http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: UNION TERRITORY OF TRIPURA,AGARTALA

       Vs.

RESPONDENT: GOPAL CHANDER DUTTA CHOUDHURY

DATE OF JUDGMENT: 25/09/1962

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1963 AIR  601            1962 SCR  Supl. (1) 266  CITATOR INFO :  RF         1964 SC 600  (139)  R          1964 SC 719  (9)

ACT: Public Servant--Temporary employment-Termination of service- Appeal dismissed-An ex-convict for theft-Whether termination amounted  to  dismissal--Scope  of  enquiry-If  same  as  in Industrial Dispute-Central Services Temporary services Rule, 1949, r.5-Constitution of India, Art. 311.

HEADNOTE: The  respondent was appointed as a constable in the  Tripura Police Force.  The employment was temporary.  In  accordance with r. 5 of the Central Services (Temporary Service) Rules, 1949,  his  services were terminated by giving  one  month’s notice.   The respondent appealed.  The Appellate  Authority wrote to him that as he was an ex-convict for theft  nothing could  be  done  for  him.  The  respondent,  filed  a  writ petition challenging the order of termination.  The Judicial Commissioner  held  that the order was one of  dismissal  as punishment  on  the ground that the respondent was  an  "ex- convict" and that as no reasonable opportunity was given  to the respondent to show cause, the protection of Art. 311 was not   afforded  to  him  and  the  order   terminating   the respondents employment was invalid. Held,  that  the respondent had not been dismiss by  way  of punishment  and there was no violation of Art. 311(2).   The order  in  terms  merely  terminated  the  service  of   the respondent;  there  was nothing in it to suggest  that  the termination  was on account of the respondent being an  "ex- convict".  It could not be in the circumstances of this case inferred that an order of  267 dismissal  was camouflaged as an order of  termination.   It cannot be assumed that an order ex-facie one of  termination was intended to be one of dismissal.  The onus to prove such intention lies upon the employee. Purshotam  Lal Dhingra v. Union of India, [1958] S.C.R.  828 and  Satish Chander Anand v, Union of India,  [1953]  S.C.R.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

655, referred to. Held, further, that, a court considering the validity of  an order of termination or dismissal of a public servant is not required  to investigate into the matter in the same way  as an  Industrial Tribunal is when considering  an  application under s. 33 of the Industrial Disputes Act, 1947.  The Court has merely to see whether the protection prescribed by  Art. 311 and the rules made under Art. 309 has been denied to the public  servant.  There is no similarity between an  enquiry under s. 33 of the Industrial Disputes Act and an enquiry by the court when ’an order of dismissal of a public servant is challenged. Chartered  Bank, Bombay v. Chartered Bank Empployeis  Union, [1960] 3 S.C.R. 441, The Management of Chandramalai  Estate, Ernakulam  v.  Its Workmen, [1960] 3 S.C.R. 451  and  Punjab National  Bank  Ltd. v. Its Workmen, [1960]  1  S.C.R.  806, referred to

