Om Prakash vs Superintendent of Post Offices

K.V. Gopalakrishnan Nair, J.—The Petitioner asks for a writ of certiorari to quash the order of the Superintendent of Post Offices Kashmir

Division dated 21-10-59 made under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, whereby the service of the Petitioner

was sought to be terminated from the forenoon of 24-11-1959.

The Petitioner alleges that he joined duty on 1-11-57 as a clerk in the Post Office at Jammu. His work was good and satisfactory except for a

small slip he made some time in June 1958. His appointment was against a clear vacancy and was as such of a permanent nature. The Respondent,

the Superintendent of Post Offices, however, sought to terminate his service with effect from 24-11-59 by issuing an order under Rule 5 of the

Temporary Service Rules, 1949. These rules did not apply to the Petitioner who was a permanent Government servant. The Petitioner was not

afforded any opportunity to show cause against the termination of his service. This was contrary to the mandatory provisions of Article 311 of the

Constitution of India. The principles of natural justice have also been grossly violated by the impugned order.

The Respondent counters these allegations on the ground that the Petitioner was only a temporary servant to whom the Temporary Service

Rules, 1949, applied. Rule 5 of those rules provided for the termination of the services of a temporary employee by giving him a month's notice.

The impugned order was, therefore, well-founded. No punitive action was taken against the Petitioner; Article 311 of the Constitution, therefore,

did not come into play, and the Petitioner's application for writ is misconceived.

The first question that falls for consideration is whether the Petitioner was a temporary servant or not? The affidavit of the Superintendent of

Post Offices is unambiguously to the effect that the Petitioner was only a temporary servant. This allegation is amply supported by the orders

appointing the Petitioner as a clerk in the Jammu Post Office. These orders are included in Annexures A and B to the petition. Furthermore, the

Gradation List produced by the Respondent bears out that the Petitioner was only a temporary clerk; to the same effect is the Service Book

relating to the Petitioner.

What is more, as recently as 8-11-59 and 20-12-59 the Petitioner appeared at the written and oral ""confirmation examination"" held in respect of

temporary clerks. The affidavit of the Superintendent of Post Offices avers that only temporary postal clerks can take this examination and that no

temporary clerk will be confirmed unless he passes this examination. These averments in the affidavit of the Respondent remain thoroughly

uncontradicted. There is thus a plethora of evidence to show that the Petitioner is only as a temporary clerk.

The next question is whether Article 311(2) of the Constitution of India applied to the present case. This provision affords protection to

members of civil service by enjoining that none of them shall be dismissed or removed or reduced in rank until he has been given a reasonable

opportunity of showing cause against the action proposed to be taken in regard to him. The proviso to Article 311(2) can be left out of account as

irrelevant to the instant case.

It is now well-settled that Article 311(2) will apply only when a punishment by way of dismissal, removal or reduction in rank is sought to be

inflicted on a member of the civil service. Dismissal or removal from service is no doubt a termination of service. But every termination of service is

not a dismissal or removal contemplated by Article 311(2). If termination of service is sought to be brought about otherwise than by way of

punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311(2). An important test for

ascertaining whether termination of service amounts to dismissal or removal within the meaning of Article 311(2) is to find out whether the servant

concerned has a right to hold the post in question. It has been held in Parshotam Lal Dhingra Vs. Union of India (UOI), as follows:

In the absence, of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until,

under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the

post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence inefficiency or any other

disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also

gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period

unless he is, by way of punishment, dismissed or removed from the service. Except in these tyro cases the appointment to a post, permanent or

temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to

the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service.

In the instant case, the Petitioner is only a temporary servant with a precarious tenure. Termination of his service will not, therefore, prima facie

and per se amount to a punishment so as to attract the provisions of Article 311(2). In the case of a permanent or quasi-permanent servant or one

appointed for a fixed term, a premature termination of the service will work a forfeiture of his right to hold the post and to get the emoluments and

other benefits attached thereto. No such consideration can arise in the case of a temporary servant. There can be no question of premature

termination of his service nor deprivation or forfeiture of his right to hold the post and to derive the emoluments attached to it.

