Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
WORKERS EMPLOYED IN HIRAKUD DAM
Vs.
RESPONDENT:
STATE OF ORISSA AND ANR.
DATE OF JUDGMENT02/02/1971
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
CITATION:
1971 AIR 2242 1971 SCR (3) 646
1971 SCC (1) 583
ACT:
Central Public Works Department Code, Paragraph 11--Word
’dismissed’- in paragraph, meaning of-Whether means
dismissal for serious misconduct only or includes
termination simpliciter.
HEADNOTE:
The construction of the Hirakud Dam was entrusted by the
State of Orissa to the Central Water Irrigation and
Navigation Commission as their agent. The Commission for
this purpose employed a large number of persons in the
worked-charged establishment of scales of, remuneration at
the rate paid by the Central Public Works Department. Their
service conditions were to be governed by the Central Public
Works Department Code of 1929. After completion of the
first stage of the Hirakud project the State Government took
it over from the aforesaid Commission. The employees of the
work charged establishment were given an option to work for
the State on the scales of remuneration and the conditions
of service in the Code. However, since there was wide
disparity between these employees and the work charged
employees of the State’s own Public Works Department, the
services of the former were terminated Such of them who
accepted reemployment were employed by the State on the
terms and conditions of service of the State Public Works
Department. They were given compensation for termination of
service and one month’s salary in lieu of notice.
Subsequently they raised a dispute contesting the
termination of their services by the State. The Industrial
Tribunal held that under paragraph 11 of the Central Public
Works Department Code which applied to them at the relevant
time the employees were entitled to remain in service till
the completion of the Project. The High Court in petitions
under Art. 226 and 227 of the Constitution by the State held
the termination justified under paragraph It of the Code
because it provided inter alia that the members of the work
charmed establishment were entitled if dismissed otherwise
than for serious misconduct before the completion of the
work in which they were engaged, to a month’s notice or a
month’s pay in lieu of notice. Paragraph 11 also provided
that the workers could resign after a month’s notice or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
forfeiture of pay in lieu of one month’s notice. In appeal
by the employees against the High Court’s judgment it was
contended before this Court that ’dismissal’ within the
meaning of paragraph 11 was to be understood only as dis-
missal for serious misconduct and not dismissal simpliciter.
Support for this contention was sought from the fact that
the word ’dismissal’ as used in ’the Government of India
Act, 1935, and in Art. 311 of the Constitution as well as
the Service. Rules had been interpreted by the Courts to
mean only dismissal by way of punishment.
HELD : The word ’dismissal’ used in the Government of India
Act, 1935 as also in Art. 311 of the Constitution and the
Service Rules has no doubt been interpreted to mean
termination of a person’s services by way of punishment.
But there is clear indication in paragraph 11 of the Code
that the word ’dismissal’ has not been used to denote the
termination of the services of an employee only as and by
way of punishment. [654 F]
6 4 7
Having made provisions for the automatic termination of the
services of an employee when the work comes to an end it is
but natural that provisions should be made to terminate the
services of an employee even when the work has not been
completed If the employee wants to give up the job then
under paragraph 1 1 he has to give a month’s notice, tailing
which he forfeits a month’s pay in lieu or such notice..
Having provided for the voluntary resignation by an employee
even when the work has not been completed., it will be odd
to hold that a similar right has not been given to the
employer to terminate the services of a workman, even though
the work has not finished. It will again be incongruous to
hold that when a person is dismissed, though not for a
serious misconduct, the workman will be entitled to a
month’s notice or a month’s pay in lieu of notice, if
otherwise there can be dismissal for a minor misconduct as
and by way of punishment. No decision has laid down that
even in case of dismissal a workman will be entitled to a
months notice or a month’s pay. The fact that paragraph 11
provides for giving a month’s notice or a month’s pay when a
workman is dismissed otherwise than for serious misconduct
indicates that the work ’dismissed’ has not been used in the
sense of termination of service by way of punishment alone
but it covers also other cases of termination of the
services of an employee even before the completion of the
work. [654 H-655 G]
The word ’dismissed’ according to its dictionary meaning is
’to send away, to discard, to remove from ’Office or
employment.......... The dictionary meaning makes it clear
that in substance the word means ’termination of service’.