JUDGMENT: CIVIL  APPELLATE JURISDICTION             Civil  Appeal  No. 581 of 1961. Appeal  from the judgment and order dated January 15,  1960, of the judicial Commissioner’s court, Tripura at Agartala in Civil Misc. (Writ Petition) No. 4 of 1959. R.Ganapathy Iyer and P. D. Menon, for the appellants. D. P. Singh, for the respondent. 1962.   September  25.   The  judgment  of  the  Court   was delivered by SHAH,J.-This is an appeal with a certificate granted by  the judicial  Commissioner of Tripura under Art. 132(1)  of  the Constitution. Gopal Chander Dutta Choudhury-hereinafter referred to as the respondent’-was appointed 268 a   constable  in  the  Police  Force  of  Tripura  by   the Superintendent of Police, Agartala by order dated April  18, 1954.   The  employment was temporary and was liable  to  be terminated  with one month’s notice.  On December  6,  1957, the  Superintendent  of  Police, acting under r.  5  of  the Central  Services (Temporary Service) Rules, 1949,  informed the  respondent that his services "’will be terminated  with effect from 6-1-58 A. M." The respondent presented an appeal to the Chief Commissioner against the order of  termination. By  letter dated April 11, 1958 the respondent was  informed that as he was "an Exconvict for theft, nothing can be  done for him".  In reply to another application addressed to  the Chief  Commissioner  the respondent was informed  by  letter dated  May  26,  1958,  that  he  was  already  informed  in connection with his previous appeal that as he was "’an  Ex- convict in a case of theft" he "cannot be reemployed by  the Administration." The  respondent  then  filed in the Court  of  the  Judicial Commissioner, Tripura, a petition for a writ under Art.  226 of  the Constitution praying for a writ declaring  that  the order  of  the  Superintendent  of  Police  terminating  his service  was "illegal" and for a writ of mandamus or a  writ of  certiorari  directing  the  Chief  Commissioner  not  to enforce  the said order and for an order reinstating him  in the Police Force of the Tripura Administration with  retros- pective  effect.   The Tripura Administration  submitted  in rejoinder that the respondent being a temporary employee  of the  Police  Force, his services  were  lawfully  terminated under r. 5 of the Central Civil Services (Temporary Service)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

Rules, 1949.  The Judicial Commissioner of Tripura held that the  respondent  was  a temporary employee,  but  the  order terminating  the respondent’s employment was invalid for  it infringed  the  constitutional guarantee  of  protection  of public servants under Art. 311 which applied to temporary as well as permanent public  269 servants.   In  the  view  of  the  judicial   Commissioner, termination of employment of a temporary servant governed by the Central Civil Services (Temporary Service) Rules,  1949, will  not per se be treated as a punishment of dismissal  or removal, but it is open to the Court even if an order merely of  termination  of employment of a  temporary  employee  is passed to ascertain whether the order was intended to be  of termination  simpliciter  or of  dismissal  entailing  penal consequences,  and that the order dated April 11,  1958,  of the  Chief Commissioner passed in appeal  clearly  indicated that  the  order  of the Superintendent of  Police  was  one imposing penalty.  He observed "this reply (dated April  11, 1958)  will clearly indicate that though the  Superintendent of  Police  purported  to terminate his  service  under  the Central  Civil Services (Temporary Service) Rules, he  meant to dismiss the petitioner from am service as a punishment on the  ground  that  he  was an ex-convict  and  that  it  was intended that he should not be reappointed in future in  any department  of the Government.  Thus it cannot  be  gainsaid that  the termination was in fact a punishment for  previous misconduct  debarring  the petitioner from  being,  employed even in the future, and that in passing the innocuous  order (dated  December 6, 1957Annexure D), the Superintendent  was really camouflaging his real intention.  The real  intention came  to  light, perhaps as the result of  an  oversight  in communicating the orders in appeal to the petitioner". We  are unable to agree with the judicial Commissioner  that the  termination  of  employment of the  respondent  by  the Superintendent  of Police by order dated December  6,  1957, was  in violation of.  Art. 311(2) of the Constitution.   It is  true  that  before the respondent  was  discharged  from service  no enquiry was made as to any  alleged  misconduct, nor  was he given any opportunity of showing  cause  against the  proposed  termination of employment.  But  it  is  well settled that when employment of a temporary public 270 servant, is terminated pursuant to the terms of a  contract, he  is  not entitled to the protection of Art.  311(2).   As observed in Parshotam Lal Dhingra v. The Union of India  (1) by  Das, C. J., "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 (2). x x x x x x the termination of the service did not carry with it the penal  consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules".   But  the  State  may  instead  of  exercising  its contractual right seek to terminate the employment even of a temporary employee for misconduct, negligence,  inefficiency or  any  other  disqualification,  and  when  an  order   of termination  of  employment is passed for  that  purpose  it would   amount  to  dismissal  or  removal  attracting   the protection  of  Art. 311 of the Constitution.  The  form  in which  the  order  is couched is not  always  decisive.   In Parshotam  Lal  Dhingra’s case (1), it was observed  (at  p. 863) 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

