1. This writ petition is filed by Captain R. S. Saxena against the State of Gujarat, which is respondent No. 1, and Shri G. L. Sheth, Secretary to the Government of Gujrat. Public Works Department, who is respondent No. 2. The petition is under Articles 226 and 227 of the Constitution of India read with Article 311, Clause (2), of the same. By this petition, petitioner impugns an order, dated 24th of November 1961, which terminated his services with immediate effect, after granting him an amount equal to one month's pay and allowances, from the date of his relief upto 31st December 1961 in lieu of notice.
2. The facts leading up to the petition are as follows:
Petitioner was selected by the Public Service Commission, Gujarat, as a candidate for appointment as one of the two Port Officers, Class I, in the grade of Rs. 800-40-1,200 plus special pay of Rs. 150/- plus usual allowances. On 24th of July 1961, petitioner was appointed in the Ports Organisation against a permanent and pensionable post as Port Officer, Class I, on probation for two years in the aforesaid scale of pay and allowances. Petitioner was, however, given two advance increments and his initial pay was fixed at Rs. 880/- per month. The terms of appointment of petitioner were stated in the Resolution No. APP. 5961-E, dated 24th of 3uly 1961. By the same resolution, one Captain E. 'Gopalan was also appointed in the same service. Clause 5 of the aforesaid resolution, which was applicable to both the aforesaid servants, reads as follows: 'The service of the candidates is terminable by giving usual notice in case of unsatisfactory work during part or whole of the probation period. The question of confirmation of the two officers as Port Officers will be decided in the light of the report submitted by the Director of Ports on their work. In case of unfavourable reports, Government will issue such orders as may be deemed necessary on the merits of each case'.
Petitioner took charge of the above post on 26th of July 1961. On 22nd of November 1961, petitioner received a telegram from the second respondent that he was required to see him at Ahmedabad on 24th of November 1961. Thereupon, petitioner arrived at Ahmedabad on 24th of November 1961 bringing with him certain files. Petitioner, on that day, was directed to see the second respondent at his residence. Petitioner and the second respondent met on that day. Respondent No. 2 asked petitioner if he was prepared to resign his post. Petitioner asked the reasons as to why he was expected to resign. Respondent No. 2 refused to give him any reasons. Respondent No. 2 also further told petitioner that the Government had already decided to terminate the services of petitioner and that, if he did not resign his post, the Government would give effect to its aforesaid decision. Petitioner, thereupon, asked for time to consider his position. Respondent No. 2 gave him two hours' time. Petitioner, then, rang up respondent No. 2 and asked for extension of time on the ground that the time was too short for him to take a decision which involved his future career. The time was refused. Petitioner intended to see the Minister in charge of the portfolio relating to Port Organisation, but he was unable to see him on 24th November 1961 as the Minister was out of Ahmedabad. Petitioner saw the Minister on 25th of November 1961 and showed him the files which he had brought with him specially in regard to the complaints which he had made against one Virkar who was then his subordinate and who formerly held charge of the Port Officer. The Minister, thereupon, asked petitioner as to why he had not shown that file to respondent No. 2. Petitioner told the Minister that he was not given any opportunity to show the files to the second respondent and that, instead, he had been straightway asked to resign. The Minister, thereupon, asked Petitioner to go back to Bhavnagar; but said that he would speak to the second respondent and that petitioner should await further instructions in the matter. Petitioner reached' Bhavnagar on the 26th of November 1961. On reaching there, he read a report in the local newspapers that his services had been terminated. Thereupon, petitioner came back to Ahmedabad on the 27th of November 1961. The second respondent was on leave on that day. Therefore, petitioner called upon one Mr. Bhatt, who was in charge of the office of the Secretaryship, Public Works Department. The latter told petitioner that the second respondent had already passed an order terminating petitioner's services, giving him one month's pay in lieu of notice and directing him to hand over charge to Virkar. Petitioner handed over charge to Virkar and, thereafter, presented the present petition in this Court. In this petition petitioner prays for the issuance of a writ of or in the nature of certiorari or mandamus or any other appropriate writ, direction or order for quashing or setting aside the order of the second respondent, dated 24th of November 1961, purporting to terminate his services as a Port Officer and prays for a declaration that petitioner continues to hold the post of Port Officer at Bhavnagar.
3. Shortly, the case of the respondents is that petitioner was holding his post on probation and that he has neither been dismissed nor removed within the meaning of Article 311(2) of the Constitution. According to them, the services of petitioner were terminated under the contract of employment as the Government, after review of the work done by petitioner till then, took the decision-that the services of petitioner were not necessary to be continued. Therefore, according to the respondents, this is a case of termination of service, pure and simple, and it is not a case of either dismissal or removal of petitioner.
4. Mr. Nanavati on behalf of petitioner made the following submissions in this Court:
(1) That the impugned order, dated 24th of November 1961, amounted to removal of petitioner within the meaning of Article 311, Clause (2) of the Constitution and, therefore, that order was bad inasmuch as, admittedly, no reasonable opportunity had been given to the petitioner prior to the making of that order as required by that clause.
