Case: Manager Govt. Branch Press &amp;. Anr Vs. D. B. Belliawpa

The respondent, Belliappa, was appointed temporary junior compositor in the Grade of Rs. 65-1-72-2-90 in the Class IV as defined in Clause (IV) of sub-rule 3 of Rule 5 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957. The employment was temporary and was to continue until further orders.2. The Branch Manager, Mercara, respondent I (herein), served a notice on the respondent on December 29, 1966, stating that the respondent had taken outside the Press some copies of the ballot papers relating to the Directors election of Coorg Cardamom Co-operative Societies, Mercara. The respondent was required to show cause before 2.00 P.M. of December 30, 1966, why disciplinary action be not taken against him as per Rules, It was further stated in the notice that failure to comply with the notice will result in the respondents suspension and further disciplinary action against him.3. Thereafter on January 3, 1967, an order was served on the respondent, terminating his service. This order (hereinafter called the impugned order) runs as underof the Manager, Government Branch Press, Mercara.MemorandaAs per instructions contained in Head Office Order No. 570/65-67, dated 3-1-1967, Sri D. B. Belliappa, Junior Componsitor of this office is hereby informed that your appointment is purely temporary and terminable at any time without any previous notice and without reasons being assigned therefore are not required. Therefore your services are hereby terminated with immediate effect.Sd/-Government BranchOn January 7, 1967, Belliappa submitted a representation, dated January 6, 1967, to the Branch Manager against termination of his service, but without success, attributing motives to his immediate superior officer that his relations with the respondent were not cordial for the preceding three months. He also prayed for permission to continue to work and requested for disbursement of his pay.5. On February 4, 1967, Belliappa instituted a writ petition in the High Court of Mysore with a prayer to quash the order terminating his service. He further prayed for a direction that the Manager of the Press (appellant) be directed to appoint him a regular candidate to the post of the junior compositor in accordance with the provisions of the Mysore State Civil Service (Recruitment of Local Candidates to Class III) Rules, 1966, with consequential benefits.6. The Manager filed a counter-affidavit stating that the respondents appointment was purely temporary governed by the conditions in the contract of his service, and was liable to be terminated without notice at any time; that 1966 Rules relied upon by the writ petitioner were not applicable to him because he was a Class IV employee.7. Subsequently, Belliappa filed a further affidavit urging additional grounds for impugning the order of his discharge. The High Court, by its order dated January 30, 1968, allowed the respondent to take up those additional grounds, to the effect that three other persons, namely, Shri B. S. Vittala, N. B. Achiah and Patric Dsouza who were appointed as temporary junior compositors subsequent to the respondents appointment, had been retained and continued in service, while a discriminatory treatment was noted out to the respondent, without only reason. It was urged that in those circumstances, the termination of the respondents service, while continuing three others similarly situated, was violative of Art. 16 of the Constitution. At this stage of arguments, the respondent gave up his claim for regularisation of service.8. The High Court by its order dated June 20, 1968, allowed the writ petition, holding that the impugned order contravened the guarantee of equal treatment embodied in Art. 16. The High Court did not give reasons in this order, but stated therein that the reasons given in the decision of that Court in Writ Petition No. 153 of 1965, were applicable. In the result, the impugned order, by which the respondents services were terminated, was set aside and it was declared that he will be entitled to all the benefits flowing from the Courts order, including reinstatement and the like.9. Hence, this appeal by special leave.

