Full Judgment Text
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PETITIONER:
COMMODORE COMMANDING, SOUTHERN NAVAL AREA, COCHIN
Vs.
RESPONDENT:
V.K. RAJAN
DATE OF JUDGMENT10/03/1981
BENCH:
VARADARAJAN, A. (J)
BENCH:
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
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(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-
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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]
JUDGMENT:
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
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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.
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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
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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
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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
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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
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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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