WORKERS EMPLOYED IN HIRAKUD DAM v.

STATE OF ORISSA AND ANR.

February 2, 1971

[J. M. SHELAT, V. BHARGAVA AND C. A. VAIDIALINGAM, JJ.]

Ceritra/ Public. Works Department Code, Paragraph 11-Word 'disniissed'. in paragrf!-Ph;· . '!leaning of-Whether means dismissal for serious

misconduct onlv or include~, erminatioli simp/ic:iter.

The construction of the Hitakud Dam was entrusted by the State of Orissa to the Central Water Irrigation anc!o Navigation Commission as their agent.

The Commission tor this purpose employed a large number of persons in the worked-charged establishment 0.1 scales of remuneration at the rate paid by the Central Public Works Depart• ment. Their service conditions were to be governed by the Central Public Works Department Code of 1929.

After completion of the firs( stage of the Hirakud project the State Government took it over from the aforesaid Commission.

The employees of the work charged establishment , were given an option to work for the State on the scales of remuneration and the conditions of service in the Code.

However, since there was wide disparity between the, e employees and the work charged employees of the State's own Public Works Department, the services of the fo:mer wert" terminateC.

Such of then1 who a-; cepted re-employment were employed by the State on the terms and conditions of service of t'1e State Public .Works Department.

They were given compensation for termination of service and one month's salary in lieu of notice.

Subsequently they raised a dispute contesting the termination of their services bv the State.

The Iodustr; al Tribunal held that under paragraph . J l of the Central Public Works Deartment Code which applied to them at the relevant time the emoloyees were entitled to ren:ain, in service till the completion of the Project.

The High Court in petitions under Art. 226 and 227 of the Constitution bv the State held the termination justified under paragraph 11 of the CO<'e because it provided

inter alia that the members of the work charged establishment \Vere entitled if diSmissed otherwise than for serious misconduct. before the completion of the work in which thev were engaged, to a month's notice or a month's pay in lieu of notice.

Paragraph 11 also pro,; ded that the workers could resign after a month's notice or forfeiture of pay in lieu of one month's notice.

In appeal by the employees against the High Court"s judgment it was contended before this Court that 'dismissal' within the meaning of paragraph 11 was to be understod only as d.ismissaJ for seriOtis misconduct and not dlismissal sitnpliciter.

Support for this contention was sought fi:_om the fact that the word 'dismissal' as used in the Governmenf of India Act, 1935, and In Art. 311 of the Constitution as well as the Service Rules had been interpreted bY the Courts to mean only dismissal by way of punishment.

HELD : The word 'dismissal' used in the Government of India .t.ct, 1935 as also in Art. 311 of the Constitution an& the Senice Rules has no doubt beeri interpreted' to mean ti::rmination of a person's ser:vices by wav of punishment. But there is clear indication in paragraph 11 of .the

Cod'-' that the word 'dismissal' has not been used to denote the termna tion of the services of an employee only as and by wav of punIShment.[654 Fl

WORKERS OF HJRAKUD DAM v. ORISSA (Vaidialingam, J.) 647

Having made provisions for the automatic termination of the services of an employee when the work comes to an end it is but natural that provisions should be made to terminate the ::icrvices of an em~ ployee even when the work has not been completed If tho employee wants to give up the job then under paragraph 11 he has to give a month's notice, tailing which he forfeits a month's pay in lieu or such notice. Having provided for the voluntary resignation , by an employee even when the work has not been completecl, it will be odd to hold that a similar right has not been given to the employer to terminate the •ervices of a workman, even though the work has not finished.

It will again be incongruous to hold that when a person is dismissed, though .not for a serious misconduct, the workman will be entitled to a month's notice or a month's pay in lieu of notice, if otherwise there can be dismissal for a minor misconduct as and by way of punishment.

No 'decision has laid down that even in case of dismissal a workman will be entitled to a months notice ur a month's pay.

