Prem Biharilal vs State of Madhya Bharat

Dixit, J.—In this case counsel for the Petitioner moves under Article 226, Constitution of India for a writ or a direction for quashing an order passed by the Madhya Bharat Government terminating the applicant''s services from 12-6-1952.

By a letter dated 27-11-1948 the Director of Civil Supplies Madhya Bharat wrote to the Petitioner stating that he had been selected for appointment to a temporary post of an Inspector in the Civil Supplies Department; that he should report himself immediately for duty to the Regional Controller, Gwalior; that the post was temporary and that he would be posted anywhere in Madhya Bharat. The Petitioner accepted the appointment on the terms stated in the letter. He served as inspector until 12-9-1950, when he went on one week''s medical leave. On 18-9-1950 he was informed by the Collector of Gwalior that, under orders of the higher authorities he had been suspended till further orders. The Director of Civil Supplies also wrote to the applicant on 27-9-1950 that the Minister in charge of Food and Civil Supplies had sanctioned his suspension with effect from 12-9-1950 till the declaration of the result of an inquiry by the Anti-Corruption Department with regard to certain complaints against the applicant.

On 17-6-1952 he was informed by the Director Civil Supplies that the Government had terminated his services on 12-6-1952. The Petitioner contends that the order of the Government terminating his services is void and inoperative. The main grounds on which the order is sought to be quashed are: (1) that the Petitioner was never informed of any charges against him or the result of the inquiry by the Anti-Corruption Department; (2) that the order of his suspension amounted to a reduction in rank and the purported termination of his services after suspending him operated as removal from service; (3) and that as this was done without complying with the provisions of Article 311, Constitution of India, the Petitioner''s suspension and termination of service were both illegal.

In the return filed on behalf of the Government, the circumstances of the applicant''s appointment, suspension and termination of service are not denied. It is, however, stated that the Petitioner''s suspension was not as a measure of punishment but that he was suspended at the request of the Anti-Corruption Department who were investigating certain complaints against the applicant and to facilitate the investigation; that there was no question of apprising the applicant of the result of the investigation by Anti-Corruption Department as no disciplinary penal action was taken against the applicant that as he was neither reduced in rank nor missed or removed from service Article 311 had applicability to his case; and that the application (SIC) being a temporary employee, his services court (SIC) validly be terminated, when not required. It further stated in the return that during period of his suspension, the Petitioner was grant- ed a subsistence allowance admissible to himself under Rule 53, Madhya Bharat Fundament Rules.

I think in considering the matters which (SIC)arise in this petition, it is legitimate and indecent (SIC) necessary to reiterate what has been state the decision of - ''Lilawatibai Mutatkar v.'' State of Madhya Bharat'' AIR 1952 Madh B 105 (PC) (SIC)about the position, the rights and safeguard given by the Constitution to the members of (SIC)Civil Service of a State. In that case after ana (SIC) lysing the provisions of Article 310 and 311 of the Constitution, it was pointed out that person (SIC) employed in the service of the State are engased (SIC) on the express statutory condition that the (SIC) hold their employment at the pleasure of President or the Governor or the Rajpramukh, the case may be, and that they can be dismissed removed or reduced in rank at the pleasure these authorities subject to the limitation imposed by Article 311; that this Article does not any way alter or affect the principle embody in Article 310 that a Government servant hole (SIC) office during the pleasure of the Head of the State; that Article 311only imposes certain statutory obligations before dismissal or removal reduction in rank can be effected and that it the breach of these statutory obligations the affords a cause of action to a person adversely affected to complain that his employment has been wrongly terminated.

It was further observed in that case that the Madhya Bharat Civil Services (Punishment and Appeal) Rules, 1950 contain merely administretive rules for the guidance of the officers of the Government in the imposition of penalties and in the conduct of departmental inquiries against Government servants and that the dismissal, removal or reduction in rank of a civil servant violation of these rules would not by itself enter (SIC) title himself to come to the High Court but would leave him to appeal to the administration authorities and that if in the termination civil servants'' employment there is no contravention of Article 311, the High Court would have not (SIC) jurisdiction to quash the order terminating that service. If these basic principles are borne mind, it is easy to see that the real point here whether the Petitioner''s case is governed by Article 311.

