MANAGER GOVT. BRANCH PRESS & ANR. versus D. B. BELLIAPPA

MANAGER GOVT. BRANCH PRESS & ANR.

D. B. BELLIAPPA

November 30, 1978

[R. S. SARKARIA, V. D. TuLZAPURKAR AND A. P. SEN, JJ.J

Constitution of India, Articles 14 and 16(1), protection of, when available to temporary employees-S. 16(1) "appointment", Scope, Incumbent on dismiss-ing authority to disclose reason for termination of services~ when specific charge of hostile discrimination.

The services of Belliappa, temporary Class IV employee, were terminated without assigning any reason, albeit in accordance with the conditions of his service, while three other employees, similarly situated, junior to Balliappa in the same temporary cadre, were retained. The order terminating his services, was preceded by show-cuase notice of proposed disciplinary action against him, but otherwise, there was nothing to show that the service reoord of Belliappa was, in any way, inferior to his three juniors who have been retained in service. Furthermore, neither the dismissal order nor the appellant's counter affidavit assign-ed any reason for the termination and the appellant had throughout maintained that there was no nexus between the show-cause noti·.::e and the impugned action. The High Court allowed writ p'etition of Belliappa, holding- that the order termi-nating his services, contravened the guarantee of equal treatment embodied in Article 16 of the Constitution.

It was contended that Belliappa was temporary employee, and his services could be terminated at any time without notice, and that Articles 14 and 16 are not attracted when the services of temporary employee are terminated in ac-cordance with the conditions of his service.

Dismissing th'e appeal, the Court

HELD: I. The protection of Articles 14 and 16(1) will be aW.ilable even tc> temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors similarly cir-cumstanced. The competent authority may have discretion under the con-ditions of service governing the employee, to terminate bis services without notice, but such discretion has to lbe exercised in accordance with reason and fair play, and not capriciously. Arbitrary invocation or enforcement of service condition terminating the service of temporary employee, may itself constitute denial of equal p:"<Jtection and offend the Equality clause in Articles 14 and ~6(1 ). [464B-E]

Dodtlaiah v. State of Mysore, AIR 1967 Mysore 223; Union of India v. Prem Parkash Midha. [1965] 69 SLR 655 (SC); State of U.P. v. Ram Chandra Tri-vedi, [1977] 1 SCR 462; and Madan Singh Puran Singh ;v. Union of India 197Z SLR 67 (Delhi); referred to.

2. The expression "appointment" used in Art. 16(1) will ihclUde terminatiorr of or removal from service, also. The expression "matters relating to employ-ment", is not confined to initial matters prior to the act of employment, but comprehends all matters in relation to employment both prior and subsequent to

the employment which are incidental to the employment and form part of the terms and conditions of such employment, iUCh as, provision~ as to salary, in-crements, leave, gratuity, pension, age of 11uperannuation, promotion and even termination of employment. [464E·G]

General Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586; applied.

The Union of India v. Pandurang Kashinath More, AIR 1962 SC 630; differentiated.

3. Where there· is specific charge of arbitrary discrimination or some hostile or improper motive is imputed to the authority terminating the service, it is in-cumbent on the authority to dispel that charge by disclosing to the court, the reason or motive which impelled it to take the impugned action. Excepting perhaps, in cases analogous to thOje covered by Art. 311(2) proviso (c), the authority cannot withhold such information from the court on the excuse, that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the condi-tions of the service. [467A-B]

Champaklal Chimanlal Shah v. The Union of India, [1964] 5 SCR 190; Green v. A1nalgamated ETJgineering Union, [1971] l All. E.R. 114; and Khudi Ram v. State of West Bengal, [1975] 2 SCR 832 at 845, supported.

4. The archaic common law concept that employment was matter between the master and servant only, in its original absolute form, is not applicable to Government servants. Even with regard to private employment, much of it has passed into the fossils of time. [467F-G]

'Democracy, Equality and Freedom' (page 326) by K. K. ~1athew, J.; referred to.

CIVIL APPELLATE JuRISDfCTION : Civil Appeal No. 290 of 1969.

Appeal by Special Leave from the Judgment and Order dated the 20th June 1968 of the Mysore High Court in W.P. "io. 573 of 1967.

