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 section Bindra and P D Menon for the respondents
August 27
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 article 226 of the Constitution quashing the order dated March 17 1965 on theground inter alia that the order of dismissal from service was in contravention of article 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 article 3112 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 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 vs 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 article 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 article 311 2 of the Constitution applies as much to a temporary public 1 AIR 1960 SC 689 720 servant as to permanent public servants
By virtue of article 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 article 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 article 311 2 of the
Constitution was not attracted and in support of his submission counsel relied upon a judgment of this Court in the State of Orissa vs 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  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 SCR828
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


Summary:
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 article 3112 of the Constitution of India in that the appellant was not afforded the opportunity to show cause against the proposed punishment the order contravened article 3112 of the Constitution
Purushottam Lal Dhingra vs Union of India 1958 S C R 828 referred to
State of Bihar vs Gopi Kishore Prasad A 1
R 1960 section C 689 followed
State of Orisa vs Ram Narain Das   distinguished