Now, it must be remembered that the object of Article 311 is to afford a safeguard against arbitrary dismissal, removal or reduction in rank (SIC) Clauses (1) and (2) of Article 311 are as follows:

(1) No person who is a member of a change (SIC) service of the Union or an all-India service'''' a civil service of a State or holds a civil procedure (SIC) under the Union or a State shall be dismissed or removed by an authority subordinate to the by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until has been given a reasonable opportunity showing cause against the action proposed be taken hi regard to him:

Provided that this clause shall not apply:

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on criminal charge.

(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) where the President or Governor or Raj-pramukh, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.

It will be seen that these provisions give only a limited protection to the members of the civil service. The protection is firstly against dismissal or removal by an authority subordinate to the authority by which the civil servant was appointed and secondly it is against the penalty of dismissal or removed or reduction in rank be imposed without giving to the civil servant an opportunity of defending himself. These causes (SIC) do not secure to the members of the pub (SIC) is service any other rights or any measure of Protection against other forms of penalties that can be imposed under the relevant Civil Services Rules.

That the terms "removal", "dismissal" and reduction in rank" as used in Article 311 have a technical (SIC) meaning and must be understood in the same (SIC) sense in which they have been used in the relevant rules of the appropriate Civil Services Rules setting out the various penalties to which civil servant can be subjected to for indication (SIC) or misconduct, and that the ''reduction in rank or ''removal'' or ''dismissal'' contemplated by Article 311 must be based on misconduct or incipline is now made very clear by the recent decisions of the Supreme Court in - ''Satish Chandra (SIC) Anand v. Union of India'' AIR 1953 PC 250 (B). In that case the applicant who had in engaged on a temporary basis and had in thereafter discharged from service after notice, complained that the termination of service was in violation of Article 311. Resetting this contention their Lordships of the supreme Court said:

In our opinion, Article 311 has no application cause (SIC) this is neither a dismissal nor a removal om (SIC) service, nor is it a reduction in rank. It an ordinary case of a contract being terminated by notice under one of its clauses.

The services in India have long been afforded in statutory guarantees and safeguards against arbitrary dismissal or reduction in rank. (SIC) u/s 240, Government of India Act, the safeguards were limited to those two party. (SIC) Under the present Constitution, a third under (SIC) added, namely removal from service. In order (SIC) to understand the difference between dismissal" (SIC) and "removal" from service, it will be necessary to turn to the Rules which governed and with modifications still govern, the services" in India because of Article 313 of the constitution.

Article 12 of the Civil Services (Classification, control (SIC) and Appeal) Rules relating to Conduct Discipline includes Rule 49 which sets out various penalties to which a member of services can be subjected for indiscipline misconduct. They are seven in number include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service. The Constitution has added a third to the list. The distinction which is drawn between the two is explained in Rule 49. There is first "removal" from service "which does not disqualify from future employment" and there is next "dismissal from service" which ordinarily disqualifies from future employment."

Then follows an Explanation:

The discharge-

(c) of a person engaged under contract, in accordance with the terms of his contract, does not, amount to removal or dismissal within the meaning of this Rule.

These terms me used in the same sense in Article 311. It follows that the Article has no application here.

It follows from the above observations of the Supreme Court that the Petitioner would not be entitled to any redress under Article 226 of the Constitution even if he was suspended as a measure of punishment under the Madhya Bharat Civil Services (Punishment and Appeal) Rules 1950 or if his temporary services were terminated not as a disciplinary action but in accordance with the condition of service governing temporary employees. This position was not disputed by the learned Counsel for the applicant. He, however, first argued that the Petitioner''s suspension was tantamount to a ''reduction in rank'' because while under suspension the applicant could not discharge his duties and also could not draw his pay. Counsel for the applicant placed reliance on the case of - AIR 1949 118 (Nagpur)

