Supreme Court of India

Manager Govt. Branch Press &. Anr vs D. B. Belliawpa on 30 November, 1978

Equivalent citations: 1979 AIR 429, 1979 SCR (2) 458, AIR 1979 SUPREME COURT 429, 1979 LAB. I. C. 146, (1979) 2 SCR 458 (SC), 1979 RAJLR 209, 38 FACLR 337, 1979 (1) SCC 477, 1979 SERVLJ 233, (1979) SERVLR 233, 1979 SCC (L&S) 39, 1979 BBCJ 11, (1979) 1 LAB LN 324, (1979) 1 SERVLR 351, (1978) 2 SCWR 359, (1979) 1 LABLJ 156

Author:
Ranjit Singh Sarkaria

Bench:
Ranjit Singh Sarkaria
,
V.D. Tulzapurkar
,
A.P. Sen

PETITIONER:
MANAGER GOVT. BRANCH PRESS &. ANR

Vs.

RESPONDENT:
D. B. BELLIAWPA

DATE OF JUDGMENT30/11/1978

BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
TULZAPURKAR, V.D.
SEN, A.P. (J)

CITATION:
1979 AIR 429 1979 SCR (2) 458
1979 SCC (1) 477
CITATOR INFO :
RF 1980 SC 42 (13)
RF 1980 SC2084 (5)
RF 1981 SC 965 (4)
R 1983 SC 494 (19)
F 1986 SC 101 (223)
RF 1986 SC1626 (33)
D 1992 SC2093 (17)

ACT:
Constitution of India,
Articles 14
and
16(1)
,
protection of, when available to temporary employees-S.
16(1) "appointment", Scope, Incumbent on dismissing
authority to disclose reason for termination of services,
when specific charge of hostile discrimination.

HEADNOTE:
The services of Belliappa, a temporary Class IV
employee, were terminated without assigning any reason,
albeit in accordance with the conditions of his service,
while three other employees, similarly situated, junior to
Balliappa in the same temporary cadre, were retained. The
order terminating his services, was preceded by a show-cause
notice of proposed disciplinary action against him, but
otherwise, there was nothing to show that the service record
of Belliappa was, in any way, inferior to his three juniors
who have been retained in service. Furthermore, neither the
dismissal order nor the appellant's counter affidavit
assigned any reason for the termination and the appellant
had throughout maintained that there was no nexus between
the show-cause notice and the impugned action. The High
Court allowed a writ petition of Belliappa, holding that the
order terminating his services, contravened the guarantee of
equal treatment embodied in
Article 16
of the Constitution.
It was contended that Belliappa was a temporary
employee, and his services could be terminated at any time
without notice, and that
Articles 14
and
are J not
attracted when the services of a temporary employee are
terminated in accordance with the conditions of his service.
Dismissing the appeal, the Court
^
HELD: 1. The protection of
Articles 14
and
16(1)
will
be available even to a temporary Government servant if he
has been arbitrarily discriminated against and singled out
for harsh treatment in preference to his juniors similarly
circumstanced. The competent authority may have a discretion
under the conditions of service governing the employee, to
terminate his services without notice, but such discretion
has to be exercised in accordance with reason and fair play,
and not capriciously. 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
Articles 14
and
16(l
).
[464B-E]
Doddaiah v. State of Mysore, AIR 1967 Mysore 223; Union
of India v. Prem Parkash Midha, [1965] 69 SLR 655 (SC);
State of U.P. v. Ram Chandra Trivedi, [1977] 1 SCR 462; and
Madan Singh Puran Singh, v. Union of India 1972 SLR 67
(Delhi): referred to.
2. The expression "appointment" used in
Art. 16(1)
will
include termination of or removal from service, also. The
expression "matters relating to employment", is not confined
to initial matters prior to the act of employment, but
comprehends all matters in relation to employment both prior
and subsequent to
the employment which are incidental to the employment and
form part of the A terms and conditions of such employment,
such as, provisions as to salary, increments, leave,
gratuity, pension, age of superannuation, promotion and even
termination of employment. [464E-G]
General Manager, Southern Railway v. Rangachari, [1962]
2 S.C.R. 586; applied.
The Union of India v. Pandurang Kashinath More, AIR
1962 SC 630; differentiated
3. Where there is a specific charge of arbitrary
discrimination or some hostile or improper motive is imputed
to the authority terminating the service, it is incumbent on
the authority to dispel that charge by disclosing to the
Court, the reason or motive which impelled it to take the
impugned action. Excepting perhaps, in cases analogous to
those covered by
Art. 311(2)
proviso (c), the authority
cannot withhold such information from the court on the
excuse, that the impugned order is purely administrative and
not judicial, having been passed in exercise of its
administrative discretion under the rules governing the
conditions of the service. [467A-B]
Champaklal Chimanlal Shah v. The Union of India, [1964]
5 SCR 190; Green v. Amalgamated Engineering Union, [1971] 1
All. E.R. 114; and Khudi Ram v. State of West Bengal, [1975]
2 SCR 832 at 845, supported.
4. The archaic common law concept that employment was a
matter between the master and servant only, in its original
absolute form, is not applicable to , Government servants.
Even with regard to private employment, much of it has
passed into the fossils of time. [467F-G]
'Democracy, Equality and Freedom' (page 326) by K. K.
Mathew, J.; referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No.290 of
1969.

