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Smt. Ram Dulari Kaithwar Vs. Inspectress of Girls Schools and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 340 of 1958
Judge
Reported inAIR1961All64
ActsConstitution of India - Article 311(2)
AppellantSmt. Ram Dulari Kaithwar
Respondentinspectress of Girls Schools and anr.
Appellant AdvocateS.C. Khare, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal dismissed
Excerpt:
constitution - reasonable opportunity - article 311 of constitution of india - enquiry for misconduct - termination of employment upon one month's notice - legality of termination - held, termination is perfectly valid and article 311 does not get attracted. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted.....mootham, c.j. 1. this is an appeal from an order of mr. justice oak, elated the 18th february, 1958. the facts so far as they are relevant for the purposes of this appeal are these: in 1951 the appellant was appointed to officiate as an assistant teacher in a government basic primary school, and she remained in the employment of the state government until june, 1956. throughout this period she was a temporary employee. her relations with the educational authorities do not appear to have been very happy, and on the 15th july, 1955, the assistant director of education (women), u. p., allahabad, directed the inspectress of girls schools, 111 region, allahabad, to ask the appellant to show cause why her services should not be terminated for having used improper and undesirable language in.....
Judgment:

Mootham, C.J.

1. This is an appeal from an order of Mr. Justice Oak, elated the 18th February, 1958. The facts so far as they are relevant for the purposes of this appeal are these: In 1951 the appellant was appointed to officiate as an Assistant Teacher in a Government Basic Primary School, and she remained in the employment of the State Government until June, 1956. Throughout this period she was a temporary employee. Her relations with the educational authorities do not appear to have been very happy, and on the 15th July, 1955, the Assistant Director of Education (Women), U. P., Allahabad, directed the Inspectress of Girls Schools, 111 Region, Allahabad, to ask the appellant to show cause why her services should not be terminated for having used improper and undesirable language in relation to her superior officers in a representation which she had made to Government.

The appellant submitted an explanation and the matter thereafter appears to have been dropped. At about this time it seems that the appellant considered that certain sums of money had been improperly deducted from her salary, and against these deductions she made several representations and also sent a notice to the State Government under Section 80 C. P. C. As a consequence of this actioa on her part she was on the 16th September, 1955 asked to explain (1) why she had given notice under Section 80 C. P. C. when all her dues had been paid; and (2) why, if ,she had anything to say about her dues, she did not make a representation to the Department. The appellant submitted an explanation which was forwarded by the Inspectress of Girls Schools to the Deputy Director of Education (Women). The Deputy Director then wrote a letter which is dated the 9th/10th February, 1956, to the Inspectress of Girls Schools in which she said:

'The charges framed against Shrimati Ram Dulari Kaithwar, as communicated along with your letter No. 9712, dated September 27, 1955, are not sufficient for termination of her services as recommended by you. I am therefore to request you to frame charges against her in the standard form as given on page 73 of the report of Disciplinary Proceedings Inquiry Committee. The teacher may also be asked to show cause why her services should not be terminated as laid down in Rule 55(3) of the C.C.A. Rules published on page 67 of the Report of the Disciplinary Proceedings Inquiry Committee.'

On the 15th March, 1956, the appellant was served with another charge sheet. This charge sheet contained four counts of which the first and second were with regard to the matters in respect of which she had been asked to submit an explanation on, the 16th September 1955. The appellant was aG the same time called upon to submit an explanation as to why she should not be removed from service in accordance with Rule 55(3) of the Civil Services (Classification, Control and Appeal Rules.

2. The appellant submitted an explanation which was forwarded by the Inspectress of Girls Schools to the Assistant Director of Education, and on the 15th June, 1958, she received a notice terminating her services. That notice was in these terms:

'TERMINATION OF SERVICES:

The services of Srimati Ram Dulari Kaithwar, Temporary assistant mistress (Rs. 35-85) Government Higher Secondary School for Girls, Orai, am hereby terminated with effect from the date of the issue of this order.'