I am unable to accede to this argument. The decision of the Supreme Court in ''Anand''s case (B)'', shows that for the purposes of Article 311 "reduction in rank" must be taken to have the same meaning which is attached to it when a person is ''reduced in rank'' as a penalty under the Civil Services Rules. Now Rule 6 of the Madhya Bharat Civil Services (Punishment and Appeal) Rules, 1950 specifies inter alia "suspension" and "reduction in rank" as distinct and separate penalties which may be imposed upon a Government servant. Under that rule "reduction in rank" has been defined to be "reduction from a higher to a lower service, grade or post or to a lower time scale pay." I have a difficulty, therefore, in seeing how when a civil servant is suspended, that is when he is debarred for sometime from exercising the duties of his office and receiving the emoluments, he is reduced from a higher to a lower service grade or post or to a lower time scale of pay. To hold that ''suspension'' is really ''reduction in rank'', would appear to me clearly to obliterate the distinction drawn by the Civil Services Rule between the penalties of ''suspension'' and ''reduction in rank''. No doubt a Government servant while under suspension cannot discharge the duties of his office and is not entitled to draw his salary. But this in no way affects his rank, grade, post or scale of pay to which he was entitled before he was suspended.

Under Rule 13, Madhya Bharat Fundamental Rules a permanent employee, when suspended, retains a lien on the post he was holding at the time of suspension; So also under Rule 53 of the Pension Manual time passed under suspension, pending inquiry into conduct is counted in reckoning service for purposes of pension, if the suspension is immediately followed by reinstatement. It is thus clear that suspension has in no way the effect of reducing a civil servant from a higher to a lower service, grade or post or to a lower time scale of pay. It may very well be that while under suspension a Government servant is not considered for promotion to a higher post or rank available then. But that does not mean that there has been a present reduction in the rank, grade or post the civil servant was holding or the pay he was drawing at the time of the suspension.

The decision of the Nagpur High Court cited by the learned Counsel for the applicant no doubt holds that when a civil servant is suspended he is reduced in rank within the meaning of Section 240, Government of India Act, 1935. With very great respect to the learned Judges of the Nagpur High Court, I am unable to subscribe to the view taken by them. The learned Judges say that two of the fundamental attributes of rank are the right to discharge its duties and the right to draw its pay and that if a person under suspension is unable to do these things, then he ceases to hold the rank he did, and is thus reduced in rank. It seems to me that the learned Judges assumed the abeyance of the right to exercise the duties of the office and receive salary during the period of suspension as something permanently detracting from the rank, grade or post a civil servant was holding or the pay he was getting at the time of his suspension. I see no reason to make such an assumption here in the face of the rules alluded to above.

The view that the suspension of a Government servant does not amount to a "reduction in rank" is supported by the decisions in - Kali Prosanna Roy Vs. State of West Bengal, ; Pulin Behari Chakraburty Vs. The Divisional Superintendent, Sealdah East Indian Rly. and Others, ; and - Dandapani Gouda Vs. The State of Orissa, . In all these cases the decision of the Nagpur High Court in AIR 1949 118 (Nagpur) has been dissented from and it has been held that there is a difference between "reduction in rank" and "suspension"; that suspension is a temporary deprivation of one''s office or position; that

by reason of suspension the person suspended does not lose his office nor does he suffer any gradation. He ceases to exercise the powers and to discharge the duties of the office for the time being. His rank remains the same and his pay does not suffer any reduction. He cannot draw his salary during the period of suspension. His powers, functions and privileges remain in abeyance but he continues to be subject to the same discipline and penalties and to the same authorities

and that reduction in rank in Article 311 has reference to a permanent reduction or degradation of status. In my opinion the contention of the Petitioner that his ''suspension'' amounted to a ''reduction in rank'' and that, therefore, under Article 311 he should have been given an opportunity to show cause against his suspension must be rejected.

