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State of Bombay (Now Gujarat) Vs. Natvarsingh Revabhai Zala - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 138 of 1960
Judge
Reported in(1963)GLR16; (1963)IILLJ509Guj
ActsBombay Civil Services (Conduct, Discipline and Appeal) Rules - Rule 52; Code of Civil Procedure (CPC), 1908 - Sections 80; Constitution of India - Article 311 and 311(2)
AppellantState of Bombay (Now Gujarat)
RespondentNatvarsingh Revabhai Zala
Cases ReferredIndia v. I. M. Lal
Excerpt:
labour and industrial - termination - rule 52 of bombay civil services (conduct, discipline and appeal) rules, section 80 of code of civil procedure, 1908 and articles 311 and 311 (2) of constitution of india - whether termination of service of plaintiff amounted to dismissal so as to render order of termination void on account of non-compliance of article 311 (2) - service of plaintiff terminated by government on account of negligence, inefficiency and misconduct - termination of service amounted to dismissal by way of punishment - plaintiff entitled to protection of article 311 (2) - requirement of article 311 (2) not complied with before terminating service of plaintiff - held, termination void. - - on this report of the deputy engineer the executive engineer passed an order on 8.....1. this second appeal arises out of a suit filed by the plaintiff for a declaration that the order of the executive engineer terminating his service as a clerk was null and void and that he continued in the service of the government. the facts giving rise to this litigation may be briefly stated as follows. the plaintiff was appointed as a temporary clerk on the work-charged establishment on 24 november, 1948. the plaintiff was thereafter by an order of the executive engineer, bearing no. a/3968 of 1950 and dated 18 march, 1949, promoted as a clerk on officiating permanent establishment and was retained in the same sub division in which he was working. on 12 may, 1952 the plaintiff was working. on 12 may, 1952 the plaintiff was called upon to give explanation in connexion with certain.....
Judgment:

1. This second appeal arises out of a suit filed by the plaintiff for a declaration that the order of the Executive Engineer terminating his service as a clerk was null and void and that he continued in the service of the Government. The facts giving rise to this litigation may be briefly stated as follows. The plaintiff was appointed as a temporary clerk on the work-charged establishment on 24 November, 1948. The plaintiff was thereafter by an order of the Executive Engineer, bearing No. A/3968 of 1950 and dated 18 March, 1949, promoted as a clerk on officiating permanent establishment and was retained in the same sub division in which he was working. On 12 May, 1952 the plaintiff was working. On 12 May, 1952 the plaintiff was called upon to give explanation in connexion with certain charges made against him and he submitted his explanation on 10 June, 1952. This explanation was, according to the plaintiff, accepted by the authorities and the chapter was closed. The plaintiff was thereafter transferred from Unchha beat to Limbla beat on 26 July, 1952. On 29 October, 1952, the Deputy Engineer sent a confidential letter to the plaintiff calling upon him to explain certain allegations against him. These allegations were

(1) that he gave water to 200 acres of land without any application from the cultivators and caused waste and loss to the Government, and

(2) that he did not send discharge and gauge measures to the Executive Engineer by accurately measuring them but sent them only on estimate.

