Saxena Capt. R.S. vs State of Gujarat and Another

Miabhoy, J.—This writ petition is filed by Capt. R. S. Saxena against the State of Gujarat, which is respondent 1, and Sri G. L. Sheth.

Secretary to the Government of Gujarat, Public Works Department, who is respondent 2. The petition is under Arts. 226 and 227 of the

Constitution of India read with Art. 311, Clause (2), of the same. By this petition, petitioner impugns an order, dated 24 November 1961, which

terminated his service with immediate effect, after granting him an amount equal to one month''s pay and allowances, from the date of his relief up

to 31 December 1961 in lieu of notice.

The facts leading up to the petition are as follows :

Petitioner was selected by the Public Service Commission, Gujarat, as a candidate for appointment as one of the two Port Officers, Class I, in the

grade of Rs. 800-40-1,200 plus special pay of Rs. 150 plus usual allowances. On 24 July 1961, petitioner was appointed in the Ports

Organization against a permanent and pensionable post as Port Officer, Class I, on probation for two years in the aforesaid scale of pay and

allowances. Petitioner was, however, given two advance increments and his initial pay was fixed at Rs. 880 per month. The terms of appointment

of petitioner were stated in the Resolution No. APP 5961-E, dated 24 July 1961. By the same resolution, one Capt. E. Gopalan was also

appointed in the same service. Clause 5 of the aforesaid resolution, which was applicable to both the aforesaid servants, reads as follows :

The service of the candidates is terminable by giving usual notice in case of unsatisfactory work during part or whole of the probation period. The

question of confirmation of the two officers as Port Officers will be decided in the light of the report submitted by the Director of Ports on their

work. In case of unfavourable reports, Government will issue such orders as may be deemed necessary on the merits of each case.

Petitioner took charge of the above post on 26 July 1961. On 22 November 1961, petitioner received a telegram from respondent 2 that he

was required to see him at Ahmedabad on 24 November 1961. Thereupon petitioner arrived at Ahmedabad on 24 November 1961 bringing with

him certain files. Petitioner, on that day, was directed to see respondent 2 at his residence. Petitioner and respondent 2 met on that day.

Respondent 2 asked petitioner if he was prepared to resign his post. Petitioner asked the reasons as to why he was expected to resign.

Respondent 2 refused to give him any reasons. Respondent 2 also further told petitioner that the Government had already decided to terminate the

services of petitioner and that, if he did not resign his post, the Government would give effect to its aforesaid decision. Petitioner, thereupon, asked

for time to consider his position. Respondent 2 gave him two hours'' time. Petitioner, then, rang up respondent 2 and asked for extension of time

on the ground that the time was too short for him to take a decision which involved his future career. The time was refused. Petitioner intended to

see the Minister in charge of the portfolio relating to Port Organization but he was unable to see him on 24 November 1961 as the Minister was

out of Ahmedabad. Petitioner saw the Minister on 25 November 1961 and showed him the files which he had brought with him specially in regard

to the complaints which he had made against one Virkar who was then his subordinate and who formerly held charge of the Port Officer. The

Minister, thereupon, asked petitioner as to why he had not shown that file to respondent 2. Petitioner told the Minister that he was not given any

opportunity to show the files to respondent 2 and that, instead. he had been straightway asked to resign. The Minister, thereupon, asked petitioner

to go back to Bhavnagar; but said that he would speak to respondent 2 and that petitioner should await further instructions in the matter. Petitioner

reached Bhavnagar on 26 November 1961. On reaching there, he read a report in the local newspapers that his services had been terminated.

Thereupon, petitioner came back to Ahmedabad on 27 November 1961. Respondent 2 was on leave on that day. Therefore, petitioner called

upon one Sri Bhatt, who was in charge of the office of the Secretaryship, Public Works Department. The latter told petitioner that respondent 2

had already passed an order terminating petitioner''s services giving him one month''s pay in lieu of notice and directing him to hand over charge to

Virkar. Petitioner handed over charge to Virkar and, thereafter, presented the present petition in this Court. In this petition, petitioner prays for the

issuance of a writ of or in the nature of certiorari or mandamus or any other appropriate writ, direction or order for quashing or setting aside the

order of respondent 2, dated 24 November 1961, purporting to terminate his services as a Port Officer and prays for a declaration that petitioner

continues to hold the post of Port Officer at Bhavnagar.