(2) That the case of the petitioner was governed by Rule 49, Explanation 2 of the Civil Services (Classification, Control and Appeal) Rules, 1930, reproduced in Appendix I at page 13 of the Bombay Civil Service Conduct, Discipline and Appeal Rules; that the discharge of the petitioner by the impugned order was removal or dismissal of the petitioner within the meaning of Explanation 2 of Rule 49; that that rule had a statutory force and even if the termination of the services of petitioner did not amount to removal or dismissal within the meaning of Article 311, Clause (2), the termination of his services would be removal in breach of the Explanation 2 aforesaid and, therefore, petitioner was entitled to proper relief under the extra-ordinary Jurisdiction of this High Court for breach of Explanation 2, Rule 49.
(3) That the action of the respondents in dismissing petitioner was mala fide, and was actuated by considerations which amounted to malice in law. Besides the aforesaid three submissions, at the fagend of his arguments, Mr. Nanavati formulated one more submission and that was:
(4) That the termination of the services of petitioner was in breach of Rule 55B of the Civil Services (Classification, Control and Appeal) Rules, 1930, and that as that rule also has a statutory force, the termination of the services of petitioner was in breach also of that statutory rule.
However, after developing 'the argument' upto a certain stage, when the crucial question arose as to whether Rule 55B which was introduced by the Central Government for the first time in 1949 did or did not govern the conditions of service of petitioner, Mr. Nanavati specifically gave up that particular submission and stated that he did not want to press it any further.
Therefore, the aforesaid three submissions only of Mr. Nanavati require consideration in the present petition.
5. Now, on the first submission, it is_ first of all necessary to ascertain the position which petitioner occupied in the service of the Government, the nature of his employment and the rights which he possessed as a Government servant. Rule 14 of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereafter described as 'rules of 1930') divides public services into six classes. The fourth class is described as the provincial service. There is no dispute that, by his appointment as a Port Officer, Class I, petitioner became a member of this class of provincial service. There is also no dispute that petitioner was appointed to the post of a Port Officer on probation for two years. The appointment was against a clear permanent and pensionable post. However, in spite of this fact, it is not disputed by Mr, Nanavati that petitioner not being confirmed in that post and having been appointed only on probation, had acquired no right to hold that permanent and pensionable post. In the case of Parshottam Lal Dhingra v. Union of India : (1958)ILLJ544SC , S. R. Das. C. J., made the following observations at page 42 in connection with a probationer appointed to a permanent post:
'It is, therefore, quite clear that appointment to a permanent post in a Government service. ...... on probation is from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of service, the implied term of such appointment under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in Government service on probation ....... the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation ......... can do, if his service is terminated at any time'.
From Clause 5 of the terms of appointment which we have reproduced above, it is also quite clear that the Government had, in the order of appointment, reserved to itself the right to terminate the services of the petitioner by giving usual notice in case of unsatisfactory work during part or whole of the probationary period. Therefore, the nature of the employment of petitioner was such that, ordinarily, the Government had a right to terminate the services of petitioner, in case the Government was of the opinion that the work of petitioner was unsatisfactory.
6. In Dhingra's case : (1958)ILLJ544SC a distinction is made between the termination of service of a Government servant on the one hand and his dismissal or removal on the other. It is held that, if the services of a Government servant are terminated under the contract of employment, then, it does not come within the mischief of Clause (2) of Article 311. But, at the same time, it is also held definitely that a Government servant even on probation is entitled to the constitutional guarantee enshrined in that clause and, if the Government servant's services are not terminated under the contract of employment, but, in fact, the Government servant is dismissed or removed, then the Government servant, though on probation, will be entitled to the protection of Clause (2) of Article 311 of the Constitution. This legal position is not disputed by either side.
7. The rival contentions urged on the two sides were as follows:
Mr. Nanavati contended that, although the order of the Government in terms stated that the services of petitioner were being terminated, in effect, the order was one of removal or dismissal inasmuch as, according to Mr. Nanavati, petitioner's services were not terminated under the contract of employment but were terminated on the ground of misconduct, inefficiency and similar other reasons. On the other hand, Mr. Sompura, learned Assistant Government Pleader, contended that the petitioner's services were terminated under the contract of employment, pure and simple, and that not only the Government neither intended to punish the petitioner for any misconduct or inefficiency, but that the Government had actually passed the order and framed it in the above language 'with a view to save petitioner from the stigmat of incompetency'. The second respondent in his affidavit admitted that on a consideration of the work of petitioner, the Government had reason to believe that petitioner was immature in his dealing with his staff; that he lacked confidence in his professional job; that he adopted a very unwise course of coming in conflict by his rude behaviour with the competent pilot Shri Virkar at the port of Bhavnagar; and that petitioner was shirking his main duty as a Port Officer namely, piloting of ships touching the Port of Bhavnagar. The second respondent also in his affidavit stated in at the Government had received information from Shipping Companies, Masters of Ships calling at Bhavnagar and other persons dealing with the port administration at Bhavnagar about the unsuitability of petitioner for the post and that it was as a result of such information that it was decided by the Government to terminate the services of petitioner. The second respondent winds up his affidavit as regards the alleged stigma of incompetency by making the following averments: 'As regards the effect of the impugned order on the petitioners future, I say that if a man is found unsuitable or incompetent, it is an unfortunate but inevitable consequence that his future prospects should be prejudicially affected. Such a result cannot, however, ......... vitiate the validity of an order terminating the service'.