Appeal by Special Leave from the Judgment and Order
dated tile 20th June 1968 of the Mysore High Court in W.P.
No. 573 of 1 967.

M. Veerappa and J. R. Das for the Appellant.

R. B. Datar, P. R. Ramasesh and Lalit Bhargava for the
Respondent.

The Judgment of the Court was delivered by G
SARKARIA, J.-The respondent, Belliappa, was appointed
temporary Junior Compositor in the Grade of RS. 65-1-72-2-90
in the Government Branch Press, Mercara. The post was non-
gazetted Class IV as defined in Clause (IV) of Sub-Rule 3 of
Rule 5 of the Mysore Civil Services (Classification Control
and Appeal) Rules, H 1957. The employment was temporary and
was to continue until further orders.
The Branch Manager, Mercara, Respondent 1 (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 Director's
election of Coorg Cardamom Cooperative Societies, Mercara.
The respondent was required to show cause before 2.00 P.M.
Of December 30, 1966, why disciplinary 8 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 respondent's suspension and further disciplinary action
against him.

Thereafter on January 3, 1967, an order was served on
the respondent, terminating his service. This order
(hereinafter called the impugned order) runs as under:

"Office of the Manager, Government Branch Press,
Mercara.

Memoranda
As per instructions contained in Head Office Order
No. 570/66-67, dated 3-1-1967, Sri D. B. Belliappa,
Junior Compositor 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/- xxx
Government Branch Press, Mercara."

On 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.

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 Services (Recruitment of Local
Candidates to Class III) Rules, 1966, with consequential
benefits.
The Manager filed a counter-affidavit stating that the
respondent's 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 the
1966 Rules relied upon by the writ petitioner were not
applicable to him because he was a Class IV Employee.

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 these additional
grounds, to the effect that three other persons, namely,
S/Shri B. S. Vittala, N. B. Achiah and Patric D' Souza who
are appointed as temporary Junior Compositors subsequent to
the a respondent's appointment, had been retained and
continued in service, while a discriminatory treatment was
meted out to the respondent, without any reason. It was
urged that in these circumstances, the termination of the
respondent's service, while continuing three others,
similarly situated, was violative of
Article 16
of the
Constitution. At the stage of arguments, the respondent gave
up his claim for regularisation of service.

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
Article 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 respondent's services were terminated, was set aside and
it was declared that he will be entitled to all the benefits
flowing from the court's order, including reinstatement and
the like.

Hence. this appeal by special leave.

Mr. Veerappa, learned counsel for the appellant,
contends that the respondent, Belliappa, was appointed in a
temporary capacity and his service could be terminated at
any time without notice. The proposition propounded is that

Articles 14
and
are not attracted in a case where the
services of a temporary employee are terminated in
accordance with the conditions of his service. In the
alternative, it is submitted that the principle of 'first
come and last go' may apply only when there is a general
retrenchment and not where there is some special reason for
terminating the services of one employee while continuing
his juniors in the temporary service. It is maintained that
the show-cause notice which was served on the respondent on
December 29, 1966, furnishes the motive or the cause for
terminating the
respondent's services, while retaining his juniors in
service. Mr. Veerappa contends that in spite of the fact
that the position taken by the appellants in the impugned
order was that the service of the respondent was being
terminated without assigning any reason in accordance with
the conditions of his service, it could be spelled out from
the show-cause notice that the real cause of terminating the
respondent's service was his unsuitability for the job or
unsatisfactory conduct.

A number of decisions have been cited:
The Union of
India v. Pandurang Kashinath More
(
1), Champaklal Chimanlal
Shah v. the Union of India
(
2), Doddaiah v. State of
Mysore
(3) Union of India v. Prem Parkash Midha(4);
State of
U.P. v. Ram Chandra Trivedi
(5);
Madan Singh Puran Singh v.
The Union of India
.(6).

