The State of Orissa & ANR Vs. Ram
Narayan Das  INSC 146 (8 September 1960)
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 177 1961 SCR (1) 606
CITATOR INFO :
RF 1962 SC 794 (8) E 1963 SC 531 (6,8) RF
1963 SC1552 (5) R 1964 SC 449 (17) RF 1964 SC 600 (13,138) R 1964 SC1854 (18) R
1968 SC1089 (10,11,13,17) R 1974 SC 423 (14) F 1974 SC2192 (65,158) RF 1976
SC1766 (6,12) RF 1976 SC2547 (11,14,21) D 1978 SC 363 (11) RF 1987 SC2135 (1) R
1987 SC2408 (10)
Sub-Inspector-Discharge from service for unsatisfactory work and conduct-If
amounts to dismissal-constitution of India, Art. 311(2).
The respondent was appointed a Sub-Inspector
on probation in the Orissa Police Force. A notice was served on him to show
cause why he should not be discharged from service " for gross neglect of
duties and unsatisfactory work ". He submitted his explanation and asked
for opportunity to cross-examine certain witnesses. The Deputy InspectorGeneral
of Police considered the explanation unsatisfactory and passed an order
discharging the respondent from service " for unsatisfactory work and
conduct ". The respondent contended that the order was invalid on two grounds:
(i) that he was not given a reasonable opportunity to show cause against the
proposed action within the meaning of Art.
311(2), and (ii) that he was not afforded an
opportunity to be heard nor was any evidence taken on the charges.
Held, that the order of discharge did not
amount to dismissal and did not attract the protection of Art. 311(2) of the
Constitution and was a valid order. The services of the respondent,' who was a
probationer, were terminated in accordance with the rules and not by way of
punishment. He had no right to the post held by him and under the terms of his
appointment he was liable to be discharged at any time during the period of his
probation. The notice given to the respondent was under Rule 55-B of the Civil
Services (Classification, Control and Appeal) Rules which made it obligatory to
give such notice before terminating the services of a probationer. The enquiry
was merely for ascertaining whether he was fit to be confirmed.
Shyam Lal v. The State of U. P.,  1 S.C.R.
26 and Purshottam Lal Dhingra v. Union of India,  S.C.R. 828, referred
State of Bihar v. Gopi Kishore Prasad, A.I.R.
1960 S.C. 689, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Appeal by special leave from the judgment and
order dated December 4, 1957, of the Orissa High Court in O.J.C. No. 449 of
607 C. K. Daphtary, Solicitor-General of
India, D. N. Mukherjee and T. M. Sen, for the appellants.
The respondent did not appear.
1960. September 8. The Judgment of the Court
was delivered by SHAH J.-The respondent was appointed in the year 1950 a Sub
Inspector on probation in the Orissa Police force. In view of the adverse
reports received against him on July 28, 1954, notice was served on the
respondent calling upon him to show cause why he should not be discharged from
service " for gross neglect of duties and unsatisfactory work ". In
the notice, ten specific instances of neglect of duty and two instances of
misconduct-acceptance of illegal gratification and fabrication of official
record were set out.
By his explanation, the respondent submitted
that action had already been taken against him by the Superintendent of Police
in respect of instances of neglect of duty set out in the notice and no further
action in respect thereof could on that account be taken against him, because
to do so would amount to imposing double punishment. He denied the charge
relating to misconduct and submitted that it was based on the uncorroborated
statements of witnesses who were inimical to him. He also asked for an
opportunity to cross-examine those witnesses. The Deputy Inspector General of
Police considered the explanation and observed:
"I have carefully gone through the
representation of the probationary S. I. His argument that he has already been
punished by the S. P. for specific instances of bad' work does not help him
very much since all these instances of bad work during the period of probation
have to be taken together in considering his merits for confirmation or otherwise.
The S. 1. has already had long enough of chance to work under different S. Ps.
though in one District, but he has not been able to procure a good chit from
anyone. He has also been adversely reported against after the representation
dealt with therein was submitted. It 78 608 is, therefore, no good retaining
him further in service. He is discharged from the date on which this order is
served on him ".
The Deputy Inspector General of Police on
December 11, 1954, in discharging the respondent from service, passed a formal
order as follows:
" Probationary S. I. Ramnarayan Das of
Cuttack District is discharged from service for unsatisfactory work and conduct
with effect from the date the order is served on him ".
The respondent then presented a petition
under Art. 226 of the Constitution in the High Court of Judicature, Orissa,
challenging the validity of the order passed and praying for the issue of a
writ in the nature of certiorari or any other writ quashing the order of
discharge. Inter alia, the respondent urged, (1) that the order of discharge
was invalid since he was not given a reasonable opportunity to show cause
against the action proposed to be taken in regard to him within the meaning of
Art. 311(2) of the Constitution, (2) that the order of discharge was invalid
since he was not afforded an opportunity to be heard nor was any evidence taken
on the charges framed.
