JUDGMENT
V.G. Oak, J.
1. The short question for determination in this petition under Article 226 of the Constitution is whether the petitioner is entitled to the protection of Article 311 of the Constitution.
2. Many years ago, the petitioner was an employee of the Kanpur Electric Supply Corporation, Ltd. In 1947 the State of Uttar Pradesh purchased the undertaking of the Kanpur Electric Supply Corporation, Ltd. The employees of the corporation Joined the service of Uttar Pradesh Government, it appears that the department, which is looking after the affairs of the former corporation, has bees designated as the Kanpur Electricity Supply Administration. When the petitioner Joined Government service, there was an agreement of service between the petitioner and the Uttar Pradesh Government. In accordance with the agreement, the petitioner served the Uttar Pradesh Government between 1953 and 1969. On 22 July 1959 the general manager of Kanpur Electricity Supply Administration passed an order terminating the petitioner’s services with immediate effect. This writ petition by Sri R.P. Nigam is directed against the general manager’s order, dated 22 July 1959.
3. Annexare VII to the affidavit is a copy of the impugned order, dated 22 July 1959. The order runs thus:
Whereas I am of the opinion that your residual physical disability in your left upper and lower limbs has made you Incapable to perform your duties;
Now, therefore, in exercise of the powers conferred on me by Clause 13 of the articles of agreement. I hereby terminate your appointment.
4. The main contention of Mr. S.C. Khare appearing for the petitioner is that the order dated 22 July 1959 was passed by the general manager without holding any Inquiry under Article 311 of the Constitution.
5. The executive officer of the Kanpur Electricity Supply Administration, Kanpur, has filed a counter-affidavit on behalf of respondent 1. According to the counter-affidavit, the order of discharge was passed in accordance with the terms of the agreement being the parties and is, therefore, valid. It conceded on behalf of the respondents no inquiry under Article 311 of the Constitution was held in the present case. Mr. N.D. Pant appearing for the respondents contended that no inquiry under Article 311 was necessary in this case.
6. The respondents rely upon the agreement executed between the parties in the year 1953., annexure II to the affidavit is a copy of the agreement, dated 17 November 1953. In particular, the respondents rely upon Paras. Nos. 13 and 14 of the agreement.
7. Paragraph 13 of the agreement is in these terms:
If at any time during the continuance of this agreement the employee shall, in the opinion of the general manager, become by reasons of ill-health or otherwise, incapable of performing his duties here-underthe general manager may forth with terminate his appointment.
8. On comparing annexure VII with annexure II, it becomes clear that the order of discharge was in accordance with Clause 13 of the agreement. The question still remains whether the respondents could dispense with an inquiry under Article 311 of the Constitution. In this connexion, the respondents rely upon Clause 14 of the agreement. Clause 14 of the agreement is in these terms:
The opinion of the general manager expressed in writing shall be conclusive evidence of the fact that the employee had become incapable of performing his duties.
Clause 14 seems to rule out any inquiry, when the general manager comes to the conclusion that the employee is incapable of performing his duties.
9. In Satish Chandra v. Union of India a civil servant was engaged upon a special contract for a certain term. On the expiry of the term, be was reappointed for a further term on a contract on a temporary basis. In accordance with the contract, he was discharged from service after notice. It was held that Article 311 had no application, because there was neither a dismissal nor a removal from service. It appears that in that case the Impugned order was a simple order discharging the petitioner from service. That order was not based on any misconduct or inefficiency.
10. In Union of India v. Someshwar 58 C.W.N. 107 it was held that dismissal on the ground of inefficiency due to physical incapacity comes within the provisions of Section 240(3) of the Government of India Act, 1935. The provision of Sub-section (3) of Section 240 of the Government of India Act, 1935, was similar to the provision of Clause (2) of Article 311 of the Constitution. In that case it was noticed that a certain rule of the State Railway Establishment Code laid down that, where inefficiency is due to failure to conform to the requisite standard of physical fitness, it shall not be necessary to serve the railway servant with a chargesheet or to obtain his explanation. It was held that the rule was ultra vires.