The fact that paragraph 11 provides for giving a month's notice or a month's pay when a workman is dismissed otherwise than for serious misconduct indicates that the work 'dismissed' has not been used in the sense of termination of service by way of punishment alone but it covers also other cases of termination 0f the services of an employee even before the completion of the work. [654 H-655 GJ

The word 'dismissed' according to its dictionary meaning is 'to send away, to discard, to remove from office or employment ........ '. The dictionary meaning makes it clear that in substance the word means •termination of service'. The High Court was therefore right in holding that the expression 'dismissed' irr paragraph 11 of the Code, has been used to take in the termination of the services of the employees mentioned therein , both as a measure of punishm1,,.nt for serious misconduct as well as terinination simpliciter of the services of an employee in \vhich con tingency one month's notice or a month's pay in lieu of noti.ce is obli

gatory.[656 B; 658 Dl Dr. Boal Chand v. Chancellor, Kurukshetra University, [1968] 1 S.C.R. 434, applied,

Purshotam Lal Dhingra v. Unio11 of India, [1958) S.C.R. 828, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1492 of 1966.

Appeal by special leave from the judgment and Qrder dated April 5, 1968 of the Orissa High Court in O.J.C. No. 58 of 1965.

G M. K. Ramamurthi, A. K. Gupta, R. A. Gupta and Uma Datta,

for the appellants.

M .. C. Bhandare, Santosh Chatterjee and R. N. Sachthey, for respondent No. 1.

The Judgment of the Court was delivered by

 Vaidialingam, J.-In this appeal by special leave the short question that arises for consideration is whether the State has got

power to terminate the services of any member of the work-charged establishment under paragraph 11 of the Central Public Works Department Code (hereinafter to be referred as the Code) on giving one month's notice or a month's pay in lieu of notice.

The circumstances leading up to this appe.al may be stated : A decision was taken to construct three dams right across the Mahanadi river, one at Hirakud, the second at Tikerpara and the third al Naraj as a miiltipurpose measure tor preventing flood ravage in the Delta area, generating electricity. and providing irri; gation The construction of Hirakud Dam was entrusted by the le ssa to the Central Waterivays, Irrigation and Navigation C"otnmission as their agent. For the purpose of the construetion o.f Hirakud Dam, the C.W.I.N. Commission employed a large number of persons in the work-charged establishment on scales of remuneration at the rate paid by the Central Public Works Department and the service conditions of the persons so employed were governed by the provisions contained in the Code.

After completion of the first stage of the Hirakud Dam project, the State of Qrissa decided to take over the said project from their agent the C.W.LN. Commission with effect from April 1, 1960.

The State further decided to proceed with the construction of sec0nd stage of the project through its own Public Works Department.

An option was given by the State to the employees in the workcharged establishment to decide whether they would conti.nue to work under the State on the same pay and allowances and subject to other conditions of service provided in the Code for the said work-charged establishment.

The employees agreed to work ur, der the State of Orissa and accordingly the employees were allowed to continue under the State Government.

The State, however, later on found tha1 the pay,. allowances and conditions of service between the work-chaged personnel of the Hirakud Dam project who had bien allowed to be continued and the work-charged perspnnel in the establishment of the State Public Works Department showed a marked difference giving rise to various complications.

The Hirakud Control Board recommended to the State Government to terminate the services of the workcharged personnel of the Hirakud Dam by giving one month's notice with effect from March 31, 1963. Accordingly the State Government terminated the services of the said personnel with effect from March 31, 1963 by giving one month's notice; but the State also made it clear that uch of those who elected to be re-employed on the scales of pay and conditions of service of the State Public Works Department would be so re-employed.

On the issue of the notice by the State, 1200 out of2300 personnel who had continued from before in the work-charged establishment left their services

WORKERS OF H!RAKUD DAM v. OR!SSA (Vaidia!ingam, J.) 649

and the remaining ll 00 agreed to be re-employed on scales of pay a.nd conditions of service of the State Public Work Department. The employees were paid an amount equal to .what they would have received by way of retrenchment compensation or by way of wages in lieu of notice.