A copy of this notice was forwarded to the Regional Inspectress of Girls Schools, with a direction to pay to the appellant one month's salary in lieu of notice. The appellant submitted a representation to Government against this order but that representation was rejected on the 15th April, 1957. She then filed a petition under Article 226 of the Constitution in which she challenged the validity of the order terminating her services and prayed that it be quashed by a writ of certiorari. That petition was dismissed by the order which is the subject of the present appeal.

3. The submission which has been made to Us on behalf of the appellant is that the notice dated 15-6-1956, was, in substance, an order removing her from service; and that as the provisions of Article 311(2) of the Constitution had admittedly not been complied with that notice was bad in law. Both parties have placed reliance on the recent judgment of the Supreme Court in Slate of Bihar v. Gopi Kishore Prasad, C. A. No. 488 of 1957, D/- 25-11-1959: : (1960)ILLJ577SC . In that case the Government of Bihar had received complaints about the work and reputation of a Sub-Deputy Magistrate on probation. It held an enquiry and called upon him for an explanation and upon this being found to be unsatisfactory it had discharged him from service.

The order of discharge stated shortly the facts which had led the Government to terminate his services. The Supreme Court held that there had been a contravention of the provisions of Article 311(2) of the Constitution, the question being concluded by the earlier decision of the Supreme Court in Parshottam Lal Dhingra v. Union of India : (1958)ILLJ544SC . In the course of its judgment the Supreme Court summarised the observations made in Dhingra's case which had a bearing on the termination of service or discharge of a probationary public servant. It is conceded that these observations apply equally to the case of a temporary employee, but there has been considerable argument before us as to whether any of the observations applies to a ease in which, although an enquiry had been held, the order terminating the employee's services makes no mention of the enquiry and, taken by itself, puts no stigma on the employee. In Dhingra's case : (1958)ILLJ544SC , Das, C. J., delivering the judgment of the Court said, at p. 862 (of SCR): (at p. 49 of AIR):

'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 tight exists, under the contract or the rules, to terminate the service the motive operating on' the mind of the Government is, as Chagla, G. J., has said in Shrinivas Ganesh v. Union of India (S) ATR 1958 Bom 455, wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima faice, 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 inflicting 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.'

Now it is pointed out that the appellant, when the last charge-sheet was sent to her, was called upon to show catise why her services should not be terminated as laid down in Rule 55 (3) of the Civil Services (Classification, Control and Appeal) Rules. Rule 55 (1) prescribes the procedure which is to be followed when it is proposed to pass an, order of dismissal, removal or reduction in rank or to a lower sfage in the time scale. Sub-rule (2) provides that sub-rule (1) shall not apply where the person concerned has absconded, and Sub-rule (3), so far as it is material, reads thus:

'3. This rule shall also not apply where it is proposed.... to dismiss, remove or reduce in rank a temporary government servant 'for any specific fault or on account of his unsuitability for the service. In such eases, the... temporary government servant concerned shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him, and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority.'

4. It is argued that although the Government had the right to terminate the appellant's services without going through the procedure prescribed for inflicting the punishment of dismissal or removal, it however elected to follow that procedure and it accordingly follows that the order ultimately made terminating the appellant's services was intended to be, and was, a punishment. T do not think this argument is well founded. 'The real test', it was laid down in Dhingra's case : (1958)ILLJ544SC ,

'for determining whether the reduction in suchcases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences.'

Penal consequences include forfeiture of pay or allowances, loss of seniority in the employee's substantive rank and the stoppage or postponement of his future chances of promotion. : (1960)ILLJ577SC also makes it clear, I think, that the putting of a stigma on the employee's competence is a penal consequence as it affects his future career. In my opinion an order terminating an employee's (temporary servant's in the instant case) services which neither carries with it any penal consequence in the narrower sense nor imposes any stigma on the employee is not a punishment and does not attract the provisions of Article 311(2). The appellant in the present case had no right to the post which slip held she has not forfeited any pay or allowances to which she was entitled, and the order terminating her services does not place any stigma on her competence or honesty.

