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PETITIONER: DELHI TRANSPORT UNDERTAKING

       Vs.

RESPONDENT: BALBIR SARAN GOEL

DATE OF JUDGMENT: 23/02/1970

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. HEGDE, K.S.

CITATION:  1971 AIR  836            1970 SCR  (3) 757  1970 SCC  (1) 515  CITATOR INFO :  D          1975 SC 661  (18)  R          1976 SC2049  (18)  D          1991 SC 101  (16,47,103,188,278)

ACT:     Delhi Road Transport Authority Act, 1950--Conditions  of Appointment and Service Regulations, 1952, Reg. 9, 15 &  17- Employee    unsuccessfully   approaching   Court,    without exhausting    departmental    remedies-Simpliciter     order terminating services as no longer required Whether by way of Punishment.

HEADNOTE: Regulation  9  of  the Delhi Road  Transport  Authority  Act (Conditions,  of Appointment and Service Regulations),  1952 provides  for  termination of services in  two  modes.   The first  is  -by  its clause (a) by  which  services.  may  be terminated  without  any notice or pay in  lieu  of  notice. This  can be done among other reasons for  misconduct.   The second  mode is by clause (b) by which the services  may  be terminated  owing  to  reduction  of  establishment  or   in circumstances other than those mentioned in clause (a) which relate  to termination without notice.  When termination  is made  under  clause (b) one month’s notice or  pay  in  lieu thereof is to be given to the employee.  Regulation 15  says that  a  breach  of  the  standing  order  will  amount   to misconduct, and one of the penalties imposed for  misconduct is  dismissal.   It also prohibits an  order  of  dismissal, removal  or  other  punishment  except  censure  unless  the procedure  laid  down  in clause (c)  of  Regulation  15  is followed.  The standing- order 17 enjoins, that no  employee should  have  recourse to a court of law without  first  re- sorting to the normal official channels of redress.       The   respondent,  an  employee  of   the   appellant- Undertaking established under the Delhi Transport  Authority Act,  was demoted.  He challenged the demotion by  filing  a petition under Art. 226 of the Constitution.  Thereafter the appellant-undertaking   passed  an  order  terminating   the respondent’s  services, stating only that his services  were no  longer required and that one month’s salary in  lieu  of

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notice would be paid.  The respondent filed a suit  claiming that  the order was illegal.  On the questions, (i)  whether the respondent’s services could be terminated under  Regula- tion 9(b) without complying with the procedure prescribed by Regulation  15 and (it) whether although the order was  made in perfectly harmless and innocuous terms and purporting  to be  within  Regulation  9(b) it was a  mere  camouflage  for inflicting  punishment for breach of standing order  17,  as the  respondent  had  approached  the  High  Court   without exhausting the Departmental remedies, this Court,      HELD:  (i)  Even if it be assumed that the law  is  the same as, would be applicable to a case governed by Art. 311, it was difficult to say that the services of the  respondent were  not  merely terminated in accordance  with  Regulation 9(b)  which governed the conditions of his  employment.   It may  be that the motive for termination of his services  was the  breach  of  Standing Order 17 i.e.  of  filing  a  writ petition  in  the High Court against  the  demotion  without exhausting departmental remedies but the question of  motive is immaterial.  No charge-sheet was preferred under  Regula- tion  15  nor was any enquiry held in  accordance  therewith before the order under Regulation 9(b) was made.  It may  be that  if the respondent had successfully pleaded and  proved malafides on the part of the authority 758 terminating  his  services  the  impugned  order  could   be legitimately  challenged but no foundation was laid in  that behalf  in  the plaint nor was the  ,question  of  malafides investigated by the courts below. [763 E-G]     (ii)  As  regards the punishment having  been  inflicted for  misconduct  the order being a mere camouflage  no  such question  could arise in the present case.  Regulation  9(b) clearly empowered the authorities to terminate the  services after  giving  one months notice or pay in lieu  of  notice. The   order  was  unequivocally  made  in  terms   of   that Regulation.  Even if the employers of the respondent thought that  he was a cantankerous person and it was not  desirable to  retain him in service it was open to them  to  terminate his  services  in terms of Regulation 9(b) and  it  was  not necessary   to  dismiss  him  by  way  of   punishment   for misconduct.   If  the  employer  chooses  to  terminate  the services in accordance with clause (b) of Regulation 9 after giving  one month’s notice or pay in lieu thereof it  cannot amount  to termination of service for misconduct within  the meaning  of clause (a).  It is only when some punishment  is inflicted  of  the  nature specified in  Regulation  15  for misconduct  that  the  procedure laid down  therein  for  an inquiry etc., becomes applicable. [763 H]      S. R. Tewari v. District Board Agra & Another, [1964] 3 S.C.R. 55, ,State of Punjab v. Shri Sukhraj Bahadur,  [1968] 3 S.C.R. 244, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2266 of 1968.      Appeal  by special leave from the judgment  and  decree dated  August  4, 1967 of the Delhi High  Court  in  Letters Patent Appeal No. 68-D of 1965.      Niren  De, Attorney-General, D. D. Chaudhuri and G.  K. "Sharma, for the appellant.      H. R. Gokhale and S. K. Gambhir, for the respondent.      The Judgment of the Court was delivered by      Grover, J. This is an appeal by special leave in  which