• Subsequently the prsonnel of the ork-chared est.ablislunent raised a dispute contestmg the termmation of their services by the State. As conciliation failed, the Government by its order dated February 13, 19?4 eferred, the d!spute to the Industrial .Tr!bual, Orissa for adjudication.

The pomts referred for ad1ud1ca1Jon were:

1. Whether the Retrenchment of Workmen by the authorities of Hirakud Dam Project effected in pursuance of the decision taken by the Control Board, Hirakud Dam Project on the 19th December, 1962, is valid and legal? If not, to what 1elief the workmen are entitled'?

2. Whether the workers who are proposed to be retrenched in pursuance of the decision of the Control Board, Hirakud and are still continuing in Employment are entitled to their original conditions of service ?

3. Whether the workmen, who have completed three years of services or more should be confirmed in their respective posts ?

The main stand taken by the employees before the Industrial Tribunal was that their service conditions being governed by the Code they are entitled to remain iin service till the termination of the work connected with the Projects.

The work connected with the Project not having come to an end, the State has no power to terminate their services.

On the other hand, the State of Orissa took up the position that it has power under paragraph 11 of the Code they are entitled to remain in service 'till the termination of notice or one month's pay in lieu of notice even before the completion of the work. .

:nie Industrial Tbunal recorded broadly the following findmgs : ( 1) the action of the State cannot be considered to be by way of retrenchment under the Industrial Disputes Act as this is not a case of discharge of surplus labour, (2) the mere fact that the employees have accepted the notice, pay or compensation

oes not stop them from challenging the legality of their termina- . uon, ( 3) paragraph 11 of the Code does not authorise the State

to terminate the services of an employee befor!! the work is com

p1eted.

Th~ said paragraph gives only a limited power to. terminate the services of an employee by way of a punitive action taken as a measure of punishment.

In this connection the Tribunal has

placed considerable reliance on the expression 'dismissed' used in paragraph 11 of the Code, ( 4) as the work had not been completed and as the action had not been taken by way of punishment, the order of termination is without jurisdiction, ( 5) the termination of employment is arbitrary and anti-contractual, ( 6) •the order of termination is invalid and inoperative.

The contention raised ]Jy the State that the Project was not an industry was also overruled.

The Tribunal ultimately held that the action taken by the Management of the Hirakud Dam Project in purs, uance of the Notice dated February 9, 1963 was invalid and illegal and that the work-charged employees then working in different divisions of the Project and who had beeµ recruited prior to April l, 1960 are entitled to have thi; ir original conditions of service including scales of pay and dearness allowance.

The Tribunal further held that the employees are entitled to continuity of service and that their services cannot be terminated before the comple\ion of.work except as a measure of punishment.

The State challenged this award before the High Court of Orissa in Writ Petition (0.J.C. No. 58 of 1965) under Articles 226 and 227 of the con.stitution.

Though the State contended that the Hirakud Dam Project was not an industry and that the Tribunal .has acted beyond the scope of reference when it gave certain directions regarding pay and allowances etc., ultimately these contentions were given up.

The only contention pressed before the High Court was that the Industrial Tribunal had committed an error of law in construing paragraph 11 of the Code when it held that the State had no power during the progress of the work to terminate simpliciter the services of any of 'the work-chared employees.

The High Court agreed with the contention of the State and 'held that under paragraph 11 of the Code, the State Government bad power to terminate the services of an employee even' during the progress of the work on giving one month's notice or one month's pay in lieu of notice.

Mr. M. K. Ramamurthy, learned counsel for the appellants, contended that the construction placed by the High Court on paragraph 11 of the Code is \ncorrect.

His contentions ran as follows : The employees in the work-charged establishment were entitled to continue in service till the work for which they have been employed was completed.

For serious misconduct the employer has got the power to dismiss such an employee without giving a month's notice -or a month's pay in. lieu of notice.

