Full Judgment Text
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PETITIONER:
DELHI TRANSPORT UNDERTAKING
Vs.
RESPONDENT:
BALBIR SARAN GOEL
DATE OF JUDGMENT:
23/02/1970
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
SHAH, J.C.
HEGDE, K.S.
CITATION:
1971 AIR 836 1970 SCR (3) 757
1970 SCC (1) 515
CITATOR INFO :
D 1975 SC 661 (18)
R 1976 SC2049 (18)
D 1991 SC 101 (16,47,103,188,278)
ACT:
Delhi Road Transport Authority Act, 1950--Conditions of
Appointment and Service Regulations, 1952, Reg. 9, 15 & 17-
Employee unsuccessfully approaching Court, without
exhausting departmental remedies-Simpliciter order
terminating services as no longer required Whether by way of
Punishment.
HEADNOTE:
Regulation 9 of the Delhi Road Transport Authority Act
(Conditions, of Appointment and Service Regulations), 1952
provides for termination of services in two modes. The
first is -by its clause (a) by which services. may be
terminated without any notice or pay in lieu of notice.
This can be done among other reasons for misconduct. The
second mode is by clause (b) by which the services may be
terminated owing to reduction of establishment or in
circumstances other than those mentioned in clause (a) which
relate to termination without notice. When termination is
made under clause (b) one month’s notice or pay in lieu
thereof is to be given to the employee. Regulation 15 says
that a breach of the standing order will amount to
misconduct, and one of the penalties imposed for misconduct
is dismissal. It also prohibits an order of dismissal,
removal or other punishment except censure unless the
procedure laid down in clause (c) of Regulation 15 is
followed. The standing- order 17 enjoins, that no employee
should have recourse to a court of law without first re-
sorting to the normal official channels of redress.
The respondent, an employee of the appellant-
Undertaking established under the Delhi Transport Authority
Act, was demoted. He challenged the demotion by filing a
petition under Art. 226 of the Constitution. Thereafter the
appellant-undertaking passed an order terminating the
respondent’s services, stating only that his services were
no longer required and that one month’s salary in lieu of
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notice would be paid. The respondent filed a suit claiming
that the order was illegal. On the questions, (i) whether
the respondent’s services could be terminated under Regula-
tion 9(b) without complying with the procedure prescribed by
Regulation 15 and (it) whether although the order was made
in perfectly harmless and innocuous terms and purporting to
be within Regulation 9(b) it was a mere camouflage for
inflicting punishment for breach of standing order 17, as
the respondent had approached the High Court without
exhausting the Departmental remedies, this Court,
HELD: (i) Even if it be assumed that the law is the
same as, would be applicable to a case governed by Art. 311,
it was difficult to say that the services of the respondent
were not merely terminated in accordance with Regulation
9(b) which governed the conditions of his employment. It
may be that the motive for termination of his services was
the breach of Standing Order 17 i.e. of filing a writ
petition in the High Court against the demotion without
exhausting departmental remedies but the question of motive
is immaterial. No charge-sheet was preferred under Regula-
tion 15 nor was any enquiry held in accordance therewith
before the order under Regulation 9(b) was made. It may be
that if the respondent had successfully pleaded and proved
malafides on the part of the authority
758
terminating his services the impugned order could be
legitimately challenged but no foundation was laid in that
behalf in the plaint nor was the ,question of malafides
investigated by the courts below. [763 E-G]
(ii) As regards the punishment having been inflicted
for misconduct the order being a mere camouflage no such
question could arise in the present case. Regulation 9(b)
clearly empowered the authorities to terminate the services
after giving one months notice or pay in lieu of notice.
