Appeal No 472 of 1962
Appeal from the judgment and decree dated December 23 1960 of the Bombay High Court in First Appeal No 464 of 1958
RK Garg SC Agarwala DP Singh and MK Ramamurthi for the appellants
SV Gupte Additional Solicitor General VD Mahajan and RN Sachthey for the respondent
October 23 1963
The Judgment of the Court was delivered by WANCHOO J
This is an appeal against the judgment and decree of the Bombay High Court on a certificate granted by that Court
The appellant was in the service of the Union of India
He was appointed on June 11 1949 as an officiating Assistant Director Grade II in the office of the Textile Commissioner Bombay and was working as such till September 15 1954
The appointment was temporary and his services were liable to be terminated on one month s notice on either side
He was posted after the date of his appointment in the Textile Commissioner s office at Ahmedabad and continued to work there 193 till February 1954
He was transferred to Bombay in February 1954 and was informed in August 1954 that his services would be terminated from September 15 1954
No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him
He therefore brought a suit in the City Civil Court at Bombay and his contention was that his services had been terminated unjustifiably and maliciously as the Regional Director of Production in the Textile Commissioner s office at Ahmedabad was against him
Because of this on December 29 1953 the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him
The appellant went on to state in the plaint that certain enquiries were held against him behind his back but the matter was not pursued and he was transferred to Bombay in February 1954
While he was at Bombay he received the notice terminating his services
He claimed that he was a quasi permanent employee under the Central Civil Services Temporary Service Rules 1949 hereinafter referred to as the Rules and no action under r 5 of the Rules could be taken against him
He was further entitled to the protection of article 311 of the Constitution and as his services were terminated without complying with that provision the order was bad and liable to be set aside
It was further contended that if r 5 applied to him it was bad inasmuch as it was hit by article 16 of the Constitution and in any case the order passed against him was bad as it was discriminatory
The appellant therefore prayed that the order of August 13 1954 by which his services were terminated be declared illegal and inoperative and he be declared a quasi permanent employee and reinstated in service
There was also a claim for arrears of salary and costs of the suit and such other consequential reliefs as the court might deem fit to give
The suit was opposed by the Union of India and its main defence was that the appellant was not a quasi permanent employee and that r 5 of the Rules I SCI64 13 194 applied to him and that action was properly taken under  that rule when terminating the appellant s services by order dated August 13 1954
It was also contended that r 5 was perfectly valid and that there was no discrimination practised against the appellant when his services were terminated
It was admitted that the memo
dated December 29 1953 was issued to the appellant and he was directed to submit his explanation in respect of the irregularities mentioned therein to the Under Secretary Government of India New Delhi and to state why disciplinary action should not be taken against him
It was also admitted that from December 1953 onwards some department inquiry was conducted against the appellant but it was averted that the said departmental inquiry was not pursued as the evidence against him was not considered to be conclusive
But as the appellant s work was not found satisfactory he was transferred to Bombay in February 1954 to give him a chance of improvement
As his work and conduct were ultimately found to be unsatisfactory his employment was terminated under r 5 of the Rules as he was a temporary employee
On these pleadings three main questions arose for decision before the trial court namely i whether the appellant was a quasi permanent employee and r 5 of the Rules did not apply to him ii whether r 5 was invalid as it was hit by article 16 of the Constitution and in any case whether the action taken against the appellant was discriminatory and therefore hit by article 16 of the Constitution and iii even if the appellant was a temporary government servant whether he was entitled to the protection of article 3112 of the Constitution in the circumstances of this case
The trial court held on all these points against the appellant and dismissed the stilt
The appellant then went in appeal to the High Court
The High Court agreed with the trial court and dismissed the appeal
The appellant then applied for a certificate to appeal to this Court which was granted and that is how the matter has come up before us
195 The first question that fails for consideration is whether the appellant was a quasi permanent employee and r 5 did not apply to him
If the appellant is held to be a quasi permanent employee he will be entitled to the protection of article 3112 and as admittedly the provisions of article 3112 were not complied with in the present case his suit would have to be decreed and no further question would arise for decision
Rule 3 of the Rules which falls for consideration in this connection is as follows A Government servant shall be deemed to be in quasi permanent service i if he has been in continuous Government service for more than three years ii if the appointing authority being satisfied as to his suitability in respect of age qualifications work and character for employment in a quasi permanent capacity has issued a declaration to that effect in accordance with such instructions as the Governor General may issue from time to time