M. Veerappa and J. R. Das for the Appellant.

R. B. Datar, P. R. Ramasesh and Lalit Bhargava for the Res-pondent.

The Judgment of the Court was delivered by

SARKARIA, J.-The respondent, Belliappa, was appointed tempo-rary Junior Compositor in the Grade of Rs. 65-1-72--2--90 in the Government Branch Press, Mercara. The post was non-gazetted Class IV as defined in Clause (IV) of Sub-Rule 3 of Rule 5 of the Mysore Civil Services (Classification Control and Appeal) Rules, 1957. The employment was temporary and was to continue until further orders.

The Branch Manager, Mercara, Respondent 1 (herein), >~rved notice on the respondent on December 29, 1966, statini.; that the respondent had taken outside the Press some copie5 of the ool!ot papers relating to the Director's election of Coorg Cardamom Co-operative Societies, Mercara. The respondent was required to show cause before 2.00 P.M. of December 30, 1966, why disciplinary action be not taken against him as per Rules. It was further stated in the notice that failure to comply with the notice will result in the respondent's suspension and further disciplinary action against him.

Thereafter on January 3, 1967, an order was served on the res-pondent, terminating bis service. This order (hereinafter called the impugned order) TUil$ a,s under :

bis service. This order (hereinafter called the TUil$ a,s under : "Office of the Manager, Government Branch Press, Mercara.

Memoranda

As per instructions contained in Head Office Order No. 570/66-67, dated 3-1-1967, Sri D. B. Belliappa, junior Compositor of this Office is hereby informed that your appointment is purely temporary and terminable at any time without any previous notice and without reasons being assigned therefor are not required. Therefore your services are hereby terminated with immediate effect.

Sd/- xxx

Government Branch Press. M<rcara."

On January 7, 1967, Belliappa submitted representation, dated January 6, 1967, to the Branch Manager against termination of his service, but without success, attributing motives to his immediate superior officer, that bis relations with the Respondent were not cordial for the preceding three months. He also prayed for per-mission to continue to work and requested for disbursement of his pay. On February 4, 1967, Belliappa instituted writ petition in the High Court of Mysore with prayer to quash the order terminating his service. He further prayed for direction that the Manager of the Press (appellant) be directed to appoint him regular candidate w to the post of the Junior Compooitor in accordance with the provi-sions of the Mysore State Civil Services (Recruitment of Local Candidates to Class III) Rules, 1966, with consequential benefits.

The Manager filed counter-affidavit ~tating that the respondent's appointment was purely temporary governed by the conditions m the contract of his service, and was liable to be terminated without notice at any time; that the 1966 Rules relied upon by the writ peti-tioner were not applicable to him because he was Class IV Em-ployee.

Subsequently, Belliappa filed further affidavit urging additional grounds for impugning the order of his discharge. The High Court, by its Order dated January 30, 1968, allowed the respondent to take up these additional grounds, to the effect that three other persons, namely, S/Shri B. S. Vittala, N. B. Achiah and Patric D' Souza wh0> were appointed as temporary Junior Compositors subsequent to the respondent's appointment, had been retained and continued in service, while discriminatory treatment was meted out to the respondent, without any reason. It was urged that in these circum>tances, the termination of the respondent's service, while continuing three others, similarly situated, was violative of Article 16 of th11 Constitution. At the stage of arguments, the respondent gave up his claim for regulari-sation of service.

The High Court by its order dated June 20, 1968, allowed the writ petition, holding that the impugned order contravened the guarantee oi equal treatment embodied in Article 16. !he High Court did not give reasons in this order, but stated therein lhat the reasons giwn in the decision of that Court in Writ Petition No. 153 of 1965, were applicable. In the result, the impugned order, by which the respondenfs services were terminated, was set aside and it "as dec-lared that he will be entitled to all the benefits flowing from the court's order, including reinstatement and the like. Hence, this appeal by special leave. Mr. Veerappa, learned counsel for the appellant, contends that the respondent, Belliappa, was appointed in temporary capacity and his service could be terminated at any time without notice. The pro-position propounded is that Articles 14 and 16 are not attracted in case where the services of temporary employee are terminated in accordance with lhe conditions of his service. In the alren,ative, it is submitted that the principle of 'first come. and last go' may apply only when there is general retrenchment and not wher~ thero is some special reason for terminating the services of one employe·o while continuing his juniors in the temporary service. It is mair.tained that the show-cause notice which was served on the respondent on Decem-ber 29, 1966, furnishes the motive or the cause for terminating the

respondent's services, while retaining his juniors in service. Mr. Veerappa contends that in spite of the fact that the position taken by the appellants in the impugned ord>~r was that the servtce of the respondent was being terminated without assigning any reason in accordance with the conditions of his service, it could be spelled out from the show-cause notice that the real cause of terminating the respondent's service was his unsuitability for the job or unsatisfactory conduct.