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the sole question for determination is whether the  services of the respondent who was an employee of the appellant could be  terminated under Regulation 9(b) without complying  with the  procedure prescribed by Regulation 15 of  the  D.R.T.A. (Conditions  of Appointment and Service Regulations),  1952, as  amended  which were framed under S. 53 sub-ss.  (1)  and (2)(c) of the Delhi Road Transport Authority Act 1950.      The  respondent was originally appointed as  a  booking agent  under the Gwalior Northern India  Transport  Company. He  was  promoted to the rank of Travis Ticket  Examiner  in 1947.   In  1948  the  Government  of  India,  Ministry   of Transport,  took  over the aforesaid company.  On  March  7, 1950 the Delhi Road Transport Authority Act was passed.  The services  of  the respondent were transferred  to  the  said Authority.  In March 1952 the 759 respondent  was demoted from the rank of  Travelling  Ticket Examiner  to that of a Conductor.  He filed a writ  petition in  the Circuit Bench of the Punjab High Court at  Delhi  in April 1953.  The writ petition was dismissed and  thereafter his  services  were terminated on November  11,  1953.   The order of termination which was passed by the Manager of  the Delhi Road Transport Authority was in the following terms :               "Your  services will not be required  by  this               organisation  with  effect from  November  12,               1953.  You will be paid one month’s salary  in               lieu of notice."     There  were certain proceedings before the  Conciliation Officer  and in answer to a query made by that  officer  the General  Manager wrote a letter on August 14, 1956 in  which it   was  stated,  inter  alia,  that  the  respondent   had approached  the High Court when he had been demoted  at  the previous  stage  without  exhausting  the  normal   official channel of redress and without putting in his representation before  the Appellate Authority as provided in  the  Service Rules.    His  services  were  therefore  terminated   under Regulation  9(b) after paying one month’s salary in lieu  of notice.  It may be mentioned that the Service Rule of  which the  breach  was  alleged  to have  been  committed  by  the respondent was Standing Order No. 17 which enjoined that  no employee  should  have recourse to a court  of  law  without first resorting to the normal official channels of redress.      The suit out of which the present appeal has arisen was filed  by the respondent containing all the above  facts  in which it was alleged that the order dated November 11,  1953 was  one  of dismissal and had been passed as a  measure  of punishment,  the procedure prescribed by Regulation  15  not having  been  followed.  In para 29 of the plaint  the  sole allegation relating to mala fides was made in these terms :                    "........ It was mala fide on the part of               General  Manager,  D.R.T.A. to  terminate  the               services  of the plaintiff  without  assigning               any reason." A  declaration  was sought that the order of  dismissal  was illegal, mala fide etc. and that the plaintiff continued  to remain  in  the  employment of  the  appellant  without  any interruption of rights.  A claim for certain amount was also made  on account of salary etc.  The only two issues  framed on the merits were:               "(1)   Whether   the  order   dated   11-11-53               terminating  the services of the plaintiff  is               illegal and ultra vires as alleged ? 760 .lm15 (2)  Whether  the plaintiff is entitled to the  recovery  of