Shortly, the case of the respondents is that petitioner was holding his post on probation and that he has neither been dismissed nor removed

within the meaning of Art. 311(2) of the Constitution. According to them, the services of petitioner were terminated under the contract of

employment as the Government, after review of the work done by the petitioner till then, took the decision that the services of petitioner were not

necessary to be continued. Therefore, according to the respondents, this is a case of termination of service, pure and simple, and it is not a case of

either dismissal or removal of petitioner.

Sri Nanavati on behalf of the petitioner made the following submissions in this Court :

(1) That the impugned order, dated 24 November 1961, amounted to removal of petitioner within the meaning of Art. 311, Clause (2), of the

Constitution and, therefore, that order was bad inasmuch as, admittedly, no reasonable opportunity had been given to the petitioner prior to the

making of that order as required by that clause.

(2) That the case of the petitioner was governed by rule 49, Expln. 2, of the Civil Services (Classification, Control and Appeal) Rules, 1930,

reproduced in appendix I at p. 13 of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules; that the discharge of the petitioner by the

impugned order was removal or dismissal of the petitioner within the meaning of Expln. 2 of rule 49; that rule had a statutory force and even if the

termination of the services of petitioner did not amount to removal or dismissal within the meaning of Art. 311, Clause (2), the termination of his

services would be removal in breach of the Expln. 2 aforesaid and, therefore, petitioner was entitled to proper relief under the extraordinary

jurisdiction of the High Court for breach of Expln. 2, rule 49.

(3) That the action of the respondents in dismissing petitioner was mala fide and was actuated by considerations which amounted to malice in law.

Besides the aforesaid three submissions, at the fag-end of his arguments, Sri Nanavati formulated one more submission and that was :

(4) That the termination of the services of petitioner was in breach of rule 558 of the Civil Services (Classification, Control and Appeal) Rules,

1933, and that as that rule also has a statutory force, the termination of the services of petitioner was in breach also of that statutory rule.

However, after developing the argument up to a certain stage, when the crucial question arose as to whether rule 558 which was introduced by

the Central Government for the first time in 1949 did or did not govern the conditions of service of petitioner, Sri Nanavati specifically gave up that

particular submission and stated that he did not want to press it any further.

Therefore, the aforesaid three submissions only of Sri Nanavati require consideration in the present petition.

Now, on the first submission, it is first of all necessary to ascertain the position which petitioner occupied in the service of the Government, the

nature of his employment and the rights which he possessed as a Government servant. Rule 14 of the Civil Services (Classification, Control and

Appeal) Rules, 1930 (hereafter described as ""rules of 1930""), divides public services into six classes. The fourth class is described as the

provincial service. There is no dispute that, by his appointment as a Port Officer, Class I, petitioner became a member of this class of provincial

service. There is also no dispute that petitioner was appointed to the post of a Port Officer on probation for two years. The appointment was

against a clear permanent and pensionable post. However, in spite of this fact, it is not disputed by Sri Nanavati that petitioner not being confirmed

in that post and having been appointed only on probation, had acquired no right to hold that permanent and pensionable post. In the case of

Parshotam Lal Dhingra Vs. Union of India (UOI), , S. R. Das, C.J., made the following observations at p. 551 in connexion with a probationer

appointed to a permanent post :

It is, therefore, quite clear that appointment to a permanent post in a Government service ... on probation is, from the nature of such employment,

itself of a temporary character and in the absence of any special contract or specific rule regulating the conditions of service, the implied term of

such appointment under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a

permanent post in Government service on probation ... the servant so appointed does not acquire any substantive right to the post and

consequently cannot complain, any more than a private servant employed on probation ... can do, if his service is terminated at any time.

