1. This petition under Article 226 of the Constitution is directed against an order of the Principal, Government Engineering College, Jabalpur (respondent No. 1) dated 19 February 1959 by which the services of the petitioner were dispensed with from the next day.
2. By an order No. 7530 dated 27 August 1958, the petitioner, who was already working as a Farrash, in the Government Engineering College, Jabalpur, was appointed temporarily until further orders as Laboratory Attendant in the Applied Physics Department of the College. On 19 February 1959, his services were dispensed with by the following order:
'You have been found to be utterly negligent in the discharge of your duties as laboratory attendant, as during the course of these three-lour months that you have been laboratory attendant in the Applied Physics Department, there have been repeated thefts of instruments from Laboratories in that Department which you were required to look after.
You have also been reported by the Khamaria police who investigated these thefts to be a person of suspicious character and you have also been reported to be associating with certain persons who are previous convicts.
Under the circumstances, it is considered that you are not a desirable person to be continued in the Government service. Your services are therefore dispensed with from 20-2-59 A.M.
In view of the losses sustained by the Government due to your negligence, your salary for the month o January 1959 and for the portions of February 1959 during which you have worked are credited to Government revenue to make good a portion of the loss due to thefts.
Government Engineering College, Jabalpur.''
3. The petitioner's case is that, by the order dated 19 February 1959, he was found utterly negligent in the discharge of his duties with the result that there were repeated thefts of instruments from the laboratories in his charge, that he was treated as a person of suspicious character associating with previous convicts and that, under the circumstances, he was considered to be not a desirable person 'to be continued in the Government service'. The petitioner further averred that his salary for the months of January and February 1959 was forfeited to make good a part of the loss caused to Government on account of theft of instruments. According to the petitioner, he was punished by imposing upon him the penalty of removal from service coupled with forfeiture of salary without giving to him a reasonable or any opportunity to defend himself as contemplated by Clause (2) of Article 311 of the Constitution. That being so, the order is liable to be quashed.
4. In their return, the respondents stated that, in the order dated 19 February 1959, only the reasons for the petitioner's unsuitability and the necessity for his removal from service were set out without levelling any charges against him and it was not intended that any penal consequences should result or any stigma should attach to the petitioner. Also, any forfeiture of salary of the petitioner was neither intended nor actually ordered. Since the petitioner had admitted his responsibility for the loss of instruments from the laboratories and had accordingly signed the appropriate register, his salary for two months amounting to Rs. 66.89 nP. was, as required by the rules relating to recovery of price of such articles, withheld and deposited in the treasury.
5. In the instant case, while it is not disputed that the petitioner was not given any opportunity to show cause against the action proposed to be taken against him, it is argued that that was not necessary Ibecause his appointment, which was temporary in character, was merely terminated and he was not removed from service as a measure of punishment. The use of the expression 'terminate' or 'discharge' or 'dispense with' is not conclusive and in spite of the use of such innocuous expressions the appropriate tests have to be applied to determine whether the servant has been punished and the termination of his service amounts to dismissal or removal from service : P. L. Dhingra v. Union of India, AIR 1958 SC 36 at p. 49. We have, therefore, to consider whether in this case the petitioner was punished.
6. Both permanent and temporary members are within the protection of Clause (2) of Article 311 of the Constitution which is attracted in every case of dismissal, removal or reduction in rank as a measure of punishment: AIR 1958 SC 36 (cit. sup.) paras 14 and 25. In the case of a permanent servant, he has a right to hold the post and if his service is terminated or he is reduced in rank, that by itself operates as a penalty and stamps the action taken against him to be a punishment. On the other hand, in the case of a temporary servant, he has no right to the post and the termination of his service may or may not be a punishment.
It is however well-settled that, in such a case, mere termination of service per se does not amount to punishment: Satish Chandra Anand v. Union of India, AIR 1953 SC 250, Shyamlal v. State of Uttar Pradesh, AIR 1954 SC 369. Hartwell Prescott Singh v. U. P. Govt. (S) AIR 1957 SC 886, State of Bombay v. Saubhagchand M. Doshi, (S) AIR 1957 SC 892. AIR 1958 SC 36, P. Balakotaiah v. Union of India, AIR 1958 SC 232 and State of Bihar v. Gopi Kishore Prasad Civil Appeal No. 488 of 1957 decided by the Supreme Court on 25th November 1959: (AIR 1960 SC 689). In Dhingra's case, AIR 1958 SC 36. S. R. Das C. J. repeatedly emphasised that termination of service simpliciter of a temporary servant, without more, is not a punishment and observed:
'One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases herein before mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking, Article 311(2) will apply to those cases where the government servant, had he been employed by a private employer, will be entitled to maintain an action tor wrongful dismissal, removal or reduction in rank. To put it in another way, if the government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se not a punishment and does not attract the provisions of Article 311.'