It was next submitted by counsel for the Petitioner that as the applicant''s services were terminated without notice and while he was under suspension, the termination amounted to his ''removal from service''; that, therefore, Article 311 applied to his case; and the order terminating his services being in contravention of Article 311 was illegal and inoperative. This contention, is, in my equally untenable. The Petitioner''s employment was admittedly temporary. Under Rule 6 opinion (b) of the Pension Manual his services were liable to termination at any time for any reason stated or unstated on giving himself (SIC)one month''s notice or in lieu of it by paying himself (SIC) one month''s pay. The fact that he was suspended at the request of the Anti-Corruption Department and that pending investigation into certain complaints against him, he was under suspension when his services were terminated, does not make the order passed by the Government in the valid exercise of its rights to discharge the Petitioner, an order of his removal from service Were I to accede to the argument that the termination of the applicant''s services amounts to his (SIC) removal from service, I should be holding, effect, that a temporary employee can be discharged from service only on grounds of mistake (SIC) conduct or indiscipline and this would mean overriding the express condition on which a person is employed temporarily. Once it is reorganization that Government has a right to terminate the services of a temporary employee on giving himself (SIC) one month''s notice or in lieu of notice by passing one month''s salary, then the grounds which brought about the termination are altogether irrelevant. The termination of the services of temporary employee without giving him one (SIC) month''s notice would not even make it a moval from service, when the Government servant''s claim to one month''s salary in lieu notice is admitted. For, if in lieu of notice the Government servant is paid one month''s pay, cannot be said that any penalty has been inflicted on him.

Here I think it will be pertinent to refer. Explanation (1)(b) to Rule 6, Madhya Bharat Civil Services (Punishment and Appeal) Rules, 1950. says that the discharge of a person appointment otherwise than under contract to hold a temporary appointment on the expiration of the period (SIC) of appointment or on giving him a month notice in lieu thereof does not amount to (SIC) moval or dismissal within the meaning of Rule (SIC). The Petitioner being a temporary employee when could be discharged on one month''s notice, the Madhya Bharat Civil Services Rules, 1950 are more (SIC) applicable to him as is clear from Rule 3. Even he had been governed by these Rules, I do not think he could have derived any nted to his moval from service.''

Clause (b) of Explanation 1 to Rule 6 (SIC) doubt says that the discharge of a person porarily employed on giving him a month''s notice does not amount to "removal". But from this does not follow that the termination of the vices of a temporary employee without notice ''removal from service''. Such a reading of Explanation would nullify Rule 6(b) of the Penal Manual which is to the effect that the servant of a temporary Government servant shall liable to be terminated at any time by month''s notice or with one month''s pay in of notice. I think when Explanation 1(b) that the discharge of a person temporarily employed on giving him a month''s notice does amount to removal or dismissal, it is implied the discharge would have the same effect if (SIC) lieu of notice the Government servant is one month''s pay. I am of the view that was (SIC) a temporary Government servant is discharge (SIC) without giving him one month''s notice but with one (SIC) month''s pay in lieu of it, the termination of his services cannot be regarded as removal within the meaning of Article 311.

In this context I may refer to two decisions of the Punjab High Court which lend support to the view I have taken. In - Krishan Gopal Dhawan Vs. The State of Punjab, it was held that where a person is employed on a temporary basis, it is open to the State to terminate his services on giving him one month''s notice and the reason which motivates the action of termination of his services is not relevant.

In the case of - ''Des Raj v. Des Raj Vs. Dominion of India, , it was held by the Punjab High Court that where a person is employed by Government on the express condition that his services are terminable by one month''s notice, his discharge with one month''s pay in lieu of notice cannot be regarded as dismissal within the meaning of Sub-section (3) of Section 240, Government of India Act, 1935. The principle down in this decision would apply equally to the case of a temporary Government servant discharged after the coming into force of the Constitution with one month''s pay in lieu of one months notice and the termination of the services of such a person cannot be regarded as removal within the meaning of Article 311.

I must, however, notice a decision of the Saurashtra High Court in -''Bhojraj v. The Chief Secretary, Saurashtra'' AIR 1952 Sau 40 (I). In that case a person who had been appointed to a temporary post and whose services were terminable on one month''s notice on either side, was first suspended on cerium charges and asked to give his reply to the charges. He submitted his defence and later on while he was under suspension, his services were terminated without giving him a month''s notice. The question arose whether the termination of his employment was in accordance with the terms of his employment or was in the nature of a penalty under Rule 33, Bombay Civil Services Conduct, Discipline and Appeal Rules.

