http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: THE STATE OF ORISSA AND ANOTHER

       Vs.

RESPONDENT: RAM NARAYAN DAS

DATE OF JUDGMENT: 08/09/1960

BENCH: SHAH, J.C. BENCH: SHAH, J.C. DAS, S.K. HIDAYATULLAH, M. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR  177            1961 SCR  (1) 606  CITATOR INFO :  RF         1962 SC 794  (8)  E          1963 SC 531  (6,8)  RF         1963 SC1552  (5)  R          1964 SC 449  (17)  RF         1964 SC 600  (13,138)  R          1964 SC1854  (18)  R          1968 SC1089  (10,11,13,17)  R          1974 SC 423  (14)  F          1974 SC2192  (65,158)  RF         1976 SC1766  (6,12)  RF         1976 SC2547  (11,14,21)  D          1978 SC 363  (11)  RF         1987 SC2135  (1)  R          1987 SC2408  (10)

ACT: Public   servant-Probationer  Sub-Inspector-Discharge   from service  for unsatisfactory work and conduct-If  amounts  to dismissal-constitution of India, Art. 311(2).

HEADNOTE: The respondent was appointed a Sub-Inspector on probation in the Orissa Police Force.  A notice was served on him to show cause  why  he should not be discharged from service  "  for gross  neglect  of  duties and  unsatisfactory  work  ".  He submitted  his  explanation  and asked  for  opportunity  to cross-examine  certain  witnesses.   The  Deputy  Inspector- General of Police considered the explanation  unsatisfactory and passed an order discharging the respondent from  service "  for  unsatisfactory work and conduct  ".  The  respondent contended  that  the order was invalid on two  grounds:  (i) that he was not given a reasonable opportunity to show cause against  the  proposed  action within the  meaning  of  Art. 311(2), and (ii) that he was not afforded an opportunity  to be heard nor was any evidence taken on the charges. Held, that the order of discharge did not amount to  dismis- sal and did not attract the protection of Art. 311(2) of the Constitution  and  was a valid order.  The services  of  the respondent,’  who  was  a probationer,  were  terminated  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

accordance with the rules and not by way of punishment.   He had no right to the post held by him and under the terms  of his  appointment he was liable to be discharged at any  time during the period of his probation.  The notice given to the respondent  was  under  Rule  55-B  of  the  Civil  Services (Classification,  Control  and Appeal) Rules which  made  it obligatory  to  give  such  notice  before  terminating  the services  of  a  probationer.  The enquiry  was  merely  for ascertaining whether he was fit to be confirmed. Shyam  Lal  v. The State of U. P., [1955] 1  S.C.R.  26  and Purshottam Lal Dhingra v. Union of India, [1958] S.C.R. 828, referred to. State of Bihar v. Gopi Kishore Prasad, A.I.R. 1960 S.C. 689, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 61/1959. Appeal  by special leave from the judgment and  order  dated December 4, 1957, of the Orissa High Court in O.J.C. No. 449 of 1956.                             607 C.   K.   Daphtary,  Solicitor-General  of  India,   D.   N. Mukherjee and T. M. Sen, for the appellants. The respondent did not appear. 1960.  September 8. The Judgment of the Court was  delivered by 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  grati- fication  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 relating  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: "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. 1. 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 78 608 is, therefore, no good retaining him further in service.  He is discharged from the date on which this order is served on him ". The Deputy Inspector General of Police on December 11, 1954,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

in discharging the respondent from service, passed a  formal order as follows: "  Probationary S. I. Ramnarayan Das of Cuttack District  is discharged from service for unsatisfactory work and  conduct with effect from the date the order is served on him ". 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 and praying for the issue of a writ in the nature of certiorari or any other writ  quashing  the  order of discharge.   Inter  alia,  the respondent  urged,  (1)  that the  order  of  discharge  was invalid  since he was not given a reasonable opportunity  to show cause against the action proposed to be taken in regard to  him  within the meaning of Art. 311(2)  of  the  Consti- tution, (2) that the order of discharge was invalid since he was  not  afforded an opportunity to be heard  nor  was  any evidence taken on the charges framed. 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  passing  the impugned  order and also that he had refused to give to  the respondent  an  opportunity to  cross-examine  witnesses  on whose  statements  the charge of misconduct was  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 with the requirements  of  Art. 311(2) of the Constitution, an " indelible stigma  affecting his  future  career  " had been  cast.   Against  the  order issuing   the  writ  quashing  the  order  discharging   the respondent  from service, this appeal has been preferred  by special leave. The respondent was undoubtedly at the time when  proceedings were started against him and when he                             609 was discharged from service, a probationer, and had no right to the post held by him.  Under the terms of his appointment the  respondent  was liable to be( discharged  at  any  time during  tile  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 : "  All officers shall in the first instance be appointed  or promoted on probation.  Where the period of probation is 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 ". Rule 681 of the Police Manual by cl. (b) in so far as it  is material provides, "  Those promoted from the rank of  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 ". Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, in so far as it is material provides : "  Where  it is proposed to terminate the  employment  of  a probationer,  whether during or at the end of the period  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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  authority  competent  to   terminate   the employment". 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 610 him by notice of the grounds on which the order of discharge was proposed to be made and required him ,,to show cause why action  as  proposed  should  not  be  taken.   The   notice consisted  of  two parts, (1) relating ;to ten  heads  of  " gross  neglect of duty and unsatisfactory work " and  (2)  " suspicious  and  un  police  man-like  conduct  "  in  which specific  instances  of fabrication of  public  records  and acceptance  of  illegal  gratification were  set  out.   The Deputy  Inspector General of Police by his order  which  ha; been  set out hereinbefore, 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   service    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 (Classification, Control and Appeal) Rules for  ascertaining whether he should be confirmed or his employment terminated. Prima facie, 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  ineligible  stigma  on  him affecting his future career ". 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 all the materials  on  the record and the relevant authorities which have a bearing  on the case of the respondent. 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 (1)  [1955] 1 S.C.R. 26. 611 concerned was served with a notice to show cause in  respect of  three specific items of misdemeanor as a public  servant to  which  he submitted his  explanation.   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 Constitution filed in the High Court  at  Allahabad. In an appeal against the order dismissing the petition, this court  held that the order compulsorily 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 not liable to be challenged on the ground that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