Reasoning:
13. Before dealing with the contentions canvassed on both sides, it will be useful to notice the relevant undisputed facts for the discussion emerging from the pleading and the material on record.In the instant case, no special circumstance or reason has been disclosed which would justify discriminatory treatment to Belliappa as a class apart from his juniors who have been retained in service. Mr. Veerappas frantic efforts to spell out justification for differential treatment to the respondent by reference to the show-cause notice that preceded the impugned action, is entirely futile when the stand tenaciously adhered to throughout by his client is that there is no nexus between the show-cause notice and the impugned action which was taken without any reason in exercise of the power vested in the competent authority under the conditions of the respondents employment.22. In view of this, we have no alternative, but to hold, that the termination of Belliappas service was made arbitrarily and not on the ground of unsuitability or other reason, which would warrant discriminatory treatment to him as a class apart from others in the same cadre.23. In the view we take, we are further fortified by a decision of the Constitution Bench in Champak Lals case (supra). That was a case of a temporary Government servant. Rule 5 Governing a temporary Government servant, which came up for consideration in that case, give power to the Government to terminate the service of a temporary Government servant by giving him on months notice or on payment of one months pay in lieu of notice. This rule was attached on the grounds that it was hit by Art. 16. In the alternative, it was urged that even if rule 5 is good, the order by which the appellants service were dispensed with was bad because it was discriminatory. Reference was made to a number of persons whose services were not dispensed with, even though they were junior to the appellant and did not have as good qualifications as heprinciple that can be deduced from the above analysis is that if the service of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory or for a like reason which marks him off in a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Art. 16.24. Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed order of termination of the service, it is the duty of the authority to dispose that charge by disclosing to the Court the reasons or motive which impelled it to take the impugned action, excepting, perhaps, in cases analogous to this covered by Art. 311(2).25. Another fact of Mr. Veerappas contention is that the respondent had voluntarily entered into a contract of service on the terms of employment offered to him. One of the terms of that contract, embodied in the letter of his appointment is that his service was purely temporary and was liable to termination at the will and pleasure of the appointing authority, without reason and without notice. Having willingly accepted the employment on terms offered to him the respondent cannot complain impugned action taken in accordance with these mutually agreed terms.26. The argument is wholly misconceived. It is borrowed from the archail common law concept that employment was a matter between the master and servant only. In the first place this is rule in its original absolute form is not applicable to Government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. This rule held the field at the time when the master and servant were taken more literally than they are new and when, as in early Raman Law, the right of the servant, like the right of any other member of the house held, were not his own, but those of his eaterargument is, therefore, overruled.27. Coming back to the point, we have a vague feeling that it was perhaps, open to the appellant to say in view of the complaint alluded in the show-cause notice against the integrity and fidelity of the respondent, that the former had lost confidence in the latter and considered him unsuitable to be continued in the post which was one of trust and confidence. But it will be hazardous for us to have our decision on any such speculation, when the appellant, himself instead of taking any such plea, has, with abdurate persistency stock to the position that the respondents service has been terminated without any reason which comes perilously near to admitting that the power received to the employer under the conditions of the employment, has been exercised arbitrarily.28. In the absence of any information from the appellant indicating that the respondent was marked off for discharge on the basis of an intelligible differentia having a reasonable nexus with the object of maintaining the efficiency and integrity of the public service, we are constrained to hold, in agreement with the High Court, that the impugned order suffers from the view of unfair discrimination and is violation of Arts. 14 and 16(1) of thethe contents of this Head Office order have been substantially reiterated in the impugned order, according to which, the service of Belliappa was terminated, Of course, there is always some reason or cause for terminating the services of a temporary employee. It is not necessary to state that reason in the order of termination communicated to the employee concerned. But where there is a specific change of arbitrary discrimination or some hostile motive is imputed to the authority terminating the service, it is incumbent on the authority making the impugned order to explain the same by disclosing the reason for the impugned action. In the instant case, the appellant intransigently withheld that information from the Court. There is no escape from the conclusion that Belliappa was picked out for the impugned action, whimsically without any special reason which could put him in a class separate from that of his three juniors who have been retained in service.17. The ground is now clear for considering the contentions canvassed by theis true that the competent authority had a discretion under the conditions of service governing the employee concerned to terminate the latters employment without notice. But, such discretion has to be exercised in accordance with reason and fair-play and not capriciously. Benefit of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the Equality clause in Arts. 14 and 16(1). Art. 16(1) guarantees "equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". Moreover, according to the principle underlying S. 16 of the General Clauses Act, the expression "appointment" used in Art. 16(1) will include termination of or removal from service, also.