Full Judgment Text
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PETITIONER:
THE STATE OF ORISSA AND ANOTHER
Vs.
RESPONDENT:
RAM NARAYAN DAS
DATE OF JUDGMENT:
08/09/1960
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
DAS, S.K.
HIDAYATULLAH, M.
GUPTA, K.C. DAS
AYYANGAR, N. RAJAGOPALA
CITATION:
1961 AIR 177 1961 SCR (1) 606
CITATOR INFO :
RF 1962 SC 794 (8)
E 1963 SC 531 (6,8)
RF 1963 SC1552 (5)
R 1964 SC 449 (17)
RF 1964 SC 600 (13,138)
R 1964 SC1854 (18)
R 1968 SC1089 (10,11,13,17)
R 1974 SC 423 (14)
F 1974 SC2192 (65,158)
RF 1976 SC1766 (6,12)
RF 1976 SC2547 (11,14,21)
D 1978 SC 363 (11)
RF 1987 SC2135 (1)
R 1987 SC2408 (10)
ACT:
Public servant-Probationer Sub-Inspector-Discharge from
service for unsatisfactory work and conduct-If amounts to
dismissal-constitution of India, Art. 311(2).
HEADNOTE:
The respondent was appointed a Sub-Inspector on probation in
the Orissa Police Force. A notice was served on him to show
cause why he should not be discharged from service " for
gross neglect of duties and unsatisfactory work ". He
submitted his explanation and asked for opportunity to
cross-examine certain witnesses. The Deputy Inspector-
General of Police considered the explanation unsatisfactory
and passed an order discharging the respondent from service
" for unsatisfactory work and conduct ". The respondent
contended that the order was invalid on two grounds: (i)
that he was not given a reasonable opportunity to show cause
against the proposed action within the meaning of Art.
311(2), and (ii) that he was not afforded an opportunity to
be heard nor was any evidence taken on the charges.
Held, that the order of discharge did not amount to dismis-
sal and did not attract the protection of Art. 311(2) of the
Constitution and was a valid order. The services of the
respondent,’ who was a probationer, were terminated in
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accordance with the rules and not by way of punishment. He
had no right to the post held by him and under the terms of
his appointment he was liable to be discharged at any time
during the period of his probation. The notice given to the
respondent was under Rule 55-B of the Civil Services
(Classification, Control and Appeal) Rules which made it
obligatory to give such notice before terminating the
services of a probationer. The enquiry was merely for
ascertaining whether he was fit to be confirmed.
Shyam Lal v. The State of U. P., [1955] 1 S.C.R. 26 and
Purshottam Lal Dhingra v. Union of India, [1958] S.C.R. 828,
referred to.
State of Bihar v. Gopi Kishore Prasad, A.I.R. 1960 S.C. 689,
distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 61/1959.
Appeal by special leave from the judgment and order dated
December 4, 1957, of the Orissa High Court in O.J.C. No. 449
of 1956.
607
C. K. Daphtary, Solicitor-General of India, D. N.
Mukherjee and T. M. Sen, for the appellants.
The respondent did not appear.
1960. September 8. The Judgment of the Court was delivered
by
SHAH J.-The respondent was appointed in the year 1950 a Sub-
Inspector on probation in the Orissa Police force. In view
of the adverse reports received against him on July 28,
1954, notice was served on the respondent calling upon him
to show cause why he should not be discharged from service "
for gross neglect of duties and unsatisfactory work ". In
the notice, ten specific instances of neglect of duty and
two instances of misconduct-acceptance of illegal grati-
fication and fabrication of official record were set out.
By his explanation, the respondent submitted that action had
already been taken against him by the Superintendent of
Police in respect of instances of neglect of duty set out in
the notice and no further action in respect thereof could on
that account be taken against him, because to do so would
amount to imposing double punishment. He denied the charge
relating to misconduct and submitted that it was based on
the uncorroborated statements of witnesses who were inimical
to him. He also asked for an opportunity to cross-examine
those witnesses. The Deputy Inspector General of Police
considered the explanation and observed:
"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 instances 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. 1. 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
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608
is, therefore, no good retaining him further in service. He
is discharged from the date on which this order is served on
him ".
