State of U.P. Vs. Ram Chandra Trivedi
[1976] INSC 207 (1 September 1976)
SINGH, JASWANT SINGH, JASWANT KHANNA, HANS
RAJ SARKARIA, RANJIT SINGH
CITATION: 1976 AIR 2547 1977 SCR (1) 462 1976
SCC (4) 52
CITATOR INFO :
RF 1979 SC 429 (11) R 1979 SC 684 (7) F 1980
SC 42 (12,19) RF 1980 SC1242 (11) R 1984 SC 636 (11) R 1987 SC1531 (46) R 1987
SC2408 (9) F 1989 SC1335 (33)
ACT:
Practice--Duty of High Court when there is
conflict between decisions of the Supreme Court--Upsetting concurrent findings
of fact in second appeal-Propriety.
Constitution of India, 1950 Art.
311--Termination of services of temporary servant--Protection of article when
applicable.
HEADNOTE:
The respondent was appointed as a temporary
clerk in an engineering division of the Government. The attempt of another
clerk to impersonate and appear for him in a departmental examination was
detected. The Executive Engineer obtained explanations from both the clerks and
reported the matter to the Superintending Engineer, who brought the matter to
the notice of the Chief Engineer. The Chief Engineer wrote to the
Superintending Engineer to award suitable punishment. The Superintending
Engineer passed the order that the respondent a "temporary clerk is hereby
served with one month's notice to the effect that his services shall not be
required after one month from the date of receipt of this notice." The
respondent filed a suit challenging the order on the ground that the
termination was one passed by way of punishment and therefore attracted Art 311
of the constitution;. and since the provisions of the Article had not been
complied had not been complied with the order was void. The Trial Court and the
First Appellate Court dismissed the suit. But the High Court went through the
official correspondence preceding the passing of the impugned order, and
observing that a close scrutiny of the facts on record showed that the order
was passed by way of punishment on the basis of the enquiry proceeding and as a
result of the recommendation by the Executive Engineer followed by the
direction issued by Chief Engineer, allowed the second appeal.
Allowing the appeal to this Court,
HELD :(1) It is no longer open to anyone to
urge that the constitutional position in regard to cases of the present nature
is not clear. An examination of the decisions of this Court shows that there is
no real conflict in their ratio decidendi. Even if there is a conflict, the
proper course for a High Court is to find out and follow the opinion expressed
by larger benches of this Court in preference to those expressed by smaller
benches of this Court. This practice is followed by those Court itself and has
hardened into a rule of law. [475B-C] Union of India & Anr. v.K.S.
Subramanian, [1977] 1 S.C.R. 87, followed.
State of U.P. & Ors v. Sughar Singh
[1974] 2 .S.C.R.
335: (1974) 1 S.C.C. 218, The State of Punjab
v.P.S. Cheema A.I.R. 1975 S.C. 1096, Satish Chandra Anand v. The Union of India
[1953] S.C.R. 655, Shyam Lal v. State of U.P. [1955] 1 S.C.R. 26, Parshotam Lal
Dhingra v. Union of India [1958] S.C.R. 828, Gopi Kishore Prasad v. Union of
India AIR. 1960 S.C. 689, The State of Orissa & ,Anr. v. Ram Narayan Das
[1961] 1 S.C.R. 606, Madan Gopal v. State of Punjab [1963] 3 S.C.R. 716,
Rajendra Chandra Banerjee v. Union of India [1964] 2 SC.R. 135, Champakal
Chimanlal Shah v. The Union of.India [1964] 3 S.C.R. 190, Jagdish Mitter v.
Union of India A.I.R. 1964 S.C. 449, State of Punjab & Anr. v. Shri Sukh
Raj Bahadur [1968] 3 S.C.R; 234, Union Of India 463 & Ors. v.R.S. Dhaba
[1969] 3 S.C.C. 603, State of Bihar & Ors. v. Shiva Bhikshuk Mishra [1971]
2 S.C.R. 191. R.S. Sial v. The State of U.P. & Ors. [1974] 3 S.C.R. 754,
Shamsher Singh & Anr. v. State of Punjab [1975] 1 S.C. R. 814 and The
Regional Manager & Anr. v. Pawan Kumar Dubey [1976] 3 S.C.R.
540 referred to.
(2) Before it is held that an order
terminating the services of a Government servant amounts to punishment the
Court must hold that either of the two tests,namely, (a) that the servant had a
right to the post or (b) that he had been visited with evil consequences such
as forfeiture of pay etc., is satisfied. Therefore, an order terminating the
services of a temporary servant or probationer under the Rules of employment
and without anything more will not attract Art. 311. Where a departmental
enquiry is contemplated but an enquiry is not in fact proceeded with, Art.
