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N.S. Nagaraja Rao Vs. the State of Mysore - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 79 of 1957
Judge
Reported inAIR1958Kant23; AIR1958Mys23
ActsConstitution of India - Articles 226 and 311; C.S. (C.C.A.) Rules - Rule 49(7)
AppellantN.S. Nagaraja Rao
RespondentThe State of Mysore
Appellant AdvocateA.N. Anantharamiah, Adv.
Respondent AdvocateD.M. Chandrasekhar, Adv. for ;Adv. General
Excerpt:
.....air 1957 mys 8 (a), has clearly laid down that the said article is equally operative in the case of temporary employees. the present case, therefore, in my opinion, comes directly within article 311 of the constitution and as the procedure adopted in bringing about the termination of service in question was in violation of the provisions of the said article, the proceedings and the order complained of must be quashed. 9. in the result, therefore, all the contentions of the learned advocate for the respondent fail......exempt the case of civil servants who entered into service under the government on a contractual basis. the article applies to all civil servants of the state and it has not been disputed before us that the petitioner is a civil servant of the state. i find no reason for holding that article 311 would not apply to a case where a person had become a servant of the state by virtue of a contract entered into between him and the state. the learned advocate relied on a decision reported in sharda prasad v. a. g. of uttar pradesh allahabad, (s) : (1957)illj37all (c), in support of his aforesaid contention.that case, in my opinion, does not lay down any such proposition as contended for by the learned advocate for the respondent. i do not find on a perusal of the judgment in that case, any.....
Judgment:

Das Gupta, C.J.

1. The petitioner before us was originally serving as a Conductor in Bangalore Transport Co. Ltd. On 1st October 1956 the Government took over the said concern and all the employees of the original Company continued to be the employees of the Government. The present petitioner also continued to bo employed by the Government as a Conductor on the same terms and conditions on which he served the previous company. On 26-10-56 the General Manager of the Bangalore Transport Service passed an order the validity of which is now being questioned in this petition. The said order reads as follows:

'THE BANGALORE TRANSPORT SERVICE.

26th Oct. 1956.

Ref. : Report No. 65-66 dated 21st Oct. 1956 from the Garage Officer.

Order: Sri M. S. Nagaraja Rao, conductor, token No. 115 is reported to be irregular in his duties. On 20th and 21st Oct. 1956 ho has caused missing of trips. During Sept. he has absented himself for 8 days and in October for 6 days.

As he is absenting himself habitually the services of Sri M. S. Nagaraja Rao are not required any longer.'

The said Conductor has filed the present petition under Article 226 of the Constitution for the issue of an appropriate writ for quashing the said order and the proceedings relating thereto.

2. The learned Advocate for the petitioner contended before us that, in view of the provisions of Article 311 of the Constitution, his client was entitled to be given notice for explaining his conduct before he was dismissed from service. He urged that the order complained of amounts to an order of dismissal and under the said Article no such orders can be made, unless he is given an opportunity of showing cause against the action proposed to be taken in regard to him.

I should mention that it is not disputed before us that no such opportunity in fact was given to the petitioner. The question raised is whether or not he was entitled to be given such an opportunity and in order to determine it two further questions have to be considered, namely (a) whether the petitioner is a civil servant as contemplated in Article 311 and (b) whether the action of the authority concerned amounted to a dismissal. The learned Advocate for the petitioner relied on a number of decisions including a decision of this court reported in D. P. Raghunath v. State of Coorg, AIR 1957 Mys 8 (A), and also on a decision of the Calcutta High Court in Balai Chand v. N. Roy Choudhury, : AIR1954Cal495 (B), in support of his contention that Article 311 was applicable to the present case and the petitioner could not be dismissed without being given an opportunity of showing cause against the action proposed to be taken against him.

3. At this stago it would be convenient to refer to the material provisions of Article 311 of the-Constitution. They read as follows:

'(1) No person who is a member of a civil service of the Union or an All-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority s subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to he taken. in regard to him'.

4. The learned Advocate appearing on behalf of the respondent urged two grounds in support of the action taken by the authorities. In the first place, he contended that Article 311 has no application to a case where a person enters into service on a contractual basis. He urged that in such a case tho employer has always the right to terminate the service under the contract and Article 311 would not apply. The second argument of the learned Advocate for the respondent was that where a person is employed on a temporary basis, there is always the possibility of a termination of the service and in such a case also Article 311 would not apply.