The High Court was therefore right in holding that the
expression ’dismissed’ in paragraph 11 of the Code, has been
used to take in the, termination of the services of the
employees mentioned therein both as a measure of punishment
for serious. misconduct as well as termination simpliciter
of the services of an employee in which contingency one
month’s notice or a month’s pay in lieu of notice is obli-
gatory.[656 B; 658 D]
Dr. Bool Chand v. Chancellor, Kurukshetra University,
[1968] 1 S.C.R. 434, applied.
Purshotam Lal Dhingra v. Union of India, [1958] S.C.R. 828,
referred to.
JUDGMENT:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1492 of
1966.
Appeal by special leave from the judgment and order date
April 5, 1968 of the Orissa High Court in O.J.C. No. 58 of
1965.
M. K. Ramamurthi, A. K. Gupta, R. A. Gupta and Uma Datta,
for the appellants.
M. C. Bhandare, Santosh Chatterjee and R. N. Sachthey, for
respondent No. 1.
The Judgment of the Court was delivered by
Vaidialingam J.-In this appeal by special leave the short
question that arises for consideration is whether the State
has got
648
power to terminate the services of any member of the work-
charged establishment under paragraph 11 of the Central
Public Works Department Code (hereinafter to be referred as
the Code) on giving one month’s notice or a month’s pay in
lieu of notice.
The circumstances leading up to this appeal may be stated A
decision was taken to construct three dams right across the
Mahanadi river, one at Hirakud, the second at Tikerpara and
the third at Naraj as a multipurpose measure for preventing
flood ravage in the Delta area, generating electricity and
providing irrigation. The construction of Hirakud Dam was
entrusted by the State of Orissa to the Central Waterways,
Irrigation and Navigation Commission as their agent. For
the purpose of the construction of Hirakud Dam, the C.W.I.N.
Commission employed a large number of persons in the work-
charged establishment on scales of remuneration at the rate
paid by the Central Public Works Department and the service
conditions of the persons so employed were governed by the
provisions contained in the Code.
After completion of the first stage of the Hirakud Dam
project, the State of Orissa decided to take over the said
project from their agent the C.W.I.N. Commission with effect
from April 1, 1960. The State further decided to proceed
with the construction of second stage of the project through
its own Public Works Department. An option was given by the
State to the employees in the work charged establishment to
decide whether they Would continue to work under the State
on the same pay and allowances and subject to other
conditions of service provided in the Code for the said
work-charged establishment. The employees agreed to work
under the State of Orissa and accordingly the employees.
were allowed to continue under the State Government.
The State, however, later on found that the pay, allowances
and conditions of service between the work-charged personnel
of the Hirakud Dam project who had been allowed to be
continued and the work-charged personnel in the
establishment of the State Public Works Department showed a
marked difference giving rise to various complications. The
Hirakud Control Board recommended to the State Government to
terminate the services of the work-charged personnel of the
Hirakund Dam by giving one month’s notice with effect from
March 31, 1963. Accordingly the State Government terminated
the services of the said personnel with effect from March
31, 1963 by giving one month’s notice; but the State also
made it clear that such of those who elected to be re-
employed on the scales of pay and conditions of service of
the State Public Works Department would be so reemployed.
On the issue of the notice by the State, 1200 out of 2300
personnel who had continued from before in the work-charged
establishment left their services
649
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
and the remaining 1 1 00 agreed to be reemployed on scales
of pay and conditions of service of the State Public Work
Department. The employees were paid an amount equal to what
they would have received by way of retrenchment compensation
or by way of wages in lieu of notice.
