Case: S.R. Tewari Vs. District Board Agra And Another

the matter of promotion, as well as against orders of dismissal. The orders imposing fine, suspension, reduction or supersession are ex facie orders of punishment, and there is no reason why the order of dismissal which occurs in the same clause, and which is subject to appeal is not an order of that nature. The fourth proviso also confers a similar right of appeal against the order of the Board dismissing certain superior servants. An appeal against an order of mere determination of employment, which may generally by made in the exigencies of the services may serve no useful purpose. Provision of a right of appeal is indicative of the nature of the order. In our view it is competent under S. 84 read with S. 172(2) to the State Government to make rules imposing conditions on the appointment and punishment of persons to offices or to any particular office requiring professional skill and to provide generally the conditions under which the servants of the Board are to serve, and in the exercise of the powers which are vested by S. 82, these rules have an overriding effect. An order of determination of employment which is not of the nature of an order of dismissal, has by virtue of the rules framed under cl. (d) of S. 84 to be exercised consistently with R. 3A. and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the Notification dated March 25, 1946 under S. 84 (b) and (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise that power. But counsel for the appellant contented that even though in form the power of determination of employment was exercised, in substance it was intended to exercise the power of dismissal and that the form of the resolution of the Board was merely to camouflage the real object of the Board. It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee. 14. Counsel for the appellant pointed out that in the affidavit filed on behalf of the Board, the entire service-sheet of the appellant since the year 1945 was set out. The affidavit refers to the censure administered to the appellant for neglect of duty on March 25, 1945, to the order of dismissal of the appellant from service on a finding by the Public Works Committee that he was guilty of negligence and unfaithfulness in 1948, to the comments made by the Chairman of the Board in 1947 that the appellant had not proved himself to be a loyal and faithful servant and to stoppage of increments of the appellant by an order of the President of the Board in 1953 and 1954. Reliance is then placed upon paragraph 21 of the affidavit of the Board in which it was stated that the plea of the appellant that he had honestly and faithfully discharged his duties but the District Board has capriciously and without any justification terminated the services of the appellant was untrue and it was asserted that the services of the appellant had been justifiably terminated. It must, however, be observed that in the petition the appellant challenged the validity of the order terminating his services on the ground firstly that the Board had no power to terminate his employment and secondly that it was not justified in terminating the employment. It was never contended that the order terminating the employment was one in reality of the nature of dismissal as punishment and the form used in the resolution of the Board was merely to camouflage the real object of the Board. Averment in the petition that the Board had acted capriciously and without any justification does not amount to a plea that the order was intended to be one of dismissal though in form one of determination of employment. It also does not appear to have been argued before the Division Bench that the impugned resolution was in reality one of dismissal. Mootham, C. J., in delivering the judgment of the Court dealt with the only argument advanced before the Court, viz, that although the Board had the power to punish or dismiss the appellant it had no power otherwise to terminate his service in the absence of a special contract which did not exist in this case. If the appellant had in his petition pleaded the case that the order though in the form of determination of employment was intended to be one of dismissal as a matter of punishment and the form was adopted merely to conceal the true object of the Board, it would have given opportunity to the Board to meet that case and to produce all the evidence in that connection in their possession. The question raised is one primarily of fact; and it was never raised, nor explored in the High Court on proper pleadings. It would be taking the Board by surprise to allow the appellant to make out this new case at this stage. We, therefore, refuse to consider the question whether the order passed against the appellant pursuant to the resolution dated October 18, 1954 was for dismissal of the appellant from the service of the Board, as a punishment for misconduct.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our view it is competent under S. 84 read with S. 172(2) to the State Government to make rules imposing conditions on the appointment and punishment of persons to offices or to any particular office requiring professional skill and to provide generally the conditions under which the servants of the Board are to serve, and in the exercise of the powers which are vested by S. 82, these rules have an overriding effect. An order of determination of employment which is not of the nature of an order of dismissal, has by virtue of the rules framed under cl. (d) of S. 84 to be exercised consistently with R. 3A. and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the Notification dated March 25, 1946 under S. 84 (b) and (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise that power. But counsel for the appellant contented that even though in form the power of determination of employment was exercised, in substance it was intended to exercise the power of dismissal and that the form of the resolution of the Board was merely to camouflage the real object of the Board. It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee14. Counsel for the appellant pointed out that in the affidavit filed on behalf of the Board, the entire service-sheet of the appellant since the year 1945 was set out. The affidavit refers to the censure administered to the appellant for neglect of duty on March 25, 1945, to the order of dismissal of the appellant from service on a finding by the Public Works Committee that he was guilty of negligence and unfaithfulness in 1948, to the comments made by the Chairman of the Board in 1947 that the appellant had not proved himself to be a loyal and faithful servant and to stoppage of increments of the appellant by an order of the President of the Board in 1953 and 1954. Reliance is then placed upon paragraph 21 of the affidavit of the Board in which it was stated that the plea of the appellant that he had honestly and faithfully discharged his duties but the District Board has capriciously and without any justification terminated the services of the appellant was untrue and it was asserted that the services of the appellant had been justifiably terminated. It must, however, be observed that in the petition the appellant challenged the validity of the order terminating his services on the ground firstly that the Board had no power to terminate his employment and secondly that it was not justified in terminating the employment. It was never contended that the order terminating the employment was one in reality of the nature of dismissal as punishment and the form used in the resolution of the Board was merely to camouflage the real object of the Board. Averment in the petition that the Board had acted capriciously and without any justification does not amount to a plea that the order was intended to be one of dismissal though in form one of determination of employment. It also does not appear to have been argued before the Division Bench that the impugned resolution was in reality one of dismissal. Mootham, C. J., in delivering the judgment of the Court dealt with the only argument advanced before the Court, viz, that although the Board had the power to punish or dismiss the appellant it had no power otherwise to terminate his service in the absence of a special contract which did not exist in this case. If the appellant had in his petition pleaded the case that the order though in the form of determination of employment was intended to be one of dismissal as a matter of punishment and the form was adopted merely to conceal the true object of the Board, it would have given opportunity to the Board to meet that case and to produce all the evidence in that connection in their possession. The question raised is one primarily of fact; and it was never raised, nor explored in the High Court on proper pleadings. It would be taking the Board by surprise to allow the appellant to make out this new case at this stage. We, therefore, refuse to consider the question whether the order passed against the appellant pursuant to the resolution dated October 18, 1954 was for dismissal of the appellant from the service of the Board, as a punishment for misconduct.