5. It is urged that the fact that the Government held an enquiry into charges framed against the appellant before terminating her services is itself enough to show that the subsequent order terminating her services was by way of punishment, and reliance was placed on the following observation in : (1960)ILLJ577SC :

'Rut, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct or inefficiency or for some similar reason the termination of service is by way of punishment because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of Article 311(2) of the Constitution.'

I do not think that this observation is capable of bearing the meaning which the appellant seeks to place on it. The emphasis in Gopi Kishore Prasad's case : (1960)ILLJ577SC , is on the order terminating the employee's services. If that order casts aspersions on his character or brands him as a dishonest or incompetent officer the termination of the employee's services is a punishment. That, as I have pointed out, is not the case here.

6. In my judgment the appellant's petition was rightly dismissed and this appeal must fail. I would dismiss it with costs.

Dhavan, J.

7. This is an appeal filed by Smt. Ram Dulari Kaithwar a school teacheress against an order of Mr. Justice V. G. Oak dismissing her petition under Article 22(3) of the Constitution directed against an order of the Additional Director of Education D/- 15-6-1956 terminating her services. The material facts are these. Smt. Ram Dulari's status on all material dates was that of a temporary government servant. On 24-2-1954 she was posted as a teacher in the Government Basic Primary School for Girls at Fatehpur. On that date an incident occurred which created a chain of events leading to the termination of her services.

According to her own version, as stated in paragraph 18 of the affidavit in support of her petition, she was teaching the fourth class when seme girl students of the fifth class belonging to the higher castes (Smt. Ram Dulari belongs to the Scheduled caste) entered her class room, abused and beat her. She admits that she too beat in self-defence, the attacking students and a teacheress who had intervened on their side. The incident naturally came to the notice of the authorities and the inspectress of girls schools went to Fatehpur to investigate the matter. Her report was very unfavourable to Smt. Ram Dulari for it stated that she had used abusive language and had behaved improperly and that she hit a girl so badly on the forehead with a stone as to cause bleeding.

8. Smt. Ram Dulari was transferred from Fatehpur to the Government Higher Secondary School for girls at Orai. She appealed against the transfer but was told that no appeal lay. She then made a representation to Government in which, to quote her own words,

'she made allegations against the head mistress of the girls school at Fatehpur where the incident occurred and also against the inspectress of schools who had gone there to investigate.'

In this representation she used language which was considered by the higher authorities as offensive. A copy of her representation, which is in Hindi, was annexed to the counter affidavit filed in the writ petition on behalf of the State. She alleged in it that the authorities had instigated a reprehensible assault (ghrinit hamla) on her but put the blame on her and thus succeeded in getting her transferred to Orai. She reminded the Government that she had already made a representation against the transfer in which she had also prayed for the punishment of those whom she called 'the conspirators' (shadayantra kariyon ko saza dene ki prathana), but the Additional Director, without applying his mind to such a serious incident, had shown partiality towards his subordinate and had refused to give her a hearing. Thus she accused the head mistress and the inspectress of schools of conspiracy against her and described them as conspirators (shadayantra kariyon), and also accused the Addl. Director of Education of having sided with her opponents (Pakshalete hue). The Government took objection to the language of this representation and wrote, to the Addl. Director to take departmental proceedings against her for having used improper language against her superiors. (Annexure 12 of the counter affidavit). This direction was presumably passed on to the women section of the Directorate of Education, and, on 15-7-1955 the Assistant Director (Women) wrote to the inspectress of schools, respondent No. 1, to ask Smt. Ram Dulari to explain why her services should not be terminated for having used improper and undesirable language in referring to her superior officers in her representation. One month's time was to be given to her for submitting her explanation. (Annexure D to the appellant's affidavit.) Her explanation was submitted on 13-8-1955. (Paragraph 23 of appellant's affidavit).

9. Meanwhile, another event occurred. According to Smt. Ram Dulari's version, a sum of Rs. 178/6/- was illegally deducted from her pay by the Principal of the girls school at Orai and the Inspectress of Girls School Region 111 Allahabad. She claims to have made several representations against what she called 'unauthorised deductions' but without any consequence. Ultimately on 25-7-1955 she served on the Government a legal notice under Section 80 of the C. P. C., for the recovery of this amount. The Director of Education took objection to her conduct in serving a notice upon the Government and wrote to the Regional Inspectress of Girls Schools Region 111, Allahabad to take disciplinary action against her. (Annexure 13 of the counter affidavit).