8. The contention of the learned Assistant Government Pleader was that the picture depicted by the second respondent in his affidavit about the conduct of petitioner constituted the background in which the order of termination of services came to be passed and that it was not the basis for termination of petitioner's services. On the other hand, the contention of Mr. Nanavati was that the averments made by the second respondent in his affidavit showed that the action of the Government was not founded on the contract of employment but that the action was founded on the alleged misconduct, inefficiency and other similar considerations.
9. Now, on this subject, the principle of law is summarised in Dhingra's case : (1958)ILLJ544SC
'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'.
10. Therefore, having regard to the rival contentions, the task which has got to be performed in the present petition is to ascertain the mind of the second respondent when he passed the impugned order. Did the second respondent act under the contract of employment and terminate petitioner's services in the exercise of the contractual right of the Government on the ground that petitioner was found to be unsuitable in his work or did he choose to proceed against petitioner with the intention of punishing him? In other words, whether the order of termination of service was actually founded on the alleged misconduct, inefficiency etc. of the petitioner or was it founded on the contract of employment?
11. Now, on the above subject, the main question which is debated is whether, in ascertaining whether the Government chose to act under the contract of employment or whether it acted under its power of punishment, the Court is confined to the contents of the order of dismissal or removal or whether it can look de hors the contents of the order. The submission of Mr. Nanavati is that the power of this Court is not confined to a mere reading of the contents of the impugned order. His submission is that, if this were so, then, in all cases, where the Government intends to proceed even by way of punishment, if may garb its orders in such a manner as to give them the appearance of termination of services and thus render the constitutional guarantee illusory and ineffective. His submission is that, therefore the enquiry should not be confined to merely an interpretation of the order of termination of service, but that the totality of all the circumstances including those preceding the act of termination of service must be considered with a view to discern the mind of the Government. In this connection, a number of cases were cited. On the strength of these very cases, Mr. Nanavati also contends that where no enquiry is made prior to the termination of service, even of a probationer, the absence of the enquiry itself will be evidence of the fact that the order was made by way of punishment.
12. In the State of Bihar v. Gopi Kishore Prasad : (1960)ILLJ577SC the Government servant was a probationer. His services were terminated after holding an enquiry in relation to certain charges which were levelled against him. In deciding this case, their Lordships of the Supreme Court summarised the principles enunciated in Dhingra's case : (1958)ILLJ544SC in the form of five propositions in relation to the termination of service or discharge of a probationary public servant The third proposition is enunciated therein as follows:
'But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, of inefficiency, or for some similar reason, the termination of service is by way of punishment, because it outs a stigma on his competence and thus affects his future career, in such a case, he is entitled to protection of Article 311(2) of the Constitution'.
Mr. Nanavati's contention is that, if such is the result when an enquiry is actually held, then, the case is still worse, when, in fact, no enquiry is held at all. In our judgment the contention is not sound and it is based upon an isolated and disjointed reading of a passage wrenched from its context. The fifth proposition is summarised as follows in that case:
'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'.
If the contention of Mr. Nanavati were right, then, the aforesaid fifth proposition would not have been enunciated. The third proposition on which Mr. Nanavati relies embraced the facts of that case. In our judgment, the converse of that third proposition, viz. that, when no enquiry is made, it automatically follows that the Government intends to punish the Government servant, is not borne out by the fifth proposition which clearly brings out that, even when no enquiry is made, the Government servant cannot be said to be punished if the Government is acting under the contract of employment. The case of : (1960)ILLJ577SC decided that the enquiry which preceded the order of termination of service disclosed the mind of the Government that it sought not a mere termination of service under the contract of employment, but that it intended to punish the probationer for his previous misconduct and stigmatised him for his incompetence.
13. The next case cited is the State of Orissa v. Ram Narayan Das : (1961)ILLJ552SC . In that case, the order of termination of service was preceded by an enquiry into the conduct of the Government servant concerned. The charges which were levelled against the Government servant were of a very serious nature. The charges included two specific instances of misconduct -- acceptance of illegal gratification and fabrication of official record. As a result of the enquiry, the Government was satisfied that the charges had been proved. The order of termination was passed on the basis of the result of the enquiry. The order stated that the Government servant was discharged from service 'for unsatisfactory work and unsatisfactory conduct'.
Although the order of discharge was preceded by an enquiry, their Lordships held that it was not a case of punishment of the Government servant but that it was the case of termination of service under the contract of employment. The enquiry in that case having been undertaken by the Government with a view to comply with the provisions of rule 55B pf the rules of 1930 which was introduced sometime in 1949, which requires the Government even whilst terminating the services of a probationer under the contract of employment to give an opportunity to the person to show cause against such a discharge and not with a view to punish the Government servant their Lordships held that, as the aforesaid enquiry was undertaken with a view to comply with the provisions of Rule 55B, it cannot be said that the enquiry was made with the intention to punish the Government servant as was the case in Gopi Kishore Prasad's case : (1960)ILLJ577SC , their Lordships made the following observations:
'Whether if amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry'.
At page 181, their Lordships stated as follows:
'What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Purshottam Lal Dbingra's case : (1958)ILLJ544SC '.
