THE STATE OF ORISSA AND ANOTHER versus RAM NARAYAN DAS

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 gratification 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:

p. 607

"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. 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 a 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. He is discharged from the da.te on which this order is

pp. 607–608

h' ,. serve

p. 608, margin D

The Deputy Inspector Genera.I of Police on Dccember H, 1954, in discharging the respondent from service, passed a formal order as follows :

p. 608, margin D

"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 ".

p. 608, margin D

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 a 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 Constitution, (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.

p. 608, margin D

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 refused to give to the respondent a.n opportunity to crqssexamine witnesses on whose statements the charge of misconduct wa.s 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 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 discharging the respondent from service, this appeal ha.s been preferred by special leave.

p. 608, margin D

The rt>spondent was undoubtedly at the time when proceedings were started against him a.nd when he · was discharged from service, a probationer, and had no right to the post held by hini. Under the terms of his appointment the respondent was liable to be discharged at any time during the 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 :

pp. 608–609, margin D

"AU officers shall in the first instance be appointed or promoted on probation .. Where the period of probation ds,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".

p. 609

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

p. 609

" Those promoted from the rank 0f 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 ''..

p. 609

Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, in so far as it is material provides:

p. 609

"Where it is proposed to terminate the employment of a 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 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 authodty. competent to terminate the employment".

p. 609

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 him by notice of the groundR on which the order of discharge was proposed to be made and required him

pp. 609–610

h , to s ow cause w y actIOn as proposed should not be taken. · The notice consisted of two parts, (I) relating to ten heads of" gross neglect of duty and unsatisfactory work" and (2) "suspicious and unpoliceman-like 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 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 indeligible stigma on him a.ffeoting his future career".

p. 610, margin H

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 a bearing on the case of the respondent.

p. 610, margin H

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 concerned was served with a notice to show cause in respect of three spec!fic items o~ misd.emeanour ~s a public servant to whwh he submitted his explanat10n. 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 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 Constitution 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. ·

pp. 610–611, margin H

In Parshottam Lal Dhingra v. Union of India ( 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 Jaw being terminable at any time on reasonable notice, the reversion of the public servant to his substantive post did not operate as a forfeiture 0f 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 termina. tion, 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 con. sequences were not prescribed as penalties under the Rules. In that case, Das, C. J., 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:

p. 611

"Any and every termination of service is not a. dismissal, removal or reduction in ra.nk. A termina.tion of service brought about by the exercise of a. contra.ctual right is not per se dismissal or removal, a.s haR been held hv this court in Satish Chander Anand v. The Union of India('). Like-wise the termination of service by compulsory reti:ement in terms of a. specific rule regulating the· conditions of service is not tantamount to the infliction of a 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 Pradesh (') ...... .In short, if the termination of service is founded on the right flowing from contra.ct or the service 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, inefficiency 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 employment or the rules provide to the contrary, bis services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient ca.use. A termination of tho service of such a. servant on such grounds must be a. punishment and, therefore, a dismissal or removal within Art. 311, for it operates 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 Government has, by contra.ct, 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 to a lower post or rank cannot-in any circumstances be a punishment. The real test for determining w he-

pp. 612–613

. . h . . t b f t h er t e re uct10n h d lil sue cases 1s or 1s no y way o 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 ser. vant had a 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 a dismissal or removal from servwe...... . . "

p. 613

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 n.t>t carry with it " any evil consequen~es" 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 east on him by the order discharging him from employment for unsatisfactory work and conduct. The use of the expression " discharge " in the order terminating employment of a put.lie 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 sueh enquiry. _

p. 613

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 why his service should-not be terminat~d, and a notice is issued asking the public servant to show cause whether probation should be contiuued 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 tho Constitution, the order would undoubtedly be invalid. -

pp. 613–614

The Solicitor General invited our attention to a recent judgment of this court, State of Bihar v. Gopi Kishore Prasad ( 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:

p. 614

" But instead of terminating s1rnh 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 his future career. In such a case, he is entitled to the protection of Art. 311(2) of the Constitution".

p. 614

This proposition, in our judgmeut, 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 euquiry against the respondent was for ascertaining whether he was fit to be confirmed. An order discharging a. public serva.nt, even if a probationer, in a.n enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following

pp. 614–615

. . . Id b upon an enqmry to ascertam whether he shou e confirmed, is not of that nature. In Gopi K ishore Prasad's case ( 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(') 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 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(').

p. 615

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 Constitution. '"

p. 615

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.

p. 615

Appeal allowed.

p. 615