He is merely the creature of the contract or the rules governing his conditions of service, and if his service is determined in accordance with the

provisions of the contract or of the rules he cannot legitimately complain of any deprivation in the legal sense nor can he urge that the termination of

his service is per se a punishment imposed on him. In Parshotam Lal Dhingra Vs. Union of India (UOI), their Lordships of the Supreme Court

pointed out:

Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a

contractual right is not per se dismissal or removal at has been held by this Court in Satish Chandra Anand Vs. The Union of India (UOI), .

Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the

infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal Vs. The State of Uttar Pradesh and

The Union of India (UOI), . In either of the two above-mentioned cases the termination of service did not carry with it the penal consequences of

loss of pay, or allowances under Rule 52 of the Fundamental Rules.

Although a termination of service of a temporary servant is not prima facie and per se a punishment falling within the scope of Article 311(2), it

is possible in a given case that the authority concerned instead of exercising the right given by the service rules to terminate the service may deem it

fit to terminate it as a matter of punishment. In such a case, the position would be different. There, the service would be terminated not under the

authority of the relevant service rule, but in the exercise of the power vested in the authority to impose upon the servant the penalty of removal from

service. To such a case the salutory provisions of Article 311(2) would undoubtedly be attracted. Difficulty often arises in distinguishing between

these two classes of cases.

Both involve termination of service. But in the one the termination is sought to be founded on the right flowing from the contract or the service rules,

as the case may be, whereas in the other the termination is based upon misconduct or some other disqualification on the part of the servant. Again

in the former case no evil consequences would attach to the termination of service, whereas in the latter case the servant as the recipient of a

punishment will have a stigma or other disability attached to him.

This statement of the position may not be sufficient to clear up the doubt arising in certain cases. It may be urged, as in the present case, that

termination of service was induced by some wrong conduct or deficiency on the part of the servant which came to the notice of the authority

concerned. The Government servant may claim that he ought to have been given an opportunity to explain the wrong conduct or deficiency

imputed to him and that termination of his service without affording him such an opportunity was in violation of Article 311(2). In other words, he

may contend that so long as the termination of his service had some connection, however remote, with some blameworthy conduct or lapse or

drawback on his part it amounted to a punishment inflicted on him. And in the large majority of cases, the services of a temporary Government

servant are terminated only if the authority concerned is dissatisfied with them on some ground or the other.

Rarely does it happen that the service of a temporary servant who is very good at his work and above possible reproach is terminated, although

the right to terminate his service is conferred on the authority by the relevant service rules. Thus, it the principle be that if the termination of service

is in some manner influenced by a reason which is disparaging to the servant, it should be construed as a punishment, we may have to hold that

almost every case of termination of service of a temporary servant is by way of punishment. This will be nullifying the contractual right or the rules

embodying express conditions of service which clearly give power to terminate the service of a temporary servant by giving the stipulated notice.

This will not accord with sound legal principle.

The correct position is that it is only when the termination of service is found on the misconduct or a sin of commission or omission or some

drawback or disqualification of the temporary servant that it can be construed as punishment. Merely because certain circumstances against the

temporary servant constituted the background or supplied the motive or operated as the inducing factor for terminating his service, it will not be

legitimate to hold that his service was terminated by way of punishment. This position is clearly brought out in the following passage in Parshotam

Lal Dhingra Vs. Union of India (UOI), :

It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the

Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the

contract or the rules, to terminate the service the motive operating on the mind of the Government is as Chagla C.J. has said in Shrinivas Ganesh

Vs. Union of India, , wholly irrelevant in short, if the termination of service is founded on the right flowing from contract or the service rules, then

prima facie the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the

Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting

the punishment or dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination

of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then, it is a punishment and the requirements of

Article 311 must be complied with.

In Shrinivas Ganesh Vs. Union of India, , Chagla C.J. made the following observations:

Whatever may be the motive which may influence the exercise of a legal right if the legal right exists then the motive becomes irrelevant, and if in a

case where Section 240(3) or Article 311 does not apply the Government has the right to dispense with the services of a temporary servant, then it

is not open to a temporary servant to say that his services were dispensed with for an ulterior motive or for a motive which was not a proper

motive.

