Manager Govt. Branch Press &. ANR
Vs. D. B. Belliawpa  INSC 245 (30 November 1978)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
SEN, A.P. (J)
CITATION: 1979 AIR 429 1979 SCR (2) 458 1979
SCC (1) 477
CITATOR INFO :
RF 1980 SC 42 (13) RF 1980 SC2084 (5) RF 1981
SC 965 (4) R 1983 SC 494 (19) F 1986 SC 101 (223) RF 1986 SC1626 (33) D 1992
Constitution of India, Articles 14 and 16(1),
protection of, when available to temporary employees-S. 16(1)
"appointment", Scope, Incumbent on dismissing authority to disclose
reason for termination of services, when specific charge of hostile
The services of Belliappa, a temporary Class
IV employee, were terminated without assigning any reason, albeit in accordance
with the conditions of his service, while three other employees, similarly
situated, junior to Balliappa in the same temporary cadre, were retained. The
order terminating his services, was preceded by a show-cause notice of proposed
disciplinary action against him, but otherwise, there was nothing to show that
the service record of Belliappa was, in any way, inferior to his three juniors
who have been retained in service. Furthermore, neither the dismissal order nor
the appellant's counter affidavit assigned any reason for the termination and
the appellant had throughout maintained that there was no nexus between the
show-cause notice and the impugned action. The High Court allowed a writ
petition of Belliappa, holding that the order terminating his services,
contravened the guarantee of equal treatment embodied in Article 16 of the
It was contended that Belliappa was a
temporary employee, and his services could be terminated at any time without
notice, and that Articles 14 and 16 are J not attracted when the services of a
temporary employee are terminated in accordance with the conditions of his
Dismissing the appeal, the Court ^
HELD: 1. The protection of Articles 14 and
16(1) will be available even to a temporary Government servant if he has been
arbitrarily discriminated against and singled out for harsh treatment in
preference to his juniors similarly circumstanced. The competent authority may
have a discretion under the conditions of service governing the employee, to
terminate his services without notice, but such discretion has to be exercised
in accordance with reason and fair play, and not capriciously. Arbitrary
invocation or enforcement of a service condition terminating the service of a
temporary employee, may itself constitute denial of equal protection and offend
the Equality clause in Articles 14 and 16(l ).[464B-E] Doddaiah v. State of
Mysore, AIR 1967 Mysore 223; Union of India v. Prem Parkash Midha,  69
SLR 655 (SC);
State of U.P. v. Ram Chandra Trivedi, 
1 SCR 462; and Madan Singh Puran Singh, v. Union of India 1972 SLR 67 (Delhi):
2. The expression "appointment"
used in Art. 16(1) will include termination of or removal from service, also.
The expression "matters relating to employment", is not confined to
initial matters prior to the act of employment, but comprehends all matters in
relation to employment both prior and subsequent to 459 the employment which
are incidental to the employment and form part of the A terms and conditions of
such employment, such as, provisions as to salary, increments, leave, gratuity,
pension, age of superannuation, promotion and even termination of employment.
[464E-G] General Manager, Southern Railway v. Rangachari,  2 S.C.R. 586;
The Union of India v. Pandurang Kashinath
More, AIR 1962 SC 630; differentiated
3. Where there is a specific charge of
arbitrary discrimination or some hostile or improper motive is imputed to the
authority terminating the service, it is incumbent on the authority to dispel
that charge by disclosing to the Court, the reason or motive which impelled it
to take the impugned action. Excepting perhaps, in cases analogous to those
covered by Art. 311(2) proviso (c), the authority cannot withhold such information
from the court on the excuse, that the impugned order is purely administrative
and not judicial, having been passed in exercise of its administrative
discretion under the rules governing the conditions of the service. [467A-B]
Champaklal Chimanlal Shah v. The Union of India,  5 SCR 190; Green v.
Amalgamated Engineering Union,  1 All. E.R. 114; and Khudi Ram v. State
of West Bengal,  2 SCR 832 at 845, supported.
4. The archaic common law concept that
employment was a matter between the master and servant only, in its original
absolute form, is not applicable to , Government servants.
Even with regard to private employment, much
of it has passed into the fossils of time. [467F-G] 'Democracy, Equality and
Freedom' (page 326) by K. K. Mathew, J.; referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No.290 of 1969.
Appeal by Special Leave from the Judgment and
Order dated tile 20th June 1968 of the Mysore High Court in W.P. No. 573 of 1
M. Veerappa and J. R. Das for the Appellant.
R. B. Datar, P. R. Ramasesh and Lalit
Bhargava for the Respondent.