2. The plaintiff was called upon to explain these allegations within a period of seven days. The Deputy Engineer thereafter sent a report to the Executive Engineer on 20 November, 1952 repeating these two allegations made against the plaintiff and stating that the explanation orally given by the plaintiff in connexion with these allegations was not true. The Deputy Engineer also reported to the Executive Engineer that the plaintiff was very lazy and indifferent to his duties. On this report of the Deputy Engineer the Executive Engineer passed an order on 8 December, 1952. It was stated in the order that the plaintiff was negligent in his work, that he had shown gross negligence in the discharge of his duties and that he was responsible for unauthorized water-supply to Khariff crops and that such indifference and dishonest way of working could not be tolerated and that previously also his work had been found unreliable and indifferent and that he had often absented himself from duty without permission and that he was, therefore, considered unsuitable for continuing any further and that his services were, therefore, ordered to be terminated immediately. It was also stated in the order that one month's notice was not necessary in the case of the plaintiff. The order was contained in a letter addressed by the Executive Engineer to the Sub divisional Officer, Ahmedabad, and on the strength of the order the plaintiff was relieved from service by the Deputy Engineer and the plaintiff handed over charge to the Deputy Engineer on 31 December, 1952. The plaintiff thereafter carried on correspondence with the Superintending Engineer but with no result and the plaintiff, therefore, ultimately gave the statutory notice under S. 80 of the Code of Civil Procedure and filed the present suit on 26 April, 1954. The plaintiff contended that he was dismissed from service without complying with the requirements of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules, as well as Art. 311(2) of the Constitution of India and that the dismissal was, therefore, invalid and inoperative and he continued in the service of the Government. The Government did not dispute that the procedure laid down by the Bombay Civil Services (Conduct, Discipline and Appeal) Rules and Art. 311(2) was not followed in the case of the plaintiff; but the contention of the Government was that the termination of the service of the plaintiff did not amount to dismissal or removal from service so as to require the following of that procedure. The Government relied on a declaration made by the plaintiff on 24 July, 1950 after he was promoted as a clerk on officiating permanent establishment and contended that this declaration constituted the contract of service between the plaintiff and the Government and that the Government had terminated the service of the plaintiff in exercise of the right conferred by the contract of service and that the termination of the service of the plaintiff did not, therefore, amount to dismissal or removal from service within the meaning of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules and Art. 311(2). This declaration relied upon by the Government as constituting the contract of service between the plaintiff and the Government was in the following terms :

'I hereby declare that I clearly understand that my employment in the office of the Deputy Engineer, Ahmedabad Irrigation Sub division at Karkun, on the temporary establishment is on the footing of the monthly servant and carries with it absolutely no claim to pension or to any absentee allowance beyond those conditionally given to temporary employees under the Bombay Civil Services Rules Manual or any order on the subject issued by the Government from time to time.

If dismissed otherwise than for serious misconduct before the completion of the work, I will be entitled to a month's notice or a month's employment in lieu of the notice but otherwise with or without notice employment terminates when the work ends. If I desire to resign my appointment, I will be required to give a month's notice of my intention to do so or forfeit a month's employment in lieu of such notice.'

3. The suit was tried by the Second Joint Civil Judge, Senior Division, Ahmedabad. The learned trial Judge came to the conclusion that the termination of the service of the plaintiff amounted to dismissal and that the order terminating the service of the plaintiff was, therefore, illegal and inoperative. The learned trial Judge accordingly gave a declaration to the plaintiff that the order terminating the service of the plaintiff was void and inoperative and that the plaintiff continued to be in the service of the Government until the completion of the work mentioned in the declaration or until the service was terminated in accordance with the terms contained in the declaration. The Government thereupon filed an appeal in the Court of the District Judge, Ahmedabad. The appeal was heard by the Extra Assistant Judge, Ahmedabad. The learned Assistant Judge took the same view as the learned trial Judge and held that the termination of the service of the plaintiff amounted to his dismissal from service and that since the procedure prescribed by the Bombay Civil Services (Conduct, Discipline and Appeal) Rules was not followed, the dismissal of the plaintiff was illegal and void. The learned Assistant Judge also founded himself on Art. 311(2) and held that the dismissal of the plaintiff from service also offended against that article and was, therefore, illegal and inoperative. The learned Assistant Judge accordingly dismissed the appeal and confirmed the decree passed by the learned trial Judge. The Government thereupon preferred the present second appeal in this Court.

