Khushi Ram vs The State of Punjab and Another

Dua, J.—This writ petition was admitted on 19th September, 1963, and was directed by the Admitting Bench to be heard at an early date. It is unfortunate that in spite of this direction the case should be finally disposed of only today.

The petitioner claiming to be a displaced person is stated to have been appointed as a Patwari in the Revenue Department on 10th January 1955. It is not disputed that he is a temporary and officiating Patwari. Some trouble seems to have arisen in 1963 when the petitioner was appointed as a helper to one Shri Sohan Lal, Patwari of Halqa Nawach, district Karnal, though he was actually posted as a Patwari in Halqa Dohla, Tehsil Kaithal, in the same district. During that period, it is averred, a murder was committed in the Patwar Halqa of Nawach in which one Sohan Singh was challenged for the murder. During investigation of that case, it was found that the Patwari of the Halqa had made some wrong entries in some khasra girdawari with the object of supporting the claim of one Jagir Singh. The Deputy Superintendent of Police, Kaithal thereupon made an endorsement on the report of the Investigating Officer which was forwarded to the Deputy Commissioner who in turn asked for a report from the Sub-Divisional Officer, Kaithal Report of the Sub-Divisional Officer showed that Sohan Lal was the Patwari actually incharge of the Halqa in which wrong entries had been made and that the petitioner was working with him as a helper. The Revenue Assistant on the basis of the report of the Sub-Divisional Officer proposed that the petitioner be reverted as unpaid candidate. This report was approved by the Deputy Commissioner as per his order dated 25th June, 1963 communicated to the petitioner on 18th July, 1963. It is this order which is being assailed in the present proceedings. In order to understand the effect of the impugned order. It is necessary to reproduce the relevant portion of Annexure ''A'' attached to the writ petition which is in the following terms:

D.C. may kindly see a copy of report from the Deputy Superintendent of Police, Kaithal endorsed to this office vide endorsement No. 54379, dated 11th December, l962 at flag ''A'' by the Superintendent of Police Karnal. The Deputy Superintendent of Police Kaithal has said as follows:

It is quite clear from the record that a wrong entry in the name of Jagir Singh was done by the Patwaris with a view to support Shri Jangir Singh (Bad Character). The action of the both Patwaris has resulted in the commission of serious case of murder and attempt to murder wherein one person lost his life and several persons received serious injuries on both sides''. The then Deputy Commissioner asked for a report from the Sub-Divisional Officer, Kaithal within a fortnight. The S.D.O. has now forwarded the report of the Tehsildar Kaithal vide flag ''B''. This report says that Shri Khushi Ram Patwari was the person who made the entries in the Khasra girdawari and that he made a vain attempt to involve Shri Sohan Lal Patwari and the Sarpanch (it may be mentioned here that Shri Sohan Lal was the Patwari actually incharge of the halqa and Shri Khushi Ram Patwari worked with him as helper in doing the girdawari of the Kharif 1962 after the last floods).

Shri Khushi Ram was a helper and it was the duty of Shri Sohan Lal to have seen that any changes made in the Khasra girdawari were regularly incorporated into the roznamcha waqiati which was in his possession. Shri Sohon Lal Patwari Halqa has given a statement before the Tahsildar on 26th April, 1963 which is at flag ''C''. In his statement he has said that Shri Khushi Ram gave him no list of changes in khasra girdawari, although Shri Khushi Ram did demand roznamcha from Shri Sohan Lal, for incorporating changes in the girdawari, Shri Sohan Lal, however, said that the roznamcha waqiati was lying in the village and that he could accompany him and make the necessary entries. Shri Khushi Ram did not go with him. Thus changes in the khasra girdawari were not incorporated in the roznamcha waqiati. Towards the end of his statement Shri Sohan Lal said that he made a report to the Naib Tehsildar that the girdawari was full of hundreds of cuttings and over-writings and made the entries in his roznamcha waqiati. He should have got these entries made daily from the Patwari who was helping him and should have communicated to these changes to the Panchayat as required under the Government instructions. If all these instructions had been followed, the murder might have been avoided. Thus the negligence of both the Patwaris is no less grave.

Shri Sohan Lal was reverted on account of his being the junior candidate and should be charge-sheeted for the negligence to the extent he is responsible in this case. Shri Khushi Ram the other Patwari continues to be employed as Patwari. I understand that he is also a Patwari candidate and should be reverted as unpaid and charge-sheeted for the negligence on his part. Dishonest intention on the part of either or both cannot be ruled out. A copy of the judgment in the murder case will be seen to find out if there are any "strictures against any Patwari/ Sarpanch for further suitable action.

(Sd.) J.S. Bhutani, Revenue Assistant. 18th June, 1963 D. C.

This is the sort of case in which I propose stern action. Please speak.

(Sd.) Mohinder Singh Bedi, 20th June, 1963.

P.P. is not in his room. He will operate if a criminal case can be registered against the Patwaris for creating false evidence/culpable negligence. S.K. to take this case personally to P.P.

(Sd.) J.S. Bhutani, 21st June, 1963.