The order was unequivocally made in terms of that
Regulation. Even if the employers of the respondent thought
that he was a cantankerous person and it was not desirable
to retain him in service it was open to them to terminate
his services in terms of Regulation 9(b) and it was not
necessary to dismiss him by way of punishment for
misconduct. If the employer chooses to terminate the
services in accordance with clause (b) of Regulation 9 after
giving one month’s notice or pay in lieu thereof it cannot
amount to termination of service for misconduct within the
meaning of clause (a). It is only when some punishment is
inflicted of the nature specified in Regulation 15 for
misconduct that the procedure laid down therein for an
inquiry etc., becomes applicable. [763 H]
S. R. Tewari v. District Board Agra & Another, [1964] 3
S.C.R. 55, ,State of Punjab v. Shri Sukhraj Bahadur, [1968]
3 S.C.R. 244, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2266 of
1968.
Appeal by special leave from the judgment and decree
dated August 4, 1967 of the Delhi High Court in Letters
Patent Appeal No. 68-D of 1965.
Niren De, Attorney-General, D. D. Chaudhuri and G. K.
"Sharma, for the appellant.
H. R. Gokhale and S. K. Gambhir, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave in which
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the sole question for determination is whether the services
of the respondent who was an employee of the appellant could
be terminated under Regulation 9(b) without complying with
the procedure prescribed by Regulation 15 of the D.R.T.A.
(Conditions of Appointment and Service Regulations), 1952,
as amended which were framed under S. 53 sub-ss. (1) and
(2)(c) of the Delhi Road Transport Authority Act 1950.
The respondent was originally appointed as a booking
agent under the Gwalior Northern India Transport Company.
He was promoted to the rank of Travis Ticket Examiner in
1947. In 1948 the Government of India, Ministry of
Transport, took over the aforesaid company. On March 7,
1950 the Delhi Road Transport Authority Act was passed. The
services of the respondent were transferred to the said
Authority. In March 1952 the
759
respondent was demoted from the rank of Travelling Ticket
Examiner to that of a Conductor. He filed a writ petition
in the Circuit Bench of the Punjab High Court at Delhi in
April 1953. The writ petition was dismissed and thereafter
his services were terminated on November 11, 1953. The
order of termination which was passed by the Manager of the
Delhi Road Transport Authority was in the following terms :
"Your services will not be required by this
organisation with effect from November 12,
1953. You will be paid one month’s salary in
lieu of notice."
There were certain proceedings before the Conciliation
Officer and in answer to a query made by that officer the
General Manager wrote a letter on August 14, 1956 in which
it was stated, inter alia, that the respondent had
approached the High Court when he had been demoted at the
previous stage without exhausting the normal official
channel of redress and without putting in his representation
before the Appellate Authority as provided in the Service
Rules. His services were therefore terminated under
Regulation 9(b) after paying one month’s salary in lieu of
notice. It may be mentioned that the Service Rule of which
the breach was alleged to have been committed by the
respondent was Standing Order No. 17 which enjoined that no
employee should have recourse to a court of law without
first resorting to the normal official channels of redress.
The suit out of which the present appeal has arisen was
filed by the respondent containing all the above facts in
which it was alleged that the order dated November 11, 1953
was one of dismissal and had been passed as a measure of
punishment, the procedure prescribed by Regulation 15 not
having been followed. In para 29 of the plaint the sole
allegation relating to mala fides was made in these terms :
"........ It was mala fide on the part of
General Manager, D.R.T.A. to terminate the
services of the plaintiff without assigning
any reason."
A declaration was sought that the order of dismissal was
illegal, mala fide etc. and that the plaintiff continued to
remain in the employment of the appellant without any
interruption of rights. A claim for certain amount was also
made on account of salary etc. The only two issues framed
on the merits were:
"(1) Whether the order dated 11-11-53
terminating the services of the plaintiff is
illegal and ultra vires as alleged ?
760
.lm15
(2) Whether the plaintiff is entitled to the recovery of
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any amount by way of consequential relief? If so, at what
rate and for what period ?"
The trial court held that the order terminating the services
of the respondent was not covered by Regulation 9(b) but was
an order of dismissal from service under Regulation 15(2)
clause (7) and therefore the order of termination was
nothing short of dismissal. It was held that the dismissal
of the respondent was illegal and that he was entitled to
the pay and allowances in the sum of Rs. 4500.
