THE STATE OF ORISSA AND ANOTHER versus RAM NARAYAN DAS

SefJfrmbtr 8,

THE STATE OF ORISSA AND ANOTHER

RAM NARAYAN DAS

(S. K. DAS, M. HIDAYATULLAR, K. c. DAS GUPTA, J. C. SHAH and N. RAJAOOPALA AYYANOAR, JJ.)

Pttblic sen·ant-P.rob<llioner S11b·l>1sj•cclor-Discharge 'from sert•ice for unsatisfactory u·ork and conduct-If amor•nfs to dismis-sal-Constil11tio11 of India, Art. 3rr(2).

The respondent was appointed·a Sub-Inspector on probation in the Orissa Police Force. 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 con-duct". The respondent contended that tl1e order was invalid on two grounds: (i) that he was not gh·cn reasonable opportu-nity 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 Cons-titution and was valid order. The sen·iccs of the respondent, who was probationer, were terminated in 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 probationer. The enquiry was merely for ascertaining whether he was fit to be confirmed.

Shyam Lal v. The Stale of U. P., [1955) I S.C.R. 26 and Purshcttam Lal Dhingra ".· U11ion of India, [1958] S.C.R. 828, referred to. , Stale of Bihar v. Gopi Kishore Prasad, A.l.R. 196o S.C. 689, distinguished. ·

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 61/1959.

Appeal by special leave from the judgment and order datiid December 4, 1957, of the Orissa High Court in O.J.C. No. 449 of 1956.

0. K. Daphtary, Solicitor.General of India, D. N. Mukherjee and T. M. Sen, for the appellants.

The State of Orissa & Another v.

The respondent did not appear.

1960. September 8.

The Judgment of the Court Ram Na1·ayan Das ·

was delivered by

Shah ].

SHAH J.-The respondent was appointed in the year 1950 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 relat.ing 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 instan-ces of bad work does not help him very much since all these instances of bad work during the period of probation have to be taken together in considering his merits for confirmation or otherwise. The S. I. has already had long enough of chance to work under different S. Ps. though in one District, but he has not been able to procure good chit from anyone. He has also been adversely reported against after the representation dealt with therein was submitted. It

is, therefore, no good retaining him further.in service.

1 serve [[He ]][[is ]]d [discharged from the da.te on which this order is ]Oll h' lffi ,. • ..

T ne [' ]5 /ale o 1 [[He ]][[is ]]Orissa ~ A•1other serve

.. v. The Deputy Inspector Genera.I of Police on Dccem-

, Ram Norayan Das ber H, 1954, in discharging the respondent from service, passed formal order as follows :

Shah J. "Proba.tiona.ry S. l. Ramna.ra.ya.n Das of Gutta.ck District is discharged from service for unsatisfactory work a.nd conduct with effect from the da.te the order is served on him ".

The respondent then presented a. petition under

Art. 226 of the Constitution in the High Court of Judicature, Orissa., challenging the validity of the order passed a.nd praying for the issue of writ in the nature of certiorari· or a.ny other writ quashing the order of discharge. Inter alia, the respondent urged, (!) that the order of discharge wa.s invalid since he was not given a. reasonable opportunity to show ca.use against the action proposed to be taken iu regard to ·him within the meaning of Art. 311(2) of the Consti-tution, (2) that the order of discharge wa.s invalid since he was not afforded an opportunity to be heard nor was any evidence taken on the charges framed. The High Court by order dated December 4, 1957, 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 paRsing the impugned order and also that he had re-fused to give to the respondent a.n opportunity to crqss-examine witnesses on whose statements the charge of misconduct wa.s made. The High Court observed that by discharging the respondent from service with-out holding an enquiry as contemplated by r. 55 of the Civil Services (Classification, Control and Appeal) Rules and without complying wit.h the requirements of Art. 311(2) of the Constitution, an "indelible stigma. affecting his future career" had been ca.st. Against the order issuing the writ quashing the order discharg-ing the respondent from service, this appeal ha.s been preferred by special leave.

