- (1.) This is an appeal against the judgment and order passed by Banerjee, J. dated April 19, 1971 in C.R. 1848(W) of 1967 whereby the Rule was made absolute. The facts, in brief, according to the petitioner are as follows: The petitioner since 1963 had been working as temporary Messenger (Civilian) under Administrative Officer, Head Quarters, Eastern Command, Fort William, Calcutta. The petitioner while on duty at Fort William fell ill on October 20, 1966 and was examined by the office surgeon. The petitioner filed his sick report to the general staff (BR) and at that time he informed the Superintendent (G.S.) (Co-ordination) that as he was felling unwell he might not be able to perform command duty on October 22, 1966. On returning home petitioner's illness aggravated and a local medical practitioner attended him and when the petitioner rejoined on October 31, 1966 he submitted a medical certificate. On October 27, 1966 a memo was sent by GSO-I (SD) to the dismissing authority stating that the petitioner's explanation that he informed G.S.(Co-ordination) of his absence prior to absenting was false. The petitioner's application for leave submitted on October 24, 1966 was forwarded for necessary action. It was also stated therein that the petitioner was a regular offender in regard to absence without leave. It was stated that stern disciplinary act on should be taken against him for making false declaration and for absenting without leave on October 22, 1966. It was further requested that the petitioner should be replaced by a suitable hand. On November 5, 1966 the petitioner was served with a notice calling upon him to show cause why disciplinary action should not be taken against him for absence without leave on October 22, 1966 and for making false statement. The petitioner filed his defence denying the allegations and reiterated that he had informed the Superintendent (GS) while handing over his sick report on October 20, 1966 that he might not be able to report on October 22, 1966. SOI(SD) forwarded the explanation to the show cause notice stating the petitioner should have been more careful in regard to duty on holidays and his case for absence without leave was acceptable as it was accompanied with medical certificate. It was however stated that the petitioner's statement that he informed superintendent G.S. (Co-ordination) about his inability to perform Command duty on October 22, 1966 was wrong. The authorities found fault with the petitioner as he passed over the G.S. branch and submitted his explanation direct to the Administrative Branch. Disciplinary action, it was said, was merited by reason of his false statement about inability to perform the Command duty on October 22, 1966 and the insubordinate manner in which he submitted his explanation. Thereafter the following order was passed: Confidential Notice of Termination of Services Under Rule 5 of Central Civil Services (Temporary Service) Rules, 1949 Sri P. C. Guha, Temporary Messenger is hereby given notice that his service is terminated from the date of expiry of one calendar month commencing from 24 December, 66. Sd/- Illegible Brig. IC Adm. Headquarters Eastern Command Fort William, Calcutta-21 24 Dec. 66.
(2.) The petitioner contended that the order of termination of service under Rule 5 of the Central Civil Services (Temporary Services) Rules 1949 was unwarranted as the petitioner was not governed by the said service rules. The order was by way of punishment without inquiry and there was not second show cause notice thereby denying him the reasonable opportunity of being heard as provided under Article 311 of the Constitution. Further while, petitioner's explanation was accepted new charges were brought against him and the order was thus malafide, and colourable exercise of power. Further, the punishment was disproportionate and severe and the punishing authority was prejudiced by the observations of G.S. Branch. On these allegations and contentions the petitioner moved this Court under Article 226 (1) of the Constitution praying for a writ in the nature of certiorari quashing the order of termination of service and also for a writ in the nature of mandamus directing the respondents to cancel or rescind the impugned order. On this application this Court issued this instant Rule on September 11, 1967 in terms of the prayer.
(3.) The respondents in this Rule were the Administrative Officer, Headquarters E.C. Fort William, Brigadier-in-charge Administration Fort William. Superintendent G. S. (Co-ordination) and Secretary in the Ministry of Defence, Government of India. The affidavit-in-opposition was filed on behalf of the respondents by Saudagar Singh, Superintendent G.S.(Co-ordination) affirmed on September 6, 1968 denying all material allegations. It was reiterated that the petitioner made false statement to the Superintendent G. S. regarding his inability to perform the command duty on October 22, 1966. It was stated that the petitioner could not be retained in service as his retention would set a bad example to other employees in Defence Department in the interest of defence service. It was stated that the petitioner was property dealt with under the relevant rules. Action was taken by appropriate authority who was in duty bound to maintain proper order and discipline in Administrative office of Headquarters. It was further stated that Rules referred in the termination notice was incorrect, as the petitioner was governed by Civilians in Defence Services (Temporary Service) Rules, 1949 and Rule 5 thereof warranted the passing of the impugned order.;