Case: Champaklal Chimanlal Shah Vs. The Union Of India

Gopi Kishore Prasad, AIR 1960 SC 689 . 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 persons 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 Art. 311 (2) of the Constitution."20. 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 stand more or less on the same footing-the protection of Art. 311 (2) would be available. We are of opinion that this is reading much more in the proposition than 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 enquires 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 Art. 311 (2) was applicable in that case and that is why some enquires 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 Art. 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 Art. 311. All that the third proposition lays down is that if the government chooses to hold an enquiry purporting to act under Art. 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages.21. Gopi Kishore Prasads case, AIR 1960 SC 689 was considered by this Court in a later case in State of Orissa v. Ram Narayan Das, (1961) 1 SCR 606 : (AIR 1961 SC 177 ) which was also a case of a probationer. In Ram Narayan Das case, (1961) 1 SCR 606 : (AIR 1961 SC 177 ) 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 Dass case, (1961) 1 SCR 606 : (AIR 1961 SC 177 ) 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 Art. 311. Gopi Kishore Prasads case, AIR 1960 SC 689 was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasads case, AIR 1960 SC 689 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 enquiry under Art. 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 Prasads case, AIR 1960 SC 689 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 Art. 311 (2) 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 removal. The same view has been taken in Jagdish Miter v. Union of India, C.A. No. 718 of 1962 D/- 20-9-1963: (AIR 1964 SC 449 ).22. 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 Art. 311 (2) 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 Art. 311 (2) in the circumstances.

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

Explanation:
0[ds]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 qua non for the commencement of quasi-permanent service. Without such a declaration quasi-permanent service cannot begin. If therefore the appellants 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 continuos government service for more than three years, there will be complete irreconciability between R. 2(b) 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. 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 that rule must be read in harmony with the definition of "quasi-permanent service" in R. 2(b), for it could not possibly be the intention of the rule making authority to create disharmony between the definition in R. 2(b) 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-permanentscheme 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. (i) 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. 2(b) 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 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. (ii) of 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 Art. 311. As he is not entitled to the benefit of R. 6, he cannot claim the benefit of Art. 311 (2) on the ground that he must be deemed to be in quasi-permanent service.8. The appellant therefore must be held to be still in temporary service when his services were dispensed with in Augustdo not think it necessary for present purposes to decide whether Art. 16 would apply to rules relating to termination of service. We shall assume for the purposes of this appeal that Art. 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 equality of opportunity provided in Art. 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 Art. 16. The attack therefore on R. 5 on the ground that it is hit by Art. 16 of the Constitution musttermination of the service of a temporary 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 Art. 16 and was treated in a discriminatoryare therefore of opinion that on the facts of this case Art. 311 (2) 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 orappellant 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 services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal orare of opinion that this is reading much more in the proposition than 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 enquires 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 Art. 311 (2) was applicable in that case and that is why some enquires 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 Art. 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 Art. 311. All that the third proposition lays down is that if the government chooses to hold an enquiry purporting to act under Art. 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages.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 Art. 311 (2) 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 Art. 311 (2) in the circumstances.