4. Mr. A. D. Desai, learned Assistant Government Pleader appearing on behalf of the Government, contended in the main before me that the termination of the service of the plaintiff was in exercise of the contractual right vested in the Government under the contract of service contained in the declaration executed by the plaintiff in favour of the Government on 24 July, 1950 and that the plaintiff was, therefore, not entitled to the protection of Art. 311(2). Mr. A. D. Desai urged that under the contract of service contained in the declaration, the plaintiff was a monthly servant whose service could be terminated by the Government before the completion of the work by giving one month's notice or on payment of one month's salary in lieu of notice if the termination was otherwise than for serious misconduct before the completion of the work and that if the Government wanted to terminate the service of the plaintiff for serious misconduct, the Government was neither bound to give one month's notice nor to pay one month's salary in lieu of notice. The Government could, argued Mr. A. D. Desai, terminate the service of the plaintiff for serious misconduct without giving one month's notice or paying one month's salary in lieu of notice. The contention of Mr. A. D. Desai, therefore, was that when the Government terminated the service of the plaintiff without giving one month's notice or paying one month's salary in lieu of notice, the Government acted in exercise of the contractual right vested in the Government under the contract of service contained in the declaration and that the termination of the plaintiff did not, therefore, amount to dismissal or removal from service so as to bring the case of the plaintiff within the scope and ambit of Art. 311(2). Mr. N. V. Karlekar, learned advocate appearing on behalf of the plaintiff, on the other hand, contended that the plaintiff's service was clearly and avowedly terminated by the Government on the ground that the plaintiff was grossly negligent in the discharge of his duties, that his conduct was indifferent and dishonest and that he was found unreliable and indifferent. Mr. N. V. Karlekar urged that even if the declaration was construed as a contract of service between the plaintiff and the Government, the only right which was conferred on the Government under the contract of service was to terminate the service of the plaintiff by giving one month's notice or paying one month's salary in lieu of notice and that if the Government had exercised such right and terminated the service of the plaintiff by giving one month's notice or paying one month's salary in lieu of notice, the termination of the service of the plaintiff would have been in accordance with the terms of the contract of service and in that event the plaintiff could not have complained of the infraction of Art. 311(2). But, argued Mr. N. V. Karlekar, what happened in the present case was that the plaintiff's service was terminated by the Government on the ground that the plaintiff's conduct was blameworthy and that such termination of service attached a stigma to the plaintiff which the plaintiff would carry all through his life and which would prevent the plaintiff from obtaining any other suitable employment, Mr. N. V. Karlekar contended that the plaintiff's service having been terminated on the ground of serious misconduct - and Mr. A. D. Desai did not dispute that this was the position - such termination of service clearly amounted to dismissal and since the procedure prescribed by Art. 311(2) was admittedly not followed, the dismissal of the plaintiff was illegal and void. These were the rival contentions which were urged before me and it is rather interesting to note that both the sides relied upon the decision of the Supreme Court in Parshotam Lal Dhingra v. Union of India [1958 - I L.L.J. 544] in support of their respective contentions. This decision comprehensively lays down the principles which must govern the determination of the questions arising under Art. 311(2) and having regard to this decision, the principles applicable to cases of this type were not in dispute but the main controversy between the parties turned on the application of the principles to the facts of the present case. Before I examine the facts of the present case, it would be desirable to call attention to the principles laid down in this decision.