The Deputy Inspector General of Police on December 11, 1954,
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in discharging the respondent from service, passed a formal
order as follows:
" Probationary S. I. Ramnarayan Das of Cuttack District is
discharged from service for unsatisfactory work and conduct
with effect from the date 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 and praying for
the issue of a writ in the nature of certiorari or any other
writ quashing the order of discharge. Inter alia, the
respondent urged, (1) that the order of discharge was
invalid since he was not given a reasonable opportunity to
show cause against the action proposed to be taken in regard
to him within the meaning of Art. 311(2) of the Consti-
tution, (2) that the order of discharge was 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, set aside
the order of discharge. In the view of the High Court, the
Deputy Inspector General of Police had taken into
consideration allegations of corruption in passing the
impugned order and also that he had refused to give to the
respondent an opportunity to cross-examine witnesses on
whose statements the charge of misconduct was made. The
High Court observed that by discharging the respondent from
service without holding an enquiry as contemplated by r. 55
of the Civil Services (Classification, Control and Appeal)
Rules and without complying with the requirements of Art.
311(2) of the Constitution, an " indelible stigma affecting
his future career " had been cast. Against the order
issuing the writ quashing the order discharging the
respondent from service, this appeal has been preferred by
special leave.
The respondent was undoubtedly at the time when proceedings
were started against him and when he
609
was discharged from service, a probationer, and had no right
to the post held by him. Under the terms of his appointment
the respondent was liable to be( discharged at any time
during tile period of his probation. By r. 668 of the
Police Manual of the Orissa State, in so far as it is
material, it is provided :
" All officers shall in the first instance be appointed or
promoted on probation. Where the period of probation is not
otherwise provided for in the Rules, it shall be for a
period of two years in the case of executive officers......
The authority empowered to make such appointment or
promotion may at any time during such probation period and
without the formalities 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 of 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 pronounced 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, Control and
Appeal) Rules, in so far as it is material provides :
" Where it is proposed to terminate the employment of a
probationer, whether during or at the end of the period of
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probation, for any specific fault or on account of his
unsuitability for the service, the probationer shall be
apprised of the grounds of such proposal and given an
opportunity to show cause against it, before orders are
passed by the authority 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
him by notice of the grounds on which the order of discharge
was proposed to be made and required him ,,to show cause why
action as proposed should not be taken. The notice
consisted of two parts, (1) relating ;to ten heads of "
gross neglect of duty and unsatisfactory work " and (2) "
suspicious and un police man-like conduct " in which
specific instances of fabrication of public records and
acceptance of illegal gratification were set out. The
Deputy Inspector General of Police by his order which ha;
been set out hereinbefore, 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 service 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
(Classification, Control and Appeal) Rules for ascertaining
whether he should be confirmed or his employment terminated.
Prima facie, the order is one terminating employment of the
respondent as a probationer, 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 ineligible stigma on him
affecting his future career ".
The respondent has not appeared before us to 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 all the materials on the
record and the relevant authorities which have a bearing on
the case of the respondent.
In Shyam Lal v. The State of Uttar Pradesh and the Union of
India (1), it was held that compulsory retirement 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 of the Constitution. In that case, the
public servant
(1) [1955] 1 S.C.R. 26.
611
concerned was served with a notice to show cause in respect
of three specific items of misdemeanor as a public servant
to which he submitted his explanation. Thereafter, the
President, after considering the case and the recommendation
of the commission appointed to investigate the case, decided
that the public servant should be retired forthwith from
service ". This order was challenged by a petition under 226
of the Constitution filed in the High Court at Allahabad.
In an appeal against the order dismissing the petition, this
court held that the order compulsorily 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 Constitution and the order of the
President was not liable to be challenged on the ground that
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the public servant had not been afforded full opportunity to
show cause against the action proposed to be taken in regard
to him.
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 law
being terminable at any time on reasonable notice, the
reversion of the public servant to his substantive post did
not operate as a forfeiture of 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 termination, were likely to ensue
as a consequence of the impugned order: if they were, Art.
311 of the Constitution would be attracted even though such
evil consequences were not prescribed as penalties under the
Rules. In that case, Das; C. J., in delivering the judgment
of the majority, entered upon an exhaustive review of the
law applicable to the termination of employment of public
servants and at pp. 861.863 summarised it as follows:
(1) [1958] S.C.R. 828.
612
" Any and every termination of service is not a dismissal,
removal or reduction in rank. A termination of service
brought about by the exercise of a contractual right is not
per se dismissal or removal, as has been held by this
court in Satish Chander Anand v. The Union of India (1).