It would appear that the Director took action independently of Government for he objected to the notice under Section 80 C. P. C., whereas Government had taken exception to use of improper language by Smt. Ram Dulari in her representation. On 14-9-1955 the Inspectress of Schools Region 111 served Smt. Ram Dulari with a charge-sheet asking her to explain why she had given notice under Section 80 C. P. C. On 20-9-1955 Smt. Ram Dulari submitted her explanation (Paragraphs 25 and 20 of the appellant's affidavit). It appears that her explanation was forwarded to Government by the Inspectress of Schools, but on 9-2-1956 the Directorate of Education wrote to the Inspectress that the charges already framed against Smt. Ram Dulari were not sufficient for termination of her services.

The Inspectress was, therefore, requested to frame charges against Smt. Ram Dulari in the standard form and to ask her to show cause why her services should not be terminated in accordance with Rule 55 (3) of the Classification, Control and Appeal Rules. (Annexure 14 of the counter-affidavit). In response to this direction a second charge-sheet under Rule 55 (3) was served on Smt. Ram Dulari on 15-3-1956. It contained tour charges and she was accused of having used improper language in her representation and also of having served improperly a notice on Government under Section 80 C. P. C., (Annexure E of appellant's affidavit).

On 21-3-1956 Smt. Ram Dulari submitted her explanation in which she appears to have contended, inter alia, that the charge of using improper language in her representation was vague. On 15-6-1959 Government passed an order terminating her services with a direction that she be given one month's pay in lieu of notice. This is the notice the legality of which is impugned in this appeal. It is Annexure 'F' of the appellant's affidavit and it is necessary to quote it in full:

'Order No. A(2)/14/XXIII-26(27) dated June 15, 1956.

NOTIFICATION.

TERMINATION OF SERVICES.

The services Of Smt. Ram Dulari Kaithwar, temporary assistant mistress (Rs. 35-65) Government Higher Secondary School for Girls, Oral are hereby terminated with effect from the date of the issue of this order.

Sd/-

R. R. Singh

Additional Director of Education,

Uttar Pradesh.

No. A(2)657/XXIII-26(27) dated June 15, 1956. Copy forwarded for information and necessary action to:-

1. The Regional Inspectress of Girls 'Schools, 111 Region Allahabad with the remark that the mistress may please be given one month's pay in lieu of notice.

2. The Principal, Government Higher Secondary School for Girls, Oral.

3. Smt. Ram Dulari Kaithwar, Assistant Mistress, Government Higher Secondary School for Girls, Orai.

Sd/-

K. D. Khanna.

Deputy Director (Women) For

Addl. Director of Education, U. P.'

10. It is noteworthy that though the appellant was served with a charge-sheet containing specific charges of misconduct against her, the notice itself makes no reference either to the charges or to her alleged misconduct but purports to be an order simply terminating her services in the exercise of the powers conferred on the Governor by the Notification No. O-239/11B dated January 30, 1953 which is a rule made by the Governor under Article 309 of the Constitution, (Annexure 15 of the counter-affidavit).

11. The entire controversy in the petition before the learned Judge and in the appeal before us centred round the real nature of this notice, is it a notice removing Smt. Ram Dulari from service by way of punishment or is it merely a notice terminating her services in accordance with the undisputed right of the Government to terminate the services of a temporary employee at their will? The appellant contends that it really inflicts a punishment of removal on her though it uses the Innocent words 'termination of services'. Government on the other hand contend that they were merely exercising their right against a temporary employee and the notice inflicts no punishment on her. Several decisions of the Supreme Court were cited before us, each side relying on them in support of its case. These are : (1958)ILLJ544SC ; Balakotaiah v. Union of India : [1958]1SCR1052 and State of Bihar v. Gopi Krishna Prasad, decided on 25th November 1959: : (1960)ILLJ577SC .