 The contention on behalf of the appellant is that as there is no conjunction and between the two sub clauses of r 3 a Government servant must be deemed to be quasi permanent if he complies with either of the two sub clauses
It is urged that a temporary government servant will become quasi permanent if he has been in continuous government service for more than three years or if a declaration is made in his favour as required by sub cl
The appellant thus reads the word or between the two sub clauses
On the other hand the respondent contends that looking at the scheme of the Rules the word and should be implied between the two sub clauses and that both the clauses must be fulfilled before a Government servant can be deemed to be in quasi permanent service
In this connection our attention was drawn to two cases of this Court in which this rule was mentioned
In Parshotam Lal Dhingra vs Union of India1 this Court when referring to r 3 at p 858 used 1 1958 SCR 196 the conjunction or between the two sub clauses
Learned counsel for the appellant relies on this to show that we should read the word or between the two sub clauses
We are however of opinion that this Court was not specifically dealing with the interpretation of r 3 in that case and what has been said there about r 3 was merely for purposes of illustration
The other case of this Court to which reference has been made is KS Srinivasan vs Union of India1 There while quoting r 3 at p 1307 this Court used the word and between the two subclauses
That is probably due to the fact that the brochure on Central Civil Services Temporary Services Rules 1949 printed by the General Manager Government of India Press New Delhi 1959 contains the word and between the two sub clauses in r 3
That also in our opinion is not conclusive in favour of the respondent because it is not disputed before us that in the Government gazette where the Rules were first published neither the word and nor the word or appears between the two sub clauses of r 3
This aspect of the matter was considered by the Bombay High Court in BM Pandit vs Union of India2 where the learned Judges pointed out at p 48 that they found from the copy of the gazette of the Government of India in which these Rules were first published that neither the word and nor the word or appeared between the two subclauses and this position is accepted on behalf of the respondent before us
The question therefore arises whether we have to read the two sub clauses conjunctively or disjunctively
We may add that the Bombay High Court  in the case mentioned above read the two sub clauses conjunctively and we are of opinion that view is correct
The object of these Rules obviously was to provide for some security of tenure for a large number of temporary government servants who had to be employed in view of World War II and also to provide for former employees of the Governments of Sind the North West Frontier Province and Baluchistan 1  2 AIR 1962 Bom
45 197 who had come to India on account of the Partition
This protection was afforded to temporary government servants and the government servants of the other type by the device of creating quasi permanent service
Rule 3 provided in what circumstances a government servant shall be deemed to be quasi permanent
Quasi permanent service is defined in r 22 as meaning temporary service commencing from the date on which a declaration issued under r 3 takes effect and consists of periods of duty and leave other than extraordinary leave after that date
 R de 3 therefore must be read with r 2b which defines quasi permanent service
Under r 2b quasi permanent service begins from the date on which a declaration is issued under r 3
It follows therefore that before a government servant can be deemed to be in quasi permanent service a declaration must be issued under the second sub clause of r 3 for that is the sine quo non for the commencement of quasi permanent service
Without such a declaration quasi permanent service cannot begin
If therefore the appellant s contention were to be accepted and a temporary government servant can be deemed to be in quasi permanent service if only the first sub clause has been fulfilled viz that he has been in continuous government service for more than three years there will be complete irreconcilability between r 2b and the first clause of r 3
Therefore reading these two rules together the conclusion is inevitable that we must read the two sub clauses conjunctively and hold that both conditions must be fulfilled before a Government servant can be deemed to be in quasi permanent service namely i that he has been in continuous government service for more than three years and ii that the appointing authority after satisfying itself as to suitability in various respects for employment in quasi permanent capacity has issued a declaration to that effect
It is however urged that the definitions in r 2 have to be read subject to there being nothing repugnant in the subject or context and it is contended that in the context of r 3 the two sub clauses must be read disjunctively
198 We are of opinion that there is no force in this argument and as a matter of fact the context of r 3 itself requires that rule must be read in harmony with the definition of quasi permanent service in r 2b for it could not possibly be the intention of the rule making authority to create disharmony between the definition in r 2b and the provision in r 3
