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Rajasthan High Court
Bapna and Gupta, JJ.
Nihal Chand - Appellant
Versus
The State of Rajasthan - Respondents
D.B. Civil Miscellaneous Application No. 8 of 1950, under Article 226 of the Constitution of India
Decided On : July 22, 1950
N. was employed in the Department of Civil Supplies, Rajasthan, for a period of six moths. He continued to be in service even after expiry of the period and sometime after was appoint d to another post in the same Department. Held that his continuation in service after expiry of his term must be attributed to a fresh implied contract of service. (para 5)
An affidavit in which the grounds of belief or source of knowledge is not mentioned, is of no value. (para 6)
Clause (2) of Article 311 of the Constitution qualifies clause (1) of Article 311 only and not clause (1) of Article 310, with the result that the expression "No such person as aforesaid" in clause (2) of Article 311 can only refer to a person described in clause (1) of Article 311. Therefore, a person removed from service at the pleasure of the Raj Pramukh in Rajasthan is not entitled to the safeguard given by clause (2) of Article 311. (para 10)
The Constitution does not seem to make any clear distinction in respect of temporary or permanent servants while dealing with dismissal, removal or reduction in rank of employees on the civil side of the administration. Nevertheless, a distinction must be made by the very nature of things between temporary and permanent employees The word "temporary" indicates that the appointment is for a time only and the period is to be determined by the employer. Therefore, when a temporary employee is to be relieved of his post, because either the post is to be reduced or there is another permanent employee waiting to take up the appointment or for any other reason not connected with the employee himself, an order directing the temporary employee to relinquish the post is within the terms of the employment itself. In such a case the temporary employee will not be able to claim the safeguard provided by clause (2) of Article 311, and the position would be same whether the employment is for a specified or unspecified period. The result is that even a temporary employee, whether for specified or unspecified period, if he acts in a manner which may give rise to some complaints against him and if he is to be dismissed on the basis of such complaints, he is entitled to show cause against his dismissal. But if the retirement is made for reasons unconnected with any complaints against him, he can have no ground for being given an opportunity of showing cause against his removal from service. (Para 13)
The language of Article 311 seems to indicate that the employee is to be given an opportunity to show cause against his dismissal which is contemplated as a result of some complaint against him or is directly concerned with his actions. Dismissal, removal or reduction in rank of permanent employees except on complaints of misconduct is not contemplated in this Article. (para 13)
2. The petitioner Mr. Nihal Chand Bhasin, presented the petition on the 25th of May, 1950, for a writ being issued by this Court to the State of Rajasthan and the Chief Secretary of the Government of Rajasthan directing them to refrain from enforcing an order of the Government of Rajasthan dated the 12th of May, 1950, by which the services of the petitioner were directed to be terminated with effect from the date he was relieved of his duties. The petitioner was at the time working as Assistant Commissioner, Civil Supplies Department of Rajasthan and posted at Bikaner.
3. According to the facts mentioned in the petition, [Mr. Bhasin was a legal practitioner in Lahore, and after the partition in August 1947, migrated to India and settled in Bikaner. He held a certain post in the former Government of Bikaner from October 1947 to 15th March 1948. After formation of Rajasthan he was appointed as Enforcement Officer Supplies Department, Bikaner, in August 1949 and continued to act as such till 21st February 1950, when he was appointed as Assistant Commissioner, Civil Supplies Department, Bikaner division, as per notification in the Rajasthan Raj-Patra of 4th March 1950. It was alleged that the petitioner had been discharging his duties faithfully, efficiently and honestly. Nevertheless, his services were terminated by the Rajasthan Government by the order of 12th May 1950, According to the petitioner, he apprehended that his removal from service had been ordered because he was a displaced person and this was contrary to the circulars issued from time to time directing that priority should be given in the matter of resettlement of displaced persons in Rajasthan. The petitioner maintained that the Government had ordered his removal from service without giving any reasonable opportunity of showing a cause against the action taken against him, and this was contrary to the provision of Article 311 of the Constitution. The removal on the apprehended ground of being a displaced person was stated to be contrary to Article 16 of the Constitution.
4. On notice being issued, it was submitted on behalf of the Government of Rajasthan that the employment of Mr. Nihal Chand Bhasin by the former Bikaner State was terminated on the 15th March 1948, when the post was brought under reduction. The appointment as Enforcement Officer, Supplies Department, Bikaner, was made on)2th August, 1949 by the Director of Civil Supplies, Bikaner, in anticipation of the sanction of the Govern ment of Rajasthan and the Government by its order dated 10th February, 1950, sanctioned the appointment of Mr. Bhasin for a period of six months only, from the date of appointment. In the meantime, in the integrated set-up Mr. Bhasin was appointed temporarily as Assistant Commissioner Civil Supplies, Supplies Department, and posted at Bikaner by order dated 21st February, 1950, and that, as the appointment was only temporary for six months, the Government was entitled to terminate his appointment in the manner it was done. It was contended that Article 311 was inapplicable in the case of the petitioner and circulars regarding resettlement of refugees were irrelvant. The termination of his services was stated to have been done because his initial appointment with effect from 12th August 1949, was only for a period of six months.
5. At an early stage, the petitioner was directed to produce the order of his appointment in August 1949, which could throw light on the terms and conditions of his employment, but the petitioner, as late as 23rd June, 1950, declared that he did not receive the order of appointment at any time, although he was allowed to work and receive the salary. Certain documents produced by the Government, however, clearly show that it was Mr. Goswami, Director of Civil Supplies, Bikaner, who, on his authority, appointed Mr. Nihal Chand as Enforcement Officer in anticipation of the sanction of
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