Subsequently the personnel of the work-charged establishment
raised a dispute contesting the termination of their
services by the State. As conciliation failed, the
Government by its order dated February 13, 1964 referred the
dispute to the Industrial Tribunal Orissa for adjudication.
The points referred for adjudication were :
1.Whether the Retrenchment of Workmen by
the authorities of Hirakud Dam Project
effected in pursuance of the decision taken by
the Control Board, Hirakud Dam Project on the
19th December, 1962, is valid and legal? If
not, to what the workmen are entitled?
2.Whether the workers who are proposed to
be retrenched in pursuance of the decision of
the Control Board, Hirakud and are still
continuing in Employment are entitled to their
original conditions of service ?
3.Whether the workmen, who have completed
three years of services or more should be
confirmed in their respective posts ?
The main stand taken by the employees before the Industrial
Tribunal was that their service conditions being governed by
the Code they are entitled to remain in service till the
termination of the work connected with the Projects. The
work connected with the Project not having come to an end,
the State has no power to terminate their ’services. On the
other hand, the State of Orissa took up the position that it
has power under paragraph 1 1 of the Code they are entitled
to remain in service till the termination of notice or one
month’s pay in lieu of notice even before the completion of
the work.
The Industrial Tribunal recorded broadly the following
findings : (1) the action, of the State cannot be considered
to be by way of retrenchment under the Industrial Disputes
Act as this is not a case of discharge of surplus labour,
(2) the mere fact that the employees have accepted the
notice, pay or compensation does not stop them from
challenging the legality of their termination, (3) paragraph
11 of the Code does not authorise the State to terminate the
services of an employee before the work is completed. The
said paragraph gives only a limited power to terminate the
services of an employee by way of a punitive action taken as
a measure of punishment. In this connection the Tribunal
has
650
placed considerable reliance on the expression ’dismissed’
used in paragraph 11 of the Code, (4) as the work had not
been completed and as the action had not been taken by way
of punishment, the order of termination is without
jurisdiction, (5) the termination of employment is arbitrary
and anti-contractual, (6) the order of termination is
invalid and inoperative. The contention raised by the State
that the Project was not an industry was also overruled.
The Tribunal ultimately held that the action taken by the
Management of the Hirakud Dam Project in pursuance of the
Notice dated February 9, 1963 was invalid and illegal and
that the work-charged employees then working in different
divisions of the Project and who had been recruited prior to
April 1, 1960 are entitled to have their original conditions
of service including scales ,of pay and dearness allowance.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
The Tribunal further held that the employees are entitled to
continuity of service and that their services cannot be
terminated before the completion of work except as a measure
of punishment.
The State challenged this award before the High Court of
Orissa in Writ Petition (O.J.C. No. 58 of’1965) under
Articles 226 and 227 of the Constitution. Though the State
contended that the Hirakud Dam Project was not an industry
and that the Tribunal has acted beyond the scope of
reference when it gave certain directions regarding pay and
allowances etc., ultimately these contentions were given up.
The only contention pressed before the High :Court was that
the Industrial Tribunal had committed an error of law in
construing paragraph 11 of the Code when it held that the
,State had no power during the progress of the work to
terminate simpliciter the services of any of the work-
charged employees.
The High Court agreed with the contention of the State and
held that under paragraph 11 of the Code, the State
Government ’had power to terminate the services of an
employee even during the progress of the work on giving one
month’s notice or one month’s pay in lieu of notice.
Mr. M. K. Ramamurthy, learned counsel for, the appellants,-
contended that the construction placed by the High Court on
paragraph 1 1 of the Code is incorrect. Ms contentions ran
as follows : The employees in the work-charged establishment
were entitled to continue in service till the work for which
they have been employed was completed. For, serious
misconduct the employer has got the power to dismiss such an
employee without giving a month’s notice or a month’s pay in
lieu of notice. But if an employee was being dismissed for
reasons other than for serious misconduct, the employee is
entitled to a month’s notice or a month’s pay in lieu of
notice. There is no power in the employer to terminate
simpliciter the
651
services of an employee so long as the work has not been
comPleted. The expression "dismissal" has always. been
understood and interpreted by the courts as action taken
against an employee by way of punishment and that expression
cannot be interpreted to include _also the termination of
the service of an employee otherwise than by way of
punishment.
