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PATNA HIGH COURT
S.K.Das and Ahmad JJ.
Brajnandan Prasad
Versus
State Of Bihar
Miscellaneous Judicial Case No. 123 of 1954 ;
Decided On : MARCH 23, 1955
CONSTITUTION OF INDIA - ARTICLE 311 - BIHAR AND ORISSA SUBORDINATE SERVICES DISCIPLINE AND APPEAL RULES, 1935 - CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES - TERMINATION OF SERVICE - TEMPORARY APPOINTMENT - DISCHARGE - REMOVAL - DISCRIMINATION - PUBLIC SERVICE COMMISSION - CONSULTATION - WRIT - DIRECTION - DISMISSED.
Fact of the Case:
Two petitioners, Brajnandan Prasad and Harinandan Lal, were appointed to temporary posts in the Upper Division of the Industries Department of the Government of Bihar on 8-2-1949. On 5-4-1949, a first information report was filed against them alleging involvement in a bogus permit scam. They were arrested on 15-11-1949 and suspended from service. The criminal case against them was withdrawn due to defective sanction, but cognizance was taken under a charge-sheet submitted on 30-8-1951. They were discharged on 22-7-1953. On 22-11-1952, an order was passed abolishing the temporary posts held by the petitioners and terminating their services with effect from 1-11-1952. The petitioners challenged the order, contending that it was tantamount to removal from service in violation of the rules governing their service and their statutory right under Article 311 of the Constitution.
Finding of the Court:
The court held that the termination of the petitioners' services was not a removal from service within the meaning of Article 311 of the Constitution or the relevant service rules. The court found that the petitioners were appointed to temporary posts that were subsequently abolished, and their discharge was not a disciplinary action but a result of the abolition of their posts. The court also held that the petitioners were not discriminated against since they were not entitled to any legal right to a third post that was retained.
Issues: 1. Whether the termination of the petitioners' services amounted to removal from service in violation of Article 311 of the Constitution and the relevant service rules. 2. Whether the petitioners were discriminated against by not being appointed to a third post that was retained. 3. Whether the order terminating the petitioners' services was a mere cloak or device to punish them for the criminal charge against them.
Ratio Decidendi: 1. The court interpreted Article 311 of the Constitution and the relevant service rules to hold that the termination of the petitioners' services was not removal from service. The court reasoned that the petitioners were appointed to temporary posts that were subsequently abolished, and their discharge was not a disciplinary action but a result of the abolition of their posts. 2. The court held that the petitioners were not discriminated against since they were not entitled to any legal right to a third post that was retained. 3. The court found no evidence to support the contention that the order terminating the petitioners' services was a mere cloak or device to punish them for the criminal charge against them.
Final Decision: The court dismissed the petitioners' applications, holding that no case for the issue of a writ or direction had been made out.
Das, J.
1. These two applications have been heard together and will be governed by this judgment. The two petitioners are Brajnandan Prasad and Harinandan Lal. Brajnandan Prasad was appointed as a temporary clerk in the Industries Department of the Government of Bihar on 18-9-1943. The appointment was temporary for one month with effect from 15-9-1943. Harinandan Lal was also appointed as a temporary assistant in the same department on 22-9-1943. Later on, 8-2-1949, these two petitioners were appointed to two temporary posts in the Upper Division in the said department. The appointment was made by means of an order, being Order No. 13S3, dated 19-2-1949. The order was in these terms:
"Department of Industries Bihar. Order No. 1383 6A-4-49 Patna, dated 19-2-1949. Sri Brijnandan Prasad and Harinandan Lal are appointed to the post of temporary Uppar Division Assistants in the scale of Rs, 120-8-200 plus the cost of living allowance as admissible under the rules with effect from 8-2-1949. Sd/S. M. Ali. Addl. Director of Industries, Bihar."
On 54-11-1949, a first information was given by one Mr. J. Dayal, the then Deputy Director of Industries, Bihar to the Senior Superintendent of Police, Patna, in which allegations were made against certain persons, including the petitioners, that by dishonest means bogus permits had been obtained for the supply of iron and steel by several persons. It appears that a petition of complaint was also subsequently filed aiter obtaining the sanction of the State Government, in which it was alleged that the two petitioners were also in the conspiracy as a result of which bogus permits for the supply of iron and steel were obtained. It appears that the complaint was withdrawn due to defective sanction, but cognizance of the case was taken under a charge-sheet submitted on 30-8-1951.
As a result of the allegations made against: the petitioners, they were arrested on 15-11-1949 and on 16-11-1949, the then Director of Industries passed an order to the effect that as the two petitioners had been arrested on a criminal charge on 15-11-1949, they would remain under suspension with effect from the date of their arrest until the termination of the proceedings, against them. In the criminal case which was instituted against the petitioners, they were discharged on 22-7-1953.
It has been stated at the bar that the case has now ended in acquittal of the other accused persons. After the order of suspension passed against the petitioners on 16-11-1949, the petitioners were paid a subsistence allowance till May, 1951, when the subsistence allowance was stopped. The petitioner made a representation on 3-7-1951, and it appears that their subsistence allowance was restored.
Again, in January and February, 1952, their subsistence allowance was stopped and the petitioners again made a representation to the State Government to which no reply was given; but their subsistence allowance was restored. Then on 22-11-1952, the following order was passed against the petitioners; "Department of Industries, Bihar. Patna. Memo No. 5205/IE-70/1949. Dated Patna, the 22nd November, 1952. To (1) Shri Birjnandan Prasad Mohalla Salempur Ahra, P. O. Kadamkuan, Patna-3. (2) Shri Harinandan Lal Mohalla Bakerganj Bazaza, P. O. Bankipore Patna-4. Shri Brijnandan Prasad Shri Harinandan Lal is informed that the State Government in the Development have abolished the Upper Division post held by him in the Iron Section of the Industries Department with effect from 1-11-1952. His services are accordingly deemed to have terminated on the forenoon of 1-11-1952. 2. He is further informed that the joint representation dated 3-7-1951, submitted by him has been rejected by Government. Sd/S. M. Ali Director of Industries, Bihar."
The order stated, in effect, that the two temporary posts to which the petitioners were appointed with effect from 8-2-1949, were abolished with effect from 1-11-1952, and the services of the petitioners were accordingly t
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