The contention on behalf of the appellants that the two sub clauses are independent and have to be read disjunctively must be rejected and it must be held that both the conditions in r 3 must be satisfied before a government servant can be deemed to be in quasi permanent service
This will in our opinion also be clear from the scheme of the Rules following r 3
Rule 4 provides that a declaration issued under r 3 shall specify the particular post or the particular grade of posts within a cadre in respect of which it is issued and the date from which it takes effect
 This rule is clearly meant to apply to all quasi permanent employees and shows that no government servant can be deemed to be in quasi permanent service until a declaration has been issued
Rule 6 provides that the service of a Government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as a government servant in permanent service
 Now under the definition of r 2b quasi permanent service begins with a declaration issued under sub cl
1of r 3
Therefore the protection of r 6 can only be given to a quasi permanent employee after a declaration has been made
This again shows that a declaration is necessary before a Government servant can claim to be in quasipermanent service
Rule 7 provides that a government servant in respect of whom the declaration has been issued under r 3 shall be eligible for permanent appointment on the occurrence of a vacancy in the specified posts which may be reserved for being filled from among persons in quasi permanent service
This again shows that a quasi permanent employee can become eligible for permanent appointment only when a declaration has been issued under 199 r 3
Again r 8 provides that a government servant in quasi permanent service shall as from the date on which his service is declared to be quasi permanent be entitled to the same conditions of service in respect of leave allowances and disciplinary matters as a government servant in permanent service holding the specified post
Here again the benefit of r 8 can only be availed of by a quasi permanent government servant in whose favour a declaration has been made
Then r 9 provides that a government servant in quasi permanent service shall be eligible for a gratuity under certain circumstances
This gratuity will be at the rate of half a month s pay for each completed year of quasi permanent service such gratuity being payable on the basis of the pay admissible to such government servant in respect of the specified post on the last day of his service
This again contemplates a declaration before the benefit of r 9 can be claimed by a quasi permanent employee
Rule 10 provides that where a government servant in quasi permanent service is appointed substantively to a permanent pensionable post the entire period of quasi permanent service rendered by him shall be deemed to be qualifying service for the grant of gratuity and pension
Now under r 2b quasi permanent service only commences after the declaration and therefore unless a declaration is made the benefit of r 10 cannot be taken by a quasi permanent employee
The scheme of the rules therefore clearly shows that a declaration under r 3 is necessary before a temporary government servant can claim to be a quasi permanent employee
Otherwise if the two sub clauses of r 3 were to be read disjunctively the result would be that a person may become a quasi permanent employee under sub cl
1 but will get none of the advantages mentioned above
We are therefore satisfied that the scheme of the Rules and the harmony that is essential between r 2b defining quasi permanent service and r 3 laying down how a government servant can be deemed to be in quasi permanent service require that the two sub clauses should be read conjunctively and that two conditions 200 are necessary before a government servant can be deemed to be in quasi permanent service namely i continuous service for more than three years and ii declaration as required by sub cl
iiof r 3
It is not in dispute that though the appellant had been in service for more than three years by 1954 no declaration as required by sub cl
ii of r 3 has ever been made in his case
He cannot therefore claim to be in quasi permanent service
It follows therefore that he cannot claim the benefit of r 6 which lays down that the services of a government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service
If he could claim the benefit of r 6 he would have been certainly entitled to the protection of article 311
As he is not entitled to the benefit of r 6 he cannot claim the benefit of article 311 92 on the ground that he must be deemed to be in quasi permanent service
The appellant therefore must be held to be still in temporary service when his services were dispensed with in August 1954
The rule that applies to a temporary government servant is r 5 which lays down that a the service of a temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant
b The period of such notice shall be one month unless otherwise agreed to by the Government and by the Government servant Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances at the same rates at which he was drawing them immediately before the termination of his services for the period of the notice or as the case may be for the period by which such notice falls short of one month or any agreed longer period 201 In short r 5 gives power to the Government to terminate the services of a temporary government servant by giving him one month s notice or on payment of one month s pay in lieu of notice or such shorter or longer notice or payment in lieu thereof as may be agreed to between the Government and the employee concerned
This rule is being attacked on the ground that it is hit by article 16 which provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