311 will not be attracted unless it can be
shown that the order, though. unexceptionable in form, is made following a
report based on misconduct. Even though misconduct, negligence, inefficiency or
other disqualification may be the motive for the order of termination, if a
right exists under the contract or the rules to terminate his services, then
Art. 311(2) is not attracted unless the misconduct or negligence is the very
foundation of the order. Where there are no express words in the impugned order
itself' which throw a stigma on the Government servant, the Court would not
delve into secretariat files to discover whether some kind of stigma could be
inferred on such research. [469 A-B; 473 C;
471 H; 475 F] Parshotam Lal Dhingra v. Union
of India [1958] S.C.R.
828, R.S. Sial v. The State of U.P. &
Ors. [1974] 3 S.C.R.
754, Shamsher Singh & Ant. v. State of
Punjab [1975] 1 S.C.R. 814 and 1. N. Saksena v. State of Madhya Pradesh [1967]
2 S.C.R. 496 followed.
(3) The respondent was a temporary hand and
had no right to the post. Under the contract of service and the service rules
applicable to him the State had the right to terminate his services by giving him
one month's notice. The order ex-facie is an order of termination of service
simpliciter. It does not cast any stigma on the respondent nor does it visit
him with evil consequences, nor is it founded on misconduct. Therefore, the
respondent could not invite the Court to go into the motive behind the order
and claim the protection of Art. 311(2) of the Constitution. [475 DE] (4) The
High Court failed to appreciate the true legal .and constitutional position and
upset the concurrent findings of fact arrived at by the Courts below, ignoring
the well settled principle of law that a second appeal cannot be entertained on
the ground of erroneous findings of fact, however, gross the error might seem
to be. [475 G-H] Paras Nath Thakur v. Smt. Mohani Das & Ors. [1960] 1
S.C.R.
271. Sri Ramanuja Jeer & Ors. v.
Sri.Ranga Ramanuja Jeer & Anr. [1962] 2 S.C.R. 509, P. Ramachandra Ayyar v.
Ramalingam [1963] 3 S.C.R. 604 and Madamanchi
Ramappa & ..Anr. v. Muthaluru Bojappa [1964] 2 S.C.R. 673, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 258/76.
Appeal by Special Leave from the Judgment and
Order dated 3-1-75 of the Allahabad High Court in Second Appeal No. 2261/66.
G.N. Dikshit and O.P. Rana, for the
Appellant.
Promod Swarup and Manoj Swarup, for the
Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is directed against 464 the
judgment and decree dated January 3, 1975, of the High Court of Judicature at
Allahabad setting aside the judgment and decree dated July 27, 1965, of the
Second Additional Civil Judge, Jhansi, whereby the latter affirmed the judgment
and decree of the trial Court dismissing the respondent's suit for declaration
that order dated November 29, 1961, passed by the Superintending Engineer,
Circle IV, Irrigation Works, Jhansi, U.P. terminating the services of the
respondent was void and ineffective in law and he was entitled to recover a sum
of Rs. 2147/-as arrears of pay and dearness allowance from the appellant.
The facts leading to this appeal are: The
respondent herein was appointed as a temporary clerk in Gur Sarain Canal
Division, Jhansi. on May 16, 1954. Seven years later, he was required to appear
in a departmental examination which was held in July, 1961. On July 12. 1961,
an optional typewriting test was held by the Department. In that test the
Executive Engineer, Investigation and Planning Division, Jhansi, it is alleged,
detected Gopal Deo Santiya, a clerk of Bhander Canal Division, attempting to
personate and appear for the respondent. He obtained the explanation of both
the clerks and reported the matter to the Superintending Engineer of his
Division. Considering the explanations tendered by the clerks to be
unsatisfactory, the Superintending Engineer brought the matter to the notice of
the Chief Engineer, Irrigation Department Lucknow. The Chief Engineer wrote
back to the Superintending Engineer asking him to award suitable punishment to
the aforesaid two clerks. The Superintending Engineer thereafter issued orders
terminating the services of both the clerks. The order that was passed in
respect of and served on the respondent ran as follows :"No. E-70/IV/259
Dated Jhansi, November 29, 1961 OFFICE MEMORANDUM Shri Ram Chandra Trivedi,
Temporary Routine Grade Clerk is hereby served with one month's notice to the
effect that his services shall not be required after one month from the date of
receipt of this Notice.
sd/S.P. Sahni, Superintending Engineer."