14. Then, Mr. Nanavati cited the case of Madan Gopal v. State of Punjab : (1964)ILLJ68SC . This was a case of a temporary employee. That person was served with a chargesheet that he had received illegal gratification from one person and had demanded illegal gratification from another. The servant was given an opportunity to make his defence. The Settlement Officer reported that one of the charges was proved and that the servant did not enjoy good reputation and was a person of doubtful integrity. Their Lordships held that the enquiry made by the Settlement Officer was made with the object of ascertaining whether the disciplinary action against the servant should be taken for his alleged misbehaviour and that the enquiry was clearly for the purpose of taking punitive action including dismissal or removal from service, if the servant was found to have committed misdemeanour charged against him. On this ground, it was held that the order passed by the Government on the aforesaid report of the Settlement Officer was bad inasmuch as the Government had taken proceedings with the object of punishing the Government servant concerned without complying with the provisions of Article 311(2) of the Constitution.
15. Mr. Nanavati also relied upon the case of S. Sukhban Singh v. State of Punjab : (1963)ILLJ671SC . In this case, the Government servant was holding a permanent post but was promoted on probation to the post of Extra Assistant Commissioner. During the period of his probation, he was reverted to his post of Tehsildar. Several months after his reversion, the Government gave a warning to the Government servant that, during the period of his probation, he was not free from communalism or intrigue; that he was in the habit of indulging in loose talk unnecessarily which created difficulties for him. Apparently, at the time of the reversion, no reasons were given for his reversion. Their Lordships held that the order of reversion was, in fact, a mala fide order and was made by way of punishing the Government servant for alleged misconduct, and that, inasmuch as the Government had not complied with the provisions of Article 311(2), the order was bad. In arriving at this conclusion, their Lordships took into consideration a series of facts such as the sequence of events which had led to a departmental enquiry against him, his exoneration therein, his transfer to Jullunder, and the unsuccessful attempt of one of his superior officers to have that transfer cancelled, followed by his being asked to stop collecting funds for a Government college. Their Lordships also took into consideration the fact that the Government servant had received a number of certificates of good work from a number of his superior officers including the officer who had objected to his transfer to Jullunder.
16. The learned Assistant Government Pleader drew our attention to State of Bombay v. F.A. Abraham : (1963)IILLJ422SC . In this case also, the Government servant was reverted without any enquiry having been made and without any reasons having been given to him. The contention was that the order must be said to have been passed by way of punishment because no reasons were given for the reversion. This contention was rejected and their Lordships held, on the facts of the case, that the order was one of pure termination of service and was not by way of punishment.
17. A study of the aforesaid cases does reveal that in arriving at the conclusion whether a particular order is or is not by way of punishment, the Court is not confined only to the contents of the order. In order to discover as to what the mind of the Government was at the time when the order of discharge was passed, the Court must consider the totality of the circumstances relevant on the subject which would disclose as to what the true position was. In some cases, the order of punishment may be found to be garbed as an order of termination of service. The order may be couched in such a manner as to give it the appearance of an order of termination of service whereas, in fact, the order may have been made with a view to punish the Government servant concerned. The constitutional guarantee enshrined in Article 311, Clause (2) is a vital guarantee and is intended to afford protection to the class of Government servants from the arbitrary and capricious action of the Government. In order to ensure that the constitutional guarantee does not become illusive and that it serves the noble purpose for which it is enshrined in the Constitution it is essential that all the aspects of each case must be carefully considered to ascertain that the Government, in fact, was acting in the exercise of its contractual right and not for the purpose of punishing the Government servant concerned for misconduct, inefficiency or similar other reasons. Therefore, in our judgment, we must look into the totality of all the circumstances for the purpose of ascertaining whether, in the present case, the services of petitioner were terminated in the exercise of the right of contractual employment or whether the second respondent intended to punish the petitioner so as to visit him with evil consequences. Of course, in considering this question, we must keep in mind the fact that the motive which impels the Government is of no consequence and that the background in which the Government acts and passes the order of the termination of service is of no consequence too. The true test in each case is to find out what the basis of the order of the Government is. In almost all cases relating to probationers, the Government must necessarily make an enquiry to ascertain whether the person is fit to be confirmed or not; and, in making up its mind, the Government, in quite a number of cases, may have to investigate into the conduct or efficiency of its servant. The mere fact that the Government enters upon an enquiry of this kind with a view to decide whether the servant is or is not fit enough to be confirmed does not necessarily mean that the proceedings are started with the intention to punish. If the Government is acting in the same manner as any other employer in similar circumstances will act, i.e. if the Government is out only to protect Us own interest by eliminating the unfit elements that may have entered its service and is only exercising its right as an employer to terminate the services of such unfit persons, it is acting qua its servants within the ambit of its contractual right and is not exercising its power of punishment. In other words, if the Government does not intend to visit its servant with evil consequences by blasting his future prospects but is acting only to secure for itself an efficient and disciplined service, then, the Government is terminating the service simpliciter and the fact that thereby the servant loses his service is a result of the working out of the contract of employment. However, if, the Government steps out of these bounds and takes steps which prevents the servant from coming into any Government service for ever or which stigmatises his future career, then, in spite of the fact that the order is couched in the form of termination of service, it will be struck down as one which violates Clause (2) of Article 311 of the Constitution.
