Janapada Sabha in jeopardy cannot amount to a finding that the order of removal of the respondent No. 1 was not according to law or was in excess of the powers conferred under the Act. A reference, in this connexion, may be made to the rules made by the Government in exercise of powers under section 182 (2) (xv) of the Act, published under Notification No. 4692-1598-J-XIII, dated 3rd December 1949. Rule 1 provides for imposition of certain penalties on any officer or servant of the Sabha. Explanation 1 says that the discharge of a person engaged under contract in accordance with the terms of his contract does not amount to removal or dismissal within the meaning of the rule. Other rules provide the procedure that should be followed, namely, giving of show cause notice and holding an enquiry etc before the penalty of reduction in rank or that of removal or dismissal is inflict- ed. The respondent No. 1 was admittedly a temporary servant and in terms of his contract his services could be terminated. That termination would not amount to removal or dismissal of the respondent. As such it was not necessary in this case to issue a show cause notice or to hold any enquiry before the services were terminated. Their Lordships of the Supreme Court in Parshottam Lal Dhingra v. Union of India AIR. 1958 S. C. 36. have clearly enunciated the proposition that termination of services of a temporary servant does not amount to dismissal or removal of a person so as to attract the provisions of Article 311 of the Constitution. In Sugram Choudhary's case M.P. No. 359 of decided on 12-12-1962. this Court has held that for the purposes of deciding as to whether the temporary servant should be continued in service or not, the authorities may make enquiries about the allegations made against him for their own satisfaction; but so long as no charge is framed and in the order of termination of services no stigma is attached, the termination of the services in terms of contract cannot be treated as dismissal or removal. The respondent No. 2, therefore, had no jurisdiction to make a reference to the Government, as no illegality was committed by the petitioner; nor did the petitioner act in excess of his jurisdiction. The order of the respondent No. 2 is liable to be quashed.
(3.) BEFORE leaving this case, we must observe that the respondent No. 2 was not justified in airing his personal views about the competency of the appeal and doubting the correctness of the decision of this Court. It is not open to the members of the subordinate judiciary or executive officers to question or doubt the correctness and the propriety of decisions of this Court, which are binding on them. It is to be hoped that the respondent No. 2 will refrain in future from indulging in such acts of official solecism. For the reasons already stated, the petition succeeds. The order of the Additional Collector, Jabalpur, dated 1st September 1965, is quashed. The respondents 1 and 2 shall pay the costs of the petitioner. Hearing fee Rs. 100. The outstanding amount of the security deposit shall be refunded to the petitioner. Petition allowed.;