Mr. Bhandari, learned counsel for the State, on the other
hand, urged that paragraph 1 1 is really intended to govern
the relationship between the employer and the employees of
the work-charged establishment and the expression
"dismissal" has not been used in the sense that action
should necessary have been only as and by way ’of
punishment. According’ to the learned counsel the
expression "dismissal" has been used in a loose sense
meaning termination of the services of an employee either by
way of punishment for misconduct or for any other reason,
We are not inclined to accept the contention of Mr.
Ramamurthy that the expression "dismissal" in paragraph 11
has been used to denote only action taken against a workman
as and by way of punishment. No doubt, the expression has
not been very happily used in the said paragraph., Paragraph
1 1 of the Code is as follows :
"11. Members of the temporary and work-
charged establishments, who are engaged
locally, are on the footing of monthly
servants. If they are engaged for a specific
work, their engagement lasts only for the
period during which the work lasts. If
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
dismissed, otherwise than for serious
misconduct, before the completion of the work
for which they were engaged, they are entitled
to a month’s notice or a month’s pay in lieu
of notice; but otherwise, with or without
notice, their engagement terminates when the
work ends. If they desire to resign their
appointments they must give a month’s notice
of their intention to do so, failing which
they will be required to forfeit a month’s pay
in lieu of such notice. The terms of
engagement should be clearly explained to men
employed in the circumstances mentioned
above."
The following aspects emerge from paragraph 1
1 of the Code
(i) the members of the temporary and work-
charged establishments, are treated to be on
the footing of monthly servants;
(ii)if they are engaged for specific work,
their services last only for the period during
which the
918 Sup CI/71
652
work lasts. To put it differently there will
be automatic termination of the services of an
employee when the specific work for which he
was engaged is completed;
(iii)before the completion of a work, a
workman can be dismissed for serious
misconduct. In such a case no question of
giving a month’s notice or a month’s pay in
lieu of notice arises;
(iv) before the completion of the work, the
workman can also be dismissed otherwise than
for serious misconduct, in which case the
workman will be entitled to a month’s notice
or a month’s pay in lieu of notice;
(v) in other cases the workman’s services
terminate when the work ends;
(vi) if the workman desires to resign his
appointment, he must give one month’s notice
of his intention to do so, failing which he
will be required to forfeit a month’s pay in
lieu of such notice.
That the above are terms of engagement of a workman, is
clear from the concluding part of paragraph 11 to the effect
that "the terms of engagement should be clearly explained to
men employed in the circumstances mentioned above."
The question that arises for consideration is about the con-
notation of the expression "dismissed" used in paragraph 11.
The contention of Mr. Ramamurthy that the expression
"dismissed" has reference only to termination of the
services of an employee as and by way of punishment is
largely based upon the provisions contained in the
Government of India Act and in Art. 311 of the Constitution.
Based upon those provisions Mr. Ramamurthy claims that the
expression "dismissal" is a technical word used in cases in
which a person’s services are terminated by way of punish-
ment. Quite naturally he relied upon the Service Rules
where the word "dismissal"’, has been used to denote a major
punishment inflicted upon an employee for misconduct. Mr.
Ramamurthy, no doubt, is well-founded in his contention that
the word "dismissal" used in the Government of India Act as
also in the Constitution and the Service Rules has been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
interpreted to mean termination of a person’s service by way
of punishment.
By section 45 of the Government of India Act, 1919 read with
Part 1 of the second schedule to that Act, several sections
includ-
6 5 3
ing. s. 96B were introduced in the Government of India Act,
1915. Among other things s. 96B provided that no person in
the civil service of the Crown in India may be dismissed by
any authority subordinate to that by which he was appointed.