18. Turning now to the facts of the case, we find that petitioner was, before his appointment, a Master Mariner and held from the Ministry of Transport a certificate of competency as Radar Observer. He also held a certificate of competency as Efficient Life Boatman from the Ministry of Transport, United Kingdom. He had twelve years' experience in the operation of ships and allied matters. One Virkar served as a pilot at Bhavnagar since eight years and was holding charge of the Port Officer since four years before petitioner took over. Virkar was drawing Rs. 160/- per month by way of charge allowance in addition to his own pay. This Virkar was also one of the candidates for the post, to which the petitioner and another were ultimately appointed. This Virkar was recommended by the Director of Ports to the Bombay Public Service Commission for being appointed as a Port Officer. However, the Gujarat Public Service Commission selected petitioner and another in preference to Virkar. There is no doubt whatsoever that, after petitioner took over, petitioner made several complaints against Virkar to his superior officer, the Director of Ports. Petitioner did not receive any reply in respect of his complaints and no enquiry was made into those complaints. During the time petitioner was in service, nothing was communicated to him by the Government which would give him even an inkling that any complaints were received against him. The interview given by second respondent smacks of discourtesy to petitioner. Having regard to his qualifications, the decision of the second respondent not to give petitioner any opportunity to make his submission regarding the complaints against him, which undoubtedly second respondent must have received was, to say the least, an unfortunate decision. Having regard to the fact that Virkar had already worked as a Port Officer for four years, there is reason to believe that Virkar must have established a number of contacts with the local people. Having regard to the fact that petitioner himself had made some complaints against Virkar, second respondent would have done well if be had formally investigated into the complaints received against petitioner -- even though such complaints may have apparently emanated from very respectable quarters. In any case, the second respondent should have, at least, apprised petitioner of those complaints and afforded him a chance to explain them before taking a decision to terminate his services. The conduct of the second respondent at the interview appears to have been rude, if not cavalier. The second respondent refused to disclose the reasons which had impelled the Government to terminate the services of petitioner. The period of two hours for reflection was too short a lime for petitioner to reach a decision affecting his career especially when the decision of the Government must have come to him as a bolt from the blue. Mr. Nanavati relies upon these unsavoury circumstances for two purposes. Firstly, he contends that they show that the Government had based its ultimate order of termination of services on the alleged inefficiency and incompetence of petitioner without giving any opportunity to petitioner to show cause. Secondly, he contends that they are indicative of the mala fides, or, at least malice in law, of the Government and the second respondent. We have given our anxious consideration to both these aspects of the matter. Some of these circumstances are unsavoury and leave a bad taste in the mouth. They are bound to cause anxiety to any person dealing with the matter judicially. However, there is the other side of the shield also. The second respondent deposes that many complaints were received against petitioner. There is no reason to believe that the second respondent had any hand in the making of these complaints. The worst view which one can take under the circumstances is that, probably, these complaints could have been engineered by someone interested against petitioner. But, there is no reason to believe that the aforesaid complaints were not, in fact, received by the second respondent. Now, if an employer does receive a number of complaints of a serious nature against his employee, then, it is but natural that he would become anxious about the efficiency and the smoothness of his administration. The second respondent states in his affidavit that the Government came to the conclusion that the lock-gate system which had recently been installed at Bhavnagar was likely to be brought into disrepute; that the shipmen were likely to be frightened away from the Bhavnagar Port, and that serious damage was likely to be caused to the reputation of the Port administration, The second respondent also states that before petitioner was called for interview on the 24th of November 1961. the Government had already taken a decision on the basis of the material which the Government possessed that it was not in the interest of the administration that petitioner should be continued as a Port Officer. Now, an employer is bound to modulate his conduct in the interests of his own work and reputation. If he feels that the complaints received are such and so many in number that the continuance of the existing state of affairs itself may injure 1m interests permanently, he may as well decide to act within the terms of his contract rather than take any further risk involved in making an elaborate inquiry in the duration of which irreparable damage may be done to his work and reputation. No exception can be taken if the Government decides to take an immediate action impelled by such considerations. Now, in our judgment, if the behaviour attributed to the second respondent at the interview is considered in the light of the, decision of the Government, then, a second view is probable, and that is that the interview was arranged primarily for the purpose of giving a chance to he petitioner to resign his post so that he could leave the present employment without any stigma on, his character.