number of decisions have . been cited: The Umon ot India v. Pandurang Kashinath More('), Champaklal Chimanlal Shah v. The Union of India('), Doddaiah v. State of Mysore([3 ]) Union of India v. Prem Parkash Midha('); State of U.P. v. Ram Chandra Trivedi('); Madan Singh Puran Singh v. The Union of India. (6).

As against this, it is submitted on behalf of the respondent that in his further afli.davit, dated January 25, 1968, the responc\ent had taken up the plea of hostile discrimination, with particularity, stating that while his three named juniors who were in all respects similarly situated, were continued in service; the respondent was arbitrarily singled cul for discriminatory treatment, although the respondent's record cf &,rvice was good and at no time he gave room for any com-plaint from his official superiors. It is stressed that these averments in the additional affidavit of the respondent were not :ebutted or countered by the opposite side on afli.davit, nor was any material pro-duced on record to show that there was any special reason for termi-nating the respondent's service, and continuing the service of his juniors. It is urged that since the consistent stand taken by the appellant in the impugned order, in their counter-affidavit and at the time of arguments in the High Court was that the service of the respondent has been terminated without any reason, in accordance with the terms and conditions of his service, the appellants should '.JO! be allowed to commit volt face in this special appeal and take up different ground which was never ~et up or pleaded.

Eefcre dealing with the contentions canvassed on both sides, it will be useful to notice the relevant undisputed facts for the discus-sion emerging from the pleadings and the material on record.

(1) A.I.R. 1962 S.C. 630.

(2) [1964! 5 S.C.R. 190.

(3) A.I.R. 1967 Mysore 223.

(4) [1965] 69 S.I..R. 655 (S.C.)

(5) [1977] 1 S.C.R. 462.

(6) 1972 S.I..R. 67 (Delhi).

The ~ervice of the respondent, Belliappa, has been terminated without assigning any reason albeit in accordance with the conditions of his service, while three employees, similarly situated, ju!'ior to Belliappa in the same temporary cadre have been retained.

charge of hostile discrimination has been levelled with sufficient particularity against the appellant. Hostile animus was also attributed by B~lliappa in his writ petition to his superior officers. In the addi-tional grounds of his further affidavit, Belliappa averred that his ser-vice record was good. This fact has not been controverted by the appellant by filing any counter-affidavit. However, there is material on the record to show that the impugned order was preceded by show-cause notice of proposed disciplinary action against Belliappa. It could, therefore, be presumed that but for this show-cause notice, the service record of Belliappa was good. At any rate, th~re is n'.>thing on the record to show that the service record of Belliappa was, rn any way, inferior to his three juniors who have been retained in service. The impugned order itself says that Belliappa's services are being terminated without assigning any reason, and the same h~s been n.iteraled In the counter-affidavit, dated September 22, 1967, filed on behalf of the present appellant in the High Court.In <'rder to satisfy our conscience and appreciate the arguments of Mr. Veerappa that the services of the respondent have been termi-nated on the ground of unsuitability, we requested him to cause the production of the Head Office Order No. 570/66-67 dated January 3, 1967, which has been referred to in the impugned order. We granted Mr. Veerappa sufficient time for this purpose. On snbseqnent date, he informed us that this Head Office order also does not cont~in any reason for the impugned action. Indeed, the contents of this Head Office order have been substantially reiterated in the impugned order, according lo which, the service of Belliappa was te1minated. Of <:curse, there is always some reason or cause for terminating the ~ervices of temporary employee. It is not necessary to state that reascn in the order of termination communicated to the employee <:oncerned. But where there is specific charge of arbitrary discrimi-11anon or some hostile motive is imputed to the authority terminating the service, it is incumbent on the authority making the impugned order to explain the same by disclosing the reason for the impugned action. In the instant case, the appellant intransigently withheld that informaticn from the Court. There is no escape from the conclusion that Belliappa was picked out for the impugned action, whimsically, withoot any special reason which could put him in class separate from that of his three juniors who have been retained in rervice.