We have not been able to understand how this rule can possibly be hit by article 16 which provides for equality of opportunity
These Rules show that there are two classes of employees namely i permanent employees andii temporary employees the latter being divided into two sub clauses a quasi permanent and b temporary
It is well recognised that the Government may have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate
There can also be no doubt if such a class of temporary servants could be recruited that there would be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different in some respects from those of permanent employees
Further we see no denial of equal opportunity if out of the class of temporary employees some are made quasi permanent depending on length of service and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees
It has been urged on behalf of the respondent that article 16 in any case will not apply to matters relating to termination of service
We do not think it necessary for present purposes to decide whether article 16 would apply to rules relating to termination of service
We shall assume for the purposes of this appeal that article 16 will apply even in the case of rules relating to termination of service
But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate 202 equality of opportunity provided in article 16
The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances
In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service
We are therefore of opinion that considering the nature of the employment of a temporary government servant a provision like that in r 5 in respect of termination of service is a reasonable provision which cannot be said to deny equality of opportunity provided in article 16
The attack therefore on r 5 on the ground that it is hit by article 16 of the Constitution must fail
It is next urged that even if r 5 is good the order by which the appellant s services were dispensed with was bad because it was discriminatory
In this Connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were junior to the appellant and did not have as good qualifica tions as he had
We are of opinion that there is no force in this contention
This is not a case where services of a temporary employee are being retrenched because of the abolition of a post
In such a case a question may arise as to who should be retrenched when one out of several temporary posts is being retrenched in an office
In those circumstances qualifications and length of service of those holding similar temporary posts may be relevant in consider ing whether the retrenchment of a particular employee was as a result of discrimination
The present however is a case where the appellant s services were terminated because his work was found to be unsatisfactory
We shall deal with the question whether termination in this case is liable to be set aside on the ground that article 311 2 was not complied with later but where termination of the service of a temporary 203 government servant takes place on the ground
that his conduct is not satisfactory there can in our opinion be no question of any discrimination
It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him irrespective of what their conduct is
Therefore even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct
A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory
We therefore reject the contention that the appellant was denied the protection of article 16 and was treated in a discriminatory manner
We now come to the last question whether the appellant Was entitled to the protection of article 3112 of the Constitution even though he was a temporary government servant
It is well settled that temporary servants are also entitled to the protection of article 3112 in the same manner as permanent government servants if the government takes action against them by meting out one of the three punishments ie dismissal removal or reduction in rank see Parshotam Lal Dhingra vs Union of India
But this protection is only available where discharge removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise
It is also not disputed that the mere use of expressions like terminate or discharge is not conclusive and in spite of the use of such innocuous expressions the court has to apply the two tests mentioned in Parshotam Lal Dhingra s case1 namely 1 whether    204 the servant had a right to the post or the rank or 2 whether he has been visited with evil consequences and if either of the tests is satisfied it must be held that the servant had been punished
Further even though misconduct negligence inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule nevertheless if a right exists under the contract or the rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant
It is on these principles which have been laid down in Parshotam Lal Dhingra s case that we have to decide whether the appellant was entitled to the protection of article 3112 in this case
Before however we consider the facts of this case we should like to make certain general observations in connection with disciplinary proceedings taken against public servants
It is well known that government does not terminate the services of a public servant be he even a temporary servant without reason nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily
One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end
In that case there is nothing further to be said and his services terminate when the post comes to an end
Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end
But besides the above the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job andor his work
The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure
