SefJfrmbtr 8, SUPRSME COlJRT REPORTS v. RAM NARAYAN DAS

"I have carefully gone through the representation of the probationary S. I. His argument that he has already been punished by the S. P. for specific instan ces of bad work does not help him very much since all these instances of bad work during the period of probation have to be taken together in considering his merits for confirmation or otherwise. The S. I. has already had long enough of chance to work under different S. Ps. though in one District, but he has not been able to procure a good chit from anyone. He has also been adversely reported against after the representation dealt with therein was submitted. It ' . • \. 608 SUPREME COUR'1' REPORTS [1961) i96o is, therefore, no good retaining him further.in service. He is discharged from the da.te on which this order is ' T 1 Orissa ~ A•1other serve Oll /ale o 5 d h' ,. • .. The Deputy Inspector Genera.I of Police on Dccem- , Ram Norayan Das ber H, 1954, in discharging the respondent from v. I )I .. Shah J. service, passed a formal order as follows : "Proba.tiona.ry S. l. Ramna.ra.ya.n Das of Gutta.ck District is discharged from service for unsatisfactory work a.nd conduct with effect from the da.te the order is served on him ". The respondent then presented a. petition under Art. 226 of the Constitution in the High Court of Judicature, Orissa., challenging the validity of the order passed a.nd praying for the issue of a writ in the nature of certiorari· or a.ny other writ quashing the order of discharge. Inter alia, the respondent urged, (!) that the order of discharge wa.s invalid since he was not given a. reasonable opportunity to show ca.use against the action proposed to be taken iu regard to ·him within the meaning of Art. 311(2) of the Consti tution, (2) that the order of discharge wa.s invalid since he was not afforded an opportunity to be heard nor was any evidence taken on the charges framed. The High Court by order dated December 4, 1957, In the view of the set aside the order of discharge. High Court, the Deputy Inspector General of Police had taken into consideration allegations of corruption in paRsing the impugned order and also that he had re fused to give to the respondent a.n opportunity to crqss examine witnesses on whose statements the charge of misconduct wa.s made. The High Court observed that by discharging the respondent from service with out holding an enquiry as contemplated by r. 55 of the Civil Services (Classification, Control and Appeal) Rules and without complying wit.h the requirements of Art. 311(2) of the Constitution, an "indelible stigma. affecting his future career" had been ca.st. Against the order issuing the writ quashing the order discharg ing the respondent from service, this appeal ha.s been preferred by special leave. The rt>spondent was undoubtedly at the time when proceedings were started against him a.nd when he · 1 S.C.R. SUPREME COURT REPORTS 609 was discharged from service, a probationer, and had no right to the post held by hini. Under the terms of his appointment the respondent was liable to be Oriss.' c;. a ;n;th1r discharged at any time during the period of his proba- tion. By r. 668 of the Police Manual of the Orissa Ram Narayan Das State, in so far as it is material, it is provided : Th St . 1 '9 60 / - Shah J. · "AU officers shall in the first instance be appointed or promoted on probation .. Where the period of pro- bation ds, not otherwise provided for in the Rules, it shall be for a period of two years in the case of execu- tive officers...... The authority empowered to make such appointment or promotion may at any time during such probation period and without the forma- lities laid down .in Rule 820 remove an executive officer. directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfitted for such appointment or promotion". .. Rule 681 of the Police Manual by cl. (b) in so far as it is material provides, , " Those promoted from the rank 0f Assistant Sub. Inspector shall be confirmed (Rule 659(e)) and those appointed direct shall be on probation for a period of two years. At the end of that period, those pronoun ced competent and fit will be confirmed by the Deputy Inspector-General. The others will be discharged by the same authority ''.. Rule 55-B of the Civil Services (Classification, Con trol and Appeal) Rules, in so far as it is material pro- vides: ! "Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the pro bationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authodty. competent to terminate the employment". Notice to show cause whether the employment of the respondent should be terminated was, by r. 55-B made obligatory. The Deputy Inspector General of Police who had appointed the respondent apprised 610 SUPREME COURT REPORTS [ 1961] · v. , h h Shah J. r96o . / The .\/ale o him by notice of the groundR on which the order of discharge was proposed to be made and required him 0 ."