Appeal No 611959
Appeal by special leave from the judgment and order dated December 4 1957 of the Orissa High Court in OJC 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
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 section I
His argument that he has already been punished by the section 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 section 1 has already had long enough of chance to work under different section 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 in discharging the respondent from service passed a formal order as follows  Probationary section 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 article 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 article 3112 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 article 3112 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 659e 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 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 vs 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 article 311 of the Constitution
In that case the public servant 1  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 article 3112 of the Constitution and the order of the President was not liable to be challenged on the ground that 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 vs 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 article 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
861863 summarised it as follows 1  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 vs 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 article 3112 as has also been held by this court in Shyam Lal vs 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 article 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 article 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 article 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  2  613 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 article 3112 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 vs Gopi Kishore Prasad 1in 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 his future career
In such a case he is entitled to the protection of article 3112 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 AIR 1960 section C 689
2  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 article 3112 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 AIR 1960 SC 689


Summary:
As the petitioner s stage carriage permits were to expire on December 31 1959 it made applications for a renewal of them 81 632 on August 24 1959
on December 29 1959 temporary permits were granted to the petitioner for one month and thereafter for another made available up to March 31 196o
The matter was adjourned from time to time and ultimately on April 28 196o the petitioner s applications were rejected on the ground that a scheme of nationalisation including the petitioner s routes had in the meantime been approved by the Government on April 20 196o
The petitioner applied under article 32 of the Constitution for a writ quashing the said order and the scheme on the ground that the Regional Transport Authority was actuated by mala fides and its real purpose in granting the adjournments was to enable the Government to approve of the scheme and for a direction that the petitioner s applications for renewal might be disposed of according to law as on the date when they were filed
Held that the petition must fail
The  does not prescribe any time limit for the disposal of an application for renewal of permits and it cannot be said that the Regional Transport Authority in the instant case acted without jurisdiction in rejecting the applications even though months had elapsed after the permits had expired and notwithstanding that section 62 permitted the issue of no more than one temporary permit
Even so the relevant provisions of the Act indicate that an application for renewal of a permit has to be disposed of ordinarily before the expiry of the permits or within a reasonable time thereafter
It was therefore open to the petitioner if it was aggrieved by the delay to ask for a mandamus directing the Authority to dispose of its applications within a reasonable time
Although section 68F1 of the Act applies only where the State Transport Undertaking applies for a permit in pursuance of an approved scheme section 68F2 is not conditioned by any such limitation and the word entertain used by it does not refer to an application filed for the renewal of a permit after the approval of the scheme
That word does not connote any time but describes the scope and duty under that clause and only means that the Authority cannot dispose of an application on merits but can reject it as not maintainable either at the time it is filed or thereafter
Statutory bodies are in duty bound to act promptly and efficiently and discharge their functions fairly and without bias even where the Government is interested
The conduct of the Regional Transport Authority in the instant case in granting adjournments not for the reasons they purported to be but to enable the Government to approve of the scheme must be disapproved