5. The Supreme Court in this decision determined two questions arising under Art. 311 and those questions were :

(1) who are entitled to the protection of that article, and

(2) what are the ambit and scope of the protection

6. Dealing with the first question the Supreme Court held that Art. 311 makes no distinction between permanent or temporary posts and that both the classes of persons are within the protection of that article. The appointment of a Government servant to a permanent post may be substantive or on probation or on an officiating basis. Likewise the appointment to a temporary post in a Government Service may be substantive or on probation or on an officiating basis. There is no distinction made by Art. 311 between persons holding these different posts and all are entitled to the protection of Art. 311. The Supreme Court, dealing with the scope and effect of Art. 311, held, on a consideration of the service rules framed by the Government from time to time and the background of the enactment of Art. 311, that the protection conferred by that article was available only in those cases where the Government intended to inflict the three forms of punishment mentioned in that article, namely, dismissal, removal from service nd reduction in rank and that if the termination of the service was sought to be brought about otherwise than by punishment, the Government servant whose service was sought to be so terminated could not claim the protection of that article. The test which the Supreme Court thus formulated was whether the order for the termination of the service was inflicted as and by way of punishment or not, If it was inflicted as and by way of punishment, the protection of Art. 311 was available to the Government servant, but not so if it was not inflicted as and by way of punishment. The Supreme Court then proceeded to consider the problem as to when an order for the termination of the service can be said to be inflicted as and by way of punishment and when it cannot be said to be so inflicted. The solution found by the Supreme Court to this question may be stated in the following words of the Supreme Court itself :

'. . . Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the temporary service rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. 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 hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art. 311. In other words and broadly speaking, Art. 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 for 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 Art. 311.'

7. The Supreme Court then observed in a passage which is very much relevant for the purpose of decision of the present case :

'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 circumstances, 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. If such a servant was appointed to a post, permanent or temporary, either on probation or on an officiating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government. Again, if the servant was appointed to a post, permanent or temporary on the express condition or term that the employment would be terminable on say a month's notice as in the case of Satish Chander v. Union of India : [1953]4SCR655 ], then the Government might at any time serve the requisite notice. In both cases the 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 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 consequence. In such a case the servant will be entitled to the protection of Art. 311(2).'

8. It is, therefore, clear that in the case of a Government servant who has been appointed to a post, temporary or permanent, either on probation or on an officiating basis and who has not acquired a quasi-permanent status, the service of such Government servant can be terminated at any time on reasonable notice given by the Government. If the Government servant is appointed to a post, permanent or temporary, on the express term or condition that the service would be terminable by giving one month's notice or paying one month's salary in lieu of notice, the Government may at any time serve the requisite notice and terminate the service of such Government servant. In both these cases the termination of the service of the Government servant would be in exercise of the powers of the Government under the terms of the contract of service, express or implied, or under the rules regulating the conditions of service, if any be applicable, and such termination of service would not amount to a dismissal of the Government servant even though the real motive behind such termination of service may be that the Government may consider the Government servant to be unsuitable for the post he was holding on account of his misconduct or inefficiency or some such cause. If, however, the Government does not choose to terminate the service of the Government servant in exercise of its power under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service of the Government servant, but decides to proceed against the Government servant on the basis of his misconduct, negligence, inefficiency or the like and to inflict on him the punishment of dismissal or removal from service, the Government would be bound to comply with the requirements of Art. 311. The question, therefore, in each case must be whether the service of the Government servant has been terminated by the Government in exercise of its right under the contract of employment, express or implied, or under the rules regulating the conditions of service or whether the service has been terminated as and by way of punishment for misconduct, negligence, inefficiency or some such cause. To put it differently, the question which must be answered is whether the Government servant has been visited with any evil consequences as a result of the termination of his service. If the termination of the service of the Government servant is visited with any evil consequences, then even though the Government servant had no right to hold the post, the termination of his service would amount to dismissal so as to attract the applicability of Art. 311. This is how the Supreme Court summed up the result of its conclusions at 1958 - I L.L.J. 544 at 561 :

'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 Satish Chander Anand v. Union of India : [1953]4SCR655 (vide 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 Art. 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [1954 - II L.L.J. 139]. In either of the two abovementioned 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 Chandorkar v. Union of India [1957 - II L.L.J. 189] 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 Art. 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate 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 Art. 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 be 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 Art. 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 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 . . .'

9. The Supreme Court then formulated the following two tests, namely :

(1) whether the Government servant had a right to the post or the rank or

(2) whether he has been visited with evil consequences of the kind referred to in the above passage;

10. and observed at p. 562 :

'. . . 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 betaken as a dismissal or removal from service or the reversion to his substantive rank must be requirements of the rules and Art. 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must beheld to be wrongful and in violation of the constitutional right of the servant.'