post  or  the rank or (2) whether he has been  visited  with evil  consequences of the kind herein before 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 or the reversion to  his  substantive rank  must  be regarded as a reduction in rank  and  if  the requirements   of  the  rules  and  Art.  311,  which   give protection  to  Government servant have  not  been  complied with,  the  termination of the service or the  reduction  in rank  must  be held to be wrongful and in violation  of  the constitutional right of the servant". The  question which falls to be determined is, whether  the- Superintendent of Police by order dated [1958] S. C. R. 828, 8bl. (2) (1953) S. C. R. 655 ,  271 December 6. 1957, passed an order in truth one of  dismissal for misconduct, negligence, inefficiency or like cause or he enforced the contractual right of the State to terminate the employment  of the respondent who was a temporary  employee. The  order  in terms merely terminates the  service  of  the respondent  :  it  was  not  preceded  by  any  enquiry  for ascertaining  whether  the  respondent  was  guilty  of  any misdemeanor,  misconduct,  negligence,  inefficiency  or   a similar  cause.  In the order on appeal filed to  the  Chief Commissioner  it is recited that the respondent was "an  ex- convict  for theft and therefore nothing could be done  for" him,  but  the  purport thereof is  somewhat  obscure.   The memorandum of appeal filed before the Chief Commissioner was not tendered in evidence, and there is nothing in the  order suggesting  that  the  employment  of  the  respondent   was terminated  because he had, before he was employed on  April 18, 1954, been convicted by a Criminal Court for theft.   It appears  from the order of the Chief Commissioner dated  May 26,  1958, that the respondent had applied for  reemployment in  the Police Force and the Chief Commissioner was  of  the opinion that because the respondent was "an excoriation in a case  of theft" die could not be reemployed.  There  is  no ground  for inferring that the Superintendent of Police  was seeking to camouflage an order of dismissal by giving it the form  of  termination  of  employment  in  exercise  of  the authority  under  rule  5  of  the  Central  Civil  Services (Temporary  Service) Rules.  It cannot be, assumed  that  an order  ex facie one of termination of employment of  a  tem- porary  employee was intended to be one of  dismissal.   The onus  to prove that such was the intention of the  authority terminating  the  employment  must  lie  upon  the  employee concerned : but about the intention of the Superintendent of Police  there  is  no  evidence except  the  order  of  that authority. Counsel  for the respondent urged that as in an  application made under s. 33 of the Industrial 272 Disputes  Act  for permission of an Industrial  Tribunal  to discharge workmen pending adjudication the dispute in  which the employer or the workmen:’ are concerned, the Tribunal is bound  to  enter  upon a full  investigation  and  ascertain whether  the employer had acted mala fide or that the  order of  discharge amounted to an unfair labour practice or  that it  was  a  case of victimisation, the Court  in  making  an enquiry  where the order of termination of employment  of  a temporary public servant was merely one in enforcement of  a contractual  right  or An’ attempt to  dismiss  an  employee because  of  misconduct..-’ negligence or  inefficiency,  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