5. I find it difficult to accept any of the said two contentions of the learned Advocate for the respondent. The answer to the first ground urged by the respondent is two-fold. In the first place, the employment of the petitioner cannot be said to have been made on a contractual basis. What happened was that prior to the date when the Government took over the affairs of the said Bangalore Transport Company, the petitioner was being employed by the said Company under an order of employment, dated 28th May 1956, which reads as follows:

'Ref. No. 479. 28th May 1956

ORDER

The following conductors are taken on monthly roll on a pay of Rs. 30/- per month plus dearness allowance with effect from 1st May 1956 :

Sl. No.

Name.

TokenNo.

3 M. S. Nagaraja Rao 115

Sd/- M. V. Venkataramiah,

Secretary.'

The Government, as I have mentioned after taking over the affairs of the said Company, continued to employ the employees thereof on the same terms and conditions under which they were serving the said Company. The learned Advocate for the respondent strenuously urged before us that, as a result of the Government taking over tho said company, the Government became substituted in the place of the original Company and the contractual relationship, which originally subsisted between the petitioner and the company continued after the Government had taken over the said company, between the petitioner and the Government.

He therefore, urged that this was a case where the petitioner should be held to have entered into service with the Government on a contractual basis. I am unable to accept that contention. There was in fact no contract after the Government took over the said Company and what the Government did was to continue to employ the same persons on the same terms and conditions on which they were previously employed. In such circumstances, it is difficult to say that the petitioner entered into service with the Government on a contractual basis. In the second place, I do not agree, even if I hold that the petitioner entered into service With Government on a contractual basis that the petitioner is not entitled to the protection given by Article 311 of the Constitution.

The Article itself does not exempt the case of civil servants who entered into service under the Government on a contractual basis. The Article applies to all civil servants of the State and it has not been disputed before us that the petitioner is a civil servant of the State. I find no reason for holding that Article 311 would not apply to a case where a person had become a servant of the State by virtue of a contract entered into between him and the State. The learned Advocate relied on a decision reported in Sharda prasad v. A. G. of Uttar Pradesh Allahabad, (S) : (1957)ILLJ37All (C), in support of his aforesaid contention.

That case, in my opinion, does not lay down any such proposition as contended for by the learned Advocate for the respondent. I do not find on a perusal of the judgment in that case, any such proposition having been laid down therein, viz. that Article 311 would not apply to a case where the service in question has been brought about by a contract entered into with the Government. In my opinion therefore, it is not possible to accept the contention urged before us by the learned Advocate for the respondent on this point.

6. The next contention urged by the learned Advocate for the respondent seems to me to be equally unsound, both in law as also on facts of this case. He urged that the petitioner was employed on a temporary basis and persons who are employed by the State on a temporary basis are not entitled to the protection afforded by Article 311 of the Constitution. In tho first place I do not see how it can be said that the petitioner is employed on a temporary basis. I have referred to the order of appointment dated 28th May 1956 and that order docs not indicate that the said appointment was on a temporary basis. All that it says is that the petitioner is taken on a monthly roll on a pay of Rs. 30/- plus dearness allowance with effect from 1st May 1956.

There is nothing in tho said order to indicate that the said appointment was only for a temporary period. As a proposition of law I do not also agree with the view urged by the learned Advocate for the respondent, viz,, that Article 311 does not apply to the case of temporary employees. The Article itself does not say so and a series of decisions, both of this court and of other High Courts, have negatived the view that Article 311 does not apply to persons who are employed on a temporary basis. This High Court in the case to which I have referred, viz. AIR 1957 Mys 8 (A), has clearly laid down that the said Article is equally operative in the case of temporary employees.

The Calcutta High Court in the case to which I have already referred viz. : AIR1954Cal495 (B) also took the same view. It seems to me that both on the wordings of the Article itself and on the judicial decisions it is not possible to hold that Article 311 would not apply to the case of temporary employees.

7. The next question which arises for our consideration is whether or not the termination of service in this case amounted to a dismissal within the meaning of that expression in Article 311 of the Constitution. The learned Advocate for the respondent contended that an employer can always terminate the service of his employee and he is not bound to give any opportunity to his employee to show cause before he so terminates his service. In such a case, he contended, Article 311 has no application. The learned Advocate for the respondent further urged that in this case there was a mere termination of service and not a dismissal and therefore there is no question of giving any opportunity to the petitioner under Article 311.