19. Mr. Nanavati contends that in the present case, the Government could not have terminated petitioner's services simpliciter and that, under the terms of the employment, the Government was bound to inquire into the question as to whether the work of the petitioner was satisfactory or not. Therefore, he contends that the very nature of the condition of service of the petitioner was such that the Government was bound to institute an enquiry, as was done in the case of Gopi Kishore Prasad, AIR 1960 SC 689 and that, the Government having withheld or having refused to give a chance to petitioner, it must be held that the respondent was acting mala fides or that the Government, in any case was intending to punish petitioner. We cannot agree with this broad proposition. In every case of a probationer where the aforesaid condition is inserted, it is implied that the employer has a right to review the work already done by the employee in order to enable him to decide whether the employee should or should not be confirmed or continued in service. If the Government receives adverse reports which leads it to conclude that its administration is likely to be seriously affected, the Government may decide not to waste any more time by instituting an enquiry and it may in the exercise of the right of every normal employer proceed to terminate the services of the employee forthwith. However, Mr. Nanavati contends that if the decision is taken behind the back of the employee without instituting any enquiry, the procedure itself is unreasonable and is indicative of the mala fides of the Government. He submits that in any case even if it were not actual mala fides to so proceed, it is malice in law. We cannot agree with this submission of Mr. Nanavati also. The approach of the Government must not be judged from the point of view of an ideal employer. It must be judged from the point of view of a reasonable employer. It is in the context of the behaviour of a reasonable employer -- that conduct of the Government must be decided. In our judgment, having regard to the aforesaid circumstances, there is no reason for us to believe that the Government bore any malice either in fact or in law against the present petitioner. The materials received by the second respondent and disclosed in his affidavit are so many, derived from so many diverse sources and of such serious nature, that a reasonable employer may decide to terminate the services of his employee forthwith and not take the trouble of undertaking any regular enquiry into the merits of the matter. On this aspect of the case, we are not in a position to say that the Government had passed the aforesaid order with the intention of visiting petitioner with any foul consequences or that it had acted mala fides or that it was actuated by malice in law. It may be that Virkar and others may have manoeuvred the whole show and that a detailed enquiry may have unearthed a foul conspiracy against petitioner. In dispensing with the enquiry, it may be that the Government may have committed a serious error of judgment which may have done a serious wrong to an innocent person. It is not for the Court to enquire into this side of the picture. It is for the petitioner to address the Government and to make out a case for review. However in our judgment, having regard to the materials which the Government had at its disposal, if it did take a decision that it must terminate the services of petitioner and that the only step it must take must be to give a chance to petitioner to get out of the service honourably, it cannot be said that the action of the Government was such that a reasonable employer would not have undertaken. In our judgment, therefore, though there are some circumstances present in the case, which are likely to dismay a judicial mind, on the whole, the circumstances are not such that one can say that the aforesaid order was not justified by the terms of employment or that it was passed either with malice or that the Government had garbed the order as one of termination whereas its real intention was to punish petitioner. In our judgment, having regard to the material which the Government had at its disposal, the Government was acting in the interests of the administration itself and as the contract of employment gave the right to the Government to terminate the services, no relief can be granted to petitioner on any basis.
20. The next argument of Mr. Nanavati is that even if the case of petitioner does not fall within the purview of Article 311, Clause (2) of the Constitution, petitioner is entitled to the benefit of Rule 49 of the Classification Rules of 1930 as amended in 1947. Now that rule is reproduced in Appendix I of the Bombay Civil Service Conduct, Discipline and Appeal Rules, (hereafter described as 'the Bombay Rules'). These Bombay Rules were made by the Government of Bombay in 1932 under the power vested in it under Sub-rule (2) of Rule 48 of the Classification Rules of 1930. That sub-rule empowered the local Government in a Governor's Province to make rules only to regulate 'the conduct' of the members off the provincial and some other services which were under the administrative control of that Government. The Classification Rules of 1930 deal not only with the subject of conduct, but also with such other subjects as 'discipline, control and appeals'. When the Government of Bombay made the Bombay Rules, it was empowered to make rules only 'for regulating the conduct of the members of the Provincial services. It was not empowered to make any rules for the discipline, control and appeal of such Government servants. Rule 33 of the Bombay Rules enumerates the penalties which could be inflicted on Government servants. Having regard to the fact that the Bombay Government was not empowered to make rules on that topic in relation to members of the Provincial services, in the proviso to Rule 2, it was specifically provided that Rule 33 applied only to Government servants in the Inferior Services. Thus, the Provincial Service people were excluded from the purview of Rule 33. The subject dealt with by Rule 33 of the Bombay Rules is dealt with by Rule 49 of the Classification Rules of 1930. Rule 33 of the Bombay Rules is almost in the same terms as Rule 49. Rule 49 also mentions various penalties which the Government can inflict upon its servants for good and sufficient reasons. Amongst the penalties are mentioned those of removal and suspension. There are two Explanations attached to Rule 49 and the relevant parts of the two Explanations are as follows:
'Explanation I: The discharge-
(a) of a person appointed on probation during or at the end of the period of probation, on grounds arising out of the specific conditions laid down by the appointing authority, e.g. want of a vacancy, failure to acquire prescribed special qualification or to pass prescribed tests,
does not amount to removal of or dismissal within the meaning of this rule'.
'Explanation II: The discharge of a probationer, whether during or at the end of the period of probation for some specific fault or on account of his unsuitability for the service, amounts to removal or dismissal within the meaning of this rule'.
21. Now, the contention off Mr. Nanayati is that the case of petitioner directly falls within Explanation II aforesaid and that in spite of the fact that the order of discharge has been designated by the Government as one of termination of service, it amounts to an order of removal or dismissal within tie meaning of Explanation II aforesaid. Mr. Nanavati contends that Rule 49 is not merely an administrative rule but that it is a statutory rule. On this basis, Mr. Nanavati submits that two results will follow. The first is that the order of discharge, being one of removal or dismissal within, the meaning of the Explanation II, it will also be removal or dismissal within the meaning of Clause (2) of Article 311 of the Constitution. For this proposition, Mr. Nanavati relies upon a judgment of the Supreme Court, delivered on 18-2-1963, in Ranendra Chander Banerjee v. Union of India, in Civil : 2SCR135 . In that case, the same contention as is raised by Mr. Nanavati was also raised and that contention was based upon the same Explanation II. Their Lordships came to the conclusion that that Explanation did not apply to the facts of that particular case. However, their Lordships made the following observations on which Mr. Nanavati relies:
'Now if this Explanation were in force in 1952 when action was taken against the appellant, his contention that Article 311, Clause (2), applied to him would be correct'.