also obliged to enter, upon a critical investigation of  the reasons  which  induced the authority to make  the  impugned order.’  Counsel  invited our attention to the  decision  of this’  Court in The Chartered Bank, Bombay v. The  Chartered Bank Employees’ Union (1) and The Management of Chandramalai Estate,  Ernakulam v. Its Workmen(2) and submitted that  the considerations   which   were  material   in   deciding   an application under s. 33 of’ the Industrial Disputes Act were also  relevant  in  adjuring the true nature  of  the  order terminating employment of a public servant.  In  considering an  application under s. 33 of the Industrial  Disputes  Act the  Tribunal  has,  it  is  true,  "to  go  into  all   the circumstances  which led to the termination simpliciter  and the  employer  cannot be permitted to say, that  he  is  not bound  to disclose the circumstances’ before  the  Tribunal. The  form of the order is not conclusive of the true  nature of the order: for it is possible that the form may be merely a  camouflage for an order of dismissal for misconduct.   It is  therefore always open to the tribunal to go  behind  the form  and  look  at the substance; and if it  comes  to  the conclusion,  for  example,  that though in  form  the  order amounts  to termination simpliciter it in reality  cloaks  a dismissal  for  misconduct it will be open to it to  set  it aside  as  a colorable exercise of the power".  But  in  our view the principle of these’ (1) [1960] 3 C. S. R, 441. (2) [1960] 3 S. C. R. 451.  273 cases  under  the  Industrial  Disputes  Act  dealing   With termination  of employment of workmen and the  authority  of the   Tribunal  to  grant  permission  to   terminate   such employment   evolved  in  the  context  of  maintenance   of industrial  peace, has no relevance in deciding whether  the grieved public servant was by the impugned order denied  the protection  of  the  constitutional  guarantee.   A   public servant  holds  a  civil office during the pleasure  of  the President or the Governor of the State according as he holds office under the Union or the State.  But to protect  public servants  a dual restriction is placed upon the exercise  of the power to terminate employment.  A public servant  cannot be dismissed or removed by an authority subordinate to  that by which he was appointed and that he cannot be dismissed or removed or reduced in rank until he has been given a reason- able  opportunity  of  showing  cause  against  the   action proposed  to be taken in regard to him.   These  protections undoubtedly apply to temporary public servants as well as to public servants holding permanent employment.  But the State is not prohibited by the Constitution from reserving a right by  the terms of employment to terminate the services  of  a public servant, and if in the bona fide enforcement of  that right  the employment is terminated the protection  of  Art. 311  of the Constitution will not avail him, because such  a termination  does  not amount to dismissal or  removal  from service.   In The Punjab National Bank Ltd. v.  Its  Workmen (1),  this  Court pointed out that there was  a  substantial difference  between the consequences of non-compliance  with s. 33 of the Industrial Disputes Act and Art. 311 (2) of the Constitution.   Compliance with s. 33 only avoids a  penalty under s. 31 (1) while compliance with Art. 311 (2) makes the order  of dismissal final.  In a proceeding under s.  33  of the  Industrial Disputes Act the Tribunal is concerned  only to make a limited enquiry whether the proposal to  terminate the employment of a workman was (1)  [1960] 1 S. C. R. 806. 274

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

prima facie, bona fide or whether the employer was guilty of victimisation  or any unfair labour practice.  The  Tribunal has  merely  "to  consider the prima  facie  aspect  of  the matter.,  and either grant it or refuse it according  as  it holds  that  prima facie case is or is not made out  by  the employer.  x x x x x The effect of the permission  given  by the  Tribunal is only to remove the ban imposed by s. 33  of the  Industrial  Disputes  Act.  The  Tribunal  can  neither validate a dismissal nor prevent it from being challenged in an  industrial  dispute; in such a dispute when  raised  the employer may justify his action only on such grounds as were specified  in  the  original charge sheet  and  no  others". Before  terminating  the  employment  of  a  public  servant sanction  of  the  Court is not  necessary.   The  order  of termination  of employment operates proprietors and  is  not made  justifiable.   The validity of such an  order  may  be challenged  only  on  the  ground  that  the  constitutional protection  prescribed by Art. 311 and the rules made  under Art. 309 was denied to the public servant concerned.   There is no similarity between the enquiry made under s. 33 of the Industrial  Disputes  Act and an enquiry made by  the  Court where  the  order  of  dismissal  of  a  public  servant  is impugned.   The Court in dealing with the case of  a  public servant only adjudicates upon the validity of the act of the authority  concerned  :  the Court is  not  called  upon  to sanction  a proposed dismissal.  The enquiry to be  made  by the  Court  is  restricted to the observance  of  the  rules prescribed  by  the Constitution.  It would,  therefore,  be impossible   to  assimilate  the  content  of   an   enquiry contemplated  to  be  made under s.  33  of  the  Industrial Disputes   Act  before  granting  permission  to   terminate employment  of a workman into the enquiry to be made by  the Civil  Court,  when  the public servant claims  that  he  is denied the protection under Art. 311 or that his  employment has been terminated in violation of rules framed under  Art. 309 of the Constitution.  275 The appeal must therefore be allowed and the petition  filed by  the respondent dismissed.  There will be no order as  to costs throughout. Appeal allowed.