An appeal was taken to the District Court which
confirmed the decree of the trial court. A learned Single
Judge of the High Court who disposed of the second appeal
preferred by the present appellant affirmed the decree of
the courts below but on different grounds. It was held by
him that Regulation 9(b) did not confer any power on the
Authority to terminate the employment of its employees. A
division bench which heard the appeal under the Letters
Patent affirmed the decisions of the courts below but on
different grounds. It was held that the real reason for
dispensing with the services of the respondent was one given
by the General Manager in his letter to the Conciliation
Officer. It was the alleged breach of the Service Rules. A
breach of the Standing Order amounted to misconduct as
provided by Regulation 15(1). One of the penalties
prescribed by Regulation 15(2) was dismissal. That though
the order of termination of services of the respondent did
not on its face, contain the reason for the non-requirement
of his services the real reason was the misconduct of the
respondent in that he had committed a breach of the Standing
Order. The procedure laid down in Regulation 15(2)(c) of
enquiry etc. not having been followed the impugned order was
void and illegal. In fact that order had been made by way-
of punishment.
Regulation 9, to the extent it is
material, is as follows
"9.Termination of Service.-(a) Except as
otherwise specified in the appointment orders,
the services of an employee of the Authority
may be terminated without any notice or pay in
lieu of notice-
(i) during the period of probation and
without assigning any reasons therefore,
(ii) for misconduct,
(iii) on the completion of specific
period of appointment,
761
(iv) In the case of employees engaged on
contract for a specific period, on the
expiration of such period in accordance with
the terms of appointment.
(b) Where the termination is made due to
reduction of establishment or in circumstances
other than those mentioned at (a) above, one
month notice or pay in lieu thereof will be
given to all categories of employees.
(C)........................."
Regulation 15 says that a’ breach of the Standing Order
issued from time to time by the Delhi Road Transport
Authority will amount to misconduct. The penalties which
can be imposed for misconduct are enumerated out of which
dismissal is one. It is provided that no order of
dismissal, removal or other punishment except censure shall
be passed unless the procedure laid down in clause (c) is
followed. That clause outlines the. steps which must be
taken in the matter of affording an opportunity to the
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delinquent employee and of an inquiry which is to. be
conducted in the matter.
Now Regulation 9 clearly provides for termination of
services in two modes; the first is where the services may
be terminated without any notice or pay in lieu of notice.
This can be done among other reasons for misconduct. The
second mode is of terminating the services owing to
reduction of establishment or in circumstances other than
those mentioned in clause (a) which relate to termination
without notice. When termination is made under clause (b)
one month’s notice or pay in lieu thereof is to be given to
the employee. Thus it is clear that if the employer chooses
to terminate the services in accordance with clause (b)
after giving one month’s notice or pay in lieu thereof it
cannot amount to termination of service for misconduct
within the meaning of clause (a). It is only when some
punishment is inflicted of the nature specified in
Regulation 15 for misconduct that the procedure laid down
therein for an inquiry etc. becomes applicable. The
contention which appears to have prevailed with the High
Court and which has been pressed before us is that although
the order was made in perfectly harmless and innocuous terms
and purported to be within Regulation 9(b) it was a mere
camouflage for inflicting punishment for breach of Standing
Order 17 inasmuch as the respondent had approached the High
Court under Art. 226 of the Constitution without exhausting
the departmental remedies. The High Court relied on the
observations in S. R. Tewari v. District Board Agra &
Another(’) that the form of the order under
(1) [1964] 3 S.C.R. 55.
Sup.CI(NP)/70-4
762
which the employment of a servant was determined was not
conclusive of the true nature of the order. The form might
be merely to camouflage an order of dismissal for misconduct
and it was always open to the court before which the order
was challenged to go behind the form and. ascertain the true
character of the order. -In that case it was held that the
employment was terminated by giving a notice in accordance
with the rules and it was not a case of dismissal.