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any  amount by way of consequential relief? If so,  at  what rate and for what period ?" The trial court held that the order terminating the services of the respondent was not covered by Regulation 9(b) but was an  order of dismissal from service under  Regulation  15(2) clause  (7)  and  therefore the  order  of  termination  was nothing short of dismissal.  It was held that the  dismissal of  the respondent was illegal and that he was  entitled  to the pay and allowances in the sum of Rs. 4500.      An  appeal  was  taken  to  the  District  Court  which confirmed  the decree of the trial court.  A learned  Single Judge  of the High Court who disposed of the  second  appeal preferred  by the present appellant affirmed the  decree  of the  courts below but on different grounds.  It was held  by him  that  Regulation 9(b) did not confer any power  on  the Authority  to terminate the employment of its employees.   A division  bench  which heard the appeal  under  the  Letters Patent  affirmed  the decisions of the courts below  but  on different  grounds.   It was held that the real  reason  for dispensing with the services of the respondent was one given by  the  General Manager in his letter to  the  Conciliation Officer.  It was the alleged breach of the Service Rules.  A breach  of  the  Standing Order amounted  to  misconduct  as provided   by  Regulation  15(1).   One  of  the   penalties prescribed  by Regulation 15(2) was dismissal.  That  though the  order of termination of services of the respondent  did not on its face, contain the reason for the  non-requirement of  his services the real reason was the misconduct  of  the respondent in that he had committed a breach of the Standing Order.   The procedure laid down in Regulation  15(2)(c)  of enquiry etc. not having been followed the impugned order was void and illegal.  In fact that order had been made by  way- of punishment.                   Regulation   9,  to  the  extent   it   is               material, is as follows                   "9.Termination  of Service.-(a) Except  as               otherwise specified in the appointment orders,               the  services of an employee of the  Authority               may be terminated without any notice or pay in               lieu of notice-                   (i)    during the period of probation  and               without assigning any reasons therefore,                   (ii)   for misconduct,                   (iii)  on   the  completion  of   specific               period of appointment, 761               (iv)  In  the  case of  employees  engaged  on               contract   for  a  specific  period,  on   the               expiration of such period in   accordance with               the terms of appointment.               (b)   Where  the  termination is made  due  to                reduction of establishment or in  circumstances               other  than those mentioned at (a) above,  one               month  notice or pay in lieu thereof  will  be               given to all categories of employees.               (C)........................." Regulation  15  says that a’ breach of  the  Standing  Order issued  from  time  to  time by  the  Delhi  Road  Transport Authority  will amount to misconduct.  The  penalties  which can  be imposed for misconduct are enumerated out  of  which dismissal  is  one.   It  is  provided  that  no  order   of dismissal, removal or other punishment except censure  shall be  passed unless the procedure laid down in clause  (c)  is followed.   That  clause outlines the. steps which  must  be taken  in  the  matter of affording an  opportunity  to  the

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delinquent  employee  and  of an inquiry  which  is  to.  be conducted in the matter.      Now  Regulation 9 clearly provides for  termination  of services  in two modes; the first is where the services  may be  terminated without any notice or pay in lieu of  notice. This  can be done among other reasons for  misconduct.   The second  mode  is  of  terminating  the  services  owing   to reduction  of establishment or in circumstances  other  than those  mentioned in clause (a) which relate  to  termination without  notice.  When termination is made under clause  (b) one month’s notice or pay in lieu thereof is to be given  to the employee.  Thus it is clear that if the employer chooses to  terminate  the services in accordance  with  clause  (b) after  giving one month’s notice or pay in lieu  thereof  it cannot  amount  to  termination of  service  for  misconduct within  the  meaning of clause (a).  It is  only  when  some punishment   is  inflicted  of  the  nature   specified   in Regulation  15 for misconduct that the procedure  laid  down therein  for  an  inquiry  etc.  becomes  applicable.    The contention  which  appears to have prevailed with  the  High Court and which has been pressed before us is that  although the order was made in perfectly harmless and innocuous terms and  purported  to be within Regulation 9(b) it was  a  mere camouflage for inflicting punishment for breach of  Standing Order 17 inasmuch as the respondent had approached the  High Court under Art. 226 of the Constitution without  exhausting the  departmental  remedies.  The High Court relied  on  the observations  in  S.  R. Tewari v.  District  Board  Agra  & Another(’) that the form of the order under (1) [1964] 3 S.C.R. 55. Sup.CI(NP)/70-4 762 which  the  employment of a servant was determined  was  not conclusive of the true nature of the order.  The form  might be merely to camouflage an order of dismissal for misconduct and  it was always open to the court before which the  order was challenged to go behind the form and. ascertain the true character  of the order. -In that case it was held that  the employment  was terminated by giving a notice in  accordance with the rules and it was not a case of dismissal.      The  learned  Attorney General for  the  appellant  has sought  to distinguish cases which fall under Art.  311  and those  which -are governed by statutory provisions or  rules containing provisions analogous to Art. 3 1 1. According  to his  submission  the concept of punishment is  not  relevant when the employer chooses to terminate the employment of  an employee in accordance with the conditions of service.   All that  has to be seen is whether the order made by him is  in conformity  with  the  statutory  powers.   He  has  further submitted  that where the master chooses to follow the  mode of terminating the services prescribed by Regulation 9(b) no stigma  attaches to such termination and no question of  the employee  having  been  punished can arise  nor  can  it  be examined  in such a case whether the order made was  a  mere camouflage  or  cloak for dismissing an employee by  way  of punishment  for misconduct.  It has further been  emphasized that  what has to be seen is the situation obtaining on  the date the order was made and no notice should or ought to  be taken of any subsequent facts emerging out of correspondence or  pleadings in a court of law in reply to the  allegations in the plaint of mala fide and the like.     It  does  not  appear necessary  to  refer  to  numerous decisions  which  have  been given by  the  Court  in  cases arising under Art. 3 1 1 of the Constitution on, the  points debated  before us by counsel for both sides.  In  State  of

