Commodore Commanding, Southern Naval
Area, Cochin Vs. V.K. Rajan [1981] INSC 60 (10 March 1981)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA SEN, AMARENDRA NATH (J)
CITATION: 1981 AIR 965 1981 SCR (3) 165 1981
SCC (2) 636 1981 SCALE (1)510
ACT:
Service matter-Article 16-Service of a
temporary government servant terminated by a termination order
simpliciter-Article 16, if attracted.
HEADNOTE:
The respondent, in the first instance, was
appointed as a casual labourer for a month but was continued against an
existing vacancy. He was later appointed as a labourer in a regular cadre in an
existing vacancy. Sometime later he was promoted and appointed as Ammunition
Repair Labourer, Grade II. Three years thereafter his services were terminated.
In a petition under Article 226 of the
Constitution the respondent impugned the order of termination of his services
on the ground that he was appointed permanently to the post of Ammunition
Repair Labourer Grade II and that the termination of his services, when juniors
were retained in service, was discriminatory and was in contravention of
Article 16 of the Constitution.
The appellant contended before the High Court
that the term "regular cadre" did not imply as in other instances in
the employment of government a substantive post, but that the post in the
regular cadre is a purely temporary one.
A single Judge of the High Court rejected the
respondent's claim that he was appointed permanently to the post but held that
since persons junior to him had been retained in service, termination of his
services without assigning any reason was discriminatory and, therefore, the
order was bad in law.
Agreeing with the view of the single Judge a
Division Bench of the High Court dismissed the appellant's appeal.
Allowing the appeal
HELD: A perusal of the file relating to the
termination of the services of the respondent shows that the decision to
terminate his services had been taken at the highest level on the ground of his
unsuitability in relation to the post held by him and that it was not by way of
any punishment and no stigma was attached to the respondent by reason of the
termination of his services. [172 G-H] The well settled position in law in this
regard is that (i) 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 un- 166 suitability 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; (ii) where the services of a
temporary government servant or a probationer government servant are terminated
by an order which does not ex-facie disclose any stigma or penal consequences
against the government servant and is merely a termination order simpliciter
there is no case ordinarily for assuming that it is anything but what it
purports to be; (iii) before Article 16 is held to have been violated by some
action there must be a clear demonstration of discrimination between one
government servant and another similarly placed, which cannot be reasonably
explained except on an assumption or demonstration of "malice in law"
or "malice in fact". Acting on legally extraneous or obviously
misconceived grounds of action would be a case of "malice in law";
(iv) it is open to the employer to terminate the services of a temporary
employee on probation at any time before he was confirmed if the employer was
satisfied that he was not suitable for being retained in service. [E 169 D; 170
C; 171 C; 172 B] In the instant case the respondent was a temporary government
servant. No stigma is attached to the termination of his services. His services
had been terminated for unsuitability in relation to the post held by him. [171
F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1154 of 1970.
Appeal by special leave from the Judgment and
Order dated 18.7.1969 of the Kerala High Court in Writ Appeal No. 620/69.
M.M. Abdul Khader, K.S. Gurumurthy and R.N.
Podar for the Appellant.
T.C. Raghavan and N. Sudhakaran for the
Respondent.
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is directed against the judgment of
a Division Bench of the Kerala High Court in Writ Appeal No. 620 of 1969, which
had been filed by the appellant against the judgment of the learned Single
Judge of that High Court, allowing O. P. No. 672 of 1969. O.P. No. 672 of 1969
was filed under Article 226 of the Constitution challenging the termination of
the service of the respondent by the appellant by the order dated 17-1-67. That
order is to the effect that in accordance with the terms and conditions of his
service the respondent stated to be a temporary Ammunition Repair Labourer
Grade II, Naval Armaments Depot, Alwaye, is informed that his service is
thereby terminated with effect from the date of service of that order on him.
That order further states that respondent will be paid a sum equivalent to the
167 amount of his pay plus allowances for the period of notice, due to him,
that is, for one month in accordance with the provisions of the Navy
Instruction 22/53, as amended and that the payment of allowances will, however
be subject to conditions under which such allowances are admissible.
The respondent having been recommended by the
Employment Exchange, was appointed by the appellant by Ex. P-1 as labourer on
casual basis in lieu of Sailor in the Installation Team (I.N.S. Venduruthy) on
pay of Rs. 70/- p.m. plus allowances as admissible from time to time for the
period of one month in the first instance with effect from the forenoon of
18.12.61. The appellant continued the respondent's employment as labourer in
lieu of Sailor in B.R.O. (Installation) Department, Cochin against some
existing vacancy with effect from the forenoon of 18.1.62 by Ex. P-2. When he
was casual labourer in the B.R.O. (Installation) Department he was transferred
by the appellant to the Naval Armament Depot, Alwaye and appointed as labourer
in the regular cadre in the scale mentioned therein plus allowances as
admissible from time to time in an existing vacancy with effect from 15.11.62.