The respondent attempted to have the above order rescinded by making
representations to the Chief Engineer, and the Minister of Irrigation, U.P.
which proved abortive. The respondent thereupon challenged the aforesaid order
of termination of his services by instituting the aforesaid suit averring inter
alia that the order not being an order of termination of his service
simpliciter but being one passed by way of punishment, attracted the
applicability of Article 311 of the Constitution which not having been complied
with rendered the order void and ineffective, in law.
The suit was resisted by the appellant on the
ground that the respondent was only a temporary hand; that under the contract
of service as also the rules applicable to temporary Government servants, the
respondent was liable to be discharged any time even though an enquiry in
respect of a charge of misconduct might have been insti465 tuted against him;
and that the impugned order not having been passed a measure of punishment but
being a simple order of termination of the respondent's services without
casting any stigma on him or visiting him with evil consequences, was valid
both under the aforesaid rules and the contract of service. The grounds of
attack made against the impugned order did not find favour with the trial Court
which dismissed the suit. Aggrieved by the judgment and decree of the trial
Court, the respondont took the matter in appeal to the Second Additional Civil
Judge, Jhansi, who affirmed the judgment and decree of the trial Court.
Both the Courts found that the impugned order
was valid in law as it was a simple order of termination of service and not
having been passed by way of punishment, it did not attract the provisions of
Article 311 (2) of the Constitution. Dissatisfied with these judgments, the
respondent preferred a second appeal to the High Court of Judicature at Allahabad,
which as already stated was allowed by a learned Single Judge of that Court.
While oversetting the concurrent findings of
fact arrived at by the courts below and decreeing the respondent's aforesaid
suit, the learned single Judge went through the official correspondence
preceding the passing of the impugned order and observed that a close scrutiny
of the facts on record showed that the order was passed by way of punishment on
the basis of the enquire proceedings and as a result of the recommendation made
by the Executive Engineer followed by the direction issued by the Chief
Engineer that the respondent should be suitably punished. It is against this
judgment and decree that the present appeal has been preferred by the State of
U.P.
Mr. Dixit, learned counsel appearing on
behalf of the appellant, has urged that the High Court acted illegally in
reversing the concurrent findings of fact arrived at by the courts below and
quashing the impugned order which was a simple order of termination of the
respondent's services and had been validly passed in accordance with the rules
relating to temporary Government servants and the contract of service. He has
further contended that the learned Single Judge could not probe into the
departmental files to support his finding that the impugned order was passed
against the respondent by way of punishment. He has. in support of his
submissions, relied upon a number of decisions of this Court.
As against this, it has been vehemently urged
by Mr. Garg, learned counsel for the respondent, that the constitutional
position in regard to orders of the impugned nature is not well settled in view
of the conflicting decisions of this Court particularly in view of the
observations made in State of U.P. & Ors. v. Sughar Singh(1) and The State
of Punjab v.P.S. Cheema (2), Mr. Garg has further contended that the
circumstances attending the issue of the impugned order clearly establish that
it was passed by way of punishment.
It would, in our opinion, be appropriate at
the outset to refer to the I decisions of this Court which have an important
bearing on the instant (1) [1974] 2 S.C.R. 335 =[1974] 1 S.C.C. 218.
(2) A.I.R 1975 S.C. 1096.
466 case and to dispel the doubts sought to
be created by Mr. Garg with regard to the constitutional position in relation
to the applicability of Article 311 (2) of the Constitution, resulting from the
said decisions.
In Satish Chandra Anand v. The Union of
India(1), it was held by this Court that any and every termination of service
does not amount to dismissal or removal and a termination of service brought
about by exercise of a contractual right is not per se dismissal or removal. On
the same reasoning, this Court laid down in Shyam Lal v. State of U.P.(2) that
the termination of service by compulsory retirement in terms of specific rule
regulating the conditions of service is not tantamount to the infliction of
punishment and does not attract Article 311(2).