The learned Attorney General for the appellant has
sought to distinguish cases which fall under Art. 311 and
those which -are governed by statutory provisions or rules
containing provisions analogous to Art. 3 1 1. According to
his submission the concept of punishment is not relevant
when the employer chooses to terminate the employment of an
employee in accordance with the conditions of service. All
that has to be seen is whether the order made by him is in
conformity with the statutory powers. He has further
submitted that where the master chooses to follow the mode
of terminating the services prescribed by Regulation 9(b) no
stigma attaches to such termination and no question of the
employee having been punished can arise nor can it be
examined in such a case whether the order made was a mere
camouflage or cloak for dismissing an employee by way of
punishment for misconduct. It has further been emphasized
that what has to be seen is the situation obtaining on the
date the order was made and no notice should or ought to be
taken of any subsequent facts emerging out of correspondence
or pleadings in a court of law in reply to the allegations
in the plaint of mala fide and the like.
It does not appear necessary to refer to numerous
decisions which have been given by the Court in cases
arising under Art. 3 1 1 of the Constitution on, the points
debated before us by counsel for both sides. In State of
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Punjab v. Shri Subhraj Bahadur(1) most of these cases have
been discussed. By a conspectus of those cases, it was
stated, the following propositions clearly emerge:
"1. The services of a temporary servant or
a probationer can be terminated under the
rules of his employment and such termination
without anything more would not attract the
operation of Art. 3 1 1 of the Constitution.
2. The circumstances preceding or
attendant on the order of termination of
service have to be examined in each case, the
motive behind it being immaterial.
(1) (1968) 3, S.C.R. 234 at p. 244.
763
3. If the order visits the public servant with
any evil consequences or casts an aspersion
against his character or integrity, it must be
considered to be one by way of punishment, no
matter whether he was a mere probationer or a
temporary servant.
4. An order of termination of service in
unexception.able form preceded by an inquiry
launched by the superior authorities only to
ascertain whet-her the public servant should
be retained in service, does not attract the
operation of Art. 311 of the Constitution.
5. If there be a full-scale departmental
enquiry envisaged by Art. 311 i.e. an Enquiry
Officer is appointed, a charge sheet
submitted, explanation called for and
considered, any order of termination of
service made thereafter will attract the
operation of the said article."
In that case the departmental enquiry did not proceed beyond
the stage of submission of charge-sheet followed by the
respondent’s explanation thereto. The enquiry was not
proceeded with, there were no 1 sittings of any Inquiry
Officer, no evidence was recorded and no conclusions arrived
at on the enquiry. It was, therefore, held that the
services had been terminated simpliciter under the rules of
employment and Art. 311 was not attracted. In the present
case even if it is assumed that the law is the same as would
be applicable to a case governed by Art. 311 it is difficult
to say on the principles laid down in the above case that
the services of the respondent were not merely terminated in
accordance with Regulation 9(b) which governed the
conditions of his employment. It may be that the motive for
termination of his services was the breach of Standing Order
17 i.e., of filing a writ petition in the High Court against
the demotion without exhausting departmental remedies but
the question of motive is immaterial. No chargesheet was
preferred under Regulation 15 nor was any enquiry held in
accordance therewith before the order under Regulation 9(b)
was made. It may be that if the respondent had successfully
pleaded and proved mala fides on the part of the authority
terminating his services the impugned order could be
legitimately challenged but no foundation was laid in that
behalf in the plaint nor was the question of mala fides
investigated by the courts below.
As regards the punishment having been inflicted for
misconduct the order being a mere camouflage we, are unable
to endorse the view that any such question could arise in
the present case. Regulation 9(b) clearly empowered the
authorities to terminate the services after giving one
months notice or pay in lieu of notice. The order was
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unequivocally made in terms of that Regulation. Even
764
if the employers of the respondent thought that he was a
cantankerous person and it was not desirable to retain him
in service it was open to them to terminate his services in
terms of Regulation 9(b) and it was not necessary to dismiss
him by way of punishment for misconduct.
The appeal is consequently allowed and the decree
granted by the courts below is set aside. In view of this
court’s order dated November 1, 1968, the appellant will pay
the costs of the respondent.
Y.P. Appeal allowed.
765