Reference may also be made to Nageshwar Prasad and Others Vs. State of Bihar and Others, . In that case it was on the record that the

Petitioners ""had been weeded out and discharged from their service on account of their being unwilling, undesirable and unsuitable workers."" But

the actual order discharging the Petitioners from service was not founded on any such ground. A Division Bench of the Patna High Court,

however, held that

the opinion of the Addl. Collector of Patna that the Petitioners were unwilling, undesirable and unsuitable workers was only a motive for

discharging them from service and that it did not invalidate the orders of discharge.

It was pointed out that

the letters of discharge that were actually issued did not contain these words and they clearly appear to be based on the terms of the contract

entered into by the Petitioners at the time of the appointment.

In Hartwell Prescott Singh Vs. The Uttar Pradesh Government and Others, , the Supreme Court stated:

In principle we cannot see any clear distinction between the termination of service of a person under the terms of a contract governing him and the

termination of services in accordance with the terms of his conditions of service.

The authorities cited above point to the conclusion that unless the order terminating the service of a temporary servant clearly shows that it was

based on grounds personal to him, such as his misconduct, inefficiency, insubordination or other disqualification, it cannot be said that the order

imposed a penalty on him. It is not ordinarily permissible to attribute to the order a basis different from what it really discloses. Nor will it avail to

conduct a research into the background or to probe astutely into hidden motives and urge that the service would not have been terminated but for

the authority having been dissatisfied with him on account of his misconduct or some other reason of like nature. What is important is to ascertain

the actual basis of the order passed; if it is based on the authority of a service rule, it must ordinarily be taken that the termination of service was in

exercise of the powers conferred by that service rule.

If, on the other hand, the order states that the temporary servant was guilty of misconduct or insubordination or was incompetent etc. and if his

service was terminated on the strength of any such ground, it would be a matter of punishment which would bring the case within the ambit of

Article 311(2).

Applying these principles to the instant case, it seems to be clear that the order terminating the service of the Petitioner was passed purely in

exercise of the right under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. No doubt, some time in July 1958 the Petitioner

was served with a charge sheet by the postal authorities and was asked to tender his explanation within a week of its receipt. The charge was

based on the allegation that the Petitioner who was working in the Savings Bank branch of the Post Office credited only a sum of Rs. 1200/ - in

the Pass Book of a depositor who had actually paid in Rs. 2200/ -. The depositor protested and did not agree to the attempt of the Petitioner to

put him off.

The Petitioner, thereupon, corrected the entry of Rs. 1200/ - to Rs. 2200/ - without reference to either the Dy. Post Master or the Post Master.

These circumstances led the department to attribute fraudulent conduct to the Petitioner. The Petitioner duly tendered his explanation in July 1958

and nothing was heard of the matter, since. But on 21-10-59, i.e., nearly 15 months after, the impugned order under Rule 5 of the Temporary

Service Rules, 1949, was served on the Petitioner. It was strenuously urged on behalf of the Petitioner that the reason for the impugned order was

the charge levelled against him by the department in July 1958. The Respondent has averred in his affidavit that the charge had absolutely no

connection with the impugned order and that the impugned order was issued purely in exercise of the right conferred by Rule 5 of the Temporary

Service Rules, 1949.

It is important to note that the impugned order does not make any reference whatever to the charge sheet of July 1958 or to the explanation

tendered by the Petitioner. No amount of scrutiny of the impugned order would give one even an inkling or the charge made against the Petitioner

in July 1958. I might even go further and say that there is nothing but sheer surmise to connect the charge sheet served on the Petitioner in July

1958 with the order in question served on him in October 1959. In the circumstances. I find it extremely difficult to construe the impugned order as

one passed by way of punishment of the Petitioner.

The Respondent had the right under Rule 5 to take the action complained of and it is not open to the Petitioner to compel the Respondent to resort

to a different action, namely, institute an inquiry against the Petitioner on the charges framed in 1958 and punish him after following the procedure

prescribed by Article 311(2). It was well within the rights of the Respondent to drop all disciplinary action against the Petitioner and to get rid of

him by resort to Rule 5 of the Temporary Service Rules. The choice in this matter lay entirely with the Respondent. In Shrinivas Ganesh Vs. Union

of India, it was held:

The law governing the relationship between an employee and an employer must apply equally to a case of an employee whose employer happens

to be the State or the Government, unless there is something in law or in the Constitution which has made a departure from that rule. Departure,

and a rather serious departure, has been made to the extent of Section 240(3), Government of India Act and Article 311 of the Constitution.