° & A"o'h" to s ow cause w y actIOn as proposed should not be taken. · The notice consisted of two parts, (I) relating " Ram Na'°J"" Das to ten heads of" gross neglect of duty and unsatisfac tory work" and (2) "suspicious and unpoliceman-like conduct" in which specific instances of fabricat.ion of public records and accept3nce of illegal gratification were set out. The Deputy Inspector General of Police by his order which has been set out hcreinbefore, expressly observed that he had, in considering the case of the respondent for confirmation, to take into account the reports received by him. The formal order communicated to the respondent also stated that the respondent was discharged from sei:_vice for unsatisfactory work and conduct. The reasons given in the order clearly indicate that the notice served upon the respondent was under r. 55-B of the Civil Services (CJa.ssification, Control and Appeal) Rules for ascertaining whether he should be con firmed or his employment terminated. Prima facio, the order is one terminating employment of the respondent as a pro bationer, and it is not an order dismissing him from service. The High Court has however held that the order of discharge amounted to imposing punishment, because the respondent had been " visited with evil consequences leaving an indeligible stigma on him a.ffeoting his future career". The respondent has not appeared ·before us support the judgment of the High Court, but the learned Solicitor General who appeared in support of the appeal has very fairly invited our attention to ·an the materials on the record and the relevant authori- . ties which have a bearing on the case of the respon dent. In Shyam Lal v. The State of Uttar Pradesh and the Union of India (1), it was held that compulsory retire ment under the Civil Services (Classification, Control and Appeal) Rules of an officer did not amount to dismissal or removal within the meaning of Art. 311 In that case, the public servant of the Constitution. (1) [1955] 1 S.C.R. 26. • "' 1 s.c.R. SUPREME COURT REPORTS 611 v. '9 60 The--;;;,, of concerned was served with a notice to show cause in respect of three spec!fic items o~ misd.emeanour ~s a public servant to whwh he submitted his explanat10n. Orissa ;;. . Another Thereafter, the President, after considering the case and the recommendation of the commission appointed Ram Narayan Das . to investigate the case, decided that the public ser- vant "should be retired forthwith from service". This order was challenged by a petition under 226 of the Oonstitntion filed in the High Court at Allahabad. In an appeal against the order dismissing the petition, this court held that the order compulsorilly retiring the public servant involved "no element of charge or imputation" and did not amount to dismissal or removal within the meaning of Art. 311(2) of the Con- stitution and the order of the President was n6t liable to 'be challenged on the ground that the public servant had not been afforded full opportunity to show cause against the action proposed to be taken in regard to hlm. Shah f. · In Parshottam Lal Dhingra v. Union of India (1 ) this court by a majority held that if an officer holding an officiating post had no right under the rules governing his service to continue in. it, and such appointment under the general Jaw being terminable at any time on reasonable notice, the reversion of the public servant to his substantive post did not operate as a forfeiture 0f any right: that order " visited him with no evil consequences" and could not be regarded as a reduction in rank by way of punishment. Bose, J., who disagreed with the majority observed that the real test was whether evil consequences over and above those that ensued from a contractual termina. tion, were likely to ensue as a consequence of the impugned order: if they were, Art. 311 of the Consti tution would be attracted even though such evil con. sequences were not prescribed as penalties under the Rules. In that case, Das, C. J., in delivering the judg. · ment of the majority, entered upon an exhaustive review of the law applicable to the termination of empl0yment of public servants and at pp. 861-863 summarised it as follows: (•l [1958) s.c.R. 828. 612 SUPREME COL'RT REPORTS [1961] v. Shah j. 1960 Th st 1 1 "Any and every termination of service is not a. dismissal, removal or reduction in ra.nk. A termina. O•iss.'.;;. ·:.:thu tion of service brought about by the exercise of a. con- tra.ctual right is not per se dismissal or removal, a.s R•n• Na.aya" Das haR been held hv this court in Satish Chander Anand v. The Union of India('). Like-wise the termination of service by compulsory reti:ement in terms of a. specific rule regulating the· conditions of service is not tantamount to the infliction of a punishment. and does not a.ttra.ct Art. 311(2) a.s has a.lso been held by this court in Shyam Lal v. 1'ht State of Uttar Pra desh (') ...... .In short, if the termination of service is founded on the right flowing from contra.ct or the ser vice rules then, prima facie, the termination is not a. punishment a.nd carries with it no evil consequences and so Art. 311 is not a.ttra.cted. But even if the _Government ha.s, by contra.ct or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismiBBal, or removal or reduction in ra.nk, the Government ma.y, nevertheless, choose to punish the sorva.nt a.nd if the termination of service is sriught to be founded on misconduct., negligence, ineffi ciency or other disqua.lifica.t.ion, then it is a. puui•hment a.nd the requirements of Art. 3ll must be complied with. As already stated, if the servant ha.s got a. right to continue in the post, then, unless the contract of em ployment or the rules provide to the contrary, bis ser vices cannot be terminated otherwise than for miscon duct, negligence, inefficiency or other good and suffici ent ca.use. A termination of tho service of such a. ser vant on such grounds must be a. punishment and, there fore, a dismissal or removal within Art. 311, for it ope rates a.s a. forfeiture of his right and he is visited with tho evil consequences of loss of pa.y and allowances. It puts an indelible stigma. on the officer affecting his future ca.reer ....... But the mere fact tha.t the servant ha.s no title to the post or the ra.nk and the Govern ment has, by contra.ct, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant (1) [1953] S.C.R. 653. (>) [1955] 1 S.C.R. >6. l S.C.lt SUPREME COURT REPORTS 613 - 5 . . . . v. 1 h h d z960 tat• o t b to a lower post or rank cannot-in any