From Clause 5 of the terms of appointment which we have reproduced above, it is also quite clear that the Government had, in the order of

appointment, reserved to itself the right to terminate the services of the petitioner by giving usual notice in case of unsatisfactory work during part or

whole of the probationary period. Therefore, the nature of the employment of petitioner was such that, ordinarily, the Government had a right to

terminate the services of petitioner, in case the Government was of the opinion that the work of petitioner was unsatisfactory.

In Dhingra case, a distinction is made between the termination of service of a Government servant on the one hand and his dismissal or removal

on the other. It is held that, if the services of a Government servant are terminated under the contract of employment, then, it dose not come within

the mischief of Clause (2) of Art. 311. But, at the same time, it is also held definitely that a Government servant even on probation is entitled to the

constitutional guarantee enshrined in that clause and, if the Government servant''s services are not terminated under the contract of employment,

but, in fact, the Government servant is dismissed or removed, then, the Government servant, though on probation, will be entitled to the protection

of Clause (2) of Art. 311 of the Constitution. This legal position is not disputed by either side.

The rival contentions urged on the two sides were as follows.

Sri Nanavati contended that, although the order of the Government in terms stated that the services of petitioner were being terminated, in

effect, the order was one of removal or dismissal inasmuch as, according to Sri Nanavati, petitioner''s services were not terminated under the

contract of employment but were terminated on the ground of misconduct, inefficiency and similar other reasons. On the other hand, Sri Sompura,

learned Assistant Government Pleader, contended that the petitioner''s services were terminated under the contract of employment, pure and

simple, and that not only the Government neither intended to punish the petitioner for any misconduct or inefficiency, but that the Government had

actually passed the order and framed it in the above language ""with a view to save petitioner from the stigma of incompetency."" Respondent 2 in his

affidavit admitted that, on a consideration of the work of petitioner, the Government had reason to believe that petitioner was immature in his

dealing with his staff; that he lacked confidence in his professional job; that he adopted a very unwise course of coming in conflict by his rude

behaviour with the competent pilot Sri Virkar at the Port of Bhavnagar, and that petitioner was shirking his main duty as a Port Officer, namely,

piloting of ships touching the Port of Bhavnagar. Respondent 2 also in his affidavit stated that the Government had received information from

shipping companies, masters of ships calling at Bhavnagar and other persons dealing with the port administration at Bhavnagar about the

unsuitability of petitioner for the post and that it was as a result of such information that it was decided by the Government to terminate the services

of petitioner. Respondent 2 winds up his affidavit as regards the alleged stigma of incompetency by making the following averment :

As regards the effect of the impugned order on the petitioner''s future, I say that if a man is found unsuitable or incompetent, it is an unfortunate but

inevitable consequence that his future prospects should be prejudicially affected. Such a result cannot, however ... vitiate the validity of an order

terminating the service.

The contention of the learned Assistant Government Pleader was that the picture depicted by respondent 2 in his affidavit about the conduct of

petitioner constituted the background in which the order of termination of services came to be passed that it was not the basis for termination of

petitioner''s services. On the other hand, the contention of Sri Nanavati was that the averments made by respondent 2 in his affidavit showed that

the action of the Government was not founded on the contract of employment but that the action was founded on the alleged misconduct,

inefficiency and other similar consideration.

Now, on this subject, the principle of law is summarized in Parshotam Lal Dhingra Vs. Union of India (UOI), as follows at p. 562 of the report

:-

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 Art. 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 of 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 requirement of Art. 311 must be complied with.

Therefore, having regard to the rival contentions, the task which has got to be performed in the present petition is to ascertain the mind of

respondent 2 when he passed the impugned order. Did respondent 2 act under the contract of employment and terminate petitioner''s services in

the exercise of the contractual right of the Government on the ground that petitioner was found to be unsuitable in his work or did he choose to

proceed against petitioner with the intention of punishing him ? In other words, whether the order of termination of service was actually founded on

the alleged misconduct, inefficiency, etc., of the petitioner or was it founded on the contract of employment ?