In Parshotam Lal Dhingra v. Union of India(3)
which is regarded as the Magna Carta of the Indian Civil Servant Das, C.J.
speaking for the majority made the following illuminating observations :-"Shortly
put, the principle is that when a servant has right to a post or to a rank
either under the terms of the contract of employment, express or implied, or
under the rules governing the conditions of his service, the termination of the
service of such a servant or his reduction to a lower post is by itself and
prima facie a punishment, for it operates as a forfeiture of his right to hold
that post or that rank and to get the emoluments and other benefits attached
thereto. But if the servant has no right to the post, as where he is appointed
to a post, permanent or temporary either on probation or on an officiating
basis and whose temporary service has not ripened into a quasi-permanent
service as defined in the Temporary Service Rules, the termination of his
employment does not deprive him of any right and cannot, therefore, by itself
be a punishment. One test for determining whether the termination of the
service of a Government servant is by way of punishment is to ascertain whether
the servant, but for such termination, had the right to hold the post. If he
had a right to the post as in the three cases hereinbefore mentioned, the
termination of his service will by itself be a punishment and he will be
entitled to the protection of Article 311. In other words and broadly speaking,
Art. 311 (2), will apply to those cases where the Government servant, had he
been employed by a private employer, will be entitled to maintain an action for
wrongful dismissal, removal or reduction in rank.
To put it in another way, if the Government
has, by contract, express or implied, or, under the rules, the right to
terminate the employment at any time, then such termination in the manner
provided by the contract or the rules is prima facie and per se not a
punishment and does not attract the provisions of Art. 311.
It does not, however, follow that, except in
the three cases mentioned above. in all other cases. termination of (1) [1953]
S.C..R.. 655.
(2) [1955]1 S.C..R. 26.
(3) S..C..R. 828.
467 service of a Government servant who has
no right to his post, e.g., where he was appointed to a post, temporary or
permanent, either on probation or on an officiating basis and had not acquired
a quasi-permanent status, the termination cannot, in any circumstance, be
dismissal or removal from service by way of punishment' Cases may arise where the
Government may find a servant unsuitable for the post on account of misconduct,
negligence, inefficiency or other disqualification. If such a servant was
appointed to a post, permanent or temporary, either on probation or on an
offciating basis, then the very transitory character of the employment implies
that the employment was terminable at any time on reasonable notice given by
the Government. Again if the servant was appointed to a post, permanent or
temporary, on the express condition or term that the employment would be
terminable on say a month's notice as in the case of Satish Chander Anand v.
The Union of India (supra), then the Government might at any time serve the
requisite notice.
In both cases the Government may proceed to
take action against the servant in exercise of its powers under the terms of
the contract of employment, express or implied, or under the rules regulating
the conditions of service, if any be applicable, and ordinarily in such a
situation the Government will take this course. But the Government may take the
view that a simple termination of service is not enough and that the conduct of
the servant. has been such that he deserves a punishment entailing penal
consequences.
In such a case the Government may choose to
proceed against the servant on the basis of his misconduct, negligence,
inefficiency or the like and inflict on him the punishment of dismissal,
removal or reduction carrying with it the penal consequences. In such a case
the servant will be entitled to the protection of Art. 311 (2).
The position may, therefore, be summed up as
follows:
Any and every termination of service is not a
dismissal, removal or reduction in rank. A termination of service brought about
by the exercise of a contractual right is not per se dismissal or removal, as
has been held by this Court in Satish Chander Anand v. The Union of India
(supra).
Likewise the termination of service by
compulsory retirement in terms of a specific rule regulating the conditions of
service is not tantamount to the infliction of a punishment and does not
attract Art. 311 (2), as has also been held by this Court in Shyam Lal v. The
State of Uttar Pradesh (supra). In either of the two above mentioned cases the
termination of the service did not carry with it the panel consequences of loss
of pay, or allowances under r. 52 of the Fundamental Rules. It is true that the
misconduct, negligence, inefficiency or other disqualification may be the
motive or the inducing factor which influences the Government to take action
under the terms of the contract of employment or the specific service rule,
nevertheless, if a 468 right exists, under the contract or the rules, to termiate
the service the motive operative on the mind of the Government is, as Chagla
C.J. has said in Shrinivas Ganesh v. Union of India(1) wholly irrelevant. In
short, if the termination of service is founded on the right flowing from
contract of 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.
311, for it operates a forfeiture of his right and he is visited with the evil
consequences of loss of pay and allowances. It puts an indelible stigma on the
officer affecting his future career. A reduction in rank likewise may be by way
of punishment or it may be an innocuous thing.