As against this, it is submitted on behalf of the
respondent that in his further affidavit, dated January 25,
1968, the respondent had taken up the plea of hostile
discrimination, with particularity, stating that while his
three named juniors who were in all respects similarly
situated, were continued in service; the respondent was
arbitrarily singled cut for discriminatory treatment,
although the respondent's record of service was good and at
no time he gave room for any complaint from his official
superiors. It is stressed that these averments in the
additional affidavit of the respondent were not rebutted or
countered by the opposite side on affidavit, nor was any
material produced on record to show that there was any
special reason for terminating the respondent's service, and
continuing the service of his juniors. It is urged that
since the consistent stand taken by the appellant in the
impugned order, in their counter-affidavit and at the time
of arguments in the High Court was that the service of the
respondent has been terminated without any reason, in
accordance with the terms and conditions of his service? the
appellants should not be allowed to commit a volt face in
this special appeal and take up a different ground which was
never set up or pleaded.

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 pleadings and the
material on record.

(1) A.I.R. 1962 S.C. 630.

(2) [1964] 5 S.C.R. 190.

(3) A.I.R. 1967 Mysore 223.

(4) [1965] 69 S.L.R. 655 (S.C.)
(5) [1977] I S.C.R. 462.

(6) 1972 S.L.R. 67 (Delhi).
The service of the respondent, Belliappa, has been
terminated without assigning any reason albeit in
accordance with the conditions of his service, while three
employees, similarly situated, junior to Belliappa in the
same temporary cadre have been retained.

A charge of hostile discrimination has been levelled
with sufficient particularity against the appellant. Hostile
animus was also attributed by Belliappa in his writ petition
to his superior officers. In the additional grounds of his
further affidavit, Belliappa averred that his service record
was good. This fact has not been controverted by the
appellant by filing any counter-affidavit. However, there is
material on the record to show that the impugned order was
preceded by a show-cause notice of proposed disciplinary
action against Belliappa. It could, therefore, be presumed
that but for this show-cause notice, the service record of
Belliappa was good. At any rate, there is nothing on the
record to show that the service record of Belliappa was, m
any way, inferior to his three juniors who have been
retained in service. The impugned order itself says that
Belliappa's services are being terminated without assigning
any reason, and the same has been reiterated in the counter-
affidavit, dated September 22, 1967, filed on behalf of the
present appellant in the High Court.

In order to satisfy our conscience and appreciate the
arguments of Mr. Veerappa that the services of the
respondent have been terminated on the ground of
unsuitability, we requested him to cause the production of
the Head Office Order No. 570/66-67 dated January 3, 1967,
which has been referred to in the impugned order. We granted
Mr. Veerappa sufficient time for this purpose. On a
subsequent date, he informed us that this Head Office order
also does not contain any reason for the impugned action.
Indeed, the 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
charge 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.
The ground is now clear for considering the contentions
canvassed by the appellant.

Mr. Veerappa's first contention is that
Articles 14
and

16(1)
of the Constitution have no application, whatever, to
the case of a temporary employee whose service is terminated
in accordance with the terms and conditions of his service
because the tenure or the duration of the employment of such
an employee is extremely precarious being dependent upon the
pleasure and discretion of the employer-State. In our
opinion, no such generalisation can be made. The protection
of
Articles 14
and
16(1)
will be available even to such a
temporary Government servant if he has been arbitrarily
discriminated against and singled out for harsh treatment in
preference to his juniors similarly circumstanced. It is
true that the competent authority had a discretion under the
conditions of service governing the employee concerned to
terminate the latter's employment without notice. But, such
discretion has to be exercised in accordance with reason and
fair play and not capriciously. Bereft of rationality and
fairness, discretion degenerates into arbitrariness which is
the very anti-thesis 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
Article
and
16(1).

Article 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
Section 16

of the General Clauses Act, the expression "appointment"
used in
Article 16(1)
will include termination of or removal
from service, also.

It is now well settled that the expression "matters
relating to employment used in
Article 16(1)
is not confined
to initial matters prior to the act of employment. but
comprehends all matters in relation to employment both
prior, and subsequent, to the employment which are
incidental to the employment and form part of the terms and
conditions of such employment, such as, provisions as to
salary, increments, leave, gratuity, pension, age of
superannuation, promotion and even termination of
employment. It is further well established that
Articles 14
,
15(1)
and
16(1)
from part of the same constitutional code of
guarantees and supplement each other. If my authority is
needed for the above enunciation, reference may be made to
the observations made by Gajendragadkar J., as he then was,
in
General Manager, Southern Railway v. Rangachari
(1).