But when Government dispenses with the service of a temporary servant it is not for Government to justify that order by referring to any specific

rule, but it is for the discharged servant to point out that there is something in the Constitution or in any provision of the law which constitutes a

departure from the principles of common law. The reason is that in the absence of any written contract or rules governing the employment of a

temporary servant, the principles of common law will apply and under that law the Government is entitled to dispense with service of a temporary

servant.

In the instant case, Rule 5 is perfectly clear and it is not necessary for the Respondent to resort to the common law principle to justify the order

in question.

It is further argued on behalf of the Petitioner that the impugned order violates the canons of natural justice in that he was not given an

opportunity to show cause against the action taken against him. I am unable to see how the principles of natural justice can be invoked in this case.

There is no question here of any order being passed behind the back of the Petitioner; nor is there any question of an inquiry being held into the

conduct of the Petitioner. No charge has been levelled against him to which he has a right to reply. There is nothing for the Petitioner to defend

against.

All that has happened is the enforcement of a rule which governs the employment of the Petitioner The authority who passed the impugned order

was not acting as a domestic Tribunal who is bound to act judicially; in a case like this the rules of natural justice can have no application. The

Petitioner entered the service subject to Rule 5 and he cannot reasonably complain when Rule 5 happens to be invoked against him.

Learned Counsel for the Petitioner next pointed out that the Petitioner received the impugned order only on 2-11-59. Under the terms of the

order his service was to terminate with effect from the forenoon of 24-11-59. Rule 5 expressly provides for one month's notice. As the period of

the notice is less than a month, it is urged that the order itself falls to the ground. This contention is unfounded. Proviso to Rule 5 which runs as

follows gives a complete answer to the Petitioner's objection.

Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his

pay plus allowances, at the same rates at which he was drawing them immediately before the termination of his services, for the period of the

notices or, as the case may be, for the period by which such notice falls short of one month or any agreed longer period.

The learned Advocate General for the Respondent has conceded that the Petitioner will be entitled to pay and allowances for the period by which

the notice falls short of one month. This will be done when the Petitioner leaves the service. Even before 24-11-59 the Petitioner had obtained stay

of operation of the impugned order and has thus continued in service till now. In view of the express undertaking on behalf of the Respondent that

the Petitioner will be paid salary and allowance for the period by which the notice falls short of one month, the objection based on the length of the

notice becomes devoid of force.

Although a ground was taken in the petition that the Temporary Service Rules of 1949 are repugnant to Article 14 of the Constitution, it was

not pressed at the hearing. I may, however, state that this contention even if pressed, would not have prevailed, because it clearly lacks substance.

Lastly, I may notice another argument put forward by the Petitioner's learned Counsel. He attempted to show that it is not in consonance with

the provisions of the Constitution to terminate the services of a Government servant, although he may be temporarily appointed, when there is

nothing blameworthy shown against him. This argument put in other words, would amount to saying that every Government employee must hold

office during good behaviour. This certainly is not in accordance with the provisions of the Constitution. Article 310 makes it clear beyond doubt

that except as expressly provided by the Constitution, every servant of the Union of India holds office during the pleasure of the President. Article

311 has to be read as a proviso or an exception to Article 310.

It is only the Judges of the Supreme Court and of the High Courts, the Comptroller and Auditor General of India, etc., for whom special provisions

have been made in the Constitution that can be said to hold office during good behaviour. The tenure of office of others is at the pleasure of the

President subject of course, to Article 311 when it is applicable. Merely because Article 311 gives a certain measure of protection to Government

servants in the matter of punishments by way of dismissal, removal or reduction in rank, it cannot be said that in all other cases also they should

have the same benefit or that their services cannot be terminated unless some charge is proved against them.

In view of the foregoing the petition fails and is dismissed with costs of Rs. 50/ -.