If the Government servant has a right to a
particular rank, then the very reduction from that rank will operate as a
penalty, for he, will then lose the emoluments and privileges of that rank. If,
however, he has no right to the particular rank, his reduction from an
officiating higher rank to his substantive lower rank will not ordinarily be a
punishment. But the mere fact that the servant has no title to the post or the
rank and the Government has, by contract, express or implied, or under the
rules, the right to reduce him to a lower post does not mean that an order of
reduction of a servant to a tower post or rank cannot in any circumstances be a
punishment. The real test for determining whether the reduction in such cases
is or is not by way of punishment is to find out if the order for the reduction
also visits the servant with any penal consequences.
Thus if the order entails or provides for the
forfeiture of his pay or allowances or the loss of his seniority in his
substantive rank or the stoppage or postponement of his future chances of
promotion, then that circumstance may indicate that although in form the
Government had purported to exercise its right to terminate the employment or
to reduce the servant to a lower rank under the terms of the contract of
employment or under the rules, in truth and reality the Government has
terminated the employment as and by way (1) A.I.R. 1956 Bom. 455.
469 of penalty. The use of the expression
'terminate' or 'discharge' is not conclusive. In spite of the use of such
innocuous expressions, the court has to apply the two tests mentioned above,
namely, (1 ) whether the servant had a right to the post or the rank or (2)
whether he has been visited with evil consequences of the kind hereinbefore
referred to ? If the case satisfied 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." In Gopi Kishore Prasad v. Union of
India(1), it was held by this Court that if the Government proceeded against
the probationer in the direct way without casting any aspersion on his honesty
or competence, his discharge would not have the effect of removal by way of punishment,
but if instead of taking the easy course, the Government chose the more
difficult one of holding an enquiry into his alleged misconduct and branded him
as a dishonest and incompetent officer, it would attract Article 311 (2) of the
Constitution.
In The State (2) Orissa & Anr. v. Ram
Narayan Das(2) where July 28, 1954, a notice was served on the respondent who
was appointed as a Sub-Inspector on probation in the Orissa Police Force in the
year 1950 to show cause why he should not be discharged from service for gross
neglect of duties and unsatisfactory work and where the explanation tendered by
him was considered to be unsatisfactory by the Deputy Inspector-General of
Police who passed an order discharging the respondent from service for unsatisfactory
work and conduct and where 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 Article 311 (2), and
(ii) that he was not afforded an opportunity to be heard nor was any evidence
taken on the charge, it was held that the order of discharge did not amount to
dismissal and did not attract the protection of Article 311 (2) of the
Constitution as the respondent was a probationer and had no right to the post
held by him and his services were terminated in accordance with the rules which
permitted his being discharged at any time during the period of probation.
The case of Madan Gopal V. State of Punjab(3)
where the order terminating the employment of the appellant who was a temporary
Government servant was qashed on the ground that it was in the nature of an
order of punishment which had been passed without complying with the provisions
of Article 311 (2) of the Constitution is clearly distinguishable.
In that case, the order of termination of the
(1) A.I.R. 1960 S.C. 689.
(2) [1961] 1 S.C.R. 606.
(3) [1963] 3 S.C.R. 716.
470 appellant's service which was preceded by
an enquiry into his alleged misconduct was based on the finding of misconduct
which amounted to casting a stigma affecting his future career.
In Rajendra Chandra Banerice v. Union of
India(1) where the appellant was appointed as a probationer for one year (which
was extended from time to time) on condition that his services might be
terminated without any notice and cause being assigned during that period and
he agreed and joined the service and where later on during the period of his
probation, he was called upon to show cause why his services should not be terminated
and he was finally informed that the explanation given by him was not
satisfactory and his services would stand terminated on a specified date, it
was held by this Court that the termination of his service was not by way of
punishment and could not amount to dismissal or removal within the meaning of
Article 311.
In Champaklal Chimanlal Shah v. The Union of
India(2) where the appellant, whose appointment being temporary, was liable to
be terminated on one month's notice on either side was informed without
assigning any cause after the expiry of about five years that his services
would be terminated with effect from a specified date but before the termination,
he was called upon to explain certain irregularities and was also asked to
submit his explanation and to state why disciplinary action should not be taken
against him and certain preliminary enquiries were also held against him in
which he was not heard, but no regular departmental enquiry followed and the
proceedings were dropped, it was held by this Court after considering the cases
of Gopi Kishore Prasad v. Union of India (supra), State of Orissa v. Ram
Narayan Das (supra). Madan Gopal v. State of Punjab (supra) and Jagdish Mitter
v. Union, of India(3) that such a regular departmental enquiry though
contemplated was not held against the appellant and no punitive action was
taken against him, there-was no question of the case being governed by Article
311(2) or the Constitution. It was further held in that case that it is only
when the Government decides to hold a regular departmental enquiry for the
purpose of inflicting one of the three major punishment';
that the Government servant gets the
protection of Article 311.
