1974 Supreme(Cal) 269

HIGH COURT OF CALCUTTA
S. K. DUTTA, B. C. RAY
ADMINISTRATIVE OFFICER, HEADQUARTERS EASTERN COMMAND, Fort WILLIAM, CALCUTTA - Appellant
Versus
PARESH CHANDRA GUHA - Respondent
F. M. A. 525 of 1971
Decided On : September 20, 1974

1. Temporary servants are entitled to the protection of Article 311 of the Constitution in the same manner as permanent Government servants, but this protection is available when dismissal, removal, or reduction in rank is sought to be inflicted by way of punishment and not otherwise. 2. The services of a temporary servant can be terminated under rules of employment and such termination without more would not attract the operation of Article 311 of the Constitution. 3. The Union of India is a necessary party to writ proceedings challenging an order of termination of service of a temporary servant, as the order is given effect to by the Government of India and the petitioner would be entitled to his salary in the meantime and throughout from the Government of India if the order is set aside. 4. Delay in initiating writ proceedings in service matters is a well-established ground for refusal to exercise the discretion to issue a writ.

Headnote:

CIVIL SERVICE - TERMINATION OF SERVICE - ARTICLE 311 OF THE CONSTITUTION - WHETHER ORDER OF TERMINATION WAS BY WAY OF PUNISHMENT - WHETHER THE UNION OF INDIA WAS A NECESSARY PARTY TO THE WRIT PROCEEDINGS - WHETHER DELAY IN INITIATING WRIT PROCEEDINGS WAS UNREASONABLE.

Fact of the Case:

The petitioner, a temporary Messenger (Civilian) under the Administrative Officer, Head Quarters, Eastern Command, Fort William, Calcutta, was served with a notice calling upon him to show cause why disciplinary action should not be taken against him for absence without leave and for making a false statement. The petitioner filed his defence denying the allegations and reiterating that he had informed the Superintendent (GS) while handing over his sick report that he might not be able to report on the relevant date. The authorities found fault with the petitioner as he passed over the G. S. branch and submitted his explanation directly to the Administrative Branch. Disciplinary action was taken against him for making a false statement about his inability to perform the Command duty and for the insubordinate manner in which he submitted his explanation. The petitioner was served with a notice of Termination of Services under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949.

Finding of the Court:

The Court held that the order of termination of service was by way of punishment and not an order of termination simpliciter under paragraph 5 of the Rules. The Court also held that the Union of India was a necessary party to the writ proceedings and that the delay in initiating the writ proceedings was unreasonable.

Issues: 1. Whether the order of termination of service was by way of punishment or an order of termination simpliciter? 2. Whether the Union of India was a necessary party to the writ proceedings? 3. Whether the delay in initiating the writ proceedings was unreasonable?

Ratio Decidendi: 1. The Court held that the order of termination of service was by way of punishment and not an order of termination simpliciter because the affidavit-in-opposition clearly indicated that the order was passed by way of penalty. The Court relied on the decisions in Champaklal v. Union of India, State of Punjab v. Sukh Raj Bahadur, and State of Bihar and Ors. v. Bhikshuk Misra to support its conclusion. 2. The Court held that the Union of India was a necessary party to the writ proceedings because the order of termination was given effect to by the Government of India and the petitioner would be entitled to his salary in the meantime and throughout from the Government of India if the order was set aside. The Court relied on the decisions in Syed Hussain v. Syed Siddiq, Sri Krishna Rice Mills v. Deputy Director, Food, Government of India, and Udit Narain Singh v. Additional Member of Board of Revenue, Bihar to support its conclusion. 3. The Court held that the delay in initiating the writ proceedings was unreasonable because the petitioner had approached the Court after a lapse of seven years from the date the order of termination came into effect. The Court relied on the decisions in Kamini Kumar Das Choudury v. State of West Bengal and State of Madhya Pradesh v. Bhailal to support its conclusion.

Final Decision: The appeal was allowed, the order under appeal was set aside, and the rule was discharged. There was no order as to costs in the circumstances.