(1) [1962] 2 S.C.R. 586.
In
Union of India v. P. K. More
(supra), it was
contended befor this Court that
Article 16
provides that
there shall be no inequality of treatment in the termination
of the service of any employee of the Government. This
interpretation of the Article was disputed by the Union of
India, who was the appellant
in that case
. Although the
Court thought it unnecessary to pronounce finally on this
dispute for the purpose of that case, yet it proceeded an
the assumption that
Article 16
might be violated by an
arbitrary and discriminatory termination of service. In that
case, the respondent, P. K. More, had been detained legally
under a statute. In view of this fact, the Court held that
'the respondent might legitimately have been put in a
separate class and treated differently from others not so
detained."

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. Veerappa's 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 respondent's
employment.

In view of this, we have no alternative but to hold
that the termination of Belliappa's 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.

In the view we take, we are further fortified by a
decision of the Constitution Bench in Champak Lal's case
(supra). That was a case of a temporary Government servant.
Rule S governing a temporary Government servant, which came
up for consideration
in that case
, gave power to the
Government to terminate the service of a temporary
Government servant by giving him one month's notice or on
payment of one month's pay in lieu of notice. This rule was
attacked on the ground that it was hit by
Article 16.
In the
alternative, it was urged that even if rule 5 is good, the
order by which the appellant's services 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 he had. Wanchoo J. (as he
then was, speaking for the Court, repelled the alternative
argument in these terms:
"We are of opinion that there is no force in this
contention. This is not a case where services of a
temporary employee are being retrenched because of the
abolition of a post. In such a case, a question may
arise as to who should be retrenched when one out of
several temporary post is being retrenched in an
office. In those circumstances, qualifications and
length of service of those holding similar temporary
posts may be relevant in considering whether the
retrenchment of a particular employee was as a result
of discrimination. The present however is a case where
the appellant's services were terminated because his
work was found to be unsatisfactory.. (In such a case
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."

(Parenthesis and emphasis supplied)
The principle that can be deduced from the above analysis is
that if the services 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
Article 16.

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 to the authority making the impugned
order of termination of 11 the service, it is the duty of
the authority to dispell that charge by disclosing to the
Court the reason or motive which impelled it to take the
impugned action. Excepting, perhaps, in cases analogous to
those covered by
Article 311(2)
, Proviso (c), the authority
cannot withhold such information from the Court on the lame
excuse, that the impugned order is purely administrative and
not judicial, having been passed in exercise of its
administrative discretion under the rules governing the
conditions of the service. "The giving of reasons", as Lord
Denning put it in Green v. Amalgamated Engineering Union(1).

"is one of the fundamentals of good administration", and, to
recall the words of this Court in
Khudi Ram v. State of West
Bengal
(2) in a Government of laws "there is nothing like
unfettered discretion immune from judicial review ability".

The executive, no less than the judiciary, is under a
general duty to act fairly. Indeed, fairness founded on
reason is the essence of the guarantee epitomised in

Articles 14
and
16(1).

Another facet of Mr. Veerappa's 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 tile 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 against the impugned
action taken in accordance with those mutually agreed terms.

The argument is wholly misconceived. It is borrowed
from the archaic common law concept that employment was a
matter between the master and servant only. In the first
place, this rule in its original absolute form is not
applicable to Government servant. 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 now and when, as in early Roman Law, the rights of the
servant, like the rights of any other member of the
household, were not his own, but those of his pater
familias". The overtones of this ancient doctrine are
discernible in the Anglo-American jurisprudence of the 18th
century and the first half of the 20th century, which
rationalised the
(1) [1971] 1 All E.R. at p.114.

(2) [1975] (2) S.C.R. 832 at page 845.
employer's absolute right to discharge the employee. "Such a
philosophy", as pointed out by K. K. Mathew J. (vide his
treatise: "Democracy, Equality and Freedom", page 326), "of
the employer's dominion over his employee may have been in
tune with the rustic simplicity of bygone days. But that
philosophy is incompatible with these days of large,
impersonal, corporate employers." To bring it in tune with
vastly changed and changing socio-economic conditions and
mores of the day, much of this old antiquated and unjust
doctrine has been eroded by judicial decisions and
legislation, particularly in its application to persons in
public employment, to whom the Constitutional protection of

Articles 14
, 15
, 16
and
is available. The argument is
therefore overruled.

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 to in the snow-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
base our decision on any such speculation, when the
appellant, himself, instead of taking any such plea, has,
with obdurate persistency stuck to the position that the
respondent's service has been terminated without any reason,
which comes perilously near to admitting that the power
reserved to the employer under the conditions of the
employment, has been exercised arbitrarily.

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 vice of unfair
discrimination and is violative of
Articles 14
and
16(1)
of
the Constitution. Accordingly, we uphold the decision of the
High Court and dismiss this appeal with costs.

M.R. Appeal dismissed.