In State of Punjab & Anr. v. Shri Sukh
Raj Bahadur(4) where the Punjab Government reverted the respondent from his
officiating appointment in the Punjab Civil Service (Executive Branch) to his
substantive post in the Delhi Administrative after issuing him a charge sheet
to which the respondent replied but the enquiry was not proceeded with, it was
held by this Court that the respondent could not complain against the order
reverting him to his former post because the order of reversion was not by way
of punishment.
In that case, Mitter, J. who spoke for the
Bench laid down the following propositions :-(1) [1964] 2 S.C.R. 135.
(2) [1964] 5 S.C.R. 190.
(3) A.I R. 1964 S.C. 449.
(4) [1968] 3 S.C.R. 234.
471 "1. The services of a temporary
servant or a probationer can be terminated under the rules of his employment
and such termination without anything more would not attract the operation of
Art. 311 of the Constitution.
2. The circumstances preceding or attendant
on the order of termination of service have to be examined in each case, the
motive behind it being immaterial.
3. If the order visits the public servant
with any evil consequences or casts an aspersion against his character or
integrity, it must be considered to be one by way of punishment, no matter
whether he was a mere probationer or a temporary servant.
4. An order of termination of service in unexceptionable
form preceded by an enquiry launched by the superior authorities only to
ascertain whether the public servant should be retained in service, does not
attract the operation of Art. 311 of the Constitution.
5. If there be a fulI-scale departmental
enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a charge
sheet submitted, explanation called for and considered, and order of termination
of service made thereafter will attract the operation of the said
Article." The principles laid down in Parshotam Lal Dhingra's case
(supra), Champaklal Chimanlal Shah's case (supra), and Shri Sukh Raj Bahadur's
case (supra) were reiterated by this Court in Union of India & Ors. v.R.S.
Dhaba(1). State of Bihar & Ors. v. Shiva Bhikshuk Mishra(2) and R.S. Sial
v. The State of U.P. & Ors.(3) where it was laid down that the test for
attracting Article 311(2) of the Constitution is whether the misconduct or
negligence is a mere motive for the order of reversion or termination of
service or whether it is the very foundation of the order of termination of
service of the temporary employee. The form of the order, however, is not
conclusive to its true nature. The entirety of circumstances preceding or attendant
on the impugned order must be examined by the court and the overriding test
will always be whether the misconduct is a mere motive or is the very
foundation of the order.
In R.S. Sial v. The ;State of U.P. & Ors.
(3) to which one of us (brother Khanna, J.) was a party, it was made clear in
unambiguous terms that it may be taken to be well settled that even though
misconduct, negligence, inefficiency or other disqualifications may be the
motive or the inducing factor which influence the Government to take action
under the express or implied terms of the contract of employment or under the
statutory rule, nevertheless if a right exists, under (1) [1969] 3 S.C.R. 603.
(2) [1971] 2 S.C.R. 191.
(3) [1974] 3 S.C.R. 754.
472 the contract or the rules to terminate
the services the motive operating on the mind of the Governments is wholly
immaterial. The same rule would hold good if the order passed is not for
termination of service but for reversion of a Government servant from a higher
post to a lower post which he holds in a substantive capacity.
The decision of this Court in State of Uttar
Pradesh & Ors. v. Sughar Singh (supra) where the order of the respondent's
reversion held to have been passed by way of punishment to which our attention
has been drawn by Mr. Garg and which has led to a certain amount of
misunderstanding turned upon a clear statement made before the High Court by
the Standing Counsel for the State that the foundation of the order of
reversion was the adverse entry made in his confidential character roll.
The constitutional position has now been made
crystal clear by a Bench of seven Judges of this Court in Shamsher Singh &
Anr. v. State Punjab(1) where the learned Chief Justice after an exhaustive
review of the decisions of this Court observed :-"No abstract preposition
can be laid down that where the services of a probationer are terminated
without saying anything more in the order of termination than that the services
are terminated it can never amount to a punishment in the facts and
circumstances of the case. If a probationer is discharged on the ground of
misconduct, or inefficiency or for similar reason without a proper enquiry and
without his getting a reasonable opportunity of showing cause against his
discharge it may in a given case amount to removal from service within the
meaning of Article 311 (2) of the Constitution.