'It does not, however, follow that, except in the three cases mentioned above, in all other cases, termination of service of a government servant who has no right to his post, e.g. where he was appointed to a post, temporary, or permanent, either on probation or on an officiating basis and had not acquired a quasi-permanent status, the termination cannot, in any circumstance, be a dismissal or removal from service, by way of punishment, Cases may arise where the government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification..... 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).' (Para 27)
The conclusions were summarised as follows:
'The position may, therefore, be summed up as follows: 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, as has been held by this Court in AIR 1953 SC 250 (supra). 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), as has also been held by this Court in 1.955-1 SCR 26: (AIR 1954 SC 369). In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules.
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, as Chagla, C. J., has said in Shrinivas Ganesh v. Union of India, ((S) AIR 1956 Bom 455). wholly irrelevant In short, if the termination of service is founded on the rights 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. As already stated, if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot he terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause.
A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank.
If however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. 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. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out it the order for the reduction also visits the servant with any penal consequences. Thus i 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 tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been 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 he held to be wrongful and in violation of the constitutional right of the servant.'
7. The learned Advocate General pointedly drew our attention to the second half of the above summary and urged that the tests there laid down are not only conclusive but also exhaustive. In our opinion, the summary merely indicates certain tests for determining whether, in any given case, termination of service of a temporary servant does or does not amount to a punishment. The law is laid down in an earlier part of the summary in the following words:
'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.'
8. The following observations of the Supreme Court in an earlier case, AIR 1954 SC 369 at p. 374 are also to the same effect:
'There can be no doubt that removal -- I am using the term synonymously with dismissal --generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained bv the officer.'
9. The observations in Dlungra's case, AIR 1958 SC 36 were summarised by the Supreme Court. in Civil Appeal No. 488 of 1957 : (AIR 1960 SC 689) (cit. sup.) 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 an 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 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 and will, therefore, be liable to be struck down.
5. But, if 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 inefficSency, or some such cause.'' Sinha C. J. further observed :--
'It would thus appear that in the instant case, though the respondent was only a probationer, he was discharged from service really because the Government had, on enquiry, come to the conclusion, rightly or wrongly, that he was unsuitable for the dost he held on probation. This was clearly by way of punishment and, therefore, he was entitled to the protection o Article 311(2) of the Constitution. It was argued on behalf of the appellant that the respondent, being a' mere probationer could be discharged without any enquiry into his conduct being made and his discharge could not mean any punishment to him, because he had no right to a post. It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct.
If the Government proceeded against him in that direct way, without casting any aspersions on his honesty or competence, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any court, Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Article 311(2) of the Constitution. That protection not having been given to him, he had the right to seek his redress in court. It must, therefore, be held, that the respondent had been wrongly deprived of the protection afforded by Article 311(2) of the Constitution. His removal from the service, therefore, was not in accordance with the requirements of the Constitution.''
10. This Court has also taken the view that if the service of a temporary servant is terminated for a fault, it amounts to a punishment and Article 311 is attracted: P. V. Jagannath Kao v. Union of India S. A. No. 493 of 1953, D/- 13-12-1937 (MP) and Kunj Beharilal Hazaria v. State of Madhya Pradesh, M. P. No. 414 of 1958, D/- 25-8-1959 (MP). In view of the authorities, it must be regarded as firmly established that when a temporary service is terminated in pursuance of the terms of the contract or the rules governing it, the termination is not a punishment. On the other hand, if the termination is founded upon misconduct, negligence, inefficiency or other disqualification attributed to the servant, it is a punishment attracting the protection afforded by Article 311.
11. The question whether, in a given case, a temporary service was terminated in pursuance of the contractor the rules governing it or the termination was founded on the servant's fault is sometimes difficult. Relying upon the summary of the observations in Dhingra's case, AIR 1958 SC 36 given in AIR 1960 SC 689 (cit. sup.), it was argued that, in the absence of an enquiry against a temporary servant, the termination of his service should be regarded as made in pursuance o the contract or the rules governing it. We do not consider that the holding of an enquiry is conelusive of the matter.
It is implicit in the summary above referred to that if the termination of service is founded on misconduct or inefficiency or other similar reason and there is no proper enquiry, it amounts to removal within the meaning of Article 311(2) and is liable to be struck down. If, in such a case, there is no enquiry at all, we do not see why the protection afforded by Article 311(2) should not be available, If anything, that would be a more flagrant disregard of the constitutional protection. In the case of M.P. No. 414 of 1958, D/-25-8-1959 (MP) (Cit. sup) there was no enquiry. Even in AIR 1960 SC 689 (cit. sup.) there was no enquiry as such and only a notice to show cause against discharge was served on the servant on probation.