The ground is now clear for considering the contentions cwvassed by the appellant.

Mr. Veerappa's first contention is that Articles 14 and 16(1) of the Cor.ititution have no application, whatever, to the case of temporary employee whose service is terminated in accordance with the terms and conditions of his service because the tenure nr the duration of the employment of such au employee is extremely pre-carious being dependent upon the pleasure and discretion of the employer-State. In our opinion, no such generalisation can be made. The protection of Articles 14 and 16 ( 1) will be available ewn to such temporary Government servant if he has b.oen arbitrarily dis-criminated against and singled out for harsh treatment in preference to his juniors similarly circumstanced. It is true that the competent authority had discretion under the conditions of service governing the employee concerned to terminate the latter's employmenr without notice. But, such discretion has to be exercised in accordance w;.th reason and fair play and not capriciously. Bereft of rationality and fairneas, discretion degenerates into arbitrariness which is the very anti-thesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of service condition terminating the service of temporary employee may it&ell constitute denial of equal protection and offend the Equality clause in Article 14 and 16(1). Article 16(1) guarantees "equality of opportunity for all citlzens in matters relating to employment or appointment to any office under the State". Moreover, according to the principle under-lying Section 16 of the General Clauses Act, the expression "appoint-ment" used in Article 16 ( 1) will include termination of or removal from service, also.

It is now well settled that the expression "matters relating to employment used in Article 16(1) is not confined to initial matters prior to the act of employment, but comprehends all matters in rela-tion to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment, such as, provisions as to salary, inrremeuts, leave, gratuity, P"nsion, age of superannuation, promo-tion and even termination of employment. It is further well established that Articles 14, 15(1) and 16(1) form part of the same constitu-tional code of guarantees and supplement each other. If any authority is needed for the above enu~ciation, reference may be made to the observatioru; made by Gajendragadkar J., as he then was, in General Manager, Southern Railway v. Rangachari(').

(I) [1962) 2 S.C.R. 586.

In Union of India v. P. K. More (supra), it was contended be-for this Court that Article. 16 provides that there shall be no inequa-lity of trealment in the termination of the service of any employee of the Govermnent. This interpretation of the Article was disputed by the Union of India, who was the appellant in that case. Although the Court thought it unnecessary to pronounce finally on this dispute for the purpose of that case, yet it proceeded on the assumption that Article 16 might be violated by an arbitrary and discriminatory termi-natio" of service. In that case, the respondent, P. K. More, had been detained JEgally under statute. In view of this fact, the Court held that "the respondent might legitimately have been put in separate class and treated differently from others not so detained."

In the instant case, no special circumstance or reason has been disdcsed which would justify discriminatory treatment to Bel!iappa as class apart from his juniors who have been retained in. service. Mr. Veerappa's frantic efforts to spell out justification for differential treatment lo the respondent by reference to the show-cause notice that preceded the impugned action, is entirely futile when the stand ten-aciously adhered to throughout by his client is that there is no nexus between Hie show-cause notice and the impugned action which was taken with0ut any reason in exercise of the power vested in the com-pe~ont authority under the conditions of the respondent's employment.

In 'iew of thh;, we have no alternative but to hold that the termi-nation of Belliappa's service was made arbitrarily and not on the ground of ur.suitability or other reason, which would warrant discri-minatory treatment to him as class apart from others in the same Cadr:.