The learned Judges of the Saurashtra High Court held that the termination of the Government servant''s employment was a punishment and amounted to his removal from service with in the meaning of Article 311, Constitution of India. This decision does not fall into line with that I myself have said earlier in this judgment. The decision is no doubt distinguishable from the (SIC) present case on facts. But if the learned judges of Saurashtra High Court meant to go so as to say that the termination of the services a temporary employed servant who could be discharged (SIC) at any time on giving him one month''s notice, would always amount to removal in (SIC) Article 311 if no notice was given, then I it (SIC)respectfully say that the view is not (SIC). In the Saurashtra case, the question of effect of payment of one month''s salary in the (SIC) notice was not considered.

It was (SIC) recognised in that case that even after concision (SIC) and after serving a charge sheet on temporary Government servant, his services he terminated while he was under suspends. It was, however, said that one month''s it was necessary otherwise the termination of employment would amount to a penalty un (SIC) the Bombay Civil Services Rules. I am un-(SIC)to see how if the grounds leading to termination of employment are not relevant, as the learned Judges of the Saurashtra High Court themselves thought that they were not relevant, the mere omission to give notice can make the termination of the employment a penalty.

In the present case it is not the Petitioner''s allegation that the Government has flatly refused to pay him his salary for the period of suspension and one month''s pay in lieu of notice. On the other hand the learned Advocate General stated before us that the Government had offered to the Petitioner one month''s pay in lieu of notice. There is nothing before us to indicate that the Government itself treated the applicant''s termination of services as his ''removal'' from service. No doubt the Government should have placed this matter beyond controversy by reinstating the Petitioner before passing the order terminating his services. But the fact that no formal order of reinstatement was passed does not mean that the Petitioner is still under suspension or that the order terminating his services was an order removing him from service within the meaning of Article 311. The Petitioner must be deemed to have been reinstated before passing of the order terminating his services. On this view it is plain that the applicant would be entitled to the full pay and allowance which he would have got if he had not been suspended, as also to one month''s salary in lieu of notice.

For these reasons, I am of the opinion that there is no ground for the issue of a writ or a direction to quash the order passed by the Government terminating the applicant''s services and this application must fail. There will be no order as to costs.

Chaturvedi, J.

During the arguments of this case as well as of other similar cases recently that came in its wake, I had heard some comments on the ''Mutatkar case (A)'' and as I was not a party to that decision I think the comments on that decision were meant to get my views on the decision. I can only observe that I fully endorse the views expressed by the Division Bench in AIR 1952 Mad 105 (A). Article 310 of the Constitution clearly states that every person who is a memberof the Civil Service of a State or holds any civil post under a State holds office during the pleasure of the Governor or, the Rajpramukh of the State. Section 240, Government of India Act, 1935, to which Article 310 corresponds, also provided that every person who held any civil post held it "during His Majesty''s pleasure". This provision had been borrowed from the English rule that all service under the Crown is held at the pleasure of the Crown. Thus those in England who hold their appointment at the Royal pleasure are subject to dismissal at any time without any cause, and no petition of right ever can be brought by them to recover pay, pension, or other sums for services or for damages.

It follows that statutory provisions apart, and leaving out offices during good behaviour, the legal position of the Government servants shows no advance beyond that of the officials of Imperial Rome or of the old Merovingian monarchs of France. It is only due to the growth of strong conventions, and good Civil Service traditions that offices in England, though legally held at Crown''s pleasure, are in practice treated as life-offices not terminable except for good cause. Power to dismiss is rarely exercised in practice; and is retained in law only for the control of the Civil Service. In pre-Hitler German Law, and with some qualification in French Law, a civil servant had a legally enforceable contract upon which in respect of pay, pension, and expenses lawfully incurred in the execution of his duties he could sue the State (Reichs Fiskus) in the ordinary Courts in the ordinary way.