Before a probationer is confirmed the authority
concerned is under an obligation to consider whether the work of the
probationer is satisfactory or whether he is suitable for the post. In the
absence of any Rules governing a probationer in this respect the authority may
come to the conclusion that on account of inadequacy for the job or for any
temperamental or other object not involving moral turpitude the probationer is
unsuitable for the job and hence must be discharged. No punishment is involved
in this. The authority may in some cases be of the view that the conduct of the
probationer may result in dismissal or removal on an inquiry. But in those
cases the authority may not hold an inquiry and may simply discharge the
probationer with a view to giving him a chance to make good in other walks of
life without a stigma at the time of termination of probation.
If, on the other hand, the probationer is
faced with an enquiry on charges of misconduct or inefficiency or corruption,
and if his services are terminated without following the provisions of Article
311 (2) he can claim protection .....
(1) [1975] 1 S.C.R. 814.
473 The fact of holding an inquiry is not
always conclusive. What is decisive is whether the order is really by way of
punishment ...... A probationer whose terms of service provided that it could
be terminated without any notice and without any cause being assigned could not
claim the protection of Article 311 (2).
An order terminating the services of a
temporary servant or probationer under the Rules of Employment and without
anything more will not attract Article 311. Where a departmental enquiry is
contemplated and if an enquiry is not in fact proceeded with Article 311 will
not be attracted unless it can be shown that the order though unexceptionable
in form is made following a report based on misconduct." The Division
Bench judgment of this Court in P.S. Cheema's case (supra) on which strong
reliance has been placed by Mr. Garg is also clearly distinguishable and no
help can be derived there from by the respondent. In that case, both the trial
Court and the first appellant Court had come to a concurrent finding of fact that
the impugned order of termination was by way of punishment. It would also be
seen that in that case on a representation being made by the respondent to the
then Chief Minister of the State, the latter after consideration of the matter
had ordered that in view of the respondent's previous good record, he did not
deserve the "punishment of termination of service only on account of a few
bad reports and that the respondent should continue in service and his case
should be reviewed after he earned another report from the Excise and Taxation
Commissioner for the year 1964-65".
In a recent decision of this Court in The
Regional Manager & Anr. v. Pawan Kumar Dubey(1) to which one of us was a
party, Sughar Singh's case (supra) which is the sheet anchor of Mr. Garg's
contention was also adverted to and it was explained therein that that case did
not depart from earlier decisions on applicability of Article 311 (2) or
Article 16 of the Constitution. The following observations made in Pawan Kumar
Dubey's case (supra) should suffice to clear the doubts that may still be
lurking in some quarters as to the ratio decidendi of Sughar Singh's case
(supra) :-"We think that the principles involved in applying Article
311(2) having been sufficiently explained in Shamsher Singh's case (supra) it
should no longer be possible to urge that Sughar Singh's case (supra) could
give rise to some misapprehension of the law. Indeed, we do not think that the
principles of law declared and applied so often have really changed. But the application
of the same law to the differing circumstances and facts of various cases which
(1) [1976] 3 S.C.R. 540.
474 have come up to this Court could create
the impression sometimes that there is some conflict between different
decisions of this Court. Even where there appears to be some conflict, it
would, we think, vanish when the ratio decidendi of each case is correctly
understood. It is the rule deducible from the application of law to the facts
and circumstances of a case which constitutes its ratio decidendi and not some
conclusion based upon facts which may appear to be similar. One additional or
different fact can make a world of difference between conclusions in two cases
even when the same principles are applied in each case to similar facts. This
Court's judgment in Sughar Singh's case (supra) shows that it was only
following the law on Article 311(2) of the Constitution as laid down repeatedly
earlier by this Court. It specifically referred to the following cases:
Parshottam Lal Dhingra v. Union of India (supra); State of Punjab v. Sukh Raj
Bahadur (supra); State of Orissa v. Ram Narayan Das (supra); R.C. Lucy v. State
of Bihar(1) Jagdish Mitter v. Union of India (supra);A. G. Benjamin v. Union 01
India(2);
Ram Gopal Chaturvedi v. State. of Madhya
Pradesh(3); Union of India v. Galendra Singh(4);
Divisional Personnel Officer v.
Raghavendrachar(5);
Union of India v. Joswant Ram(6); Madhav v.
State of Mysore(7); State of Bombay v.Abraham(8). In Sughar Singh's case
(supra), this Court summarised the propositions of law deducible from the cases
mentioned above; and, while considering the applicability of some of the
propositions of law to the facts of the case, it did observe that, on the face
of it, the action against Sughar Singh did not appear to be punitive.
