JUDGMENT
B.N. Kirpal, C.J.
1. In this Letters Patent Appeal, the challenge is to the Judgment of the learned single Judge, who quashed the order of termination of services of the respondent.
2. The respondent was appointed as a Laboratory Technician by the appellant-Corporation vide order dated 8th March, 1989. She was to work as a Technician in the Malaria Department and her order of appointment stated that she was being appointed on temporary basis.
3. The appellant-Corporation terminated the services of the respondent, vide order dated 30th November 1989. It is this order, which was challenged by the respondent by filing a petition under Art. 226 of the Constitution of India, being Special Civil application No. 325 of 1989.
4. In the affidavit-in-reply, it was contended by the appellant herein that this was case of termination simpliciter and the appellant had the legal right to do so. The reason for passing the order of termination was contained in paragraph 5.1 of the affidavit-in-reply, which reads as follows :
“5.1 I say that the petitioner has not been working since the day she was appointed. In fact the correspondence would show that at all times she has instigated others not to work. The petitioner was appointed as a Laboratory Technician to find out whether a particular slide containing blood shows positive or negative for malaria etc., or not. She refused to do the work and insisted that the microscope which is entrusted to her must first be got certified and it is only thereafter that she would start working. The petitioner was also given a memo for not working. The necessary correspondence in this behalf is annexed therein and marked Annexure ‘R/4’ (colly). attempts were made to see that the petitioner do work, but she refused to work. It may be stated that the slide containing blood stains cannot be kept indefinitely. The very object of examination of blood slides immediately so that the preventive measures can be taken to prevent large scale breaking of epidemics was frustrated by the manner in which the petitioner refused to work. In the circumstances, the petitioner was found unsuitable for the work for which she was appointed temporarily. The petitioner, therefore, had to be terminated an was terminated by a simple letter of termination without any stigma attached to it. The petitioner is not punished for various acts of commissions and omissions, but these facts of commissions and omissions were taken into account for determining the suitability of the petitioner to be continued in the post to which she was appointed.”
5. The learned single Judge, after referring to the aforesaid averments in the affidavit-in-reply, and to some of the decisions, which were cited before him, came to the conclusion that the termination was by way of punishment, though it was given the guise of simple termination and as enquiry had not been held under Art. 311(2) of the Constitution, the order of termination was illegal.
6. It is contended by the learned Counsel for the appellant that the provisions of Art. 311 are not applicable, because the respondent was not a Government servant. In this regard, reliance was placed on the decision of the Supreme Court in the case of Dr. S. L. Agarwal v. The General manager, Hindustan Steel Ltd. AIR 1970 SC 1150. In that case the Supreme Court held that an employee of Hindustan Steel corporation could not be regarded as a Government servant, entitled to the protection under Art. 311 of the constitution even though the said Company belonged to the Government. This ratio of the said decision will be applicable in this case and as the respondent was an employee of the Corporation, which has been constituted under the Bombay Provincial Municipal Corporations Act, 1949, the said respondent was not protected by the provisions of Art. 311 of the Constitution. To this effect, the decision of the learned single Judge is not correct.
7. Even though the provisions of Art. 311 may not be applicable, nevertheless, if the services of the respondent were to be terminated by way of punishment. Section 58 of the said Act would require reasonable opportunity being afforded to the officer before imposing the punishment of termination of service.
8. Learned Counsel for the appellant has sought to place reliance on the decision of the Supreme Court in the case of Samsher Singh v. State of Punjab & Anr. AIR 1974 SC 2192, in which it was held that in the case of termination simpliciter, the provisions of Art. 311 were not attracted. It was held therein that where the services are terminated without the order containing any sigma, then the said termination would not be regarded as amounting to dismissal by way of punishment. This may be so. But, in the said decision, it is further observed that if the discharge is on the ground of misconduct or inefficiency or for similar reason, then a proper enquiry has to be held and reasonable opportunity afforded.
The question which, therefore, essentially arises for consideration is as to whether, in the present case the services of the respondent were terminated by way of punishment or not.
9. The perusal of the impugned order of termination disclosed that there was a reference to a health Department’s Report, dated 28th November, 1989 and it is pursuant thereto that the impugned order was passed on 30th November, 1989. When this order is read, along with the averments made in paragraph 5.1 of the affidavit-in-reply, one can presume that the said report of the Health Department must be relating to the conduct of the respondent in refusing to work when she was given the slide containing blood to examine. We have no doubt that it is this particular incident which led to the passing of the impugned order and therefore, this is not a case of termination simpliciter. The petitioner has been dismissed from service, because of her conduct in refusing to do work. The learned single Judge, therefore, has been right in coming to the conclusion that the principles of natural justice should have been complied with.
10. While granting the relief to the respondent, the learned single Judge has not made any observation with regard to the question as to whether the appellant can take departmental proceedings against the respondent. In our opinion, this result must follow from the view, which has been taken by the court. Having come to the conclusion that the principles of natural justice should have been complied with and opportunity of hearing granted, then while quashing the order of termination and granting the other relief to the respondent for misconduct, if the appellant to chooses.
11. We, therefore, while dismissing this appeal direct that the appellant will be at liberty to take departmental proceeding against the respondent in accordance with law. There will be no order as to costs.