The Judgment of the Court was delivered by G
SARKARIA, J.-The respondent, Belliappa, was appointed temporary Junior
Compositor in the Grade of RS. 65-1-72-2-90 in the Government Branch Press,
Mercara. The post was non- gazetted Class IV as defined in Clause (IV) of
Sub-Rule 3 of Rule 5 of the Mysore Civil Services (Classification Control and
Appeal) Rules, H 1957. The employment was temporary and was to continue until
460 The Branch Manager, Mercara, Respondent 1
(herein), served a notice on the respondent on December 29, 1966, stating that
the respondent had taken outside the Press some copies of the ballot papers
relating to the Director's election of Coorg Cardamom Cooperative Societies,
The respondent was required to show cause
before 2.00 P.M. Of December 30, 1966, why disciplinary 8 action be not taken
against him as per Rules. It was further stated in the notice that failure to
comply with the notice will result in the respondent's suspension and further
disciplinary action against him.
Thereafter on January 3, 1967, an order was
served on the respondent, terminating his service. This order (hereinafter
called the impugned order) runs as under:
"Office of the Manager, Government
Branch Press, Mercara.
Memoranda As per instructions contained in
Head Office Order No. 570/66-67, dated 3-1-1967, Sri D. B. Belliappa, Junior
Compositor of this Office is hereby informed that your appointment is purely
temporary and terminable at any time without any previous notice and without
reasons being assigned therefore are not required. Therefore your services are
hereby terminated with immediate effect.
Sd/- xxx Government Branch Press,
Mercara." On January 7, 1967, Belliappa submitted a representation, dated
January 6, 1967, to the Branch Manager against termination of his service, but
without success, attributing motives to his immediate superior officer, that
his relations with the Respondent were not cordial for the preceding three
months. He also prayed for permission to continue to work and requested for
disbursement of his pay.
On February 4, 1967, Belliappa instituted a
writ petition in the High Court of Mysore with a prayer to quash the order
terminating his service. He further prayed for a direction that the Manager of
the Press (appellant) be directed to appoint him a regular candidate to the
post of the Junior Compositor in accordance with the provisions of the Mysore
State Civil Services (Recruitment of Local Candidates to Class III) Rules,
1966, with consequential benefits.
461 The Manager filed a counter-affidavit
stating that the respondent's appointment was purely temporary governed by the
conditions in the contract of his service, and was liable to be terminated
without notice at any time; that the 1966 Rules relied upon by the writ
petitioner were not applicable to him because he was a Class IV Employee.
Subsequently, Belliappa filed a further
affidavit urging additional grounds for impugning the order of his discharge.
The High Court, by its Order dated January 30, 1968, allowed the respondent to
take up these additional grounds, to the effect that three other persons,
namely, S/Shri B. S. Vittala, N. B. Achiah and Patric D' Souza who are
appointed as temporary Junior Compositors subsequent to the a respondent's
appointment, had been retained and continued in service, while a discriminatory
treatment was meted out to the respondent, without any reason. It was urged
that in these circumstances, the termination of the respondent's service, while
continuing three others, similarly situated, was violative of Article 16 of the
Constitution. At the stage of arguments, the respondent gave up his claim for
regularisation of service.
The High Court by its order dated June 20,
1968, allowed the writ petition, holding that the impugned order contravened
the guarantee of equal treatment embodied in Article 16. the High Court did not
give reasons in this order, but stated therein that the reasons given in the
decision of that Court in Writ Petition No. 153 of 1965, were applicable. In
the result, the impugned order, by which the respondent's services were
terminated, was set aside and it was declared that he will be entitled to all
the benefits flowing from the court's order, including reinstatement and the
Hence. this appeal by special leave.
Mr. Veerappa, learned counsel for the
appellant, contends that the respondent, Belliappa, was appointed in a
temporary capacity and his service could be terminated at any time without
notice. The proposition propounded is that Articles 14 and 16 are not attracted
in a case where the services of a temporary employee are terminated in
accordance with the conditions of his service. In the alternative, it is
submitted that the principle of 'first come and last go' may apply only when
there is a general retrenchment and not where there is some special reason for
terminating the services of one employee while continuing his juniors in the
temporary service. It is maintained that the show-cause notice which was served
on the respondent on December 29, 1966, furnishes the motive or the cause for
terminating the 462 respondent's services, while retaining his juniors in
service. Mr. Veerappa contends that in spite of the fact that the position
taken by the appellants in the impugned order was that the service of the
respondent was being terminated without assigning any reason in accordance with
the conditions of his service, it could be spelled out from the show-cause
notice that the real cause of terminating the respondent's service was his
unsuitability for the job or unsatisfactory conduct.