12. In AIR 1954 SC 369 there was an enquiry and five out of the six charges were proved. Even so, the order was not founded on those charges. A simple order of compulsory retirement under Note 1 to Article 465-A of the Civil Service Regulations was passed by the President. It was held that there was no element of charge of imputation involved in the case, Explaining a case of this nature, Venkatarama Aiyar, J. observed in (S) AIR 1957 SC 892 at p. 895.
'The fact to be noted is that while misconduct and inefficiency are factors that enter into the accounts where the order is one of dismissal or removal Or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held -- and there is no duty to hold an enquiry -- is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Article 311(2).'
13. It is no doubt well-established that an employer may hold an enquiry about the misconduct and inefficiency of his servant and may also find him guilty and yet may have recourse to his power of terminating the service in terms of the contract or under the rules governing it. In such a case, the employer should be regarded as having taken into account the misconduct or inefficiency for his subjective satisfaction and it furnishes only the background of the action taken. On the other hand, if the misconduct or inefficiency forms the very basis on which the order is made, whether any enquiry is held or not, the employer must be regarded as having exercised his power of punishing his servant. In such a case, the essence of the matter is that the service has been terminated on the ground of misconduct or inefficiency and not whether the proper method Or any method was adopted in doing so.
14. In our opinion, in considering whether or not the termination of service of a temporary servant amounts to punishment and removal within the meaning of Article 311(2), we have to look to the language of the order passed and to find out whether the termination was founded on misconduct or negligence. In Kamalakar v. Principal, Training College for Men, AIR 1960 Bom 9, the Bombay High Court observed:
'Now, there is a sound principle as to why in the case of a temporary servant the provisions of Article 311 are attracted when the services of the temporary employee are terminated by way of punishment. The reason is that where the termination of services is accompanied by punishment, it constitutes a stigma upon the character of the employee concerned and the future of the employee is, so to say, in jeopardy. It would not be possible for him to obtain employment elsewhere, because the punishment which has been meted out to him will constitute an obstacle in the way of his being able to obtain another employment and the real question is whether on the language of the notice of discharge, it is reasonably clear that the notice of discharge is accompanied by punishment.' (page 11).
In D. R. Menon v. Director of Harijan Welfare, U. P. (S) AIR 1957 All 408 at p. 411 the Allahabad High Court observed as under:
'The intention has to be gathered from the circumstances and the words of the order. It a removal is in essence a removal for indiscipline or misconduct to which reference is also made in the order and there is no other indication in the order of termination of service that it is in terms of the contract of a service, such as 30 days notice or payment of salary in lieu thereof, and on the contrary there is an indication that the removal is for indiscipline or misconduct Or tor other fault, the mere mention of the words in terms of the contract' will also not convert a removal on a disciplinary charge into a termination in terms of the contract.'
15. The position in regard to termination of service of a temporary servant governed by contract express or implied, or by rules, may now be summed up. It is lawful to simply terminate his service in a direct wav without holding any enquiry. It is not wrongful to terminate his service in that simple and direct way even if an enquiry is held for the subjective satisfaction of the authorities taking action and the result of the enquiry remains in the background furnishing, so to say, the motive for the action taken. On the other hand, if the termination of his service is founded on misconduct, negligence, inefficiency or other disqualification or it entails other penal consequences, it is a punishment which amounts to removal within the meaning of Article 311(2) of the Constitution.
In such a case, if a proper enquiry is held and a reasonable opportunity of showing cause against the proposed removal is afforded to him there is no denial of the constitutional protection and the removal is not actionable. But, if there is no proper enquiry or no enquiry at all Or if he is not given a reasonable opportunity to show cause against the proposed removal, he must be regarded as having been wrongly deprived of the constitutional protection and his removal would, therefore, be struck down.
16. In the instant case, the order impugned before us shows that the petitioner was found to be utterly negligent in the discharge of his duties with the result that there were repeated thefts of instruments from laboratories looked after by him. By reason of his association with previous convicts, he was reported to be a person of suspicious character. Under these circumstances, he was not considered to be a desirable person fit to be continued in Government service and his services were, therefore, dispensed with and his salary for two months was forfeited to partially make good the loss sustained by Government due to his negligence. It is also significant that the salary was not stated to have been withheld because of any undertaking to make good the loss caused by thefts.
In our opinion, the order, which makes no reference to the contract or the nature of tenure of the petitioner's service, is founded on his neglect of duty and defect of his character. It also imposes on him the penalty of forfeiture of salary already earned by him. We are of the view, that it is a punishment amounting to removal from service which could not be inflicted on him in disregard of the protection afforded to him by Article 311(2). Having regard to the abrupt manner in which the authorities proceeded in this case, the constitutional protection was admittedly not made available to him. That being so, the order must be struck down as one passed in violation of Article 311(2).
17. The result is that the petition succeeds and is allowed. The order dated 19 February 1959 is quashed. The respondents shall bear their owncosts and pav those of the petitioner. The out-standing amount of security shall be refunded tothe petitioner. Hearing fee Rs. 50/-.