A.K. Mukherjea, J. - (1.) This is an appeal from a judgment and order dated June 24, 1969, passed by Basu J. discharging a Rule nisi which had been obtained by the Petitioner -Appellant Gostha Behari Nayak in an application under Article 226 of the Constitution of India. The short facts of the case are as follows:
(2.) On or about December 28, 1960, the Appellant was temporarily appointed as a Gram -Sevak and posted to the Burdwan Block in the district of Murshidabad. The Appellant was told at the time of his appointment that he would subsequently have to undergo a prescribed training, which may extend upto two years duration and his continuance in the port will be subject to his successful completion of the said training. The Appellant joined his post on December 30, 1960. On June 1962 the Appellant was deputed to complete a prescribed training for two years in the Gram Sevak Training Centre at Coochbehar. It appears that there was a lot of trouble at the Training Centre at Coochbehar and the Principal of the Training Centre reported the name of five persons who were according to him the leading trouble -shooters disturbing the course of training and discipline at the Training Centre. The Appellant was one of these five. There are various allegations, namely, that he avoided (i) training in co -operative farming from the very beginning, (ii) avoided the practical classes, (iii) showed great disrespect of the teachers and the Principal in the class -room, (iv) annoyed the teachers by throwing filthy things at the doors of the quarters of the teachers, (v) violated openly the orders of the Principal, and so on. Ultimately the Principal expelled the Appellant from the Training Centre. On August 31, 1963, the Principal served an order upon the Appellant by which he was directed to join his place of posting without availing any joining time except the days required for joining. He was further directed to leave the hostel within 24 hours from »he service of the notice. The Appellant then went back to his place of posting and joined 'there on September 3, 1963. On the same day he sent a representation to the District Magistrate who was Respondent No. 1 in the petition through proper channel. In that letter of representation the Appellant asked for protection from the District Magistrate. The District Magistrate apparently made a reference to the Principal enquiring as to the reason why the Principal had refused to have the Appellant in his Training Centre. The Principal by a letter dated September 4, 1963, explained to the District Magistrate the reasons for which he had expelled the Appellant from the Training Centre. There was another letter from the District Magistrate to the Principal -a copy of that letter is not on records. But from the Principal's reply to that letter on October 9, 1963, one can easily see that the District Magistrate had requested the Principal to take back the Appellant again for giving him the necessary training in his Centre. The Principal apparently refused to do that. On November 16, 1963, the District Magistrate, Murshidabad, served a notice upon the "Appellant by which he was informed that his services 'will no longer be required from the 1st January 1964'. The Appellant at once made a representation against the said order of discharge. As nothing was done on that representation the Appellant moved this High Court and obtained a Rule nisi which was discharged by Basu J. on June 24, 1968. The Appellant in his petition asked, inter alia, for a writ of mandamus commanding the Respondents to quash or set aside the impugned orders (i) discharging the Appellant from the Training Centre at Coochbehar and (ii) dismissing or removing the Appellant from service. The prayers are not strictly in the correct form but we need not take any notice of these defects.
(3.) The Appellant's contention before Basu J. was that the District Magistrate of Murshidabad terminated his service without giving him any hearing so that this termination amounts to a removal or dismissal under Article 311(2) of the Constitution and consequently had since the Appellant been given no opportunity to show cause against such action. Basu J. relying on an earlier decision of his in another case and also relying on certain decisions of the Supreme Court formulated the following propositions: (a) Where the order itself contains a stigma or adverse remark, the order becomes penal so as to attract Article 311(2) of the Constitution. (b) Where the order by itself does not contain a stigma, Article 311(2) of the Constitution would not be attracted merely on the ground that an adverse remark or an allegation of misconduct served as the motive for the termination of service or reversion. This would be the case even where subsequent to the passing of the order the authorities inform the employee that the order was made because of the unsatisfactory nature of his work or conduct. On the basis of these propositions Basu J. refused to interfere with the order which expressly contained no stigma.;