May wait till the decision of the Sessions Court on 27th June, 1963 Pending the decision of the Session Court and a departmental enquiry/ criminal case that may follow, Shri Khushi Ram the other may also be reverted as unpaid candidate.

(Sd.) J.S. Bhutani, 22nd June, 1963 D. C.

Approved as proposed.

(Sd.) Mohinder Singh Bedi. 25-6-63.

The learned counsel at the Bar have drawn my attention to decisions of the Supreme Court and it is agreed that these two decisions lay down the correct legal position. In Jagdish Mitter Vs. The Union of India (UOI), , it was held that when the order refers to the fact that the servant was found undesirable to be retained in Government service, it expressly causes a stigma on the servant and in that sense it must be held to be an order of dismissal and not a mere order of discharge. To say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant while in the second case, termination of service is due to the consideration that a temporary servant need not be continued and in that sense, no stigma attaches to him. Anyone who reads the order in a reasonable way would naturally conclude that the servant was found to be undesirable and that must necessarily import an element of punishment which was the basis of the order and was its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is simple order of discharge. In Champaklal Chimanlal Shah v. Union of India2, it was observed that temporary servants are also entitled to the protection of Article 311 Champaklal Chimanlal Shah Vs. The Union of India (UOI), in the same manner as permanent Government servants, if the Government takes action against them by meeting out one of the three punishments i.e. dismissal, removal or reduction in rank. But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. The mere use of expressions like "terminate" or "discharge" is not conclusive and in spite of the use of such innocuous expressions, the Court has to apply two tests mentioned, namely (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; if either of the tests is satisfied, it must he held that the servant had been punished. Further even though misconduct negligence, inefficiency or other disqualification may be the motive or the inducing factor which causes the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if right exists, under the contract or rules, to terminate the service, the motive operating on the mind of the Government is wholly irrelevant. It is unnecessary to reproduce detailed passages from this judgment because the ratio is quite clear. In the light of this ratio, reading the order of the Deputy Commissioner dated 25th Tune, 1963 in the background of his order dated 20th June, 1963, and the report of the Revenue Assistant, on the basis of which those orders have been passed by the Deputy Commissioner, it is quite clear that action has been taken against the petitioner by way of punishment and this action indisputably causes stigma to attach to him. Indeed, the learned counsel for the respondents had nothing serious to urge in defence of this action. All that he could contend was that the motive in passing the impugned order is immaterial, but as Annexure ''A'' shows it is not only the motive in the mind of the officer which is relied upon by the petitioner, but the order itself clearly discloses the infirmity which is hit by the ratio of the Supreme Court decisions mentioned above.

It is also not irrelevant to point out that this case was initially posted for hearing before me on 12th November, 1965 when the learned counsel for the respondents produced before me a copy of the order of Shri Munni Lal, Additional Sessions Judge, Karnal dated 27th June, 1963 in Sessions Case No. 8 Addl. of 1963 (Sessions Trial No. 43 of 1963) State v. Sohan Singh and seven others in which it was remarked by the learned Additional Sessions Judge that Sohan Lal and Khushi Ram Patwaris had, in the Court''s view, not discharged their official duties diligently and that they appeared to have changed the entries readily in the khasra girdawaris. The learned Additional Sessions Judge left the matter to be dealt with by the department concerned. The original charge-sheet as given to the petitioner was also produced before me and it appeared therefrom that Shri R.C. Kapila, Collector, Karnal had in September, 1964 called for the petitioner''s explanation in regard to the alleged tampering with khasra girdawaris of certain numbers. Shri Pannu, learned counsel for the respondents, at that time, contended before me that the petitioner being no longer in Government service, there was no possibility of any enquiry being held into his misconduct. In view of the position adopted before me by the learned counsel for the respondents, I adjourned the case for one month to await the final result of the enquiry report. On 7th January, 1966, I was informed that a show cause notice had been given to the petitioner to which he had submitted a reply and also desired to be heard in person. Shri Pannu thereupon asked for another month hoping the enquiry to be finalised during that month. On 11th February, 1966, the proceedings were not finalised and I had to grant another two weeks'' time for finalising the enquiry. I, however, directed a copy of the order of this Court to be forwarded to the Hon''ble Revenue Minister Incharge of the petitioner''s department for information. On 25th February, 1966, I was informed that the petitioner had been served with some additional notices and orders in respect of which he wanted to produce further affidavits and he wanted some more time for that purpose. Today, I have been informed that the Collector has ordered that the petitioner''s name be removed from the list of Patwari candidates of Karnal district as per order dated 4th February, 1966. According to the learned counsel for the petitioner, the order passed on 25th June, 1963, reverting the petitioner from the post of Patwari remains as infirm as before. To this part of the case, the learned counsel for the respondents, Shri M.S. Pannu has practically nothing to urge in reply, and indeed he has virtually conceded that the order dated 25th June, 1963, is by way of punishment. I have, therefore, no option but to allow this petition and quash the impugned order. As no arguments have been addressed before me about the effect of the order dated 4th February, 1966, I need say nothing about it. The present order will, however, not stand in the way of the department in taking whatever other steps may be open to it under the law. The petitioner is entitled to his costs of these proceedings.