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PETITIONER: MADAN GOPAL

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 27/08/1962

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SUBBARAO, K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1963 AIR  531            1963 SCR  Supl. (3) 716  CITATOR INFO :  R          1964 SC 449  (19)  RF         1964 SC 600  (13,140)  R          1964 SC1854  (16)  O          1968 SC1089  (10,13,15,17)  R          1974 SC 423  (14)  RF         1974 SC2192  (65,158)  RF         1976 SC1766  (6)  RF         1976 SC2547  (12)  R          1979 SC 684  (7)

ACT: Temporary Government Servant-Termination of Service Enquiry- Misconduct-Constitution of India, Art. 311(2).

HEADNOTE: The  appellant, a temporary Government servant,  was  served with  a  charge sheet alleging misconduct.  An  enquiry  was held  on  the  charges by the  Settlement  Officer  and  the appellant   was  found  guilty.   The  Deputy   Commissioner accepting the findings of the Settlement Officer and without giving a reasonable opportunity to the appellant of  showing cause  against the action proposed to be taken in regard  to him terminated his services after giving him one month’s pay in  lieu of one month’s notice.  The appellant  changed  the termination of his service by way of a writ petition  before the  Punjab High Court.  The Single judge granted  the  writ quashing the order.  The Division Bench reversed the  Single Judge’s order. Held, that the termination of the appellant’s service  which was  preceded by an enquiry into his alleged misconduct  and based  on the finding of misconduct, amounted to  casting  a stigma  affecting  his future career, and, then  being  non- compliance with Art. 311(2) of the Constitution of India  in that the appellant was not afforded the opportunity to  show cause against the proposed punishment, the order contravened Art. 311(2) of the Constitution. Purushottam  Lal Dhingra v. Union of India, (1958) S, C.  R. 828, referred to. State  of Bihar v. Gopi Kishore Prasad A. 1. R. 1960  S.  C. 689, followed.

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State  of  Orisa v. Ram Narain Das, (1961) 1 S. C.  R.  606, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 329 of 1960. 717 Appeal  from the judgment and order dated October 28,  1958, of the Punjab High Court in  L. P. A. No. 72 of 1958. N.   N. Keswani, for the appellant. N.   S. Bindra and P. D. Menon, for the respondents. 1962.  August 27.  The Judgment of the Court was.  delivered by SHAH,   J.-The  appellant  Madan  Gopal  was  appointed   an Inspector of Consolidation by order dated October 5, 1953 of the  Settlement Commissioner of the Patiala and East  Punjab States  Union.  The appointment was ,on temporary basis  and terminable  with one Month’s notice".  On February 5,  1955, the  appellant  was  served with  a  "charge-sheet"  by  the Settlement  Officer,  Bhatinda that he (the  appellant)  had received Rs. 150/- as illegal gratification from one Darbara Singh  and  bad demanded Rs. 30/- as  illegal  gratification from  one Ude Singh.  The appellant was called upon to  show cause  why disciplinary action should not be  taken  against him if the allegations in the charge sheet were proved.  The appellant submitted his explanation to the charge-sheet.  On February  22,  1955, the Settlement  Officer  submitted  his report  to the Deputy Commissioner Bhatinda, that the  chage relating  to  recept of illegal gratification  from  Darbara Singh  was proved.  The Deputy Commissioner by  order  dated March  17,  1955 ordered that the services  of  Madan  Gopal Inspector be terminated forthwith and that in lieu of notice be will get one month’s pay as required by the Rules. The  appellant requested the Deputy Commissioner  to  review the order, and also submitted a memorial to the Minister for Revenue  affairs.   Having  failed  to  obtain  relief,  the appellant applied to 718 to the High Court of Pepsu for a writ under Art. 226 of  the Constitution  quashing  the order dated March  17,  1965  on the"ground  inter  alia  that the order  of  dismissal  from service was in contravention of Art. 311 of the Constitution as  no  reasonable opportunity to show-. cause  against  the order of dismissal was at all given.  He also challenged the authority of the Settlement Officer to hold the enquiry  and submitted  that  the procedure followed by that  Officer  in making   the  enquiry  was  irregular.   The  petition   was transferred   to   the   High  Court  of   Punjab   on   the reorganization of the State of Punjab. Mr.  Justice Bishan Narain who heard the application  issued the  writ  prayed for, because, in his view,  the  order  of termination  of employment was in the nature of an order  of punishment and an the provisions of Art. 311(2) had not been complied  with by the Enquiry Officer, the.  Deputy  Commis- sioner  or  the  Settlement  Commissioner,  the  order   was invalid.  In appeal under the Letters Patent, the order  was reversed  by, a Division Bench of the High Court.  The  High Court  held that the appellant was a temporary  servant  and had  no right to hold the post he was occupying and  by  the impugned  order the appellant was not dismissed  or  removed from service, but his employment was terminated ,in exercise of authority reserved under the terms of employment, and  no penalty was imposed upon the appellant, The appellant was a temporary employee, and hill  employment