12. The scope of the protection under Art 311(2) was analysed by the Supreme Court in, Dhingra's case : (1958)ILLJ544SC , in which their Lordships enunciated certain principles. This case was decided on 1st November, 195.7. Subsequently, in Balakotaiah's case : [1958]1SCR1052 , the Supreme Court followed the principles, laid down in Dhingra's case : (1958)ILLJ544SC , and held that Article 311(2) was not attracted even if a railway employee's services were terminated on the ground that he was engaged in subversive activities because the terms of his employment provided for the services being terminated and so no question of premature termination arose. This case was decided on 3rd December 1957.

The judgment has two significant features. Balakotaiah's services Were terminated without giving him a second notice as required by the Privy Council in High Commr. for India v. I. M. Lall . Secondly, the order dispensing with his services was in accordance with Rule 3 of the Security Rules and, therefore, must have contained a finding by the competent authority that in its opinion Balakotaiah was engaged, or reasonably suspected to be engaged, in subversive activities. Thus it resulted in a stigma on the employee's conduct, but in spite of this the Supreme Court held that there was no violation of Article 311(2).

13. In : (1960)ILLJ577SC the Supreme Court held that an order terminating a temporary Sub-Deputy Collector's services on the ground, inter alia, that his honesty was open to doubt, was invalid as he had not been given the protection of Article 311(2). In this case, however, the order itself contained a long statement explaining the circumstances in which government had come to the conclusion that the employee's honesty was doubtful and bis work was unsatisfactory. The words 'corrupt', 'unreliable', 'honesty was open to doubt', 'grave doubts regarding his integrity' were used in the order itself. Their Lordships of the Supreme Court, summarised the principles which Supreme Court summarised the principles which Dhingra's case : [1958]1SCR1052 . These will be discussed later.

14. If the principle enunciated in Dhingra's case, : [1958]1SCR1052 , or Balakotaiah's case , applies to the facts of the present case, the appellant's service must be held to have been rightly terminated. The question is whether the decision in Gopi Krishna Prasad's case : (1960)ILLJ577SC , is applicable. It is therefore necessary to examine the facts of each of these three cases as well as the principles laid down in them.

15. In Dhingra's case : [1958]1SCR1052 , a railway employee was appointed to officiate in a higher post. His superior officers were not satisfied with his work and he was given an adverst entry in his confidential report. The Genera Manager thereupon made the following remarks:

'I am disappointed to read those reports. He should revert as a subordinate till he makes good the shortcomings noticed in this chance of his a; an officer. Portions underlined red to be communicated (to Dhingra).'

Dhingra made a representation against the remarks made against him but the General Manager passed an order reverting him to his substantive post of subordinate rank. Dhingra appealed to the General Manager for reconsideration without effect. He preferred appeals to the Railway Board and ultimately to the President of India, both of which failed. The Railway Board, however, directed that ''his reversion would not be a bar to his being considered again for a promotion in the future if his work and conduct justify. He was also to be informed that he had in his representation, Used unbecoming language of a senior official, and should desist from this in future. After his fruitless attempts to secure redress from his departmental superiors, Dhingra moved the Punjab High Court under Article 226 of the Constitution, but his petition was rejected. The Supreme Court confirmed this decision on the ground that

'he had no right to continue in that (officiating) post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment.'

It is noteworthy that the Supreme Court took this view in spite of the fact that Dhingra lost his officiating post on the express ground of unsatisfactory work and was sent back to his lower substantive post. Their Lordships observed,

''Further it is quite clear from the orders passed by the General Manager that it did not entail the forfeiture of his chances of future promotion or affect his seniority in his substantive post. In these circumstances there is no escape from the conclusion that the petitioner was not reduced in rank by way of punishment, and, therefore, the provisions of Article 311(2) do not come into play at all. In this view of the matter the petitioner cannot complain that the requirements of Article 311(2) were not complied with, for those requirements never applied to him.'