The rt>spondent was undoubtedly at the time when proceedings were started against him a.nd when he ·

was discharged from service, probationer, and had '9[60 ]no right to the post held by hini. Under the terms Th St 1 / of his appointment the respondent was liable to be Oriss.' c;. ;n;th1r discharged at any time during the period of his proba-. tion. By r. 668 of the Police Manual of the Orissa Ram Narayan Das State, in so far as it is material, it is provided : · -

Th St 1 / c;. . -Shah J.

"AU officers shall in the first instance be appointed or promoted on probation .. Where the period of pro-bation ds,not otherwise provided for in the Rules, it shall be for period of two years in the case of execu-tive officers...... The authority empowered to make such appointment or promotion may at any time during such probation period and without the forma-lities laid down .in Rule 820 remove an executive officer. directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfitted for such appointment or promotion".

Rule 681 of the Police Manual by cl. (b) in so far as it is material provides, ,

" Those promoted from the rank 0f Assistant Sub. Inspector shall be confirmed (Rule 659(e)) and those appointed direct shall be on probation for period of two years. At the end of that period, those pronoun-ced competent and fit will be confirmed by the Deputy Inspector-General. The others will be discharged by the same authority ''..

Rule 55-B of the Civil Services (Classification, Con-trol and Appeal) Rules, in so far as it is material pro-vides: !

"Where it is proposed to terminate the employment of probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the pro-bationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authodty. competent to terminate the employment".

Notice to show cause whether the employment of the respondent should be terminated was, by r. 55-B made obligatory. The Deputy Inspector General of Police who had appointed the respondent apprised

r96o him by notice of the groundR on which the order of . discharge was proposed to be made and required him The .\/ale o / , 0 [."° ][& ][A"o'h" ][to s ow cause ][w ][y actIOn as proposed should not be ]" · v. taken. · The notice consisted of two parts, (I) relating Ram Na'°J"" Das to ten heads of" gross neglect of duty and unsatisfac-tory work" and (2) "suspicious and unpoliceman-like Shah J. conduct" in which specific instances of fabricat.ion of public records and accept3nce of illegal gratification were set out. The Deputy Inspector General of Police by his order which has been set out hcreinbefore, expressly observed that he had, in considering the case of the respondent for confirmation, to take into account the reports received by him. The formal order communicated to the respondent also stated that the respondent was discharged from sei:_vice for unsatisfactory work and conduct. The reasons given in the order clearly indicate that the notice served upon the respondent was under r. 55-B of the Civil Services (CJa.ssification, Control and Appeal) Rules for ascertaining whether he should be con firmed or his employment terminated. Prima facio, the order is one terminating employment of the respondent as pro-bationer, and it is not an order dismissing him from service. The High Court has however held that the order of discharge amounted to imposing punishment, because the respondent had been " visited with evil consequences leaving an indeligible stigma on him

a.ffeoting his future career".

The respondent has not appeared ·before us 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 ·an the materials on the record and the relevant authori-. ties which have bearing on the case of the respon-dent.

In Shyam Lal v. The State of Uttar Pradesh and the

Union of India (1), it was held that compulsory retire-ment under the Civil Services (Classification, Control and Appeal) Rules of an officer did not amount to dismissal or removal within the meaning of Art. 311 of the Constitution. In that case, the public servant

(1) [1955] 1 S.C.R. 26.

concerned was served with notice to show cause in '9[60 ]respect of three spec!fic items o~ misd.emeanour ~s The--;;;,, of public servant to whwh he submitted his explanat10n. Orissa ;;. . Another Thereafter, the President, after considering the case v. and the recommendation of the commission appointed Ram Narayan Das . to investigate the case, decided that the public ser-vant "should be retired forthwith from service". Shah f. This order was challenged by petition under 226 of the Oonstitntion filed in the High Court at Allahabad. In an appeal against the order dismissing the petition, this court held that the order compulsorilly retiring the public servant involved "no element of charge or imputation" and did not amount to dismissal or removal within the meaning of Art. 311(2) of the Con-stitution and the order of the President was n6t liable to 'be challenged on the ground that the public servant had not been afforded full opportunity to show cause against the action proposed to be taken in regard to hlm. ·