Now, on the above subject, the main question which is debated is whether, the ascertaining whether the Government chose to act under the

contract of employment or whether it acted under its power of punishment, the Court is confined to the contents of the order of dismissal or

removal or whether it can look de hors the contents of the order. The submission of Sri Nanavati is that the power of this Court is not confined to a

mere reading of the contents of the impugned order. His submission is that if this were so, then, in all cases, where the Government intends to

proceed even by way of punishment, it may garb its orders in such a manner as to give them the appearance of termination of services and thus

render the constitutional guarantee illusory and ineffective. His submission is that, therefore, the enquiry should not be confined to merely an

interpretation of the order of termination of service, but that the totality of all the circumstances including those preceding the act of termination of

service must be considered with a view to discern the mind of the Government. In this connexion, a number of cases were cited. On the strength of

these very cases, Sri Nanavati also contends that where no enquiry is made prior to the termination of service, even of a probationer, the absence

of the inquiry itself will be evidence of the fact that the order was made by way of punishment.

In The State of Bihar Vs. Gopi Kishore Prasad, , the Government servant was a probationer. His services were terminated after holding an

enquiry in relation to certain charges which were levelled against him. In deciding this case, their lordships of the Supreme Court summarized the

principles enunciated in Dhingra case in the form of five propositions in relation to the termination of service or discharge of a probationary public

servant. The third proposition is enunciated therein as follows :

But, if instead of terminating such a person''s service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or

inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus

affects his future career, in such a case, he is entitled to protection of Art. 311(2) of the Constitution.

Sri Nanavati''s contention is that, if such is the result when an enquiry is actually held, then, the case is still worse, when, in fact, no enquiry is

held at all. In our judgment, the contention is not sound and it is based upon an isolated and disjointed reading of a passage wrenched from its

context. The fifth proposition is summarized as follows in that case :

But if the employer simply terminates the services of a probationer without holding an enquiry without giving him a reasonable chance of showing

cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal

from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct,

or inefficiency, or some such cause.

If the contention of Sri Nanavati were right, then the aforesaid fifth proposition would not have been enunciated. The third proposition on

which Sri Nanavati relies embraced the facts of that case. In our judgment, the converse of that third proposition, viz., that, when no enquiry is

made, it automatically follows that the Government intends to punish Government servant, is not borne out by the fifth proposition which clearly

brings out that, even when no enquiry is made, the Government servant cannot be said to be punished if the Government is acting under the

contract of employment. The case of The State of Bihar Vs. Gopi Kishore Prasad, decided that the enquiry which preceded the order of

termination of service disclosed the mind of the Government that it sought not a mere termination of service under the contract of employment, but

that it intended to punish the probationer for his previous misconduct and stigmatized him for his incompetence.

The next case cited is The State of Orissa and Another Vs. Ram Narayan Das, . In that case, the order of termination of service was preceded

by an enquiry into the conduct of the Government servant concerned. The charges which were levelled against the Government servant were of a

very serious nature. The charges included two specific instances of misconduct-acceptance of illegal gratification and fabrication of official record.

As a result of the enquiry, the Government was satisfied that the charges had been proved. The order of termination was passed on the basis of the

result of the enquiry. The order stated that the Government servant was discharged from service ""for unsatisfactory work and unsatisfactory

conduct."" Although the order of discharge was preceded by an enquiry; their lordships held that it was not a case of punishment of the Government

servant but that it was the case of termination of service under the contract of employment. The enquiry in that case having been undertaken by the

Government with a view to comply with the provisions of rule 558 of the rules of 1930 which was introduced sometime in 1949, which requires

the Government even whilst terminating the service of a probationer under the contract of employment to give an opportunity to the person to show

cause against such a discharge and not with a view to punish the Government servant. Their lordships held that, as the aforesaid enquiry was

undertaken with a view to comply with the provisions of rule 558, it cannot be said that the enquiry was made with the intention to punish the

Government servant as was the case in The State of Bihar Vs. Gopi Kishore Prasad, . At The State of Orissa and Another Vs. Ram Narayan Das,

their lordships made the following observations :

Whether it amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the

final order passed on such enquiry.