16. It is necessary at this stage to consider the principles enunciated by the Supreme Court with regard to the application of Article 311(2) to temporary employees. In Dhingra's case : (1958)ILLJ544SC their Lordships observed:

'Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course. But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences. In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of' dismissal, removal or reduction carrying with it the penal consequences. In such a case the servant will be entitled to the protection of Article 311(2).... .Any and every termination ot 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, as has been held by this Court in Satish Chander Anand v. Union of India : [1953]4SCR655 ..... It is true that the misconduct, negligence inefficiency or other disqualification may be motive or the inducing factor which influences the Government to take action under the terms of the contract of employment o 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 as Chagla, C. J., has said in : (1957)IILLJ189Bom , 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 inflicting 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... ..But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment.'

17. Their Lordships then proceeded to lay down the test for deciding whether the decision of the Government amounts to a punishment of the employee or not. They observed;

'The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression ''terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two testy mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has heen visited with evil consequences of the kind hereinbefore referred to. If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311 which give protection to government servant have not been, complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.'

18. Thus in Dhingra's case : (1958)ILLJ544SC , the Supreme Court in effect laid down that the Order of termination must be examined to ascertain whether the temporary employee had suffered from 'any evil consequences' as a result of it. If the employee had no right to hold the post of which he was deprived by the order and the order showed that Government had merely exercised its undisputed right to terminate his services, no question of punishment arises. This test was applied to Dhingra's case : (1958)ILLJ544SC , and the Supreme Court held that Dhingra had acquired no right to the officiating post held by him and had Suffered no evil consequences such as loss of privileges as a result of this order. His petition was dismissed.

19. In Balakotaiah's case : [1958]1SCR1052 , the services of a railway employee were terminated on the express ground that he was engaged or reasonably suspected to be engaged in subversive activities. In accordance with the Security Rules he was served with a notice informing him of the action proposed to be taken against him and asking him to show cause against it. His explanation was considered unsatisfactory and the General Manager of the railway passed an order terminating his services after giving him one month's salary in lieu of notice. Balakotaiah filed a petition under Article 226 of the Constitution before the Nagpur High Court which was dismissed. The Supreme Court upheld this decision with the following observation :

''Now, this Court has held in a series of decisions that it is not every termination of the services of an employee that falls within the operation of Article 311 and that it is only when the order is by way of punishment that it is one of dismissal or removal under the Article..... The question as to what would amount to punishment for purposes of Article 311 was also fully considered in Parshottam Lal Dhingra's case : (1958)ILLJ544SC . It was therein held that if a person had a right to continue in office either under the service rules Or under a special agreement, a premature termination of his services would be a punishment. And likewise, if the order would result in loss of benefits already earned and accrued, that would also be punishment. In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of premature termination arises. Rule 7 of the Security Rules preserves the rights of the employees to all the benefits of pension gratuities and the like, to which they would be entitled under the rules. Thus, there is no forfeiture of benefits already acquired. It was stated for the appellants that a person who was discharged under the rules was not eligible for re-employment, and that that was punishment. But the appellants are unable to point to any rule imposing that disability. The order terminating the services under Rule 3 of the Security Rules stands on the same looting as an order of discharge under Rule 148, and it is neither one of dismissal nor of removal within the meaning of Article 311. This contention also must be overruled.'

20. In : (1960)ILLJ577SC the services of a Sub-Deputy Collector were dispensed with on the ground that his honesty was open to doubt, and he had the reputation of being a corrupt officer; Proceedings were taken against him and he was called upon to show cause why his services should not be terminated forthwith. His explanation was considered by the Government and found to be unsatisfactory. Thereupon the order discharging him from service was passed. He moved the Patna High Court under Article 226 and his petition was allowed on the ground that in the enquiry, which the Government held against him, there had been a violation of the principles of natural Justice, inasmuch as some special reports of the Commissioner of Chota Nagpur Division and the Deputy Inspector General of Police (C. I. D.) (which presumably induced the Government to take action against him) were never shown to the official.

The decision of the High Court was not based on Article 311(2) as the Judges did not agree on the question whether this provision was attracted. The Bihar Government appealed to the Supreme Court and one of the questions agitated before them related to the applicability of Article 311(2) to the case. The Bihar Government appears to have accepted the findings of the Patna High Court that there had been a violation of the principles of natural justice and the appeal could have been dismissed on that ground alone, but the Supreme Court considered it desirable to consider the question of Article 311(2). Their Lordships referred to the principles laid down in Dhingra's case : (1958)ILLJ544SC , and summarised them, in so far as they were applicable to a probationary public servant, in the following words;

'In so far as those observations have a bearing on the termination of service or discharge of a probationary public servant, they may be summarised as follows:

1. Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.