This dissatisfaction with the work andor conduct of a temporary servant 1  205 may arise on complaint against him
In such cases two courses are open to government
It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work andor conduct
Or the Government may decide to punish such a servant for his bad work or misconduct in which case even though the servant may be temporary he will have the protection of article 3112
But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work
In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered
It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him
An enquiry officer who may be himself in the case where the appointing authority is other than the Government is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this inquiry is held in accordance with the principles of natural justice
This is what is known as a formal departmental enquiry into the conduct of a public servant
In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross examine the witnesses tendered against him
He has also the right to give documentary and oral evidence in his defence if he thinks necessary to do so
After the enquiry is over the enquiry officer makes a report to the Government or the authority having power to take action against the servant concerned
The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved it determines tentatively the punishment to be inflicted 206 on the public servant concerned
It then communicates a copy of the enquiry officer sreport and its own conclusion thereon and asks himto show cause why the tentative punishment decidedupon be not inflicted upon him
This procedure is required by article 3112 of the Constitution in the case of the three major punishments ie dismissal or removal or reduction in rank
The servant concerned has then an opportunity of showing cause by making a represen tation that the conclusions arrived at the departmental enquiry are incorrect and in any case the punishment proposed to be inflicted is too harsh
Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out and it is very necessary that the two should not be confused
Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post for as we have said already government does not usually take action of this kind without any reason
Therefore when a preliminary enquiry of this nature is held in thecase of temporary employee or a governmentservant holding a higher rank temporarily it mustnot be confused with the regular departmentalenquiry which usually follows such a preliminaryenquiry when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant
Therefore so far as the preliminary enquiry is concerned there is no question of its being governed by article 3112 for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right
In short 207 a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein
Such a preliminary enquiry may even be held ex parte for it is merely for the satisfaction of government though usually for the sake of fairness explanation is taken from the servant concerned even at such an enquiry
But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above
There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in article 311 that the government servant is entitled to the protection of that Article
That is why this Court emphasised in ParshotamLal Dhingra s case1 and in Shyamlal vs The Stateof Uttar Pradesh2 that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant
In Shyamlal s case2 what happened was that the government servant concerned was called upon to explain certain matters which cast an imputation upon him but later it was made perfectly clear to him by the government that it was not holding any formal departmental enquiry against him with a view to inflicting any of the three major punishments although the government desired to give him an opportunity to show cause why he should not be compul 1 1958 1 SCR 828 2 208 sorily retired and after considering his explanation he was compulsorily retired under the relevant service rule
It was held in that case that this did not amount to punishment within the meaning of article 3112 even though there was some imputation at an earlier stage and even though the servant concerned was asked to explain why he should not be compulsorily retired
As we have said already it is not usual for government to take action against a public servant without rhyme or reason and that is why in the case of temporary servants or servants holding higher ranks to which they have no right some kind of preliminary enquiry is usually held before the government decides to dispense with their set vice or revert them to their substantive posts
The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule eg r 5 in this case would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of article 3112
Whether such termination would amount to dismissal or removal within the meaning of article 3112 would depend upon facts of each case and the action taken by government which finally leads to the termination of service
Let us now turn to the facts of this case
On December 29 1953 a memorandum was given to the appellant under the signature of the Under Secretary to the Government of India
By that memorandum he was informed about four matters and his explanation was called in that connection
The first matter referred to his punctuality in attending office and his absenting himself from duty without prior intimation and instances in that respect were brought to his notice
The second matter was with respect to irregular claims for mileage allowance in respect of his visits to mills some of which were never made
Instances of these were also brought to his notice