Section 96-B for the first time gave statutory recognition
and force, to the English Common Law rule that the servants
of the Crown held their Offices during the pleasure of the
Crown. It also at the same time imposed one important
qualification upon the exercise of the Crown’s pleasure,
namely, that a servant might not be dismissed by an
authority subordinate to that by which he had been
appointed.
Section 96-B(1) was reproduced as sub-sections (1) and (2)
of section 240 of the Government of India Act, 1935 and a
new section was added to section 240 as sub-section (3).
Sub-section (2) of section 240 provided that no person
referred to in subsection (1) shall be dismissed from the
service of His Majesty by any authority subordinate to that
by which he was appointed. Sub-section (3) provided that no
such person shall be dismissed or reduced in rank until he
has been given a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him.
Then came our Constitution on January 26, 1950. Articles
311 (1) and(2) provided as follows
"31 1 (1 No person who is a member of a
civil service of the- Union or an all-India
service or a civil service of a State or holds
a civil post under the Union or a State shall
be dismissed or removed by an authority
subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be
dismissed or removed or reduced in rank except
after an inquiry in which he has been informed
of the charge against him and given a
reasonable opportunity of being heard in
respect of those charges and where it is
proposed, after such inquiry, to impose on him
any such penalty, until he has been given a
reasonable opportunity of making
representation on the penalty proposed, but
only on the basis of. the evidence adduced
during such inquiry :"
It will be noted that Art. 311 gives a twofold protection to
persons who come within the article, namely, (i) against
dismissal or removal by an authority subordinate to that by
which they were appointed and (ii) as against dismissal or
removal or reduction in rank without giving them a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to them.
654
Discussing the above provisions in Parshotam Lal Dhingra v.
Union of India(1), this Court observed as follows
"It follows from the above discussion that
both at the date of the commencement of the
1935 Act and of our Constitution the words
"dismissed", "removed" and reduced in rank",
as used in the service rules, were all
understood as signifying or denoting the three
major’ punishments which could be inflicted on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
Government ,servants. The protection given by
the rules to the Government servants against
dismissal, removal or reduction in rank, which
could not be enforced by action, was
incorporated in sub-ss. (1) and (2) of S. 240
to give them a statutory protection by
indicating a procedure which had to be
followed before the punishments of dismissal,
removal or reduction in rank could be imposed
on them and which could be enforced in law.
These protections have now been incorporated
in Art. 311 of our Constitution.......... Thus
Under Art. 311 (1) the punishments of
dismissal, or removal cannot be inflicted by
an authority subordinate to that by which the
servant was appointed and under Art. 311(2)
the punishments of dismissal, removal and
reduction in rank cannot be meted out to the
Government servants without giving him a
reasonable opportunity to defend himself."
If the interpretation placed upon the word "dismissal" in
the Government of India Act and the Constitution as well as
the service rules is adopted for construing the said word in
paragraph 11 of the Code, the contention of Mr. Ramamurthy
will have to be, accepted. But there is a clear indication
in paragraph 1 1 of the Code that the word "dismissed" has
not been used to denote the termination of the services of
an employee only as and by way of punishment. Paragraph 1
1, in our opinion, contains the terms of engagement of the
workmen. In view of the very nature of the employment In
the work which may either finish quickly or may take a
considerably long time for completion, Paragraph 11 has been
incorporated to govern the relationship between the Central
Public Works Department and a workman. In this case there
is no controversy that even after the State took over the
construction of the Project, relationship between the State
and the employees is governed by Paragraph 1 1. Having made
provisions for the automatic termination of the services of
an employee, when the work comes to an end, it is but
natural that provisions should be made to terminate the
services of an employee even when the work
(1) [1958] S.C.R. 820.