The High Court by order dated December 4,
1957, set aside the order of discharge. In the view of the High Court, the
Deputy Inspector General of Police had taken into consideration allegations of
corruption in passing the impugned order and also that he had refused to give
to the respondent an opportunity to cross-examine witnesses on whose statements
the charge of misconduct was made. The High Court observed that by discharging
the respondent from service without holding an enquiry as contemplated by r. 55
of the Civil Services (Classification, Control and Appeal) Rules and without
complying with the requirements of Art.
311(2) of the Constitution, an "
indelible stigma affecting his future career " had been cast. Against the
order issuing the writ quashing the order discharging the respondent from
service, this appeal has been preferred by special leave.
The respondent was undoubtedly at the time
when proceedings were started against him and when he 609 was discharged from
service, a probationer, and had no right to the post held by him. Under the
terms of his appointment the respondent was liable to be( discharged at any
time during tile period of his probation. By r. 668 of the Police Manual of the
Orissa State, in so far as it is material, it is provided :
" All officers shall in the first
instance be appointed or promoted on probation. Where the period of probation
is not otherwise provided for in the Rules, it shall be for a period of two
years in the case of executive officers......
The authority empowered to make such
appointment or promotion may at any time during such probation period and
without the formalities laid down in Rule 820 remove an executive officer
directly appointed or revert such an officer promoted who has not fulfilled the
conditions of his appointment or who has shown himself unfitted for such
appointment or promotion ".
Rule 681 of the Police Manual by cl. (b) in
so far as it is material provides, " Those promoted from the rank of
Assistant Sub-Inspector shall be confirmed (Rule 659(e)) and those appointed
direct shall be on probation for a period of two years. At the end of that
period, those pronounced competent and fit will be confirmed by the Deputy
Inspector-General. The others will be discharged by the same authority ".
Rule 55-B of the Civil Services
(Classification, Control and Appeal) Rules, in so far as it is material
" Where it is proposed to terminate the
employment of a probationer, whether during or at the end of the period of
probation, for any specific fault or on account of his unsuitability for the
service, the probationer shall be apprised of the grounds of such proposal and
given an opportunity to show cause against it, before orders are passed by the
authority competent to terminate the employment".
Notice to show cause whether the employment
of the respondent should be terminated was, by r. 55-B made obligatory. The
Deputy Inspector General of Police who had appointed the respondent apprised
610 him by notice of the grounds on which the order of discharge was proposed
to be made and required him ,,to show cause why action as proposed should not
be taken. The notice consisted of two parts, (1) relating ;to ten heads of
" gross neglect of duty and unsatisfactory work " and (2) "
suspicious and un police man-like conduct " in which specific instances of
fabrication of public records and acceptance of illegal gratification were set
out. The Deputy Inspector General of Police by his order which ha;
been set out hereinbefore, expressly observed
that he had, in considering the case of the respondent for confirmation, to
take into account the reports received by him. The formal order communicated to
the respondent also stated that the respondent was discharged from service for
unsatisfactory work and conduct. The reasons given in the order clearly
indicate that the notice served upon the respondent was under r. 55-B of the
Civil Services (Classification, Control and Appeal) Rules for ascertaining
whether he should be confirmed or his employment terminated.
Prima facie, the order is one terminating
employment of the respondent as a probationer, and it is not an order
dismissing him from service. The High Court has however held that the order of
discharge amounted to imposing punishment, because the respondent had been
" visited with evil consequences leaving an ineligible stigma on him
affecting his future career ".
The respondent has not appeared before us to
support the judgment of the High Court, but the learned Solicitor General who
appeared in support of the appeal has very fairly invited our attention to all
the materials on the record and the relevant authorities which have a bearing
on the case of the respondent.
In Shyam Lal v. The State of Uttar Pradesh
and the Union of India (1), it was held that compulsory retirement under the
Civil Services (Classification, Control and Appeal) Rules of an officer did not
amount to dismissal or removal within the meaning of Art. 311 of the
Constitution. In that case, the public servant (1)  1 S.C.R. 26.
611 concerned was served with a notice to
show cause in respect of three specific items of misdemeanor as a public
servant to which he submitted his explanation. Thereafter, the President, after
considering the case and the recommendation of the commission appointed to
investigate the case, decided that the public servant should be retired
forthwith from service ". This order was challenged by a petition under
226 of the Constitution filed in the High Court at Allahabad.
In an appeal against the order dismissing the
petition, this court held that the order compulsorily retiring the public
servant involved " no element of charge or imputation " and did not
amount to dismissal or removal within the meaning of Art. 311(2) of the
Constitution and the order of the President was not liable to be challenged on
the ground that the public servant had not been afforded full opportunity to
show cause against the action proposed to be taken in regard to him.