Subsequently, when the respondent was working as a labourer in the Naval Armament
Depot at Alwaye the appellant promoted him and appointed him as A.R.L. Grade II
in the Naval Armaments Depot, Alwaye in the scale mentioned therein plus
allowances as admissible from time to time in an existing vacancy with effect
from the forenoon of 2.3.64. Thereafter, his services were terminated by Order
dated 17-1-67 (Ex. P-8) as mentioned above.
In the the Writ Petition the respondent
attacked the order-Ex. P-8 on two grounds, namely, (1) that he was appointed
permanently to the post of A.R.L. Grade II by the Order (Ex. P-4) and (2) that
persons junior to the respondent have been retained in service and, therefore,
the termination of the services of the respondent without any reason
whatsoever, is discriminatory and contravenes Article 16 of the Constitution.
In the counter-affidavit filed in the Writ Petition the appellant contended
that the phraseology "regular cadre" does not imply as it may in some
other instances in the employment of government, a substantive post, that the
post in the "regular cadre" is also a purely temporary one and that
the post of Ammunition Repair Labourer Grade II to which the respondent was
promoted and appointed, was also on a temporary basis. The appellant denied
that there was any discrimination in the termination of the services of the
respondent. The learned 168 Single Judge repelled the contention that the
respondent had been permanently appointed to the post of ARL Grade II by the
Order Ex. P-4 on the ground that there is nothing in the order to show that the
respondent had been appointed permanently to the post. Regarding the second
ground urged by the respondent the learned Single Judge held, relying upon this
Court's decision in Champaklal Chimanlal Shah v. The Union of India(1) and two
other decisions of the Mysore and Andhra Pradesh High Court in Diddaiah v.
State(2) and Jankiraman v. State of Andhra Pradesh(3) respectively that Article
16 of the Constitution applies even to temporary government servants. The
learned Judge observed that there is no denial of the fact that persons junior
to the respondent have been retained in service and that there is nothing in
the order, Ex. P-8 or in the counter affidavit filed by the respondent in the
Writ Appeal to show that the respondent was guilty of any misconduct or was otherwise
unfit to hold the post. The learned Judge further observed that in paragraph 8
of the counter affidavit it has only been stated that the fact other persons
who are junior to the respondent are retained in service, would not confer any
right on the respondent to continue in service. In this view the learned Judge
held that the termination of the respondent's services under Ex. P-8 without
assigning any reason was discriminatory and he accordingly allowed the Writ
Petition without costs. In the Writ Appeal filed under s. 5 of the Kerala High
Court Act the Division Bench followed the aforesaid decision of this Court in
Champaklal Chimanlal Shah v. The Union of India (supra) and agreed with the
learned Single Judge that the appellant's action in terminating respondent's
services under Ex. P-8 is violative of Article 16 of the Constitution. The
learned Judges observed in their judgment that no reason at all was either
alleged or proved as to why appellant chose to terminate the respondent's
services under rule 5 of the Central Services (Temporary Services) Rules 1965
such as that it was administratively convenient to do so or that the
respondent's work or conduct was unsatisfactory or that it was a case of
retrenchment and the respondent was chosen as the junior-most person. The
learned Judges accordingly dismissed the Writ Appeal.
The principle that even temporary government
servants are entitled to the protection of Article 311(2) in the same manner as
169 permanent government servants if the government takes action against them
by meting out one of the three punishments of dismissal, removal or reduction
in rank, is well settled.
This court has held in Champaklal Chimanlal
Shah v. The Union of India (1) that temporary servants are also entitled to the
protection of Article 311(2) in the same manner as permanent government
servants if the government takes action against them by meting out one of the
three above punishments following the decision in Purshotam Lal Dhingra v.
Union of India(2) and that this protection is only available where the
discharge, removal or reduction in rank is sought to be infected by way of
punishment and not otherwise. The same view has been reiterated by this Court
in Manager, Govt. Branch Press and Anr. v. D.B. Beliappa,(3) where it has been
observed thus:
"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 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 the service, it is the duty of the authority
to dispel that charge by disclosing to the Court the reason or motives which
impelled it to take the impugned action. Excepting, perhaps, in cases analogous
to those covered by Article 311(12), Proviso (c), the authority cannot withhold
such information from the Court o the lame excuse, that impugned order is
purely administrative and not judicial, having been passed in exercise of its
adminis- 170 trative discretion under the rules governing the conditions of the
service." In the latest decision in State of Maharashtra v. Veerappa R.