11. These are the principles which must be applied in order to determine whether the termination of the service of the plaintiff in the present case amounted to dismissal so as to render the order of termination of service void and inoperative by reason of non-compliance with the requirements of Art. 311(2).

12. Applying these principles, it is clear that the plaintiff was appointed as a clerk on officiating permanent establishment and that having regard to the declaration executed by the plaintiff in favour of the Government, the plaintiff was a monthly servant whose service could be terminated by the Government by giving one month's notice or paying one month's salary in lieu of notice, if the termination was otherwise than for serious misconduct before the completion of the work. The Government thus had a right under the contract of employment to terminate the service of the plaintiff by giving one month's notice or paying one month's salary in lieu of notice. The Government could in exercise of this right terminate the service of the plaintiff by giving one month's notice or paying one month's salary in lieu of notice and whatever be the real motive which might prevail with the Government in terminating the service of the plaintiff, if the Government terminated the service of the plaintiff in exercise of such right, such termination of service could not be said to amount to dismissal. The Government, however, chose to terminate the service of the plaintiff without giving one month's notice or paying one month's salary in lieu of notice on the ground that the plaintiff was grossly negligent in the discharge of his duties, that his conduct was indifferent and dishonest and that he was also found unreliable and indifferent. Now the plaintiff was obviously a temporary servant and he had, therefore, no right to the post held by him at the date of termination of his service and the first of the two tests mentioned above, therefore, failed to indicate that the termination of service of the plaintiff inflicted any punishment on the plaintiff. The question then is whether the second test was satisfied so as to attract the applicability of Art. 311(2) . The answer to the question is obvious. The Government terminated the service of the plaintiff without giving one month's notice or paying on account of the negligence, inefficiency and misconduct of the plaintiff. It is, therefore, obvious that the termination of service of the plaintiff was by way of punishment because it put a stigma on his competence and thus affected his future career. The plaintiff was under the contract of service entitled to one month's notice or one month's salary in lieu of notice and it was only if he was guilty of serious misconduct that his service could be terminated without giving one month's notice or paying one month's salary in lieu of notice. The termination of service of the plaintiff on account of misconduct, inefficiency or incompetence, therefore, deprived the plaintiff of the right to get one month's notice or one month's salary in lieu of notice and was obviously by way of punishment. I do not, therefore, see how it is possible to take the view that the termination of the service of the plaintiff in the present case did not amount to dismissal within the meaning of Art. 311(2). Mr. A. D. Desai put forward an ingenious argument that even the right to terminate the service of the plaintiff without giving one month's notice or paying one month's salary in lieu of notice on account of serious misconduct was a contractual right and that the Government acted in exercise of such contractual right in terminating the service of the plaintiff. But this contention cannot stand scrutiny for a single moment. The right to terminate the service of a servant without any notice on account of misconduct is a right which is inherent in the master under the ordinary law of master and servant and is by its very nature a right which is exercisable by the master against the servant by way of punishment. I do not see how such a right, the exercise of which is necessarily and always by way of punishment, can cease to have that character when it is embodied in contract of service between the master and the servant. The exercise of such a right, whether it be a part of the general law of master and servant or whether it be a part of the contract of service, must always be in the nature of infliction of punishment and the termination of service of the servant in exercise of such right must necessarily amount to dismissal. But, apart from this consideration, I do not think that the declaration executed by the plaintiff in favour of the Government conferred any contractual right on the Government to terminate the service of the plaintiff without giving one month's notice or paying one month's salary in lieu of notice on account of serious misconduct. The only thing that the declaration provided was that the plaintiff was a monthly servant and that the Government was entitled to terminate the service of the plaintiff by giving one month's notice or paying one month's salary in lieu of notice and that the plaintiff in his turn was entitled to resign by giving one month's notice of his intention so to do or forfeiting one month's salary in lieu of such notice. The declaration merely recognized the right of the Government to terminate the service of the plaintiff without giving one month's notice or paying one month's salary in lieu of notice if the plaintiff was guilty of serious misconduct so as to avoid any possible argument that even in case of serious misconduct, the plaintiff was entitled to one month's notice or one month's salary in lieu of notice. I am, therefore, of the opinion that the service of the plaintiff having been terminated by the Government on account of negligence, inefficiency and misconduct as set out in the order dated 8 December, 1952, the termination of the service amounted to dismissal by way of punishment and the plaintiff was, therefore, entitled to the protection of Art. 311(2).