In Parshottam Lal Dhingra v. Union of India ([1]) this court by majority held that if an officer holding an officiating post had no right under the rules governing his service to continue in. it, and such appointment under the general Jaw being terminable at any time on reasonable notice, the reversion of the public servant to his substantive post did not operate as forfeiture 0f any right: that order " visited him with no evil consequences" and could not be regarded as 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 contractual termina. tion, were likely to ensue as consequence of the impugned order: if they were, Art. 311 of the Consti-tution would be attracted even though such evil con. sequences were not prescribed as penalties under the Rules. In that case, Das, C. that case, Das, C. case, Das, C. C. J., in delivering the judg. · in delivering the judg. · ment of the majority, entered upon an exhaustive review of the law applicable to the termination of empl0yment of public servants and at pp. 861-863 summarised it as follows:

Rules. In that case, Das, C. that case, Das, C. case, Das, C. C. J., in delivering the judg. · in delivering the judg. ·

(•l [1958) s.c.R. 828.

1960 "Any and every termination of service is not a. Th st dismissal, removal or reduction in ra.nk. termina.-1 1 O•iss.'.;;. ·:.:thu tion of service brought about by the exercise of a. con-v. tra.ctual right is not per se dismissal or removal, a.s R•n• Na.aya" Das haR been held hv this court in Satish Chander Anand v. The Union of India('). Like-wise the termination Shah j. of service by compulsory reti:ement in terms of a. specific rule regulating the· conditions of service is not tantamount to the infliction of punishment. and does not a.ttra.ct Art. 311(2) a.s has a.lso been held by this court in Shyam Lal v. 1'ht State of Uttar Pra-desh (') ...... .In short, if the termination of service is founded on the right flowing from contra.ct or the ser-vice rules then, prima facie, the termination is not a. punishment a.nd carries with it no evil consequences and so Art. 311 is not a.ttra.cted. But even if the _Government ha.s, by contra.ct or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismiBBal, or removal or reduction in ra.nk, the Government ma.y, nevertheless, choose to punish the sorva.nt a.nd if the termination of service is sriught to be founded on misconduct., negligence, ineffi-ciency or other disqua.lifica.t.ion, then it is a. puui•hment a.nd the requirements of Art. 3ll must be complied with. As already stated, if the servant ha.s got a. right to continue in the post, then, unless the contract of em-ployment or the rules provide to the contrary, bis ser-vices cannot be terminated otherwise than for miscon-duct, negligence, inefficiency or other good and suffici-ent ca.use. termination of tho service of such a. ser-vant on such grounds must be a. punishment and, there-fore, dismissal or removal within Art. 311, for it ope-rates a.s a. forfeiture of his right and he is visited with tho evil consequences of loss of pa.y and allowances. It puts an indelible stigma. on the officer affecting his future ca.reer ....... But the mere fact tha.t the servant ha.s no title to the post or the ra.nk and the Govern-ment has, by contra.ct, express or implied, or under the rules, the right to reduce him to lower post does not mean that an order of reduction of servant (1) [1953] S.C.R. 653. (>) [1955] 1 S.C.R. >6.

to lower post or rank cannot-in any circumstances z960 be punishment. The real test for determining w he-. . . . t Th 5-' tat• o 1 t er t re uct10n lil sue cases 1s or 1s no y way o Orissa .,,; Another punishment is to find out if the order for the reduction v. also visits the servant with any penal consequences. Rmn Narayan Das ...... The use of the- expression, " terminate " or " dis-charge" is not conclusive. In spite of the use of such Shah J. innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) Whether the ser. vant had right to the post or the rank or (2) Whe. ther he has been visited with evil consequences_ of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as dismissal or removal from servwe...... . . "