circumstances be a punishment. The real test for determining w he- Th ' f y way o Orissa .,,; Another h t er t e re uct10n lil sue cases 1s or 1s no punishment is to find out if the order for the reduction _ also visits the servant with any penal consequences. Rmn Narayan Das ...... The use of the- expression, " terminate " or " dis- charge" 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 ser. vant had a right to the post or the rank or (2) Whe. ther he has been visited with evil consequences_ of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from . servwe...... Shah J. " . The respondent had no right to the post held by him. Under the terms of his employment, the res pondent could be discharged in the manner provided. by r. 55-B. Again mere termination of employment does1n.t>t carry with it " any evil consequen~es" such as forfeiture of his pay or allowances, loss of his seni ority, stoppage or postponement of his future chances of promotion etc. It is then difficult to appreciate what "indelible stigma affecting the future career" of the respondent 'was east on him by the order dis charging him from employment for unsatisfactory work and conduct. The use of the expression " discharge " in the order terminating employment of a put.lie servant is not decisive: it may, in cer tain cases, amount to dismissal. If a confirmed public servant holding a substantive post is dis charged, the order would amount to dismissal or removal from service ; but an order discharging a temporary public servant may or may not amount to dismissal. · Whether it amounts· to an order of dis missal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on sueh enquiry. _ Where under the rules governing- 'a public servant holding a post on probation, an order terminating the probation is to be preceded by a notice to show cause 614 SUPRE){E COURT REPORTS . [1961] v. i96o Shah ]. n 5 1 1 why his service should-not be terminat~d, and a notice is issued asking the public servant to show cause Oms.' .,.'";.:,h., whether probation should be contiuued or the officer should be discharged from service the order discharg- -Ra .. Narayan Das ing him cannot be said to amount to dismissal involv ing punishment. Undoubtedly, the Government may hold a formal enquiry against a probationer on charg- es of misconduct with a view to dismiss him from service, and if an order terminating his employment is made in such an enquiry, without giving him rea sonable opportunity to show cause against the action proposed to be taken against him within the meaning of Art. 311(2) of tho Constitution, the order would un- doubtedly be invalid. - The Solicitor General invited our attention to a recent judgment of this court, State of Bihar v. Gopi ) in which, deli1,cring the judgment Kishore Prasad (1 of the court, the learned Chief Justice extracted five propositions from the authorities arid particular!.) from Parshottam Lal Dhingra's case('), dealing with termination of employment of temporary servants and probationers. The third proposition set out in the judgment is as follows: " But instead of terminating s1rnh a person's ser vice without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or ineffici ency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future In such a case, he is entitled to the protection career. of Art. 311(2) of the Constitution". This proposition, in our judgmeut, does not derogate from the principle of the other cases relating to termi nation of employment of probationers decided by this court nor is it inconsistent with what we have observ ed earlier. The euquiry against the respondent was for ascertaining whether he was fit to be confirmed. An order discharging a. public serva.nt, even if a pro bationer, in a.n enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may (1) A.l.R. [r96oj S. C. 68g. (•) [1958] S C.R. 8>8- , ... 1 S.C.R. SUPREME COURT REPORTS 615 60 '9 . . 1 late o Tl " Shah f. 5 e 0 ,issa &·Another v. appropriately be regarded as one by way of punish- ment, but an order discharging a probationer following Id b . upon an enqmry to ascertam whether he shou confirmed, is not of that nature. In Gopi K ishore Prasad's case (1), the public servant was discharged Ram Narayan Das from service consequent upon an enquiry into alleged misconduct, the Enquiry Officer having found that the public servant was " unsuitable " for the post. The order was not one merely discharging a probationer following upon an enquiry to ascertain whether he should be continued in service, but it was an order as observed by the court "clearly by way of punish- ment". There is in our judgment no real inconsist- ency between the observations made in Parshottam Lal Dhingra's case(') and Gopi Kishore Prasad's case (1). The third proposition in the latter case refers to an enquiry into allegations of misconduct or ineffici- ency with a view, if they were found established; to imposing punishment and not to an enquiry whether a probationer should be confirmed. Therefore the fact of the holding of an enquiry is not decisive of the questio'n. What is decisive is whether the order is by way of punishment., in the light of the tests laid d'own in Parshottam Lal Dhingra's case('). We have carefully considered the evidence and the authorities to which our attention has been invited a.nd we are definitely of opinion that the High Court was in error in holding that the order discharging the respondent from service amounted to dismissal which attracted the prote.ction of Art. 311(2) of the Constitu- tion. '" In that view of the case, this appeal will be. allowed and the petition for a writ dismissed. There will be no order as to costs throughout. Appeal allowed. (1) A.I.R. 1960 S.C. 689. (2) [1958] S.C.R. 828. 79 •