Union Territory of Tripura, Agartala Vs.
Gopal Chander Dutta Choudhury  INSC 262 (25 September 1962)
25/09/1962 SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
GUPTA, K.C. DAS
CITATION: 1963 AIR 601 1962 SCR Supl. (1) 266
CITATOR INFO :
RF 1964 SC 600 (139) R 1964 SC 719 (9)
employment-Termination of serviceAppeal dismissed-An ex-convict for
theft-Whether termination amounted to dismissal--Scope of enquiry-If same as in
Industrial Dispute-Central Services Temporary services Rule, 1949,
r.5-Constitution of India, Art. 311.
The respondent was appointed as a constable
in the Tripura Police Force. The employment was temporary. In accordance with
r. 5 of the Central Services (Temporary Service) Rules, 1949, his services were
terminated by giving one month's notice. The respondent appealed. The Appellate
Authority wrote to him that as he was an ex-convict for theft nothing could be
done for him. The respondent filed a writ petition challenging the order of
termination. The Judicial Commissioner held that the order was one of dismissal
as punishment on the ground that the respondent was an "exconvict"
and that as no reasonable opportunity was given to the respondent to show
cause, the protection of Art. 311 were not afforded to him and the order
terminating the respondentís employment was invalid.
Held, that the respondent had not been dismissing
by way of punishment and there was no violation of Art. 311(2). The order in
terms merely terminated the service of the respondent; there was nothing in it
to suggest that the termination was on account of the respondent being an
"exconvict". It could not be in the circumstances of this case
inferred that an order of 267 dismissal was camouflaged as an order of
termination. It cannot be assumed that an order ex-facie one of termination was
intended to be one of dismissal. The onus to prove such intention lies upon the
Purshotam Lal Dhingra v. Union of India,
 S.C.R. 828 and Satish Chander Anand v, Union of India,  S.C.R.
655, referred to.
Held, further, that, a court considering the
validity of an order of termination or dismissal of a public servant is not
required to investigate into the matter in the same way as an Industrial
Tribunal is when considering an application under s. 33 of the Industrial
Disputes Act, 1947. The Court has merely to see whether the protection
prescribed by Art.
311 and the rules made under Art. 309 has
been denied to the public servant. There is no similarity between an enquiry
under s. 33 of the Industrial Disputes Act and an enquiry by the court when 'an
order of dismissal of a public servant is challenged.
Chartered Bank, Bombay v. Chartered Bank Employees
Union,  3 S.C.R. 441, The Management of Chandramalai Estate, Ernakulam v.
Its Workmen,  3 S.C.R. 451 and Punjab National Bank Ltd. v. Its Workmen,
 1 S.C.R. 806, referred to
CIVIL APPELLATE JURISDICTION Civil Appeal No.
581 of 1961.
Appeal from the judgment and order dated
January 15, 1960, of the judicial Commissioner's court, Tripura at Agartala in
Civil Misc. (Writ Petition) No. 4 of 1959.
R.Ganapathy Iyer and P. D. Menon, for the
D. P. Singh, for the respondent.
1962. September 25. The judgment of the Court
was delivered by SHAH,J.-This is an appeal with a certificate granted by the
judicial Commissioner of Tripura under Art. 132(1) of the Constitution.
Gopal Chander Dutta Choudhury-hereinafter
referred to as the respondent'-was appointed 268 a constable in the Police
Force of Tripura by the Superintendent of Police, Agartala by order dated April
18, 1954. The employment was temporary and was liable to be terminated with one
month's notice. On December 6, 1957, the Superintendent of Police, acting under
r. 5 of the Central Services (Temporary Service) Rules, 1949, informed the
respondent that his services "'will be terminated with effect from 6-1-58
A. M." The respondent presented an appeal to the Chief Commissioner
against the order of termination.