At p. 557, their lordships stated as follows :

What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Parshotam Lal Dhingra case.

Then Sri Nanavati cited the case of Madan Gopal v. State of Punjab and others 1964 I L.L.J. 687. This was a case of a temporary employee.

That person was served with a chargesheet that he had received illegal gratification from one person and had demanded illegal gratification from

another. The servant was given an opportunity to make his defence. The Settlement Officer reported that one of the charges was proved and that

the servant did not enjoy good reputation and was a person of doubtful integrity. Their lordships held that the enquiry made by the Settlement

Officer was made with the object of ascertaining whether the disciplinary action against the servant should be taken for his alleged misbehaviour

and that the enquiry was clearly for the purpose of taking punitive action including dismissal or removal from service, if the servant was found to

have committed misdemeanour charged against him. On this ground, it was held that the order passed by the Government on the aforesaid report

of the Settlement Officer was bad inasmuch as the Government had taken proceedings with the object of punishing the Government servant

concerned without complying with the provisions of Art. 311(2) of the Constitution.

Sri Nanavati also relied upon the case of Sukhbans Singh Vs. State of Punjab, In this case, the Government servant was holding a permanent

post but was promoted on probation to the post of Extra Assistant Commissioner. During the period of his probation, he was reverted to his post

of tehsildar. Several months after his reversion, the Government gave a warning to the Government servant that, during the period of his probation,

he was not free from communalism or intrigue; that he was in the habit of indulging in loose talk unnecessarily which created difficulties for him.

Apparently, at the time of the reversion, no reasons were given for his reversion. Their lordships held that the order of reversion was, in fact, a

mala fide order and was made by way of punishing the Government servant for alleged misconduct, and that, inasmuch as the Government had not

complied with the provisions of Art. 311(2), the order was bad. In arriving at this conclusion, their lordships took into consideration a series of

facts such as the sequence of events which had led to a departmental enquiry against him, his exoneration therein, his transfer to Jullunder, and the

unsuccessful attempt of one of his superior officers to have that transfer cancelled, followed, by his being asked to stop collecting funds for a

Government college. Their lordships also took into consideration the fact that the Government servant had received a number of certificates of

good work from a number of his superior officers including the officer who had objected to his transfer to Jullunder.

The learned Assistant Government Pleader drew our attention to The State of Bombay Vs. F.A. Abraham, . In this case also the Government

servant was reverted without any enquiry having been made and without any reasons having been given to him. The contention was that the order

must be said to have been passed by way of punishment because no reasons were given for the reversion. This contention was rejected and their

lordships held, on the facts of the case, that the order was one of pure termination of service and was not by way of punishment.

A study of the aforesaid cases does reveal that in arriving at the conclusion whether a particular order is or is not by way of punishment, the

Court is not confined only to the contents of the order. In order to discover as to what the mind of the Government was at the time when the order

of discharge was passed, the Court must consider the totality of the circumstances relevant on the subject which would disclose as to what the true

position was. In some cases, the order of punishment may be found to be garbed as an order of termination of service. The order may be couched

in such a manner as to give it the appearance of an order of termination of service, whereas, in fact, the order may have been made with a view to

punish the Government servant concerned. The constitutional guarantee in Art. 311, Clause (2), is a vital guarantee and is intended to afford

protection to the class of Government servants from the arbitrary and capricious action of the Government. In order to ensure that the

constitutional guarantee does not become illusive and that it serves the noble purpose for which it is enshrined in the Constitution, it is essential that

all the aspects of each case must be carefully considered to ascertain that the Government in fact, was acting in the exercise of its contractual right

and not for the purpose of punishing the Government servant concerned for misconduct, inefficiency or similar other reasons. Therefore, in our

judgment, we must look into the totality of all the circumstances for the purpose of ascertaining whether, in the present case, the services of

petitioner were terminated in the exercise of the right of contractual employment or whether respondent 2 intended to punish the petitioner so as to

visit him with evil consequences, of course, in considering this question, we must keep in mind the fact that the motive which impels the