But if an employee was being dismissed for reasons other than for serious misconduct, the employee is entitled to a month's notice or a month's pay in lieu of notice. There is no power in the employer to terminate simpliciter the

WORKERS m H!RAKUD DAM v. ORISSA (Vaidialingam, /.) 651

A services of an employee so lo, ug as the work has not been cOm

pleted.

The expression "dismissal" has always been understood and interpreted by the courts as action taken against an emp1oyee by way of punishment and that expression can, uot be interprete<! to include also the termination of the service of an employee

c:eerwise than by way of punishment.

Mr. Bhandari, learned cou.nsel for the State, on the other hand, urged that paragraph 11 is really intended to govern the relationship between the employer and the elJl.ployees of the work-charged establishment and the expression "dismissal" has not been used in the sense that action should necesswly have been only as and by way of punishment.

According to the learned counsel the expression "dismissal" has been used in a loose sense meaning termination of the services of an employee either by way of punishment for misconduct or for any other reason.

We are not inclined to accept the contention of Mr. Ramamurthy that the expression "dismissal" in paragraph 11 has been used to 'denote only action taken against a workman as and by way of punishment.

No doubt, the expression has not been very happily used in the said paragraph.

Paragraph 11 of the Code is as follows:

"l L Members of the temporary and work-charged establiShments, who are engaged locally, are on the footing of monthly servants. If they are engaged for a specific work, their e, ngagement Jasts only for the period during which the work lasts. If dismissed, otherwise than for serious misconduct, before the completion of the work for which they were engaged, they are entitled to a month's notice or a month's pay in lieu -Of, notice; but other.wise, with o.r ; without aotice, their engagement terminates when the work en'.ds. If they desire to resign their appointments they inUSt give a month's notice of their intention to do so, failing which they will be required to forfeit a month's pay in lieu of such notice. The terms of engage.inent should be clearly. explained to men employed in the circumstances mentioned above."

The following aspects emerge from paragraph 11 of the Code :

(i) the members of the temporary and work-charged establishments. are treated to be on the footing of monthly servants;

(ii) if they are engaged for specific M>rk, their ser •

vices last only for the period during which the 12-918 Sup Cl/71

work lasts.

To put it differently there will be automatic termination of the services of an employee when the specific work for which he was engaged is completed;

(iii) before the completior. of a work, a workman can be dismissed for serious misconduct. In such a case no question of giving a month's notice or a month's pay in lieu of notice arises;

(iv) before the completion of the work, the workman can also be dismissed otherwise than for serious misconduct, i'l which case the workman will be entitled to a month's notice or a month's pay in lieu of notice;

(v) in other cases the workman's services terminate when the work ends;

(vi) if the workman desires to resign his appointment, D he must give one month's notice of his intention to do so, failing which he will be required to forfeit a month's pay in lieu of such notice.

That the above are terms of engagement of a workman, is c:ear from the concluding part of paragraph 11 to the effect that "the terms of engageme.nt should be clearly explained to men employed in the circumstances mentioned above."

The question that arises for consideration is about the connotation of the expression "dismissed" used in paragraph 11. The contention of Mr. Ramamurthy that the expression "dismissed" has reference only to termination of the services of an employee as and by way of punishment is largely based upon the provisions contained in the Governmi<nt of India Act and in Art. 3 li of the Constitution.

Based upon those provisions Mr.

Ramamurthy claims that the expression "dismissal" is a technical word used in cases in which a person's services are terminated by way of punishment. Quite natural!y he rlied upon the Service Rules where the word "dismissal" has been used to denote a major punishment inflicted upon an employee for misconduct.

Mr. Ramamurthy, no doubt, is well-founded in his contention that the word "dismissal" used in the Govenment of India Act as also in the Constitution and the Service Rules has been interpreted to mean termination of a person's service by way of punishment.

Bv section 45 of the Government of 1, ndia Act, 1919 read with Part I of the second schedule to that Act, several sections includ-

WORKERS OF HIRAKUD DAM v. ORISSA (Vaitlialingam. J.) 1151

ing s. 9613 were introduced in the Government of India Act, 1915.