The third matter related to a certain visit to a certain mill on a certain date which was 209 never undertaken
The fourth matter was general relating to his work and conduct being not satisfactory and his not attaching due importance to the performance of his duties in accordance with the instructions of the Regional Director
He was required to submit his explanation by January 6 1954 and also asked to state why disciplinary action should not be taken against him
The contention on behalf of the appellant is that this memorandum really amounted to a chargesheet against the appellant and he was asked to give an explanation thereto and also to state why disciplinary action should not be taken against him
Stress is laid on the last sentence of the memorandum where the appellant was asked why disciplinary action should not be taken against him
It may be conceded that the way in which the memorandum was drafted and the fact that in the last sentence he was asked to state why disciplinary action should not be taken against him might give an impression that the intention was to hold a formal departmental enquiry against him with a view to punishing him
But though this may appear to be so what is important to see is what actually happened after this memo randum for the courts are not to go by the particular name given by a party to a certain proceeding but are concerned with the spirit and substance of it in the light of what preceded and succeeded it
It is true that in the written statement of the respondent it is stated that from December 1953 onwards a departmental enquiry was being conducted against the appellant though the written statement went on to say that departmental enquiry was not pursued as the evidence was not considered to be conclusive
In actual fact however it is not even the case of the appellant that any enquiry officer was appointed to hold what we have called a formal departmental enquiry in which evidence was tendered from both sides in the presence of the appellant
This is clear from para 8 of the plaint in which it is said that some enquiries appeared to have been held after the memorandum of December 1953 but were 210 not pursued further
It is however clear that no formal departmental enquiry as contemplated under article 3112 read with the relevant Central Services Rules was ever held after the notice of December 29 1953 as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross examine witnesses produced against him and would also have been entitled to lead evidence
It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should not be taken against him no departmental enquiry followed that memorandum and the matter was dropped
That is further borne out by the fact that the appellant was transferred from Ahmedabad to Bombay in February 1954 which would be most unlikely if a departmental enquiry was going on against him in Ahmedabad
The respondent s case in this connection is that it gave up the departmental enquiry even though it was contemplated and transferred the appellant to Bombay in order to give him a chance of improvement
The appellant worked in Bombay for over six months and thereafter the Government finally decided to terminate his services under r 5 as his work and conduct were found unsatisfactory even after his transfer to Bombay
On these facts there can in our opinion be no doubt that even if a departmental enquiry was contemplated in December 1953 it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him on December 29 1953 what appears to have happened is that after the appellant was transferred to Bombay where he worked for six months more the government came to the conclusion that his work and conduct were not satisfactory and therefore decided to terminate his services under r 5
We cannot accept the proposition that once government issues a memorandum like that issued in this case on December 29 1953 but later decides not to hold a departmental enquiry for taking punitive action it can never thereafter proceed to take action against a temporary government servant in the terms of r 5 211 even though it is satisfied otherwise that his conduct and work are unsatisfactory
The circumstances in this case are in our opinion very similar to the facts in Shyamlal s case the difference being that in that case he was compulsorily retired and in this case the appellant s services have been terminated
In Shyamlal s case1 also at one stage the government made imputation against his conduct but later withdrew them and did not follow up the matter by holding a departmental enquiry
This is exactly what happened in the present case and it was more than six months after that the appellant who had in the meantime been transferred to Bombay was discharged in the terms of r 5 because his work and conduct were found unsatisfactory
The order terminating his services makes no imputation whatsoever against him and in the circumstances it cannot be said that the termination of his service is visited with any evil consequences as explained in Parshotam Lal Dhingra s case2
We are therefore of opinion that on the facts of this case article 3112 has no application and the appellant was not entitled to the protection of that Article before his services were terminated under r 5 for the termination of service here does not amount to infliction of the penalty of dismissal or removal
It remains now to consider certain cases on which reliance was placed on either side
Strong reliance has been placed on behalf of the appellant on Madan Gopal vs The State of Punjab3
In that case Madan Gopal was a temporary government servant
A charge sheet was served on him on February 5 1955 and he was charged with having taken bribes in two cases