In the view we take, we are further fortified by deci!>ion of the Constitution Bench in Champak LaI's case (supra). Tnat was case of temporary Government servant. Rule 5 governing temporary Gov~: nment servant, which came up for consideration in that case, gav~ power to the Government to terminate the service of tempo-rary Government servant by giving him one month's notice or on payment of one month's pay in lieu of notice. This rule was attacked on the gr0und that it was hit by Article 16. In the alternative, it was urged that even if rule 5 is good, the order by which the appellant's services were dispensed with, was bad because it was discriminatory. Reference was made to number of persons whose services were not di&pensed with, even though they were junior to the appellant and did nor have as good qualifications as he had. Wanchoo J. (as be then was), speaking for the Court, repelled the al;ernative argument in th•:'e terms :

"We are of opinion that there is no force in this con-tention. This is not case where services of temporary employee are being retrenched because of the abolition of post. In such case, question may arise as to who shonld be retrenched when one out of several temporary post is being retrenched in an office. In those circum-stances, qualifications and length of service of those holding similar temporary posts may be relevant in considering whether the retrenchment of particn!ar employee was as result of discrimination. The present however is case where the appellant's services were terminated because his work was found to be unsatisfactory. . . . . . (In such case there can, in our opinion, be no question of any dis-crimination. It would be absurd to say that if the service of one temporary servant is terminated oo the ground of unsatisfuctory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is. Therefore even though some of those mcntiou"d in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken >against the appellant terminating his services was discrimi-natory, for that action was taken on the basis of his unsatis-factory conduct. question of discrimination may arise in case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of particular temporary employee on account of his conduct being unsatisfactory."

(Parenthesis and emphasis supplied)

The principle that can be deduced from the above analysis is that if the services of temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatis-factory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for like reason which marks him off in class apart from other temporary servants who have been retained in service, there is no question o~ the applicability of Article 16.

Conversely, if the services of temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in class apJlrt from his juniors in the same service, question of unfair dis-crimination 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 charge of unfair dis-crimination is levelled with specificity, or improper motives are im-puted to the authority making the impugned order of termination of the service, it is the duty of the authority to dispell that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311(2), Proviso (c), the authority cannot withhold such information from the Court on the lame excuse, that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service. "The giving of reasons'', as Lord Denning put it in Green v. Amalgamated Engineering Union('). "is one of the fundamentals of good administration", and, to recall the words of this Court in Khudi Ram v. State of West Bengal([2 ]) in Government of laws "there is nothing like unfettered discretion immune from judicial review ability". The executive, no less than the judiciary, is under general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 and 16(1).Another facet of Mr. Veerappa's contention is that the respondent had voluntarily entered into contract of service on the terms of employment offered to him. One of the terms of that contract, em-bodied in the letter of his appointment is that his service was purely temporary and was liable to termination at the will and pleasure of the appointing authority, without reasou and without notice. Having willingly accepted the employment on terms offered to him, the respon-dent cannot complain against the impugned action taken in accor-dance with those mutually agreed terms. The argument is wholly misconceived. It is borrowed from the archaic common law concept that employment was matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to Government servants. Secondly, even with regard to private employment, much of it has pa£sed into the fossils of time. "This rule held the field at the time when the masrer and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias". The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th cen-tury and the first half of the 20th century, which rationalised the

(I) J1971] I All E.R. at p.114.

(2) [1975] (2) S.C.R, 832 at page 845.

employer's absolute right to discharge the employee. "Such philo-sophy", as pointed out by K. K. Mathew J. (vide his treatise : "Demo-cracy, Equaii<y and Freedom", page 326), "of the employer's domi-nion over his employee may have been in tune with the rustic simpli-city of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers." To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Consti-tutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled.

Coming back to the point, we have vague feeling that it was, perhaps, open to the appellant to say in view of the complaint alluded to in the show-cause notice against the integrity and fidelity of the respondent, that the former had lost confidence in the latter and consi-dered him u_nsnitable to be continued in the post w}lich was one of trust and confidence. But it will be liazardous for us to base our decision on any such speculation, when the appellant, himself, instead of taking any such plea, has, with obdurate persistency stuck to the po5ition that the respondent's service has been terminated without any reason, which comes per:iJously near to admitting that the power reserved to the employer under the conditions of the employment, has been exercised arbitrarily. In the absence of any information from the appellant indicating that the respondent was marked off for discharge on the basis of an intelligible differentia having reasonable nexus with the object of maintaining the efficiency and integrity of the public service, we·are constrained to hold, in agreement with the High Court, that the im-pugned order suffers from the vice of unfair discrimination and is violative of Articles 14 and 16(1) of the Constitution. Accordingly, we uphold the decision of the High Court and dismiss this appeal with costs.

Appeal dismissed.