11. In Fakir Chandra v. Chakrawrti 58 C.W.N. 836 it was explained that termination of service under a contract and in terms thereof does not attract the provisions of Article 311 of the Constitution. But a provision in a contract that the employee can be dismissed or removed from service without giving him any opportunity to be heard, militates against Article 311 of the Constitution, and, is to that extent bad. If a man merely binds himself to be governed by the general rules and regulations of Government service, he must be taken to be bound by those terms that are legal. It is not permissible to contract out of the provisions of the Constitution.
12. The question how far a discharged civil servant is entitled to the protection of Article 311 was discussed at length in Purshotam Lal Dhingra v. Union of India 1958 I L.L.J. 544. Their lordships explained the true position on pp. 581-562 thus:
Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal…. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2). In either of the two abovementioned oases the termination did not carry with it the penal consequences of loss of pay…. 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…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 Article 311 is not attracted. But even if the Government has by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflating the punishment of dismissal or removal or reduction in rank, the Government may. nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.
13. I have already quoted the material part of the impugned order, dated 22 July 1959. The ground for discharge was dearly mentioned in the order. The reason for terminating the services of the petitioner was that it was considered that he was physically incapable of performing his duties. According to the general manager’s opinion, the petitioner suffered from a disqualification. The disqualification consisted of the petitioner’s alleged illness and weakness in certain limbs. It was explained in Purshotam Lal Dingra case (vide supra) that, if removal from service is based upon a disqualification, Article 311 is attracted.
14. I have already referred to Clause 14 of the agreement between the parties. Under Clause 14 it was not necessary to hold any inquiry, as contemplated by Article 311 of the Constitution. Since Clause 14 contravenes Article 311 of the Constitution, Clause 14 appears to be invalid.
15. It is true that the petitioner was discharged from service in terms of Clause 13 of the agreement. But since the termination of service was based upon an alleged disqualification of the petitioner, he was entitled to an inquiry under Article 311 of the Constitution, Admittedly, no such inquiry was held. The order of discharge is, therefore, liable to be quashed.
16. Mr. N.D. Pant suggested that the petitioner should be left to file a civil suit to enforce his rights. Mr. Pant relied upon Union of India v. T.R. Varma 1958 II L.L.J. 259. In that case their lordships observed on p. 262:
At the very outset, we have to observe that a writ petition under Article 226 is not the appropriate proceeding for adjudication of disputes like the present. Under the law a person whose services have been wrongfully terminated is entitled to institute an action to vindicate his rights, and is such an action, the Court will be competent to award all the reliefs to which he may be entitled, including some which would not be admissible in a writ petition.
17. In T.R. Varma case their lordships did not lay down a general proposition that a person complaining about infringement of Article 311 of the Constitution can never file a writ petition. In T.R. Varma case there wad serious dispute between the parties about facts. That is not the position In the present case. For proper disposal of the writ petition all that has to be considered is the affidavits filed by the parties, the agreement between the parties and the Impugned order.
18. In Para. 6 of the affidavit, it is stated that upon the petitioner’s joining the service of the State Government, he became an employee of the State, and that he held a civil post under the State. Contents of Para, 6 of the affidavit have been admitted in the counter-affidavit. We may, therefore, proceed on the footing that the petitioner held a civil post under the Uttar Pradesh Government. The petitioner, as already discussed, was entitled to the protection of Article 311 of the Constitution. Admittedly, no inquiry was held by the respondents under Article 311(2) of the Constitution. The order removing the petitioner from service is, therefore, liable to be quashed.
19. The petition is allowed. The order passed by respondent 1 dated 22 July 1959 terminating the services of the petitioner is quashed. The petitioner shall get costs of the petition from respondent 1.