He was also asked to explain why disciplinary action should not be taken against him
He was further asked to state if he wanted to be heard in person and also to put forth any defence
It will be clear that charges were served upon Madan Gopal 1  2  3 19631 3 SCR 716 212 in that case while in the present case no charges were ever served on the appellant and the communication of December 29 1953 was headed as a memorandum
Further the charge sheet in Madan Gopal s case besides asking him to state why disciplinary action should not be taken against him also asked him to state in his reply if he wanted to be heard in person and wanted to put forward any defence which clearly showed that a departmental enquiry was going to be held particularly when the charges were given by the Settlement Officer who had apparently been appointed the enquiry officer for the purpose
Further in Madan Gopal s case an enquiry was held and a report was submitted by the enquiry officer to the Deputy Commissioner
The enquiry officer found Madan Gopal guilty of the charges and recommended that he should be removed from service immediately
On the basis of this report an order was passed by the Deputy Commissioner which stated in so many words that it had been established that bribes had been taken by Madan Gopal and that he accepted the report of the Settlement Officer
The Deputy Commissioner then went on to order that the services of Madan Gopal were terminated on payment of one month s pay in lieu of notice
Obviously in that case a departmental enquiry was held by the enquiry officer a report was made to the Deputy Commissioner who was apparently the authority to dismiss or remove Madan Gopal and he passed the order terminating his services on the basis of the report though he did not use the word dismiss or remove in his order
In those circumstances this Court held in conformity with what had been said in Parshotam Lal Dhingra s case2 that the mere use of the word termination would not conclude the matter and as the facts showed as they did in Madan Gopal s case that the order was one of dismissal or removal and was passed as a punishment after inquiry article 3112 should have been complied with
The facts of that case in our opinion are very different from the facts in the present case
1 1963 3 SCR 716
2  213 As we have already pointed out no departmental enquiry was really held after the memorandum of December 29 1953 in this case and no enquiry officer was appointed and no report was made by any enquiry officer
Whatever might have been the intention behind the memorandum dated December 29 1953 the matter was not pursued and the departmental enquiry if it was ever intended to be held was dropped
The appellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and conduct were still unsatisfactory that government took action under r 5 and dispensed with his services
On the facts of the present case therefore it cannot be said that the order of dispensing with the services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal or dismissal
The next case is The State of Bihar vs Gopi Kishore Prasad1
That was a case of a probationer and this Court laid down five propositions therein
It is the third proposition therein on which strong reliance has been placed on behalf of the appellant
It is in these terms  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 of article 3112 of the Constitution
 it is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer and the same it is said will apply to a temporary employee as the two 1 AIR 1960 SC 689
214 stand more or less on the same footing the protection of article 3112 would be available
We are of opinion that this is reading much more in the proposition then was ever intended by this Court
In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquiries showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified
The order further said that his work was wholly unsatisfactory and in consideration of those matters it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged
His explanation was then considered and the Government finally decided to discharge him
The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that article 3112 was applicable in that case and that is why some enquiries were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that
In those circumstances this Court held that as government had purported to take action under article 311 the action was bad as the protection envisaged by that Article was not afforded to the servant concerned
The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of article 311
All that the third proposition lays down is that if the govern ment chooses to hold an enquiry purporting to act under article 311 as was the case in that case it must afford to the government servant the protection which that Article envisages
Gopi Kishore Prasad s case1 was considered by this Court in a later case in the State of Orissa 1AIR 215 vs Ram Narayan Das1 which was also a case of a probationer
In Ram Narayan Das s case1 the order was to the effect that the government servant was discharged from service for unsatisfactory work and conduct from the date on which the order was served on him
This Court in Ram Narayan Das s case1 referred to the rules which provided that  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 authority competent to terminate the employment and pointed out that action in accordance with the rules would not be hit by article 31 1
Gopi Kishore Prasad s case1 was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasad s case2 referred 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 which means that where the Government purports to hold an inquiry under article 311 read with the Rules in order to punish an officer it must afford him the protection provided therein