In support of his contention the learned Advocate again referred to the decision of the Allahabad High Court in the case of (S) : (1957)ILLJ37All (C). In my opinion, although all terminations of service may not amount to dismissal, it would not be correct to say that no termination of service would amount to dismissal. A particular termination of service may or may not amount to dismissal. The question as to whether or not a particular termination would amount to dismissal would depend on the facts of that case. This is also the view which has been taken by the Supreme Court in the case of Shyaui Lal v. State of U.P., : (1954)IILLJ139SC (D). The Supreme Court an that case has laid down that every termination does not amount to dismissal and Article 311 does not apply to all cases of termination of service. In ether words, Article 311 would apply only to such cases of termination which would amount to dismissal. In order therefore to determine whether the termination of service in the present ease amounts to dismissal, I shall have to refer to the material clause in the Standing Orders of the Bangalore Transport Company Ltd., under the terms of which the petitioner held his service under the Company and which were subsequently adopted by the Government when they took over the said concern. Clause 10 of Chapter V of the said Standing orders reads as follows:--

'No employee shall under any circumstances, absent himself from work and any employee who shall absent himself for eight consecutive working days in any one month without such leave or without having submitted a satisfactory explanation for his absence, may be dismissed without notice, or wages in lieu of notice. The employee dismissed under this rule shall not be entitled to wages for the period of his absence.'

The order of termination of service in this case appears to have been made under, and by virtue of the above clause. In the said order of termination it is stated that as the petitioner absented himself habitually, his service is not required any longer. The same reason, which is mentioned in this clause and for which an employee may be dismissed without notice or wages in lien of notice, has been assigned for the said order. No notice was given before terminating the service.

The dismissal took place as a result of a report from some of the Other employees of the Government. The question is whether in these circum-stances the terminations of the service in question amounts to dismissal. In my opinion, it is quite clear that it does. It is something more than a mere termination of service. In the first place, the basis of the termination is that the petitioner had absented himself for a number of days. The termination of service is not brought about by giving a notice in the usual way nor is it brought about by efflux of time of the period of service. The termination took place because of certain ads which the petitioner is said to have committed and for which he is found to be unfit to continue in service.

In such circumstances, the termination amounts to a dismissal and the petitioner should have been given an opportunity to answering the allegations on the basis of which the termination was brought about. The present case, therefore, in my opinion, comes directly within Article 311 of the Constitution and as the procedure adopted in bringing about the termination of service in question was in violation of the provisions of the said Article, the proceedings and the order complained of must be quashed.

8. Before concluding my judgment on this point I should refer again to the decision of this High Court in the said case viz., AIR 1957 Mys. 8 (A). Venkataramaiya G. J. in that case held that there was a stigma, disqualification or taint of being unfit or unworthy for service attaching to the order of dismissal and that may render the person concerned ineligible to be employed elsewhere. That, the Chief Justice continued to observe

'is a factor which cannot be ignored in applying Article 311 and for the purpose of the said Article it makes no difference whether the dismissal relates to a person who is a permanent or temporary incumbent.'

The same view seems to have been taken by the High Court of Calcutta in the case to which I have referred. Mr. Justice Sinha also observed as follows:

'But if he is arraigned on a number of serious charges and found guilty and dismissed, he can never hope to get service again under the Government since rule 49 (7) of the C. S. (C. C. A.) rules would be an absolute bar. If he must bear the stigma of having been found guilty on a charge, be must be given the protection afforded by Article 311 of the Constitution to defend himself.'

In the present case also the order of dismissal attaches to it a stigma that the petitioner is unfit or unworthy of service, and it would be difficult, if not impossible, for him to get an employment under the Government hereafter. In such circumstances it was incumbent on the authority concerned to give the petitioner an opportunity as contemplated in Article 311 of the Constitution.

9. In the result, therefore, all the contentions of the learned Advocate for the respondent fail. In my opinion the petitioner has made out a case for our interference under Article 226 of the Con-stitution. We therefore make an order as prayed for. The petitioner will be entitled to costs of this petition.

Hegde, J.

10. I agree.

11. Petition allowed.


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