A number of decisions have been cited: The
Union of India v. Pandurang Kashinath More(1), Champaklal Chimanlal Shah v. the
Union of India(2), Doddaiah v. State of Mysore(3) Union of India v. Prem
Parkash Midha(4); State of U.P. v. Ram Chandra Trivedi(5); Madan Singh Puran
The Union of India.(6).
As against this, it is submitted on behalf of
the respondent that in his further affidavit, dated January 25, 1968, the
respondent had taken up the plea of hostile discrimination, with particularity,
stating that while his three named juniors who were in all respects similarly
situated, were continued in service; the respondent was arbitrarily singled cut
for discriminatory treatment, although the respondent's record of service was
good and at no time he gave room for any complaint from his official superiors.
It is stressed that these averments in the additional affidavit of the
respondent were not rebutted or countered by the opposite side on affidavit,
nor was any material produced on record to show that there was any special
reason for terminating the respondent's service, and continuing the service of
his juniors. It is urged that since the consistent stand taken by the appellant
in the impugned order, in their counter-affidavit and at the time of arguments
in the High Court was that the service of the respondent has been terminated
without any reason, in accordance with the terms and conditions of his service?
the appellants should not be allowed to commit a volt face in this special
appeal and take up a different ground which was never set up or pleaded.
Before dealing with the contentions canvassed
on both sides, it will be useful to notice the relevant undisputed facts for
the discussion emerging from the pleadings and the material on record.
(1) A.I.R. 1962 S.C. 630.
(2)  5 S.C.R. 190.
(3) A.I.R. 1967 Mysore 223.
(4)  69 S.L.R. 655 (S.C.) (5)  I
(6) 1972 S.L.R. 67 (Delhi).
463 The service of the respondent, Belliappa,
has been terminated without assigning any reason albeit in accordance with the
conditions of his service, while three employees, similarly situated, junior to
Belliappa in the same temporary cadre have been retained.
A charge of hostile discrimination has been
levelled with sufficient particularity against the appellant. Hostile animus
was also attributed by Belliappa in his writ petition to his superior officers.
In the additional grounds of his further affidavit, Belliappa averred that his
service record was good. This fact has not been controverted by the appellant
by filing any counter-affidavit. However, there is material on the record to
show that the impugned order was preceded by a show-cause notice of proposed
disciplinary action against Belliappa. It could, therefore, be presumed that
but for this show-cause notice, the service record of Belliappa was good. At
any rate, there is nothing on the record to show that the service record of
Belliappa was, m any way, inferior to his three juniors who have been retained
in service. The impugned order itself says that Belliappa's services are being
terminated without assigning any reason, and the same has been reiterated in
the counter- affidavit, dated September 22, 1967, filed on behalf of the
present appellant in the High Court.
In order to satisfy our conscience and
appreciate the arguments of Mr. Veerappa that the services of the respondent
have been terminated on the ground of unsuitability, we requested him to cause
the production of the Head Office Order No. 570/66-67 dated January 3, 1967,
which has been referred to in the impugned order. We granted Mr. Veerappa
sufficient time for this purpose. On a subsequent date, he informed us that
this Head Office order also does not contain any reason for the impugned
Indeed, the contents of this Head Office
order have been substantially reiterated in the impugned order, according to
which, the service of Belliappa was terminated Of course, there is always some
reason or cause for terminating the services of a temporary employee. It is not
necessary to state that reason in the order of termination communicated to the
employee concerned. But where there is a specific charge of arbitrary discrimination
or some hostile motive is imputed to the authority terminating the service, it
is incumbent on the authority making the impugned order to explain the same by
disclosing the reason for the impugned action. In the instant case, the
appellant intransigently withheld that information from the Court. There is no
escape from the conclusion that Belliappa was picked out for the impugned
action, whimsically, without any special reason which could put him in a class
separate from that of his three juniors who have been retained in service.
464 The ground is now clear for considering
the contentions canvassed by the appellant.
Mr. Veerappa's first contention is that
Articles 14 and 16(1) of the Constitution have no application, whatever, to the
case of a temporary employee whose service is terminated in accordance with the
terms and conditions of his service because the tenure or the duration of the
employment of such an employee is extremely precarious being dependent upon the
pleasure and discretion of the employer-State. In our opinion, no such
generalisation can be made. The protection of Articles 14 and 16(1) will be
available even to such a temporary Government servant if he has been
arbitrarily discriminated against and singled out for harsh treatment in
preference to his juniors similarly circumstanced. It is true that the
competent authority had a discretion under the conditions of service governing
the employee concerned to terminate the latter's employment without notice.