In French Law the position is somewhat less favourable as his rights can only be enforced in the Courts, known as Administrative Courts; but they are nonetheless legally enforceable rights. In fact, Droit Administratif of France is a definite system of law, the rules and principles of which differ essentially from the rules and principles of the ordinary law governing suits of private citizens inter se. Nevertheless it is a system of administrative law, administered by a tribunal which applies judicial methods of procedure. It is in many respects better than the English rule which completely puts the civil servants at the sweet will of the executive and is a survival of mediaeval times when the King not only did justice in person but did indeed choose his own servants and dismissed them at his sweet will. There was nothing surprising when the British, during their days, chose the Government of India Act provisions to be modelled on the English Rule.

Section 240, Government of India Act of 1935 was in substance a reproduction of the provisions of Section 96, Government of India Act, 1919, and the opening words of the latter section "subject to the provisions of this Act and the rules made thereunder", gave rise to the argument in - AIR 1937 31 (Privy Council) that the statute gave servants of the Crown a right enforceable by action to hold office in accordance with the rules and that they could only be dismissed or removed as provided by the rules and in accordance with the procedure prescribed thereby. The Privy Council repelled this contention and held that the rules did not limit in any way the legal right of the Crown to dismiss at pleasure. The rules only gave to the Civil servants a solemn assurance that the right to dismiss would not be exercised in a capricious or arbitrary manner, but it was made clear that they did not confer any legal right. In Section 240, Government of India Act, 1935 these opening words were omitted making it clear that the tenure was an unqualified one at pleasure.

To the utter dismay of a Civil Servant, the Constitution of the Republic of India, did not improve his position in any way. Article 310 now corresponds to Sub-sections (1) and (2) of Section 240 and Article 311 reproduces Sub-sections (2) and (3) of Section 240 of the 1935 Act. The only safeguard worth mentioning is that embodied in Article 311 laying down that a civil servant, before dismissal, removal, or reduction in rank will be "given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him". The importance of these words was sufficiently stressed by the Privy Council in - AIR 1948 121 (Privy Council) but Proviso (b) of Section 240 of the 1935 Act which is retained in Article 311 of the Constitution1 and the addition of a new Proviso (c) to Clause (2) of Article 311, in effect, considerably minimises the importance attached to the words by tile Privy Council.

Proviso (b) states that if an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded in writing, it is not reasonably practicable to give to that person an opportunity of showing cause, then, Clause (2) will not apply. Proviso (c) also clearly lays down that if the President or Governor or Rajpramukh, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity then Clause (2) of Article 311 (SIC) will not apply.

So the position of a person who holds a civil (SIC) post in the Union or in a State today cannot be said to be an enviable one. The provisos can be justified by the exigencies of the situation at the time of the birth of the new Republic and during the early stages of the period of transition. As (SIC)soon as the position is consolidated the provision will not be found necessary and then one can (SIC) earnestly hope that, in the interest of the country and its Government servants, some better system based on the French or German model (SIC) rather than on the archaic English model, will be evolved in order to afford a sense of security and stability to the Government servants.

As regards the second contention it will be (SIC) sufficient to say that where the contract of vice under which a person was employed by to Government provided for the termination of the service by one month''s notice by either party, discharge with one month''s pay in lieu of not cannot be regarded as "dismissal" within meaning of Sub-clause (2) of Article 311 of the Clauses (SIC) stitution. I therefore cannot agree with the Sarashtra view expressed in AIR 1952 Sau 40 (I) this point. The view of the Punjab High Court expressed in Des Raj Vs. Dominion of India, and AIR 1 P&H 366 (G) is sound and finds support, thought indirectly, from the observations of the Supreme Court in AIR 1953 SC 250 (B).

As regards the third contention, I agreed with my learned brother that the suspension a Government servant cannot amount to a reduction (SIC) in rank" and the Nagpur view expressed in AIR 1949 118 (Nagpur) is not the correct one.

It follows that I agree in the result that this application must be dismissed without any (SIC) order as to costs but I should make it clear that I agree in the result only in the hope that the Government will pay the salary of the petition for the whole period during which he remain under suspension, and, in addition to it, a salary (SIC) of one month in lieu of notice.