- (1.) THIS writ petition under Art. 226 of the Constitution of India is directed against the order of the Commercial Taxes Officer, Jodhpur by which the services of the petitioner were terminated under R. 23 (A) (1) of the Rajasthan Service Rules. The petitioner Manoharlal was appointed as a Lower Division Clerk in the office of the Commercial Taxes Officer, Jodhpur in a temporary capacity on 18-10 1966 vide Ex. R- 1 for one month on the condition that his service shall be liable to be terminated at any time without any prior notice. The term of one month was extended for another one month on 22-11-1966 vide Ex. R.
(2.) ON 18 4 67 the term of his employment was further extended till further orders. The petitioner on 3 2 69 submitted an application for granting him five days' casual leave with effect from 3 2-69 to 7-2-69. The leave was refused by the Commercial Taxes Officer. The petitioner then on the same day made another application praying that he may be granted privilege leave for one month with effect from 3 2-69 to 1-3 69. The petitioner after submitting this application for grant of privilege leave left the office. ON receipt of the application for privilege leave, the matter was examined by the Commercial Taxes Officer, who on 7-2-69 decided to terminate his services after giving him a month's notice. The order to that effect was actually passed on 12-2-69. It reads as under- ************ This order is marked as Ex. 1. ON the same day i. e. 12-2-1969 another application was received in the office of the Commercial Taxes Officer in which the petitioner asked for grant of medical leave from 3-2-1969 to 21-2-1969 Along with this application a medical certificate of a Vaidya was attached. Yet another application was presented by the petitioner on 22-2-1969 for the extension of leave from 21-2-1969 to 1-3-1969. Along with this application also a medical certificate from the same Vaidya was attached. ON 7-3-1969 the Commercial Taxes Officer passed another order terminating the services of the petitioner with effect 7-3-1969. The petitioner protested against this order dated 7-3-1969, and denied having left the Headquater and asserted that throughout the period he was at Jodhpur. The petitioner then filed an appeal to the Deputy Commissioner (Administration) Commercial Taxes on 9-5-1969 which was disposed of on 1-11-69 holding that the appeal was not maintainable. The petitioner then moved this writ petition and prayed inter alia that the orders dated 12-2-1969, 7-3-1969 and the appellate order dated 1-11-1969 be quashed. 2. The learned counsel for the petitioner confined his arguments on two points: firstly, that the temporary services of the petitioner were not liable to be terminated without complying with the provisions of R. 23 (A) (1) of the Rajasthan Service Rules viz. either by giving the petitioner one month's notice in writing or by making the payment to him of a sum equivalent with the amount of emoluments for the aforesaid notice period. The second contention is that there has been infringement of Art. 311 of the Constitution of India for no opportunity to show cause was afforded to the petitioner against the alleged illegal termination of the petitioner's services. I take up the second point first: There arc two pre dominating facts in this case: first that the petitioner is a temporary servant whose employment under the terms of the appointment letter Ex. R. 1 was liable to be terminated at any time without any prior notice. In other words, the petitioner had no right to continue in service, and the nature of his service tenure was entirely temporary. The second important fact which deserves to be noted is the order dated 7-3-1969 Ex. 3 which runs as under ************ From the plain terms of the order Ex. 3 it is evident that this order has been passed in total conformity with the appointment letter Ex. R. 1 and that this order neither casts any stigma on the petitioner, nor does it visit the petitioner with any penal consequences. The main argument advanced on behalf of the petitioner is that the order Ex. 3 dated 7-3 69 if read along with the order Ex. 1 dated 12-2-69 leads to the conclusion that the petitioner's termination of services vide Ex 3 is in essence punitive as it is founded directly upon the allegation of misconduct mentioned in Ex. 1 against the petitioner. To my mind, the effective order dispensing with the services of the petitioner is Ex. 3 dated 7-3-69 and it completely supersedes the order Ex. 1 dated 12-2-69. It appears that because the order Ex. 1 attached some sort of stigma which would have affected the petitioner's future career, the second order Ex:3 dated 7-3-69 which is wholly innocuous, was passed so that it may not affect the petitioner's future career. In any case, there is nothing to suggest that the subsequent order dated 7-3-69 was founded upon the previous order dated 12-2-69. Even if the order Ex. 3 is read along with the order Ex. 1, the question that arises is whether from these two orders an inference can be drawn that the services of the petitioner were terminated by way of punishment? If the answer is in the affirmative, the order terminating the service tantamounts to a removal and it would attract the provisions of Art. 311 of the Constitution. But in case the answer is in the negative no question of attracting the provisions of Art. 311 arises. It is well settled that the mere form of an order is not by itself conclusive and all the attending circumstances in passing the same has to be taken into consideration for determining whether the impugned order is by way of punishment or otherwise. It is again well settled that an order in which the unsatisfactory nature of the work or misconduct of the public servant enters merely as a motive for the termination of his services then such an order is not by way of punishment in the eye of law. It is only where the order is wholly founded on the particular misconduct of the public servant, then it is to be deemed as an order by way of punishment which would attract the provisions of Art. 311 of the Constitution of India. In the present case, the employment of the petitioner was wholly temporary as it was terminable even without notice. As already pointed out above the effective order Ex. 3, dated 7-3-1969 is wholly innocuous and casts no stigma nor entails any penal consequences to the petitioner.
(3.) IN P. L. Dhingra vs. Union of INdia (l) their Lordships laid down two tests for determining whether an order was by way of punishment or otherwise: firstly whether the servant had a right to the post or the rank and secondly whether the order visits the servant with evil consequences. IN the present case neither of these two tests is satisfied. Several decisions of the Superime Court and various High Courts were cited before me by the learned counsel for the parties. I may refer to some of them. In P. L. Dhingra's case (l) their Lordships of the Supreme Court observed "it is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C. J. , has said in Shrinivas Ganesh v. Union of India (AIR 1956 Bombay 455) (supra) wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted" ;