the public servant had not been afforded full opportunity to show cause against the action proposed to be taken in regard to him. In  Parshottam Lal Dhingra v. Union of India (1) 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  law being  terminable  at  any time on  reasonable  notice,  the reversion of the public servant to his substantive post  did not  operate  as  a forfeiture of 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 termination, 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 consequences were not prescribed as penalties under the Rules.  In that case, Das; C. J., in delivering the judgment of  the majority, entered upon an exhaustive review  of  the law  applicable to the termination of employment  of  public servants and at pp. 861.863 summarised it as follows: (1)  [1958] S.C.R. 828. 612 "  Any and every termination of service is not a  dismissal, removal  or  reduction in rank.  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  (1). Like-wise   the   termination  of  service   by   compulsory retirement  in  terms  of a  specific  rule  regulating  the conditions of service is not tantamount to the infliction of a  punishment and does not attract Art. 311(2) as  has  also been  held by this court in Shyam Lal v. The State of  Uttar Pradesh  (2)....... In short, if the termination of  service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311  is not attracted.  But even if the Government has, by  contract or  under the rules, the right to terminate  the  employment without   going   through  the  procedure   prescribed   for inflicting  the  punishment  of  dismissal,  or  removal  or reduction in rank, the Government may, nevertheless,  choose to  punish the servant and if the termination of service  is sought to be founded on misconduct, negligence, inefficiency or  other disqualification, then it is a punishment and  the requirements of Art. 311 must be complied with.  As  already stated,  if the servant has got a right to continue  in  the post,  then, unless the contract of employment or the  rules provide  to the contrary, his services cannot be  terminated otherwise  than for misconduct, negligence, inefficiency  or other  good  and  sufficient cause.  A  termination  of  the service  of  such  a  servant on  such  grounds  must  be  a punishment  and,  therefore, a dismissal or  removal  within Art. 31 1, for it operates as a forfeiture of his right  and he is visited with the evil consequences of loss of pay  and allowances.   It  puts an indelible stigma  on  the  officer affecting  his future career....... But the mere  fact  that the  servant  has no title to the post or the rank  and  the Government  has, by contract, 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 (1) [1953] S.C.R. 655. (2) [1955] 1 S.C.R. 26. 613

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

to  a  lower post or rank cannot in any circumstances  be  a punishment.   The  real test for  determining-  whether  the reduction in such cases is or is not by way of 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 servant had a right  to  the post  or  the rank or (2) Whether 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 service.........." 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 not carry with it " any  evil consequences " 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 cast on him by the order dis- charging  him  from employment for unsatisfactory  work  and conduct.   The  use of the expression " discharge "  in  the order  terminating  employment of a public  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 such enquiry. 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 614 why  his service should not be terminated, and a  notice  is issued  asking  the  public servant to  show  cause  whether probation  should  be  continued 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 the Constitution, the order would undoubtedly  be invalid. The  Solicitor  General invited our attention  to  a  recent judgment  of  this  court, State of Bihar  v.  Gopi  Kishore Prasad  (1)in which, delivering the judgment of  the  court, the  learned Chief Justice extracted five propositions  from the   authorities  and  particularly  from  Parshottam   Lal Dhingra’s   case  (2),  dealing  with  the  termination   of employment  of  temporary servants  and  probationers.   The third proposition set out in the judgment is as follows: " But 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

his  future career.  In such a case, he is entitled  to  the protection of Art. 311(2) of the Constitution ". This  proposition, in our judgment, 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 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 (1) A.I.R. [1960] S. C. 689. (2) [1958] S.C.R. 828. 615 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 0 confirmed, is  not  of that nature.  In Gopi Kishore Prasad’s case (1), 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 (2)  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 question.   What is decisive is whether the order is by  way of  punishment,  in  the light of the  tests  laid  down  in Parshottam Lal Dhingra’s case (2). We   have   carefully  considered  the  evidence   and   the authorities  to which our attention has been invited and  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 protection of Art. 311(2) of the Constitution. 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. Appeal allowed. (1)  A.I.R. 1960 S.C. 689. (2) [1958] S.C.R. 828. 79 616