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was  liable  to be terminated by ,,’notice  of  one  mouth," without  assigning.  any reason’  The  Deputy  Commissioner, however,  did  not act in exercise of this authority  :  the appellant  was served, with a charge-sheet setting  out  his mis-demeanour, an enquiry was held in respect of the alleged misdemeanour  and his employment was terminated  because  in the view of the Settlement Officer-with                             719 which  view the Deputy Commissioner agreed.-the  misdemeanor was  proved.   Such  a termination  amounted  to  casting  a ,,stigma affecting his future career".  In State of Bihar v. Gopi  Kishore  Prasad  (1), the  learned  Chief  Justice  in dealing with cases of termination of service or discharge of public  servant  on probation set out five  propositions  of which the 3rd is enunciated thus               "But.   if  instead  of  terminating  such   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 or Art. 311  (2)               of the Constitution." It is true that in that case the Court was dealing with  the case of a public servant on probation whereas the  appellant was a temporary employee, but, in principle, it will make no difference  whether  the  appellant was a probationer  or  a temporary  employee.  The appellant had been served  with  a charge  sheet  that he. had received  illegal  gratification from one person and had demanded illegal gratification  from another.  The appellant was given an opportunity to make his defence  and  it appears that witnesses in  support  of  the charge  and in defence were examined before  the  Settlement Officer.   The  Settlement  Officer  reported  that  on  the evidence  he was satisfied that the appellant  had  received Rs.  150/- as illegal gratification and that  the  appellant did not ,enjoy good reputation and was a person of  doubtful integrity".   It is now well-settled that the protection  of Art.  311  (2)  of the Constitution applies  as  much  to  a temporary public (1)  A.I.R. 1960 S.C. 689, 720 servant as to permanent public servants.  By virtue of  Art. 311  of the Constitution the appellant was not liable to  be dismissed  or  removed      from service until he  had  been given reasonable opportunity against the action proposed  to be taken in regard to him.  The appellant was given no  such opportunity  and Art. 311 of the Constitution was  therefore not complied with. Counsel appearing for the State of Punjab contended that the order  dated March 17, 1955, was not the order  pursuant  to which  employment’  of  the appellant  was  terminated,  the effective  order being one passed by the Settlement  Officer on  March 30, 1955.  No such order is however found  on  the record,  and it appears that in the written statement  filed by  the  State in the High Court it was  expressly  admitted that the employment of the appellant was terminated on March 17,  1955.  Counsel also contended that enquiry was made  by the  Settlement  Officer  for the  purpose  of  ascertaining whether the appellant who was a temporary employee should be continued in service or should be discharged under the terms of  his employment, and to "a termination made  pursuant  to such  an  enquiry  the protection of Art. 311  (2)  of  the.

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Constitution  was  not  attracted, and  in  support  of  his submission  counsel relied upon a judgment of this Court  in the State of Orissa v. Ram Narayan Das (1).  In Ram  Narayan Das’s case enquiry was made pursuant to Rules governing  the conduct  of  public servants for  ascertaining  whether  the probation  of  the public servant concerned should  be  con- tinued and a notice to show cause in that behalf was  served upon  him.   On the report of the enquiry officer  that  the work  and conduct of the public servant *as  unsatisfactory, an  order  of termination of employment was  passed  without affording him an (1)  (1961) 1 S.C.R. 606.  721 opportunity of showing cause against the action proposed  to be taken in regard to him.  This Court pointed out that  the public  servant  had no right to the post  he  occupied  and under  the  terms  of his appointment he was  liable  to  be discharged  at any time during the period of probation.   It was  observed that mere termination of employment ;does  not carry with it "any evil consequences" such as forfeiture  of his  pay  or  allowances, loss  of  seniority,  stoppage  or postponement  of  future  chances  of  promotion  etc.  and, therefore,  there was no stigma affecting the future  career of   the  public  servant  by  the  order  terminating   his employment  for  unsatisfactory  work  and  conduct.    "The enquiry against the respondent was for ascertaining  whether he  was fit to be confirmed.  An order discharging a  public servant, even if a probationer, in an 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 upon an enquiry to ascertain whether he should  be confirmed,  is  not  of  that nature x x x  x  x  The  third proposition  in  the  latter (Gopi  Kishore  Prasad’s)  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 question.  What is decisive is whether the order is by way of punishment, in the  light of the tests laid down in Parshotam  Lal  Dhingra case (1)." In this case the enquiry made by the Settlement Officer  was made  with the object of ascertaining  whether  disciplinary action should be taken against the appellant for his alleged misdemeanour.  It was clearly an enquiry for the purpose  of taking (1)  (1958) S.C.R.828. 722 punitive action including dismissal or removal from  service if   the   appellant  was  found  to  have   committed   the misdemeanour charged against him.  Such an enquiry and order consequent upon the report made in the enquiry will not fall within the principle of Ram Narayan Das’s case The appeal is therefore allowed and the order passed by  the High Court is set aside and the order passed by Mr.  Justice Bishan  Narain is restored with costs in this Court and  the High Court. Appeal allowed.