The second result, according to Mr. Nanavati, will be that, even if this consequence does not follow, Rule 49 being a statutory rule, a breach thereof will entitle the petitioner to a writ of certiorari against the Government, in case the Government is proved to have committed a breach thereof.
22. Now, it wilt be noticed that the validity of 'the aforesaid two submissions of Mr. Nanavati depends entirely upon the validity of his contention that Rule 49, as aforesaid, is a statutory rule, and that the aforesaid two Explanations are parts of such a statutory rule. Therefore, it becomes necessary to trace the history of Rule 49 because the Explanation below Rule 49 appears to have undergone more than one change.
23. In the year 1930, when the Classification Rules of 1930 were first made, there was only one Explanation and it was in the following terms:
'Explanation : The discharge
(a) of a person appointed on probation during the period of probation
does not amount to removal or dismissal within the meaning of this rule'.
This Explanation was first amended in November 1947. The Explanation was marked as Explanation I and Explanation II was added. The two Explanations read as follows:
'Explanation I: The discharge
(a) of a person appointed on probation during or at the end of the period of probation on grounds arising out of the specific conditions laid down by the appointing authority, e.g. want of a vacancy, failure to acquire prescribed special qualifications or to pass prescribed test
does not amount to removal or dismissal within the meaning of the said rule'.
'Explanation II;- The discharge of a probationer whether during or at the end of the period of probation, for some specific fault or on account of his unsuitability for the service amounts to removal or dismissal within the meaning of this rule'.
These two Explanations were in their turn again amended in 1949. In place of the aforesaid two Explanations, only one Explanation was substituted and it was in the following terms:-'Explanation:- The termination of employment
(a) of a person appointed on probation during or at the end of the period of probation in accordance with the terms of appointment and the rules governing the probationary service.
floes not amount to removal or dismissal within the meaning of this rule'.
24. Now, from the above history, it will be noticed that the Explanation as finally amended in 1949 does not contain Explanation II. It will be also noticed that the two Explanations which have been reproduced in Appendix 1 of the Bombay Rules reproduce the Explanations as they were amended in 1947 and that the Appendix does not reproduce the Explanation which was finally substituted in 1949. The amendment of 1947 came into force on 23th March 1948. The amendment of 1949 came into force on 23th February 1950. It will be also noticed that the original Explanation was in force from 1930 to 1947, that the Explanations introduced in 1947 were in force from 1947 to 1950 and the Explanation now in operation came into force from 28th February 1950.
25. Now, the question for consideration is whether the aforesaid two Explanations which came into force on 28th March 1948 and 28th February 1950 have or have no statutory force. Now, Rule 49, as it stood when the Classification Rules of 1930 were first enacted was a part of the Classification Rules of 1930. Those Rules were made by the Secretary of State for India in Council under Section 96-B, Sub-section (2) of the Government of India Act of 1915, as amended by the Government of India Amendment Act of 1919 (hereafter called 1915 Act). They came into force on 27th May 1930. Therefore, there cannot be any doubt that the Classification Rules of 1930 including Rule 49, were statutory rules. Having regard to the fact that Rule 43 related to the discipline of Government servants, there is no doubt that it applied to the members of the Provincial Services. The Act of 1915 was replaced by the Government of India Act of 1935. That Act came into force from 1st April 1937. As is well known, that Act Introduced Provincial Autonomy in India and created what were then Known as Provinces an Central Government. Under Section 276 of 1935 Act, until provision was made under Part X of that Act of 1935, rules made under the Act 1915 relating to the civil services of, or civil posts under, the Crown in India which were In force immediately before the commencement of Part III of Act of 1935 (i.e. 1-4-1937) continued, notwithstanding the repeal of that Act of 1915, in force in so far as they were consistent with the Act of 1935 and were to be deemed to be rules made under the appropriate provisions of the Act of 1935. Therefore, it is not disputed that under Section 276 of 1935 Act, the aforesaid Classification Rules of 1930 continued as statutory rules under Section 241 of 1935 Act. Section 241, Sub-section (2) of 1935 Act provided:
'Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity in India shall, subject to the provisions of this section, be such as may be prescribed-
(b) in the case of persons serving in connection with the affairs of a Province, by rules made by the Governor of the Province or by some person or persons authorised by the Governor to make rules for the purpose'.