Saboji and Anr. a similar observation has been made by Pathak, J. at page 567:
"The law, it seems to me, is that where
the services of a temporary Government servant or a probationer Government
servant are terminated by an order which does not ex facie disclose any stigma
or penal consequences against the Government servant and is merely a termination
order simpliciter, there is no case ordinarily for assuming that it is anything
but what it purports to be. Where, however, the order discloses on the face of
it that a stigma is cast on the Government servant or that it visits him with
penal consequences, then plainly the case is one of punishment. There may still
be another kind of case where although the termination of service is intended
by way of punishment, the order is framed as a termination simpliciter. In such
a case, if the Government servant is able to establish by material on the
record that the order is in fact passed by way of punishment, the innocence of
the language in which the order is framed will not protect it if the procedural
safeguards contemplated by Article 311(12) of the Constitution have not been
satisfied. In a given case, the Government servant may succeed in making out
prima facie case that the order was by way of punishment but an attempt to
rebut the case by the authorities may necessitate sending for the official records
for the purpose of determining the truth. It is in such a case generally that
the official records may be called for by the Court. It is not open to the
Court to send for the official records on a mere allegation by the Government
servant that the order is by way of punishment. For unless there is material on
the record before the Court in support of that allegation, an attempt by the
Court to find out from the record whether the termination of service is based
on the unsuitability of the Government servant in relation to the post held by
him or is in reality an order by way of punishment will in effect be an
unwarranted attempt to delve into the official records for the purpose of
determining the nature of the order on the basis of a mere allegation of the
Government 171 servant. On a sufficient case being made out on the merits
before the Court by the Government servant it is open to the Court to resort to
scrutiny of the official records for the purpose verifying the truth".
This Court has observed in Regional Manager
and Anr. v. Pawan Kumar Dubey thus:
"We do not think that Sughar Singh's
case, 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. We would, however, like to emphasize that, before Article 16 is
held to have been violated by some action there must be a clear demonstration
of discrimination between one Government servant and another, similarly placed,
which cannot be reasonably explained except on an assumption or demonstration
of "malice in law" or "malice in fact".
As we have explained, acting on a legally
extraneous or obviously misconceived ground of action would be a case of
"malice in law". Orders of reversion passed as a result of administrative
exigencies, without any suggestion of malice in law or in fact, are unaffected
by Sughar Singh's case (supra). They are not vitiated merely because some other
Government servants juniors in the substantive rank, have not been
reverted." After examining the record in Sughar Singh's case (supra), the
learned Judges have observed:
"What weighed with this Court was not
only that there was a sufficient "element of punishment" in reverting
Sughar Singh for a supposed wrong done, from which the order of reversion could
not be divorced, so that Article 311 (2) had to be complied with, but, there
was also enough of an impropriety and unreasonableness in the action taken
against Sughar Singh, solely for a very stale reason, which had become
logically quite disconnected to make out a case of "malice in law"
even if it was not a case of "malice in fact" The matter is also
covered by a recent decision of this Court in Oil and Natural Gas Commission
and Ors. v. Dr. Mohd. S. 172 Iskender Ali where one of us (Fazal Ali, J.)
speaking for the Court observed as follows:
"As the respondent was a temporary
employee on probation, it was open to the employer to terminate his services at
any time before he was confirmed, if the employer was satisfied that he was not
suitable for being retained in service." ..... ..... ...... .....
"The learned counsel for the respondent
submitted that the remarks made in the assessment roll went to show that the
intention of the appointing authority was to proceed against the respondent by
way of punishment.
We are, however, unable to agree with this
submission.
It is obvious that a temporary employee is
appointed on probation for a particular period only in order to test whether
his conduct is good and satisfactory so that he may be retained. The remarks,
in the assessment roll, merely indicate the nature of the performance put in by
the officer for the limited purpose of determining whether or not his probation
should be extended. These remarks were not intended to cast any stigma."
"In these circumstances, therefore, it is obvious that as the respondent
was merely a probationer, the appointing authority did not consider it
necessary to continue the enquiry but decided to terminate the services of the
respondent as he was not found suitable for the job. It is well settled by a
long course of decisions of this Court that in the case of a probationer or a
temporary employee, who has no right to the post, such a termination of his
service is valid and does not attract the provisions of Article 311 of the
Constitution." We agree with the learned Judges who constituted the
Division Bench of the Kerala High Court that the respondent was only a
temporary government servant and that even as a temporary government servant he
is entitled to the protection of Art. 311 (2) of the Constitution where
termination involves a stigma or amounts to punishment. We looked into the file
relating to the respondent ending with order of termination of his service
(Ex-P-8). We are satisfied that the decision to terminate the services of the
respondent had been taken at the highest level on the ground of unsuitability
of the respondent in relation to the post held by him and it is not by way of
any punishment and no stigma is attached to the respondent 173 by reason of the
termination of his service. In these circumstances we allow this appeal and set
aside the judgment of the High Court and confirm the appellant's order, Ex.
P.B. terminating respondent's services. The appellant shall bear his own costs
and pay respondent's costs.
P.B.R. Appeal allowed.
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