The third proposition therefore in Gopi Kishore Prasad s case2 Must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct
The third proposition must be restricted only to those cases whether of temporary government servants or others where government purports to act under article 3112 but ends up with a mere order of termination
In such a case the form of the order is immaterial and the termination of service may amount to dismissal or 1  2 AIR 1960 SC 689
216 removal
The same view has been taken in Jagadish Mitter vs Union of India1 We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants services were terminated under r 5 was an order inflicting the punishment of dismissal or removal to which article 3112 applied
It was in our opinion an order which was Justified under r 5 of the rules and the appellant was not entitled to the protection of article 3112 in the circumstances
The appeal therefore fails and is hereby dismissed
In the circumstances we pass no order as to costs
Appeal dismissed


Summary:
The appellant was in the service of Union of India his appointment being temporary liable to be terminated on one month s notice on either side
He was appointed in June 1949
On August 1954 he was informed that his services would be terminated from September 1954
No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him
Before such termination the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him
Certain preliminary enquiries were held against him but he was not heard therein
No regular departmental enquiry however followed and the proceedings were dropped
Claiming that he is a quasi permanent servant he brought a suit against the Union of India alleging that the termination of his service was not justified
He prayed in the suit for a declaration that the termination of his service was illegal
He also claimed arrears of salary
The trial Court dismissed the suit and he appealed to the High Court 191 without success
The present appeal was filed on a certificate granted by the High Court
The first contention raised by the appellant was that he was a quasi permanent employee and r 5 of the Central Civil Service Temporary Service Rules 1949 did not apply to him
Secondly it was contended that r 5 was invalid as it was hit by article 16 of the Constitution and in any event the action taken against him was discriminatory and therefore hit by article 16
It was further contended that even if the appellant was a temporary servant he was entitled to the protection of article 311 2 of the Constitution
 i Sub cls
1 and 2 of r 3 should be read conjunctively and not disjunctively and both the conditions contained therein should be fulfilled before a Government servant can be deemed to be in quasi permanent service
The Government servant has to show that he has been in continuous Government service for more than three years and that the appointing authority has made a declaration under sub cl
2 of r 3
This being the position since no declaration has been made in his case the appellant cannot claim the benefits of r 6 which places a quasi permanent servant and a permanent servant on the same footing in the matter of termination of service
Hence he cannot claim the protection of article 3112 on the ground that he must be deemed to be in quasi permanent service
BM Pandit vs Union of India AIR 1962 Bom
45 Purshottarn Lal Dhingra vs Union of India  and KS Srinivasan vs Union of India   distinguished
ii R 5 which provides for termination of the services of a temporary Government servant by giving him one month s notice is not hit by article 16
The classification of Government servants into permanent quasi permanent and temporary is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory
iii Where termination of service of a temporary Government servant takes place as it has taken place in the present ease on the ground that his conduct is not satisfactory there cannot be any question of any discrimination
The contention of the appellant that he was denied the protection of article 16 and was treated in a discriminatory manner is rejected
iv Temporary Government servants are also entitled to the protection of article 3112 in the same manner as a permanent Government servants if the Government takes action against them by meting out one of the three punishments ie dismissal removal or reduction in rank
purshottam Lal Dhingra vs Union of India  Held that when a preliminary enquiry is held to determine whether a prima facie case for a formal departmental enquiry is made out in the case of a temporary employee or a Government servant holding a higher rank temporarily there is no question 192 of its being governed by article 3112
Such a preliminary enquiry may even be held ex parte
It is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishments that the Government servant gets the protection of article 311
Shyamlal vs State of UP  and Purshottam Lal Dhingra vs Union of India   explained
Held that even if a departmental enquiry against the appellant was contemplated it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him
Simply because the Government issued such a memorandum but later decided not to hold a departmental enquiry for taking punitive action it cannot be said that the Government can never thereafter proceed to take action under the terms of r 5 even though it is satisfied otherwise that the appellant s conduct and work are unsatisfactory
Madan Gopal vs State of Punjab 1963 3 SCR 716 State of Bihar vs Gopi Kishore Prasad AIR 1960 SC 689
State of Orissa vs Ram Narayan Das  and Jagdish Mitter vs Union of India AIR distinguished