But, such discretion has to be exercised in accordance with reason and fair
play and not capriciously. Bereft of rationality and fairness, discretion
degenerates into arbitrariness which is the very anti-thesis of the rule of law
on which our democratic polity is founded. Arbitrary invocation or enforcement
of a service condition terminating the service of a temporary employee may
itself constitute denial of equal protection and offend the Equality clause in
Article 14 and 16(1). Article 16(1) guarantees "equality of opportunity for
all citizens in matters relating to employment or appointment to any office
under the State".
Moreover, according to the principle
underlying Section 16 of the General Clauses Act, the expression
"appointment" used in Article 16(1) will include termination of or
removal from service, also.
It is now well settled that the expression
"matters relating to employment used in Article 16(1) is not confined to
initial matters prior to the act of employment. but comprehends all matters in
relation to employment both prior, and subsequent, to the employment which are
incidental to the employment and form part of the terms and conditions of such
employment, such as, provisions as to salary, increments, leave, gratuity,
pension, age of superannuation, promotion and even termination of employment.
It is further well established that Articles 14, 15(1) and 16(1) from part of
the same constitutional code of guarantees and supplement each other. If my
authority is needed for the above enunciation, reference may be made to the
observations made by Gajendragadkar J., as he then was, in General Manager,
Southern Railway v. Rangachari(1).
(1)  2 S.C.R. 586.
465 In Union of India v. P. K. More (supra),
it was contended befor this Court that Article 16 provides that there shall be
no inequality of treatment in the termination of the service of any employee of
the Government. This interpretation of the Article was disputed by the Union of
India, who was the appellant in that case. Although the Court thought it unnecessary
to pronounce finally on this dispute for the purpose of that case, yet it
proceeded an the assumption that Article 16 might be violated by an arbitrary
and discriminatory termination of service. In that case, the respondent, P. K.
More, had been detained legally under a statute. In view of this fact, the
Court held that 'the respondent might legitimately have been put in a separate
class and treated differently from others not so detained." In the instant
case, no special circumstance or reason has been disclosed which would justify
discriminatory treatment to Belliappa as a class apart from his juniors who
have been retained in service. Mr. Veerappa's frantic efforts to spell out
justification for differential treatment to the respondent by reference to the
show-cause notice that preceded the impugned action, is entirely futile when
the stand tenaciously adhered to throughout by his client is that there is no
nexus between the show-cause notice and the impugned action which was taken
without any reason in exercise of the power vested in the competent authority
under the conditions of the respondent's employment.
In view of this, we have no alternative but
to hold that the termination of Belliappa's service was made arbitrarily and
not on the ground of unsuitability or other reason, which would warrant
discriminatory treatment to him as a class apart from others in the same Cadre.
In the view we take, we are further fortified
by a decision of the Constitution Bench in Champak Lal's case (supra). That was
a case of a temporary Government servant.
Rule S governing a temporary Government
servant, which came up for consideration in that case, gave power to the
Government to terminate the service of a temporary Government servant by giving
him one month's notice or on payment of one month's pay in lieu of notice. This
rule was attacked on the ground that it was hit by Article 16. In the
alternative, it was urged that even if rule 5 is good, the order by which the
appellant's services were dispensed with, was bad because it was
discriminatory. Reference was made to a number of persons whose services were
not dispensed with, even though they were junior to the appellant and did not
have as good qualifications as he had. Wanchoo J. (as he then was, speaking for
the Court, repelled the alternative argument in these terms:
466 "We are of opinion that there is no
force in this contention. This is not a case where services of a temporary
employee are being retrenched because of the abolition of a post. In such a
case, a question may arise as to who should be retrenched when one out of
several temporary post is being retrenched in an office. In those
circumstances, qualifications and length of service of those holding similar
temporary posts may be relevant in considering whether the retrenchment of a
particular employee was as a result of discrimination. The present however is a
case where the appellant's services were terminated because his work was found
to be unsatisfactory.. (In such a case there can, in our opinion, be no
question of any discrimination. It would be absurd to say that if the service
of one temporary servant is terminated on the ground of unsatisfactory conduct
the services of all similar employees must also be terminated along with him,
irrespective of what their conduct is. Therefore even though some of those
mentioned in the plaint by the appellant were junior to him and did not have as
good qualifications as he had and were retained in service, it does not follow
that the action taken against the appellant terminating his services was
discriminatory, for that action was taken on the basis of his unsatisfactory
conduct. A question of discrimination may arise in a case of retrenchment on
account of abolition of one of several temporary posts of the same kind in one
office but can in our opinion never arise in the case of dispensing with the
services of a particular temporary employee on account of his conduct being
unsatisfactory." (Parenthesis and emphasis supplied) The principle that
can be deduced from the above analysis is that if the services of a temporary
Government servant are terminated in accordance with the conditions of his
service on the ground of unsatisfactory conduct or his unsuitability for the
job and/or for his work; being unsatisfactory, or for a like reason which marks
him off in a class apart from other temporary servants who have been retained
in service, there is no question of the applicability of Article 16.