13. This conclusion arrived at by me is also supported by another decision of the Supreme Court in State of Bihar v. Gopi Kishore [1960 - I L.L.J. 577]. That was a case of a probationer whose service was terminated by the Government because the Government came to the conclusion that he was unsuitable for the post he held on probation. The procedure prescribed by Art. 311(2) was, however, not followed by the Government before terminating the service of the probationer. The probationer thereupon moved the High Court of Patna for quashing the order of termination of service on the ground that the protection to which he was entitled under Art. 311(2) was violated. The High Court of Patna came to the conclusion that the order of termination of service was inflicted as and by way of punishment and that the probationer was, therefore, entitled to the protection under Art. 311(2) and since the requirements of Art. 311(2) were not complied with, the order terminating the service of the plaintiff was illegal and void. The Government carried the matter in appeal to the Supreme Court and the Supreme Court following its previous decision in Parshotam Lal Dhingra v. Union of India [1958 - I L.L.J. 544] (vide supra) summarized the principles relating to termination of service of a probationary public servant as follows at 1960 - I L.L.J. 577 at 579-580 :

'(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 Art. 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 Art. 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 inefficiency, or some such cause.'

14. This summary of the principles applies equally to a temporary servant who has no right to the post or rank which he is holding and whose service can be terminated by the Government by giving one month's notice or paying one month's salary in lieu of notice. The only difference in the context of the consideration of this question between such a temporary servant and a probationer would be that whereas the service of such a temporary servant can be terminated by giving one month's notice or paying one month's salary in lieu of notice, the service of a probationer can be terminated at any time. This difference cannot affect the applicability of the principles summarized above to the case of such a temporary servant. If, therefore, the service of such a temporary servant is terminated on the ground of his alleged misconduct or inefficiency or for some similar reason without giving him one month's notice or paying him one month's salary in lieu of notice, the termination of service would be by way of punishment, because it would put a stigma on his competence and thus affect his future career. This is exactly what happened in the present case and it is, therefore, clear that the termination of service of the plaintiff amounted to dismissal so as to attract the applicability or Art. 311(2).