6 5 5
has not been completed. In this connection it should be
noted that if the employee wants to give up the job, he has
to give a month’s notice, failing which he forfeits a
month’s pay in lieu of such notice. Having provided for the
voluntary resignation by an employee even when the work has
not been completed, it will be odd to hold,that a similar
right has not been given to an employer to terminatethe
services of a workman, even though the work has not
finished. It is quite understandable that provisions
should be made for dismissing an employee even before the
completion of the work, for serious misconduct. In such a
case, it is admitted by the learned counsel for the
appellants, that the question of giving a month’s notice or
a month’s pay in lieu of notice does not arise. In that
contingency, it is easy to hold that the termination of the
services of an employee is dismissal as and by way of
punishment. Paragraph 1 1 further provides that if an
employee is dismissed before the completion of the work
otherwise than for serious misconduct, he will be entitled
to a month’s notice or a month’s pay in lieu of notice.
According to Mr. Ramamurthy, there is nothing incongruous in
holding that when a workman is dismissed for a minor
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
misconduct he will be entitled to a month’s notice or a
month’s pay in lieu of notice. In our opinion it will be
incongruous to hold that when a person is dismissed, though
not for a serious misconduct but even for a minor
misconduct, the workman will be entitled to a month’s notice
or a month’s pay in lieu of notice, if otherwise there can
be a dismissal for a minor misconduct as and by way of
punishment. So far as we could see no decision has laid
down that even in cases of dismissal a workman will be
entitled to a month’s notice or a month’s pay. If it is a
dismissal by way of punishment, no question of a month’s
notice or a month’s pay in lieu of notice ever arises. The
fact that Paragraph 1 1 provides for giving a month’s notice
or a month’s pay when a workman is dismissed otherwise than
for serious misconduct indicates that the word "dismissed"
has not been used in the sense of termination of service by
way of punishment alone but it covers also other cases of
termination’ of the services of an employee even before the
completion of the work. Interpreted in this manner, the
position will be that the services of an employee can be
terminated as punishment for serious misconduct and the
services of an employee can be terminated also for other
reasons. If the services are terminated for other reasons.
Paragraph 11 provides for giving a month’s notice or a
month’s pay in lieu of notice.
From the above reasoning it is clear that the word
"dismissed" has been used loosely to denote both termination
of service for misconduct by way of punishment and also
termination of service simpliciter.
65 6
It must also be noted that the Code has been framed in 1929
long before the Government of India Act, 1935, came into
force. In Burrows "Words and Phrases" the word "dismissal"
has been stated to be a word of very ambiguous meaning and
that it is merely a convenient expression for the
termination of an employment whatever its nature may be.
The word "dismissed" according to its dictionary meaning is
"to send away, to discard, to remove from office or
employment.......... The dictionary,meaning makes it clear
that in substance the word means "termination of service."
In Dr. Bool Chand v. The Chancellor, Kurukshetra Univer-
sity(1), the import of the expression "dismissed" came up
for consideration before this Court. The appellant in that
case, who was Professor and Head of the Department of
Political Science in the Punjab University, was appointed on
June 18, 1965, as the Vice-Chancellor of ’ the Kurukshetra
University. On March 31, 1966, the Chancellor of the
University suspended the appellant from the office of Vice-
Chancellor and by another order the appellant was required
to show cause why his services as Vice-Chancellor be not
terminated. The appellant after submitting his
representation, filed a writ petition in the Punjab High
Court for quashing the order dated March 31, 1966. On May
8, 1966, the Chancellor of The University, in exercise of
the power under sub-cl. (vi) of cl. 4 of Sch. 1 to the
Kurukshetra University Act, 1956, read with S. 14 of the
Punjab General Clauses Act, 1898, passed an order termi-
nating the services of the appellant as Vice-Chancellor with
immediate effect. The writ petition was suitably amended
challenging this order terminating the appellant’s service
as Vice-Chancellor. The relevant sub-clause of Cl. 4 of
Schedule I of the Kurukshetra University Act provided that
the Vice-Chancellor will hold the office ordinarily for a
period of three years.