Like-wise the termination of service by compulsory
retirement in terms of a specific rule regulating the
conditions of service is not tantamount to the infliction of
a punishment and does not attract Art. 311(2) as has also
been held by this court in Shyam Lal v. The State of Uttar
Pradesh (2)....... In short, if the termination of service
is founded on the right flowing from contract or the service
rules then, prima facie, the termination is not a punishment
and carries with it no evil consequences and so Art. 311 is
not attracted. But even if the Government has, by contract
or under the rules, the right to terminate the employment
without going through the procedure prescribed for
inflicting the punishment of dismissal, or removal or
reduction in rank, the Government may, nevertheless, choose
to punish the servant and if the termination of service is
sought to be founded on misconduct, negligence, inefficiency
or other disqualification, then it is a punishment and the
requirements of Art. 311 must be complied with. As already
stated, if the servant has got a right to continue in the
post, then, unless the contract of employment or the rules
provide to the contrary, his services cannot be terminated
otherwise than for misconduct, negligence, inefficiency or
other good and sufficient cause. A termination of the
service of such a servant on such grounds must be a
punishment and, therefore, a dismissal or removal within
Art. 31 1, for it operates as a forfeiture of his right and
he is visited with the evil consequences of loss of pay and
allowances. It puts an indelible stigma on the officer
affecting his future career....... But the mere fact that
the servant has no title to the post or the rank and the
Government has, by contract, 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. 655.
(2) [1955] 1 S.C.R. 26.
613
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to a lower post or rank cannot in any circumstances be a
punishment. The real test for determining- whether the
reduction in such cases is or is not by way of punishment is
to find out if the order for the reduction also visits the
servant with any penal consequences....... The use of the
expression, " terminate " or " discharge " 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 servant had a right to the
post or the rank or (2) Whether 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
service.........."
The respondent had no right to the post held by him. Under
the terms of his employment, the respondent could be
discharged in the manner provided by r. 55-B. Again mere
termination of employment does not carry with it " any evil
consequences " such as forfeiture of his pay or allowances,
loss of his seniority, 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 cast 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 public servant is not
decisive : it may, in certain cases amount to dismissal. If
a confirmed public servant holding a substantive post is
discharged, 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 dismissal depends upon the nature of
the enquiry, if any, the proceedings taken therein and the
substance of the final order passed on such 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
why his service should not be terminated, and a notice is
issued asking the public servant to show cause whether
probation should be continued or the officer should be
discharged from service the order discharging him cannot be
said to amount to dismissal involving punishment.
Undoubtedly, the Government may hold a formal enquiry
against a probationer on charges 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
reasonable opportunity to show cause against the action
proposed to be taken against him within the meaning of Art.
311(2) of the Constitution, the order would undoubtedly be
invalid.
The Solicitor General invited our attention to a recent
judgment of this court, State of Bihar v. Gopi Kishore
Prasad (1)in which, delivering the judgment of the court,
the learned Chief Justice extracted five propositions from
the authorities and particularly from Parshottam Lal
Dhingra’s case (2), dealing with the termination of
employment of temporary servants and probationers. The
third proposition set out in the judgment is as follows:
" But instead of terminating such a person’s service without
any enquiry, the employer chooses to hold an enquiry into
his alleged misconduct, or inefficiency, 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
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his future career. In such a case, he is entitled to the
protection of Art. 311(2) of the Constitution ".
This proposition, in our judgment, does not derogate from
the principle of the other cases relating to termination of
employment of probationers decided by this court nor is it
inconsistent with what we have observed earlier. The
enquiry against the respondent was for ascertaining whether
he was fit to be’ confirmed. An order discharging a public
servant, even if a probationer, in an enquiry on charges of
misconduct, negligence, inefficiency or other
disqualification, may
(1) A.I.R. [1960] S. C. 689.
(2) [1958] S.C.R. 828.
615
appropriately be regarded as one by way of punishment, but
an order discharging a probationer following upon an enquiry
to ascertain whether he should be 0 confirmed, is not of
that nature. In Gopi Kishore Prasad’s case (1), the public
servant was discharged 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 punishment ".
There is in our judgment no real inconsistency between the
observations made in parshottam. Lal Dhingra’s case (2) and
Gopi Kishore Prasad’s case (1). The third proposition in
the latter case refers to an enquiry into allegations of
misconduct or inefficiency 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
question. What is decisive is whether the order is by way
of punishment, in the light of the tests laid down in
Parshottam Lal Dhingra’s case (2).
We have carefully considered the evidence and the
authorities to which our attention has been invited and 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 protection
of Art. 311(2) of the Constitution.
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.
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616