By letter dated April 11, 1958 the respondent
was informed that as he was "an Exconvict for theft, nothing can be done
for him". In reply to another application addressed to the Chief
Commissioner the respondent was informed by letter dated May 26, 1958, that he
was already informed in connection with his previous appeal that as he was
"'an Exconvict in a case of theft" he "cannot be reemployed by
the Administration." The respondent then filed in the Court of the
Judicial Commissioner, Tripura, a petition for a writ under Art. 226 of the
Constitution praying for a writ declaring that the order of the Superintendent
of Police terminating his service was "illegal" and for a writ of
mandamus or a writ of certiorari directing the Chief Commissioner not to
enforce the said order and for an order reinstating him in the Police Force of
the Tripura Administration with retrospective effect. The Tripura
Administration submitted in rejoinder that the respondent being a temporary
employee of the Police Force, his services were lawfully terminated under r. 5
of the Central Civil Services (Temporary Service) Rules, 1949. The Judicial
Commissioner of Tripura held that the respondent was a temporary employee, but
the order terminating the respondent's employment was invalid for it infringed
the constitutional guarantee of protection of public servants under Art. 311
which applied to temporary as well as permanent public 269 servants. In the
view of the judicial Commissioner, termination of employment of a temporary
servant governed by the Central Civil Services (Temporary Service) Rules, 1949,
will not per se be treated as a punishment of dismissal or removal, but it is
open to the Court even if an order merely of termination of employment of a
temporary employee is passed to ascertain whether the order was intended to be
of termination simpliciter or of dismissal entailing penal consequences, and
that the order dated April 11, 1958, of the Chief Commissioner passed in appeal
clearly indicated that the order of the Superintendent of Police was one
imposing penalty. He observed "this reply (dated April 11, 1958) will
clearly indicate that though the Superintendent of Police purported to
terminate his service under the Central Civil Services (Temporary Service)
Rules, he meant to dismiss the petitioner from am service as a punishment on
the ground that he was an ex-convict and that it was intended that he should
not be reappointed in future in any department of the Government. Thus it
cannot be gainsaid that the termination was in fact a punishment for previous
misconduct debarring the petitioner from being, employed even in the future,
and that in passing the innocuous order (dated December 6, 1957Annexure D), the
Superintendent was really camouflaging his real intention. The real intention
came to light, perhaps as the result of an oversight in communicating the
orders in appeal to the petitioner".
We are unable to agree with the judicial
Commissioner that the termination of employment of the respondent by the
Superintendent of Police by order dated December 6, 1957, was in violation of.
Art. 311(2) of the Constitution. It is true that before the respondent was
discharged from service no enquiry was made as to any alleged misconduct, nor
was he given any opportunity of showing cause against the proposed termination
of employment. But it is well settled that when employment of a temporary
public 270 servant, is terminated pursuant to the terms of a contract, he is
not entitled to the protection of Art. 311(2). As observed in Parshotam Lal
Dhingra v. The Union of India (1) by Das, C. J., "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 (2). x x x x x x the termination of the service did not carry with it the
penal consequences of loss of pay, or allowances under r. 52 of the Fundamental
Rules". But the State may instead of exercising its contractual right seek
to terminate the employment even of a temporary employee for misconduct,
negligence, inefficiency or any other disqualification, and when an order of
termination of employment is passed for that purpose it would amount to
dismissal or removal attracting the protection of Art. 311 of the Constitution.
The form in which the order is couched is not always decisive. In Parshotam Lal
Dhingra's case (1), it was observed (at p.
863) 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 herein before referred to ? If
the case satisfies either of the two tests then it must be held that the
servant has been punished and the termination of his service must be taken as a
dismissal or removal from service or the reversion to his substantive rank must
be regarded as a reduction in rank and if the requirements of the rules and
Art. 311, which give protection to Government servant have not been complied
with, the termination of the service or the reduction in rank must be held to
be wrongful and in violation of the constitutional right of the servant".
The question which falls to be determined is,
whether the Superintendent of Police by order dated  S. C. R. 828, 8bl.
(2) (1953) S. C. R. 655 , 271 December 6.
1957, passed an order in truth one of dismissal for misconduct, negligence,
inefficiency or like cause or he enforced the contractual right of the State to
terminate the employment of the respondent who was a temporary employee.
The order in terms merely terminates the
service of the respondent : it was not preceded by any enquiry for ascertaining
whether the respondent was guilty of any misdemeanor, misconduct, negligence,
inefficiency or a similar cause. In the order on appeal filed to the Chief
Commissioner it is recited that the respondent was "an reconvict for theft
and therefore nothing could be done for" him, but the purport thereof is
somewhat obscure. The memorandum of appeal filed before the Chief Commissioner
was not tendered in evidence, and there is nothing in the order suggesting that
the employment of the respondent was terminated because he had, before he was
employed on April 18, 1954, been convicted by a Criminal Court for theft. It
appears from the order of the Chief Commissioner dated May 26, 1958, that the
respondent had applied for reemployment in the Police Force and the Chief
Commissioner was of the opinion that because the respondent was "an
excoriation in a case of theft" die could not be reemployed. There is no
ground for inferring that the Superintendent of Police was seeking to
camouflage an order of dismissal by giving it the form of termination of
employment in exercise of the authority under rule 5 of the Central Civil
Services (Temporary Service) Rules. It cannot be, assumed that an order ex
facie one of termination of employment of a temporary employee was intended to
be one of dismissal. The onus to prove that such was the intention of the
authority terminating the employment must lie upon the employee concerned : but
about the intention of the Superintendent of Police there is no evidence except
the order of that authority.