One of the contentions raised before this Court was, that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
the Chancellor of the University had no power to terminate
the services of a Vice-Chancellor before the expiry of the
period for which he was appointed and that s. 14 of the
Punjab General Clauses Act, 1898, while providing for
dismissal did not empower the appointing authority to
terminate the services of an officer. While holding that
there was no express provision in the Kurukshetra University
Act or the statutes thereunder dealing with the termination
of the tenure of office of the Vice-Chancellor, this Court
held
"But on that account we are unable to accept
the plea of the appellant that the tenure of
office of a Vice-Chancellor under the Act
cannot be determined before
(1)[1968] 1 S.C. R. 434.
6 5 7
the expiry of the period for which he is
appointed. A power to appoint ordinarily
implies a power to determine the employment."
Regarding the further contention that S. 14 of the Punjab
General Clauses Act only empowers the appointing authority
to dismiss an officer by way of punishment, but not to
determine an employment this Court after referring to S. 14
observe as follows
"But s. 14 of the General Clauses Act is a
general provision : it does not merely deal
with the Appointment of public servants. It
deals with all appointments, and there is no
reason to hold, having regard to the context
in which the expression occurs, that the
authority invested with the power of
appointment has the power to determine
employment as a penalty, but not otherwise.
The expression ’dismiss’ does not in its
etymological sense necessarily involve any
such meaning as is urged by counsel for the
appellant. The implication that dismissal of
a servant involves determination of employment
as a penalty has been a matter of recent
development since the Government of India Act,
1935 was enacted. By that Act certain
restrictions were imposed upon the power of
the authorities to dismiss or remove members
of the civil service, from employment. There
is no warrant however for assuming that in the
General Clauses Act, 1898, the expression
"dismiss" which was generally used in
connection with the termination of
appointments was intended to be used only
in the sense of determination of employment as
a measure of punishment."
From the above extract it is clear that the word "dismissal"
has to be understood in the context in which it occurs and
that it denotes the determination of an employment as a
penalty is a matter of recent development since the
Government of India Act, 1935 was enacted. In the case-
before us, we have already pointed out that the Code has
been framed as early as 1929 and there is no warrant ,for
assuming that the expression "dismissed" has been used in
the sense that the word was understood since the Government
of India Act, 1935. Further the word ’dismissed’ occurring
in the context in which the said expression occurs in
paragraph 1 1, as pointed out by us earlier, clearly denotes
the termination of the services of an employee for serious
misconduct and for other reasons. That expression is not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
used in the sense only to denote determination of employment
as and by way of punishment.
Mr. Ramamurthy raised the contention that even if there is
power of termination simpliciter in the employer under
Paragraph 11 , the High Court should not have interfered
with the award of
658
the Industrial Tribunal as the Tribunal has recorded a
finding that the State has not acted bona fide. In support
of this contention-, the learned counsel relied on the
reasoning contained in paragraph 18 of the award. We have
gone through the reasoning contained in the said paragraph
and we do not find any finding recorded by the Tribunal that
the State has not acted bona fide, when it passed an order
terminating the services of the employees. On the other
hand, what the Tribunal has held in the said paragraph is
that the termination of the services of the employees is
invalid and illegal as it is not warranted by Paragraph 11
of the Code and hence the order of termination is invalid in
law and inoperative. There is absolutely no basis for the
contention that these findings are to the effect that the
action of the State is not bona fide. Thus the findings
recorded by the Tribunal are findings on the basis of the
interpretation placed by it on Paragraph 11 that the State
has no power to terminate simpliciter the services of a
work-charged establishment. Therefore, this contention of
Mr, Ramamurthy has to be rejected.
To conclude we are in agreement with the High Court in hold-
ing that the expression "dismissed" in Paragraph II of the
Code, has been used to take in the termination of the
services of the employees mentioned therein both as a
measure of punishment for serious misconduct as well as
termination simpliciter of the services of an employee in
which contingency one month’s notice or a month’s pay in
lieu of notice is obligatory.
In the result the appeal is dismissed but in the
circumstances without any order as to costs.
G.C. Appeal dismissed.
6 5 9