2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.

3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.

4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry arid without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down.

5. But, i the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause.'

21. The Supreme Court concluded that the official was entitled to the protection of Article 311(2) because, though probationer

'he was discharged from service really because the Government had, in inquiry, come to the conclusion, rightly or wrongly, that he was unsuitable for the post he held on probation. This was clearly by way of punishment.....'

22. Thus in this case, the Supreme Court held the order of discharge invalid because the Government had come to the conclusion (on inquiry) that the officer was unsuitable for service. Their order showed on the face of it, that the officer was being discharged from service because Government had come to the conclusion that he had the reputation of being a corrupt and unreliable officer.

23. In the case before us, the Government initiated an inquiry into the conduct of Smt. Ram Dulari. A formal charge-sheet was served on her. She submitted her explanation which was forwarded to Government. But after this stage, any similarity between this case and Gopi Kishore Prasad's case : (1960)ILLJ577SC , ceases. After examining the material placed before them, Government did not express any opinion on whether the charges wore proved or whether Ram Dulari was guilty of any misconduct. Presumably they fell back on their undisputed right to terminate her services by giving her one month's notice.

The order contains no stigma of misconduct on her and merely states the hare fact that her services were being terminated as she was a temporary servant. The question is whether Government had the right to ignore the enquiry and invoke their power to terminate Ram Dulari's services without stating any reasons. No case involving this precise question has been before the Supreme Court, but I am of the opinion, after a careful perusal of the three judgments of the Supreme Court, that Government had this right. It is always open to Government to drop an inquiry against an official and to terminate bis services in accordance with his contract of service. The holding of an inquiry cannot affect or modify the substantive rights and obligations of Government and the Official under the law of master and servant.

If Government hold an enquiry with the intention of punishing an official, they are under an obligation to ensure that no punishment shall be inflicted without giving him a reasonable opportunity to show cause against it as enjoined by Article 311(2). But the mere initiation of an enquiry does not mean that the Government lose for ever their right to terminate his services by giving him notice. The inquiry carries with it certain obligations relating to procedure but, it cannot affect or modify the substantive rights ot the Government as an employer or take away its power to terminate the employee's services by means of a simple notice. In my opinion, it is always open to Government to discontinue an inquiry and to terminate the services by simple notice, if they have the right to do it.

24. I am of the opinion that the decision in. : (1960)ILLJ577SC is distinguishable for one important reason. In that case, the order dispensing with the services of the employee expressly states that he was being discharged from services because of reasons of grave misconduct. The order itself contained the words, 'corrupt', 'unreliable', 'honesty was open to doubt', and ''grave doubts regarding his integrity.' In the present case, there is no allegation of misconduct in the order terminating the services of Smt. Ram Dulari.

25. Two questions arise in this case first, does Article 311(2) apply to the impugned order at all; and secondly (assuming that it does), has there been any violation of it? Even according to the tests laid down by the Supreme Court in the three cases, I find it difficult to apply Article 311(2). The petitioner had no right to remain in service. Government had the right to terminate her services on one month's notice or payment of salary in lieu of it. Government have in fact served her with a notice terminating her services. If a temporary government servant has no right to remain in service the question whether the decision to dispense with her services amounts to punishment or not depends upon the language and terms of the order terminating his service, and on its consequences on the rights of the servant.

In the case before us the order dispensing with Ram Dulari's services does not impute any misconduct to the petitioner and contains no stigma on her. It imposes no penalty on her and has resulted in loss of no rights or 'privileges to which she was entitled. The State has filed an affidavit stating categorically that Ram Dulari has not been removed or dismissed from service but that her services have been terminated.