Among other things s. 96B provided that no person in the civil service of the Crown in India may be dismissed by any authority subordinate to that by which he was appointed.

Section 96-B for the first time gave statutory recognition and force to the English Common Law rule that the servants of the Crown held their Offices during the pleasure of the Crown. It also at the same time imposed one important qualification upon the exercise of the Crown's

pleasure, namely, that a servant might not be dismissed by un authority subordinate to that by which he had been appointed.

Section 96-B(l) waveproduced as sub-sections (1) and (2) of section 240 of.the Government of India Act, 1935 and a new section was adde'd to section 240 as uh-section ( 3). Sub-section

( 2) of section 240 provided that no person referred to in subsection (1) shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

Sub-section (3) provided that no such person shall be dismissed or reduced n rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

Then came our Constitution on January 26, 1950.

Articles 311 (I ) and ( 2) provided as follows :

"311 (I ) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which. he was appointed. ( 2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after a'n inquiry in which he has been infonru:d of the charge against him and given a reasonable opportunity .of being heard in respect of those charges and where i1 is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry :"

It will be 'l!oted that Art. 311 gives a twofold protection to persons who come within the article, namely, (i) against dismissal or removal by an authority subordinate to that by which they were appointed and (ii) as against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them.

li54 Mil'kl!ME 'C'OllkT REPORTS [197 ! J .l S, C.k

Discussing the aboveprovisions in Parshotam L(1/ Dhiugm v.

Union of India('), this Court obsqrved as follows:

"It foilQW.s from the above discussion that both at the date of \he commencement of the 1935 Act and of our CQnstitution the words "dismissed", "removed" and .. reduced in rank", as used in the service rules, were all understo<AI as signifying or denoting the three major punishments which could be inflicted on Government servants: The protection given by the rules to the Government servants against dismissal, removal or reduction in rank, which could not be enforced by action, was Incorporated in sub-ss. ( I ) and ( 2) of s. 240 to give them a statutory protection by indicating a procedure which had to be followi:d before the pu:nishments of dismissal, removal or reduction in rank could be imposed on them, and which could be enforced in law.

These protections have now been incorporated in Art. 311 ot our Constitution . . . . . . . . . .

Thus under Art. 311 (I) the punishments of dismissal, or re1noval cannot be inflicted by an authority subordinate to that by which the servant was appointed and under Art. 311 (2) the punishments of dismissal, removal and reduction in rank cannot be meted out to the Government servants without giving him a reasonable opportunity to defend himself."

If the interpretatio:n placed upon the word "dismissal" in the Government of India Act i11nd the Constitution as w-;,:I as the service rules is adopted for construing the said wurd in paragraph 11 of the Code, the contention of Mr. Ramamurthy will have to be accepted.

But there is a clear indication in paragraph I I of the Code that the word "dismissed" has not been used to denote the termination of the services of an employee only as and by way o.f punishment. . Paragraph I I. in our oph:ion, contains the terms of engagement of the workmen.

In view of the very nature of the employmeat in the work which may either finish quickly or may take a considerably long time for completion, Paragraph I. I has been tncorporated to govern the relationship between the Central Public Works Department and a workman. In his ca5e there is no controversy that even after the State took over the construction of the Project. relationship between the State and the employees is governed by Paragraph 11.

Having made provisions for the automatic termination of the services of an employee; when the work comes to an end. it is but natural that provisions should be made to terminate the services of an employee even when the work

f II f19S8] S, C.R. 820.

, __

WORKERS OF HIRAKU[) DAM v. ORISSA (Vaidia/ingam, /.)

H55

has not bee.n completed.

In this connection it. should be. noted that if the employee wants to give up the job, he has to give a month's notice, failing which he forfeits a month's pay in lieu of such notice.

Having provided for the voluntary resignation by an employee even when the work has not been-=p'.eted, it will he odd to hold that a similar right has not been gi to an employer to terminate the services of a workman, even tho . the work has not finished.