15. Before I close, I must refer to a decision of the Calcutta High Court in Subodh Ranjan Ghose v. N. A. O. Callaghan [1957 - I L.L.J. 69] on which Mr. A. D. Desai strongly relied in support of his contention that the termination of service of the plaintiff was in terms of the contract of service contained in the declaration and was not inflicted as and by way of punishment. When one examines the facts of this case, however, it is clear that this decision does not at all help Mr. A. D. Desai. The petitioner in this case was employed in this case was employed in the Military Engineering Service and was neither a member of the Civil Service of the Union nor a person holding a civil post under the Union. Article 311 did not, therefore, apply to the petitioner. The Calcutta High Court, however, proceeded to consider the question whether the petitioner would be entitled to any relief even if he was entitled to the protection of Art. 311. The contract of service between the petitioner and the Government provided that the service of the petitioner could be terminated by the Government by giving three months' notice and the G.E., Calcutta Division, accordingly terminated the service of the plaintiff by giving three months' notice. It was specifically stated in the order terminating the service of the petitioner that the petitioner was being served with three months' notice of discharge in terms of the service agreement executed by him in favour of the Government. The order of termination of service also gave the reasons for which three months' notice of discharge was being served on the petitioner and the reasons were that the competent authority had decided that the petitioner was guilty of a certain charge made against him. It was on this order of termination of service that the question arose whether the termination of service of the plaintiff was under the contract of service of the plaintiff was under the contract of service or was inflicted as and by way of punishment. Even though it was specifically stated in the order of termination of service that the petitioner was being served with three months' notice in terms of the service agreement, the Calcutta High Court felt considerable doubt, because the grounds for terminating the service of the plaintiff were mentioned in the order itself and these grounds amounted to misconduct. The Calcutta High Court felt that the case was a case on the border line and ultimately held that the order of discharge was in terms of the contract of service even though the departmental enquiry and the finding of guilt were recited therein. The Calcutta High Court rested its decision on the fact that it was stated on the face of the order of discharge that the petitioner was being discharged in terms of the service agreement by giving three months' notice as provided in the service agreement, as will appear clearly from the following observations :

'. . . If the notice did not purport on the face of it to be a notice under the contract, then indeed it would be possible to hold that it is a dismissal de hors the contract. Since the notice itself states that it is in terms of the contract, I must hold that it is not a removal or dismissal in terms of Art. 311, but termination of contract in accordance with the articles of agreement mentioned above.'

16. It is also important to note that the petitioner was given three month's notice in accordance with the service agreement before his service was terminated. In the present case, however, the service of the plaintiff was terminated without giving him one month' notice or paying him one months' salary in lieu of notice as provided in the contract of service and the order of termination of service of the plaintiff also did not purport on the face of it to be an order terminating the service of the plaintiff under the contract of service but was clearly an order terminating the service of the plaintiff on account of misconduct, inefficiency and negligence. This decision cannot, therefore, be called in aid by Mr. A. D. Desai in support of his contention.

17. I am, therefore, of the opinion that the termination of the service of the plaintiff by the Government amounted to his dismissal within the meaning of Art. 311(2) and that since the requirements of Art. 311(2) were admittedly not complied with before terminating the service of the plaintiff, the termination of the service of the plaintiff was obviously illegal and void. The learned Assistant Judge was, therefore, right in confirming the declaration granted by the learned trial Judge that the order terminating the service of the plaintiff was void and inoperative. Mr. A. D. Desai, however, contended that the learned trial Judge and the learned Assistant declaration that the plaintiff would continue to remain in employment until the completion of the work as contemplated by the declaration or until the employment was terminated by the Government in accordance with the terms of the contract of service contained in the declaration. Mr. A. D. Desai pointed out that according to the decision of the Privy Council in High Commissioner for India v. I. M. Lal all that the plaintiff would be entitled to get would be a declaration that he continued in service at the date of the institution of the suit. Mr. A. D. Desai is right in this contention and I must, therefore, vary the decree passed by the learned trial Judge and confirmed by the learned Assistant Judge by declaring that the order terminating the service of the plaintiff was void and inoperative and that the plaintiff continued in service at the date of the institution of the suit. Certain cross-objections were also filed by the plaintiff but they are obviously not maintainable since no complaint against the decree passed by the learned trial Judge having been made by the plaintiff before the learned Assistant Judge by way of cross-objections or otherwise, no objections against the correctness of the decree passed by the learned trial Judge and confirmed by the learned Assistant Judge could be made in the present second appeal.

18. The result, therefore, is that the second appeal is dismissed and the decree of the lower Court is confirmed with this modification that instead of the declaration granted by the lower Court, there shall be a declaration that the order terminating the service of the plaintiff was void and inoperative and that the plaintiff continued in service at the date of the institution of the suit. The defendant will pay the costs of the second appeal to the plaintiff. The cross-objections of the plaintiff are dismissed with costs.


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