26. The appellant's, case is based on the fact that an inquiry was held and charges framed against her. What legal consequences follow from the holding of an inquiry? Counsel for the appellant relied upon paragraph 3 of the Summary in Gopi Kishore Prasad's case : (1960)ILLJ577SC , which is a Summary of the principles enunciated by the Supreme Court in Dhingra's case : (1958)ILLJ544SC . This paragraph states:

''But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects Ms future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.'

It is suggested that this paragraph lays down that after an inquiry has been initiated, any termination of service must be presumed to be by way of punishment, I do not think so Paragraph 8 of the Summary cannot be read in isolation from the following paragraph. It appears to me that paragraphs 3 and 4 have to be read together. They form one paragraph and mean that if the State chooses to hold an enquiry into the alleged misconduct or inefficiency of an official, and he is discharged on any one of those grounds without a proper inquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311(2) of the Constitution.

The emphasis in these two rules is not only on the government's decision to hold an inquiry but also on their final decision to discharge him on the ground of misconduct. (Paragraph 4 of the summary). I do not think that the Supreme Court held that after it has initiated an inquiry, the State irrevocably loses its substantive right, to pass a simple order terminating the official's services.

27. It is suggested that the order terminating the services of Smt. Ram Dulari must be deemed to have been founded on the charges framed against her. Reliance is placed on paragraphs 23 to 20 of the counter-affidavits of the Inspectress of Schools in which she states that after fully considering Smt. Ram Dularis explanation she forwarded the papers of the case including Ram Dulari's explanation to the Additional Director of Education,

It is argued that in these circumstances, whatever he the language of the order terminating her services, the Additional Director and the other authorities cannot be permitted to deny that Smt. Ram Dulari was in reality punished for the misconduct attributed to her. I cannot agree. It is true that an inquiry was held, charges were framed, an explanation was called from the petitioner and the papers were forwarded to the Additional Director. But it does not follow that Government decided to inflict formal punishment on the petitioner and to remove her from service. The final decision lay with the authority which was competent to decide whether Smt. Ram Dulari should be removed by way of punishment or simply discharged from service.

It decided presumably after considering every aspect of the case, that it was a case for a simple termination of service only. The fact that the termination followed an inquiry does not lead to any presumption that it must amount to removal within the meaning of Article 311(2). I think the authority was competent to make the decision on the material before it. It could pass an order holding the charges proved and removing the petitioner, or it could pass a simple order terminating her service after one month's notice It decided in favour of the second decision. The order shows that it is a simple notice terminating Ram Dulari's services. It does not deprive her of any right. The Government have stated before this Court that it is not an order of removal. In these circumstances, the mere holding of an inquiry cannot alter the character of the ultimata decision to terminate Ram Dulari's services by a simple notice.

28. The second question is whether Article 311(2) has been violated because of the failure to issue a second notice. I think not. I have already, indicated that Article 311 does not apply to this case. In my opinion, this is covered by the decision in Balakotaiah's Case : [1958]1SCR1052 . The Supreme Court did not in : (1960)ILLJ577SC overrule or modify the principle laid down in Balakotaiah's case : [1958]1SCR1052 . In the present case, the services of Smt. Ram Dulari were terminated after following the procedure laid down in Rule 55 (3) of the Classification, Control and Appeal Rules just as Balakotaiah's services were dispensed with in accordance with the Security Rules applicable to him. No second notice to show cause was served on Balakotaiah and yet the order of discharge was upheld by the Supreme Court.

In the present case too Smt. Ram Dulari a temporary employee has had the opportunity in accordance with the rules governing temporary government servants, of showing cause against the proposed decision to terminate her services. In fact there is one difference between the facts of the two cases which is against the appellant. The order terminating Balakotaiah's services presumably expressed the opinion of the Government that he was engaged or suspected of being engaged in subversive activities. Therefore, the order had the effect of stamping the employee with the stigma of misconduct. But in the case before us, the order terminating Ram Dulari's services is a simple notice of termination. I am of the opinion that even if Article 311 were applicable, this case would be governed by the principle enunciated by the Supreme Court in : [1958]1SCR1052 and Smt. Ram Dulari's petition was rightly rejected,

29. This appeal fails and is dismissed with costs.


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