It is quite understandable that provisions should be made for dismissing an employee even before the completion of . the work, for serious misconduct. In such a case, it is.admitted .by the learned counsel for the appellants, that the question of giving a month's notice or a month's pay in lieu of notice does not arise.

In that cQhtingency, it is easy to hold that the termination of the services of an employee is dismi§sal as and by way of puni-hment.

Paragraph 11 further provides that if an employee is dismissed before the completion of the work otherwise than for serious misconduct, he; wiir be entitled to a month's notice or a month's pay in lieu of notice.

According to Mr. Ramamurthy, there is nothing incongruous in holding that when a workman is dismissed for a minor misconduct he will be entitled to a month's notice or a month's pay in lieu of notice. In our opinion it will be incongruous to hold that whe>n a person is dismissed, though not for a serious misconduct but even for a minor misconduct, the werkman will be entitled to a month's notice or a month's pay in lieu of notice, if otherwise there can' be a dismissal for a minor misconduct as and by way of punishment.

So far as. we dmld see no decision has laid down that even in cases of dismissal a workman will be entitled to a month's notice or a month's pay. If it is a dismissal by way of punishment, no question of a month's notice or a month's pay in lieu of notice ever arises. The fact that Pararaph 11 provide•. for giving a month's notice or a month's pay when a workman is dismissed otherwi~~ than for. serious misccinduci indicates that the word "dismissed" has not been used in the sense of termination of service by Y<ay of punishment alone but it covers also other cases of termination of the services of an employee even before. the completion of the work.

Interpreted in this manner, the position will be that the services of an emplovee can be terminated as punishment for serious misconduct and the services of an employee can be terminated also for other reasons.

If the services are terminated for other reasons. Paragraph 1 t provides for giving a month's notice or a month's pay in lieu of notiC'e.

From the above reasoning it is clear tliat the word "dismissed;' has been used loosely to denote both termination of service for misconduct by way of punishment ind also tennination of service

11mpliriltr.

656 Sl!PRF.ME COURT REPORTS [1971] 3 s.c.R.

It must also be noted that the Code has been framed in 1929 A long before the Government of India Act, 1935, came into force.

In Burrows "Words and Phrases" the word "dismissal" has been stated to be a word of very ambiguous meaning and that it is merely a convenient expression for the termination of an employment. whatever its nature may be.

The word "dismissed" according to i.ts dictionary meaning is "to send away, to discard, to remove from B office or employment ........ " The dictionary, mea, ning makes it clear that in substunce the word means "termination of service."

In Dr. Boo/ Chand v.

The Chancei/or, Kurukshetra University( 1 ), the import of the expression "dismissed" came up for consideration oofore this Court.

The appellant in that case, who wi1s Professor and Head of the Department of Political Science in the Punjab University, was appointed on June 18, 1965, as the Vice- Chancellor of the Kurukshetra University.

On March 31, 1966, the Chancellor of the University suspended the appellant from the office of Vice-Chancdlor and by another order the appellant was required to show cause why his services as Vice-Chancellor be not terminated.

The appellant after submitting his representation, filed a writ petition in the Pm.jab High Court for quashing the order dated March 31, 1966.

On May 8, 1966, the Chancellor of the University, in ex.ercise of the power under sub-cl. (vi) of cl. 4 of Sch. I to the Kurukshetra University Act, 1956, read with s. 14 of the Punjab General Clauses Act, 1898, passed an order terminating the services of the appellant as Vice-Chancellor with jmmediat, effect.

The writ petition was suitably amended challenging this order terminating the appellant's service as Vic~-C'hancellor.

The relevant sub-clause of Cl. 4 of Schedule I of the Kurukshetra University Act provided that the Vice-Chancellor will held the office ordinarily for a period of three years.