Conversely, if the services of a temporary
Government servant are terminated, arbitrarily, and not on the ground of his
unsuitability, unsatisfactory conduct or the like which would put him in a
class apart from his juniors in the same service, a question of unfair
discrimination may arise, notwithstanding the fact that in terminating his
service, the appointing authority was purporting to act in accordance 467 with
the terms of the employment. Where a charge of unfair discrimination is
levelled with specificity, or improper motives are imputed to the authority
making the impugned order of termination of 11 the service, it is the duty of
the authority to dispell that charge by disclosing to the Court the reason or
motive which impelled it to take the impugned action. Excepting, perhaps, in
cases analogous to those covered by Article 311(2), Proviso (c), the authority
cannot withhold such information from the Court on the lame excuse, that the
impugned order is purely administrative and not judicial, having been passed in
exercise of its administrative discretion under the rules governing the
conditions of the service. "The giving of reasons", as Lord Denning
put it in Green v. Amalgamated Engineering Union(1).
"is one of the fundamentals of good
administration", and, to recall the words of this Court in Khudi Ram v.
State of West Bengal(2) in a Government of laws "there is nothing like
unfettered discretion immune from judicial review ability".
The executive, no less than the judiciary, is
under a general duty to act fairly. Indeed, fairness founded on reason is the
essence of the guarantee epitomised in Articles 14 and 16(1).
Another facet of Mr. Veerappa's contention is
that the respondent had voluntarily entered into a contract of service on the
terms of employment offered to him. One of the terms of that contract, embodied
in tile letter of his appointment is that his service was purely temporary and
was liable to termination at the will and pleasure of the appointing authority,
without reason and without notice.
Having willingly accepted the employment on
terms offered to him, the respondent cannot complain against the impugned
action taken in accordance with those mutually agreed terms.
The argument is wholly misconceived. It is
borrowed from the archaic common law concept that employment was a matter
between the master and servant only. In the first place, this rule in its
original absolute form is not applicable to Government servant. Secondly, even
with regard to private employment, much of it has passed into the fossils of
time. "This rule held the field at the time when the master and servant
were taken more literally than they are now and when, as in early Roman Law,
the rights of the servant, like the rights of any other member of the
household, were not his own, but those of his pater familias". The
overtones of this ancient doctrine are discernible in the Anglo-American
jurisprudence of the 18th century and the first half of the 20th century, which
rationalised the (1)  1 All E.R. at p.114.
(2)  (2) S.C.R. 832 at page 845.
468 employer's absolute right to discharge
the employee. "Such a philosophy", as pointed out by K. K. Mathew J.
(vide his treatise: "Democracy, Equality and Freedom", page 326),
"of the employer's dominion over his employee may have been in tune with
the rustic simplicity of bygone days. But that philosophy is incompatible with
these days of large, impersonal, corporate employers." To bring it in tune
with vastly changed and changing socio-economic conditions and mores of the
day, much of this old antiquated and unjust doctrine has been eroded by
judicial decisions and legislation, particularly in its application to persons
in public employment, to whom the Constitutional protection of Articles 14, 15,
16 and 311 is available. The argument is therefore overruled.
Coming back to the point, we have a vague
feeling that it was, perhaps, open to the appellant to say in view of the
complaint alluded to in the snow-cause notice against the integrity and
fidelity of the respondent, that the former had lost confidence in the latter
and considered him unsuitable to be continued in the post which was one of
trust and confidence. But it will be hazardous for us to base our decision on
any such speculation, when the appellant, himself, instead of taking any such
plea, has, with obdurate persistency stuck to the position that the
respondent's service has been terminated without any reason, which comes
perilously near to admitting that the power reserved to the employer under the
conditions of the employment, has been exercised arbitrarily.
In the absence of any information from the
appellant indicating that the respondent was marked off for discharge on the
basis of an intelligible differentia having a reasonable nexus with the object
of maintaining the efficiency and integrity of the public service, we are
constrained to hold, in agreement with the High Court, that the impugned order
suffers from the vice of unfair discrimination and is violative of Articles 14
and 16(1) of the Constitution. Accordingly, we uphold the decision of the High
Court and dismiss this appeal with costs.
M.R. Appeal dismissed.