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Punjab  v. Shri Subhraj Bahadur(1) most of these cases  have been  discussed.   By a conspectus of those  cases,  it  was stated, the following propositions clearly emerge:                   "1. The services of a temporary servant or               a  probationer  can be  terminated  under  the               rules  of his employment and such  termination               without  anything more would not  attract  the               operation of Art. 3 1 1 of the Constitution.                    2.    The   circumstances  preceding   or               attendant  on  the  order  of  termination  of               service have to be examined in each case,  the               motive behind it being immaterial. (1)  (1968) 3, S.C.R. 234 at p. 244. 763               3. If the order visits the public servant with               any  evil consequences or casts  an  aspersion               against his character or integrity, it must be               considered to be one by way of punishment,  no               matter whether he was a mere probationer or  a               temporary servant.               4.  An  order  of termination  of  service  in               unexception.able  form preceded by an  inquiry               launched  by the superior authorities only  to               ascertain  whet-her the public servant  should               be  retained in service, does not attract  the               operation of Art. 311 of the Constitution.               5.  If  there  be  a  full-scale  departmental               enquiry envisaged by Art. 311 i.e. an  Enquiry               Officer   is   appointed,   a   charge   sheet               submitted,   explanation   called   for    and               considered,   any  order  of  termination   of               service  made  thereafter  will  attract   the               operation of the said article." In that case the departmental enquiry did not proceed beyond the  stage  of submission of charge-sheet  followed  by  the respondent’s  explanation  thereto.   The  enquiry  was  not proceeded  with,  there were no 1 sittings  of  any  Inquiry Officer, no evidence was recorded and no conclusions arrived at  on  the  enquiry.   It was,  therefore,  held  that  the services had been terminated simpliciter under the rules  of employment  and Art. 311 was not attracted.  In the  present case even if it is assumed that the law is the same as would be applicable to a case governed by Art. 311 it is difficult to  say on the principles laid down in the above  case  that the services of the respondent were not merely terminated in accordance   with   Regulation  9(b)  which   governed   the conditions of his employment.  It may be that the motive for termination of his services was the breach of Standing Order 17 i.e., of filing a writ petition in the High Court against the  demotion without exhausting departmental  remedies  but the  question of motive is immaterial.  No  chargesheet  was preferred  under Regulation 15 nor was any enquiry  held  in accordance therewith before the order under Regulation  9(b) was made.  It may be that if the respondent had successfully pleaded  and proved mala fides on the part of the  authority terminating  his  services  the  impugned  order  could   be legitimately  challenged but no foundation was laid in  that behalf  in  the plaint nor was the question  of  mala  fides investigated by the courts below.      As  regards  the punishment having been  inflicted  for misconduct the order being a mere camouflage we, are  unable to  endorse the view that any such question could  arise  in the  present  case.  Regulation 9(b) clearly  empowered  the authorities  to  terminate  the services  after  giving  one months  notice  or  pay in lieu of notice.   The  order  was

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unequivocally made in terms of that Regulation.  Even 764 if  the  employers of the respondent thought that he  was  a cantankerous  person and it was not desirable to retain  him in service it was open to them to terminate his services  in terms of Regulation 9(b) and it was not necessary to dismiss him by way of punishment for misconduct.     The  appeal  is  consequently  allowed  and  the  decree granted  by the courts below is set aside.  In view of  this court’s order dated November 1, 1968, the appellant will pay the costs of the respondent. Y.P.                                Appeal allowed. 765