' tat• o 1 y way o Orissa .,,; Another

The respondent had no right to the post held by him. Under the terms of his employment, the res-pondent could be discharged in the manner provided. by r. 55-B. Again mere termination of employment does1n.t>t carry with it " any evil consequen~es" such as forfeiture of his pay or allowances, loss of his seni-ority, stoppage or postponement of his future chances of promotion etc. It is then difficult to appreciate what "indelible stigma affecting the future career" of the respondent 'was east on him by the order dis-charging him from employment for unsatisfactory work and conduct. The use of the expression " discharge " in the order terminating employment of put.lie servant is not decisive: it may, in cer-tain cases, amount to dismissal. If confirmed public servant holding substantive post is dis-charged, the order would amount to dismissal or removal from service ; but an order discharging temporary public servant may or may not amount to dismissal. · Whether it amounts· to an order of dis-missal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on sueh enquiry. _

_ Where under the rules governing- 'a public servant holding post on probation, an order terminating the probation is to be preceded by notice to show cause

i96o why his service should-not be terminat~d, and notice n 5 1 1 [is ][issued asking the public servant to show cause ]Oms.' .,.'";.:,h., whether probation should be contiuued or the officer v. should be discharged from service the order discharg--Ra .. Narayan Das ing him cannot be said to amount to dismissal involv-Shah ]. ing punishment. Undoubtedly, the Government may hold formal enquiry against probationer on charg-es of misconduct with view to dismiss him from service, and if an order terminating his employment is made in such an enquiry, without giving him rea-sonable opportunity to show cause against the action proposed to be taken against him within the meaning of Art. 311(2) of tho Constitution, the order would un-doubtedly be invalid. -

The Solicitor General invited our attention to recent judgment of this court, State of Bihar v. Gopi Kishore Prasad ([1]) in which, deli1,cring the judgment of the court, the learned Chief Justice extracted five propositions from the authorities arid particular!.) from Parshottam Lal Dhingra's case('), 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 s1rnh person's ser-vice without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or ineffici-ency, or for some similar reason, the termination of service is by way of punishment, because it puts stigma on his competence and thus affects his future career. In such case, he is entitled to the protection of Art. 311(2) of the Constitution".

This proposition, in our judgmeut, does not derogate from the principle of the other cases relating to termi-nation of employment of probationers decided by this court nor is it inconsistent with what we have observ-ed earlier. The euquiry against the respondent was for ascertaining whether he was fit to be confirmed. An order discharging a. public serva.nt, even if pro-bationer, in a.n enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may

(1) A.l.R. [r96oj S. C. 68g. (•) [1958] S C.R. 8>8-

appropriately be regarded as one by way of punish-'9[60 ]ment, upon an enqmry but an order discharging probationer following . to ascertam whether he shou . . Id 0 ,issa 0 ,issa ,issa Tl " &·Another 5 late late o 1 1 confirmed, is not of that nature. In Gopi K ishore v. Prasad's case ([1]), the public servant was discharged Ram Narayan Das from service consequent upon an enquiry into alleged misconduct, the Enquiry Officer having found that the Shah f. public servant was " unsuitable " for the post. The order was not one merely discharging probationer following upon an enquiry to ascertain whether he should be continued in service, but it was an order as observed by the court "clearly by way of punish-ment". There is in our judgment no real inconsist-ency between the observations made in Parshottam Lal Dhingra's case(') and Gopi Kishore Prasad's case (1). The third proposition in the latter case refers to an enquiry into allegations of misconduct or ineffici-ency with view, if they were found established; to imposing punishment and not to an enquiry whether probationer should be confirmed. Therefore the fact of the holding of an enquiry is not decisive of the questio'n. What is decisive is whether the order is by way of punishment., in the light of the tests laid d'own in Parshottam Lal Dhingra's case(').

Tl " 5 late late o 1 1 0 ,issa 0 ,issa ,issa &·Another v.

We have carefully considered the evidence and the authorities to which our attention has been invited a.nd we are definitely of opinion that the High Court was in error in holding that the order discharging the respondent from service amounted to dismissal which attracted the prote.ction of Art. 311(2) of the Constitu-tion. '"

In that view of the case, this appeal will be. allowed and the petition for 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.