Counsel for the respondent urged that as in
an application made under s. 33 of the Industrial 272 Disputes Act for
permission of an Industrial Tribunal to discharge workmen pending adjudication
the dispute in which the employer or the workmen:' are concerned, the Tribunal
is bound to enter upon a full investigation and ascertain whether the employer
had acted mala fide or that the order of discharge amounted to an unfair labour
practice or that it was a case of victimisation, the Court in making an enquiry
where the order of termination of employment of a temporary public servant was
merely one in enforcement of a contractual right or An' attempt to dismiss an
employee because of misconduct..-' negligence or inefficiency, is also obliged
to enter, upon a critical investigation of the reasons which induced the
authority to make the impugned order.' Counsel invited our attention to the
decision of this' Court in The Chartered Bank, Bombay v. The Chartered Bank
Employees' Union (1) and The Management of Chandramalai Estate, Ernakulam v.
Its Workmen(2) and submitted that the considerations which were material in
deciding an application under s. 33 of' the Industrial Disputes Act were also
relevant in adjuring the true nature of the order terminating employment of a
public servant. In considering an application under s. 33 of the Industrial
Disputes Act the Tribunal has, it is true, "to go into all the
circumstances which led to the termination simpliciter and the employer cannot
be permitted to say, that he is not bound to disclose the circumstances' before
The form of the order is not conclusive of
the true nature of the order: for it is possible that the form may be merely a
camouflage for an order of dismissal for misconduct. It is therefore always
open to the tribunal to go behind the form and look at the substance; and if it
comes to the conclusion, for example, that though in form the order amounts to
termination simpliciter it in reality cloaks a dismissal for misconduct it will
be open to it to set it aside as a colorable exercise of the power". But
in our view the principle of these' (1)  3 C. S. R, 441.
(2)  3 S. C. R. 451.
273 cases under the Industrial Disputes Act
dealing With termination of employment of workmen and the authority of the
Tribunal to grant permission to terminate such employment evolved in the
context of maintenance of industrial peace, has no relevance in deciding
whether the grieved public servant was by the impugned order denied the
protection of the constitutional guarantee. A public servant holds a civil
office during the pleasure of the President or the Governor of the State according
as he holds office under the Union or the State. But to protect public servants
a dual restriction is placed upon the exercise of the power to terminate
employment. A public servant cannot be dismissed or removed by an authority
subordinate to that by which he was appointed and that he cannot be dismissed
or removed or reduced in rank until he has been given a reasonable opportunity
of showing cause against the action proposed to be taken in regard to him.
These protections undoubtedly apply to temporary public servants as well as to
public servants holding permanent employment. But the State is not prohibited
by the Constitution from reserving a right by the terms of employment to
terminate the services of a public servant, and if in the bona fide enforcement
of that right the employment is terminated the protection of Art.
311 of the Constitution will not avail him,
because such a termination does not amount to dismissal or removal from
service. In The Punjab National Bank Ltd. v. Its Workmen (1), this Court
pointed out that there was a substantial difference between the consequences of
non-compliance with s. 33 of the Industrial Disputes Act and Art. 311 (2) of
the Constitution. Compliance with s. 33 only avoids a penalty under s. 31 (1)
while compliance with Art. 311 (2) makes the order of dismissal final. In a
proceeding under s. 33 of the Industrial Disputes Act the Tribunal is concerned
only to make a limited enquiry whether the proposal to terminate the employment
of a workman was (1)  1 S. C. R. 806.
274 prima facie, bona fide or whether the
employer was guilty of victimisation or any unfair labour practice. The
Tribunal has merely "to consider the prima facie aspect of the matter.,
and either grant it or refuse it according as it holds that prima facie case is
or is not made out by the employer. x x x x x The effect of the permission
given by the Tribunal is only to remove the ban imposed by s. 33 of the Industrial
Disputes Act. The Tribunal can neither validate a dismissal nor prevent it from
being challenged in an industrial dispute; in such a dispute when raised the
employer may justify his action only on such grounds as were specified in the
original charge sheet and no others".
Before terminating the employment of a public
servant sanction of the Court is not necessary. The order of termination of
employment operates proprietors and is not made justifiable. The validity of
such an order may be challenged only on the ground that the constitutional
protection prescribed by Art. 311 and the rules made under Art. 309 was denied
to the public servant concerned. There is no similarity between the enquiry
made under s. 33 of the Industrial Disputes Act and an enquiry made by the
Court where the order of dismissal of a public servant is impugned. The Court
in dealing with the case of a public servant only adjudicates upon the validity
of the act of the authority concerned : the Court is not called upon to
sanction a proposed dismissal. The enquiry to be made by the Court is
restricted to the observance of the rules prescribed by the Constitution. It
would, therefore, be impossible to assimilate the content of an enquiry
contemplated to be made under s. 33 of the Industrial Disputes Act before
granting permission to terminate employment of a workman into the enquiry to be
made by the Civil Court, when the public servant claims that he is denied the
protection under Art. 311 or that his employment has been terminated in
violation of rules framed under Art.
309 of the Constitution.
275 The appeal must therefore be allowed and
the petition filed by the respondent dismissed. There will be no order as to