Nevertheless, on a total consideration of all the facts, including the
admission in the High Court before Verma, C.J. by the Standing Counsel
appearing on behalf of the State, that the reversion order could not be explained
except as a result of the adverse entry made two years earlier, it had finally
applied the ratio decidendi of the State of Bihar v. Shiva Bhikshuk Mishra
(supra), where this Court had affirmed the opinion of the High Court, on facts,
that the reversion was not in the usual course or for administrative reasons
but it was after the finding on an enquiry about some complaint against the
Plaintiff and by way of punishment to him.
On this view of the case, it was not really
necessary for this Court to consider whether the reversion of Sughar Singh was
contrary to the provisions of Article 16 also.
C.A. No. 590 of 1962 decided on 23-10-1963 .
(2) [1967] 1 S.C.R. 718.
(3) [1970] 1 S.C.R. 472.
(4) [1972] 2 S .C.R. 660.
(5) [1966] 3 S.C.R. 106.
(6) A.I.R.1958 s.c. 905.
(7) [19621 1 S.C.R. 886.
(8) [1962] Supp. 2 SC.R. 92.
475 We do not think that Sughar Singh's case
(supra) in any way, conflicts with what has been laid down by this Court
previously on Article 311(2) of the Constitution or Article 16 of the
Constitution." Thus on a conspectus of the decisions of this Court
referred to above, it is obvious that there is no real conflict in their ratio
decidendi and it is no longer open to anyone to urge with any show of force
that the constitutional position emerging from the decisions of this Court in
regard to cases of the present nature is not clear.
It is also to be borne in mind that even in
cases where a High Court finds any conflict between the views expressed by
larger and smaller benches of this Court, it cannot disregard or skirt the
views expressed by the larger benches. The proper course for a High Court in
such a case, as observed by this Court in Union of India & Anr. v. K.S. Subramanian(1)
to which one of us was a party, is to try to find out and follow the opinion
expressed by larger benches of this Court in preference to those expressed by
smaller benches of the Court which practice, hardened as it has into a rule of
law is followed by this Court itself.
Keeping in view the principles extracted
above, the respondent's suit could not be decreed in his favour. He was a
temporary hand and had no right to the post. It is also not denied that both
under the contract of service and the service rules governing the respondent,
the State had a right to terminate his services by giving him one month's
notice. The order to which exception is taken is ex facie an order of
termination of service simpliciter. It does not cast any stigma on the
respondent nor does it visit him with evil consequences, nor is it founded on
misconduct. In the circumstances, the respondent could not invite the Court to
go into the motive behind the order and claim the protection of Article 311 (2)
of the Constitution.
We, therefore, agree with the submission made
on behalf of the appellant that the High Court was in error in arriving at the
finding that the impugned order was passed by way of punishment by probing into
the departmental correspondence that passed between the superiors of the
respondent overlooking the observations made by this Court in I.N. Saksena v.
State of Madhya Pradesh(2) that when there are no express words in the impugned
order itself which throw a stigma on the Government servant, the Court would
not delve into Secretariat flies to discover whether some kind of stigma could
be inferred on such research.
We also find ourselves in agreement with the
contention advanced on behalf of the appellant that the High Court failed to
appreciate the true legal and constitutional position and upset the concurrent
findings of fact arrived at by the Courts below that the impugned order was not
by way of punishment ignoring the well settled principle of law that a second
appeal cannot be. entertained on the ground of erroneous finding of fact,
however gross the error might seem to be. (See Paras (1) [1977] 1 S.C.R. 87.
C2) [1967] 2 S.C.R. 496.
476 Nath Thakur v. Smt. Mohani Dasi &
Ors.(1); Sri Sinna Ramanula Jeer & Ors. v. Sri Ranga Ramanuja Jeer &
Anr. (2); R.
Ramachandra Ayyar v. Ramalingam(3) and
Madamanchi Ramappa & Anr. v. Muthaluru Bojappa(4).
For the foregoing reasons, the contentions of
Mr. Dixit are upheld and those of Mr. Garg are repelled.
In the result, we allow the appeal, set aside
the judgment and, decree of the High Court, restore the judgments and decrees
of the Courts below and dismiss the respondent's suit. In the circumstances of
the case, the parties are, however, left to pay and bear their own costs of
this appeal.
V.P.S. Appeal allowed.
(1) [1960] 1 S.C.R. 271.
(2) [1962] 2 S.C.R. 509.
(3) [1963] 3 S.C.R. 604.
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