In Parshottam Lal Dhingra v. Union of India
(1) this court by a majority held that if an officer holding an officiating
post had no right under the rules governing his service to continue in it, and
such appointment under the general law being terminable at any time on
reasonable notice, the reversion of the public servant to his substantive post
did not operate as a forfeiture of any right: that order " visited him
with no evil consequences " and could not be regarded as a reduction in
rank by way of punishment. Bose, J., who disagreed with the majority observed
that the real test was whether evil consequences over and above those that
ensued from a contractual termination, were likely to ensue as a consequence of
the impugned order: if they were, Art.
311 of the Constitution would be attracted
even though such evil consequences were not prescribed as penalties under the
Rules. In that case, Das; C. J., in delivering the judgment of the majority,
entered upon an exhaustive review of the law applicable to the termination of
employment of public servants and at pp. 861.863 summarised it as follows:
(1)  S.C.R. 828.
612 " 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.
The Union of India (1).
Like-wise 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. The State of Uttar
Pradesh (2)....... 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 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 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. 31 1, 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....... 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 (1)
 S.C.R. 655.
(2)  1 S.C.R. 26.
613 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....... The use of the expression, " terminate " or
" discharge " is not conclusive. In spite of the use of such
innocuous expressions, the court has to apply the two tests mentioned above,
namely, (1) Whether the servant had a right to the post or the rank or (2)
Whether he has been visited with evil consequences of the kind hereinbefore
referred to ? If the case satisfies either of the two tests then it must be
held that the servant has been punished and the termination of his service must
be taken as a dismissal or removal from service.........." The respondent
had no right to the post held by him. Under the terms of his employment, the
respondent could be discharged in the manner provided by r. 55-B. Again mere
termination of employment does not carry with it " any evil consequences
" such as forfeiture of his pay or allowances, loss of his seniority,
stoppage or postponement of his future chances of promotion etc. It is then
difficult to appreciate what " indelible stigma affecting the future
career " of the respondent was cast on him by the order discharging him
from employment for unsatisfactory work and conduct. The use of the expression
" discharge " in the order terminating employment of a public servant
is not decisive : it may, in certain cases amount to dismissal. If a confirmed
public servant holding a substantive post is discharged, the order would amount
to dismissal or removal from service; but an order discharging a temporary
public servant may or may not amount to dismissal. Whether it 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
Where under the rules governing a public
servant holding a post on probation, an order terminating the probation is to
be preceded by a notice to show cause 614 why his service should not be
terminated, and a notice is issued asking the public servant to show cause
whether probation should be continued or the officer should be discharged from
service the order discharging him cannot be said to amount to dismissal
Undoubtedly, the Government may hold a formal
enquiry against a probationer on charges of misconduct with a view to dismiss
him from service, and if an order terminating his employment is made in such an
enquiry, without giving him reasonable opportunity to show cause against the
action proposed to be taken against him within the meaning of Art.
311(2) of the Constitution, the order would
undoubtedly be invalid.
The Solicitor General invited our attention
to a recent judgment of this court, State of Bihar v. Gopi Kishore Prasad (1)in
which, delivering the judgment of the court, the learned Chief Justice
extracted five propositions from the authorities and particularly from
Parshottam Lal Dhingra's case (2), dealing with the termination of employment
of temporary servants and probationers. The third proposition set out in the
judgment is as follows:
" But 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 ".
This proposition, in our judgment, does not
derogate from the principle of the other cases relating to termination of
employment of probationers decided by this court nor is it inconsistent with
what we have observed earlier. The enquiry against the respondent was for
ascertaining whether he was fit to be' confirmed. An order discharging a public
servant, even if a probationer, in an enquiry on charges of misconduct,
negligence, inefficiency or other disqualification, may (1) A.I.R.  S. C.
(2)  S.C.R. 828.
615 appropriately be regarded as one by way
of punishment, but an order discharging a probationer following upon an enquiry
to ascertain whether he should be 0 confirmed, is not of that nature. In Gopi
Kishore Prasad's case (1), the public servant was discharged from service consequent
upon an enquiry into alleged misconduct, the Enquiry Officer having found that
the public servant was " unsuitable " for the post. The order was not
one merely discharging a probationer following upon an enquiry to ascertain
whether he should be continued in service, but it was an order as observed by
the court " clearly by way of punishment ".
There is in our judgment no real
inconsistency between the observations made in parshottam. Lal Dhingra's case
(2) and Gopi Kishore Prasad's case (1). The third proposition in the latter
case refers to an enquiry into allegations of misconduct or inefficiency with a
view, if they were found established, to imposing punishment and not to an
enquiry whether a probationer should be confirmed. Therefore the fact of the
holding of an enquiry is not decisive of the question. What is decisive is
whether the order is by way of punishment, in the light of the tests laid down
in Parshottam Lal Dhingra's case (2).
We have carefully considered the evidence and
the authorities to which our attention has been invited and we are definitely
of opinion that the High Court was in error in holding that the order
discharging the respondent from service amounted to dismissal which attracted
the protection of Art. 311(2) of the Constitution.
In that view of the case, this appeal will be
allowed and the petition for a writ dismissed. There will be no order as to
(1) A.I.R. 1960 S.C. 689.
(2)  S.C.R. 828.