Under this section, the rule-making authority was the Governor of Bombay or his delegated agent. Therefore, it is quite clear that, after 1st April 1937, the power to amend the statutory roles which were continued under the Act of 1935 became vested in the Governor of Bombay in so far as the Classification Rules of 1930 became applicable to the affairs of the Province of Bombay. This position is not disputed by any side and that positiion appears to upto be established on the materials placed at our disposal. The question for consideration, however, Is whether the amendment made on 28th of March 1943 In the Explanatian to Rule 49 which introduced Explanations I and II and which amendment is now reproduced as Explanations I and II in the Appendix I of the Bombay Rules was made by which authority and whether that amendment was applicable to the members of the Provincial services and whether it had the status of a statutory rule. Now, on this particular subject, in our judgment, the record of this case doss not throw any light whatsoever. In the first Instance, petitioner did not state in his petition that Rule 49 in Appendix I including the two Explanations had the force of a statutory rule. In his petition, petitioner has described that rule as a mere service rule. Respondents did not dispute that proposition. However, in view of the fact that there was no direct averment in the petition that Rule 49 was a statutory rule, there was no occasion for respondents to deny that fact. The question as to whether this has or has not the status of statutory rule came into prominence for the first time in the course of the arguments. It assumed a great deal of importance only when Mr. Nanavati tried to rely upon Rule 55-B which was introduced for the first time on 23th of February 1950. It was in the course of the examination of the question as to whether Rule 55-B had or had not the status of a statutory rule, that the question about the aforesaid two Explanations having a similar status assumed prominence. We adjourned the case to enable the parties to enlighten us, if they could, as to which was the authority which had amended and introduced the two Explanations as reproduced in Appendix I of the Bombay Rules. Now, as already stated, thare is no doubt whatsoever that thosa Explanations were introduced by the Central Government. That is the position which is not disputed. But, any amendment introduced by the Central Government after 1935 Act would have no statutory force in regard to Provincial Service in the Province of Bombay. This would be so on the ground that, under Section 241(2)(b) of the 1935 Act, the only authority, which had the power of making rules, and consequently of amending the existing rules, would be the Governor of Bombay. Therefore, unless and until petitioner satisfies us that the aforesaid two Explanations were introduced by the Governor of Bombay or any of his delegated agents, the question as to whether those two Explanations have a statutory force cannot be decided in favour of petitioner. The learned Assistant Government Pleader says that he made all the enquiries which he could, on the subject, but his enquiry has not yielded any fruitful result. Mr. Nanavati also stated to us that he was unable to throw any further light on the subject. In our judgment, it will not be proper to proceed on the assumption that the Explanations aforesaid had any statutory force simply because the Explanations came to be introduced in Appendix I aforesaid. The Explanations would have statutory force only if they were amended by the authority mentioned in Section 241(2)(b) of the 1935 Act. Under the circumstances, In our Judgment, whilst the record does not leave any doubt that the original Explanation as it existed in the Classification Rules of 1930 had the status of a statutory rule, there is no evidence before us which would justify us to hold that the Explanations I and II introduced on 28th March 1948 had such a statutory force. In that view of the matter, it is not possible for us to decide the point raised by Mr. Nanavati on the basis that the breach of a statutory rule was committed. We may mention that it is common ground that if the two Explanations had statutory force, then, by virtue of the provision contained in Art. 313 of the Constitution of India, the same would have statutory force and the rights of the parties would be governed on that particular basis. But, having regard to our finding that the materials do not disclose that the Explanations aforesaid had any such force, it is not necessary for us to consider the aforesaid two submissions raised by Mr. Nanavati, viz. whether the present case falls within the purview of Explanation II, or whether it falls within the purview of Explanation I, and, if it does fall within the purview of Explanation II, whether the present case would; fall within the purview of Clause (2) of Article 311 of the Constitution by reason of the fact that the termination of the services of petitioner would amount to removal, or whether, even if it does not fall within the purview of Clause (2) as aforesaid, the Government had committed breach or any statutory rule by reason of the fact that it terminated the services of petitioner in the circumstances mentioned in Explanation II aforesaid.
26. Mr. Nanavati, alternatively, contends that, even-though there may be no evidence to show the authority which had amended the two Explanations on 28th March 1948, any amendment introduced by the Central Government even after 1935 Act was enacted, would automatically apply to the members of the Provincial services. We cannot agree with this submission. We cannot do so because, alter the Act of 1935, the only authority which had power to make rules governing the members of the Provincial services was the Governor or his delegate. It is true that the power to amend the Classification Rules of 1930 originally vested wit the Secretary of State for India in Council and that power would devolve after the 1935 Act upon the same authority. Even assuming that the submission of Mr. Nanavati is right that that authority is the Central Government, in our judgment, the Central Government would not have thereby the authority to make any rules or to amend the existing rules in so far as they relate to the members of the Provincial services, either under the rules or under some other law. The Central Government would not retain such authority because the retention of such authority would be inconsistent with the provisions of Section 241, Sub-section (2), Clause (b) aforesaid.
27. Therefore, in our judgment, petitioner has failed to substantiate that there was breach of any statutory rule which would give him a cause of action against the Government.
28. It is not necessary for us to discuss over again the third point of Mr. Nanavati, viz. that the order was made mala fides and that, in any case, it was made in such circumstances which amounted to malice in law. We have discussed this part of his submission whilst (discussing the question about the circumstances in which the question as to whether, in fact, the order of termination of service was or was not the order of punishment. Our reasons for reaching an adverse conclusion on this topic are the same which we have given while discussing the question whether the impugned order was or was not an order of punishment.
29. For the aforesaid reasons, the petition must fail and it must he dismissed. Rule discharged. No order as to costs.