One of the contentions raised before this Court was that the Chance!1or of the University had no power to terminate the services of a Vice-Chancellor before the expiry of the period for which he was app0inted and that s. 14 of the Punjab General Clauses Act,

1898, while providing for .dismissal did not empower the appointing authority to terminate the services of an officer. While holding that there was no express provision in the Kurukshetra University Act or the statutes thereunder dealing with the termination of the tenure of office of the Vice-Chancellor, this Court held :

"But on that account we are unable to accept the plea of the appellant that the tenure of office of a Vice-

C'hancellor under the Act cannot be determined before

(I) [1%8] 1 S.C.R. 434.

 l ,•-1;, ,., -

.\ •

f. )It r ' ' •

WORKERS OF HIRAKUD DAM v. ORISSA ( Vaidia/ingam, J.) 6 57

the expiry of •the period for which he is appointed. A power to appoint ordinarily implies a power to determine the employment." Regarding the further contention that s. 14 of the Punjab General Clauses Act only empowers the appointing authoity to dismiss an officer by way of punishment, but not to determine an employment this Court after referring to s. 14 observe as follows :

"But s. 14 of the General Clauses Act is a genetal provision : it does not merely deal with he appointment of public servants. It deals with all appointments, anti there is no reason to hold, having regard to the context in which. the expression occurs, th~ the authority invested with the power of appointment has the power to determine employment as a penalty, but not otherwise.

The expression 'dismiss' does not in rts etymological sense necessarily involve any such meaning as is urged by counsel for the appellant.

The implication that dismis:lal of a servant involves determination of employment as a penalty has been a matter of recent development since the Government of India Act, 1935 was enacted.

By that Act certain restrictions were imposed upon the power o~ the authorities to dismiss or remove members of the civil service, from employment. There is no warrant however for assuming that in the General Clauses Act, 1898, the expressicm "dismiss" which was generally used in conneaion with the termination of appointments was intended to be used only in the s-; mse of determination of employment as a measure of punishment."

From the above extract it is clear that the word "dismissal" has to be understood in the context in which it occurs and that it denotes the determination of an employment as a penalty is a matter of recent development since the Government of ln"Clia Act, 1935 was enactert.

In the case before us, we have already pointed out that the Cc•de has l:ieen framed as early as 1929 and there is no warrant tor assuming that the expression "dismissed" has been used in the sense that the word was understood since the Government of India Act. 1935. Further the word 'dismissed' occurring in the context in which the said expression occurs in paragraph 11, as pointed out by us earlier. clearly denotes the termination of the services of an employee fr serious misconduct and for other reasons. That expression is not used in the sense only to denote determination of employment as and by way of punhhment.

Mr. Ramamurthy raised the contention that even if there is a power of termination simp/iciter in the emoloyer uµder Paragra?h

11. the High Court should R, Ot have interfered with the award of

the Industrial Tribunal as the Tribunal has recorded a finding that the State has not acted bona fide. In support of this contention, the learned counsel relied on the reasoning contained in paragraph 18 of the award.

We have gone through the reasoning contained in the said paragraph and we do not find any finding recorded by the Tribunl\l that the State has not acted bona fide, when it passed an order terminating the services of the employees.

On _the other hand, what the Tribunal has held in the said paragraph is that the termination of the ser'Vices of the employees is invalid and illegal as it is not warranted by Paragraph 11 of the Code and hence the ·.order of termination is/ invalid i; n law and inoperative.

There is absolutely no basis 'for the contention that these findings are to the effect that the action df the State is not bona fide. Thus the findings recorded by the Tribunal are finngs on the basis of the interpretation placed by it on Paragraph 11 that the State has no powe.r to terminate simpliciter the services of a work-charged establishment. The(efore, this contention of Mr. Ramamurthy has to be

rejected.

To conclude we are in agreement with the High Court in hold- D ing that the expression "dismissed" in Paragraph 11 of the Code, has been used to take in the termination of the services of the employees mentione.d therein both as a measure of punishment for serious misconduct as well as termination simpliciter of the servies of an employee in which conti:ngency one month's notice or a month's pay in lieu of notice is obligatory.

In the result the appeal is dismissed but in the circumstaucr~ without any order as to costs.

G.C.

Appeal. dismissed.