Government is of no consequence and that the background in which the Government acts and passes the order of the termination of service is of

no consequence too. The true test in each case is to find out what the basis of the order of the Government is. In almost all cases relating to

probationers, the Government must necessarily make an enquiry to ascertain whether the person is fit to be confirmed or not; and in making up its

mind, the Government, in quite a number of cases, may have to investigate into the conduct or efficiency of its servant. The mere fact that the

Government enters upon an enquiry of this kind with a view to decide whether the servant is or is not fit enough to be confirmed does not

necessarily mean that the proceedings are started with the intention to punish. If the Government is acting in the same manner as any other

employer in similar circumstances will act, i.e., if the Government is out only to protect its own interest by eliminating the unfit elements that may

have entered its service and is only exercising its right as an employer to terminate the services of such unfit persons, it is acting qua its servants

within the ambit of its contractual right and is not exercising its power of punishment. In other words, if the Government does not intend to visit its

servant with evil consequences by blasting his future prospects but is acting only to secure for itself an efficient and disciplined service, then, the

Government is terminating the service simpliciter and the fact that thereby the servant loses hie service is a result of the working out of the contract

of employment. However, if the Government steps out of these bounds and takes steps which prevents the servant from coming into any

Government service for ever or which stigmatizes his future career, then, in spite of the fact that the order is couched in the form of termination of

service, it will be struck down as one which violates Clause (2) of Art. 311 of the Constitution.

Turning now to the facts of the case, we find that petitioner was, before his appointment, a Master Mariner and held from the Ministry of

Transport a certificate of competency as radar observer. He also held a certificate of competency as Efficient Life Boatman from the Ministry of

Transport. United Kingdom. He had twelve years'' experience in the operation of ships and allied matters. One Virkar served as a pilot at

Bhavnagar since eight years and was holding charge of the Port Officer since four years before petitioner took over. Virkar was drawing Rs. 160

per month by way of charge allowance in addition to his own pay. This Virkar was also one of the candidates for the post to which the petitioner

and another were ultimately appointed. This Virkar was recommended by the Director of Ports to the Bombay Public Service Commission for

being appointed as a Port officer. However, the Gujarat Public Service Commission selected petitioner and another in preference to Virkar. There

is no doubt whatsoever that, after petitioner took over, petitioner made several complaints against Virkar to his superior officer, the Director of

Ports. Petitioner did not receive any reply in respect of his complaints and no enquiry was made into those complaints. During the time petitioner

was in service, nothing was communicated to him by the Government which would give him even an inkling that any complaints were received

against him. The interview given by respondent 2 smacks of discourtesy to petitioner. Having regard to his qualifications, the decision of

respondent 2 not to give petitioner any opportunity to make his submission regarding the complaints against him, which undoubtedly respondent 2

must have received was, to say the least, an unfortunate decision. Having regard to the fact that Virkar had already worked as a Port Officer for

four years, there is reason to believe that Virkar must have established a number of contacts with the local people. Having regard to the fact that

petitioner himself had made some complaints against Virkar, respondent 2 would have done well if he had formally investigated into the complaints

received against petitioner even though such complaints may have apparently emanated from very respectable quarters. In any case, respondent 2

should have at least appraised petitioner of those complaints and afforded him a chance to explain them before taking a decision to terminate his

services. The conduct of respondent 2 at the interview appears to have been rude, if not cavalier. Respondent 2 refused to disclose the reasons

which had impelled the Government to terminate the services of the petitioner. The period of two hours for reflection was too short a time for

petitioner to reach a decision affecting his career especially when the decision of the Government must have come to him a bolt from the blue. Sri

Nanavati relies upon these unsavoury circumstances for two purposes. Firstly, he contends that they show that the Government had based its

ultimate order of termination of services on the alleged inefficiency and incompetence of petitioner without giving any opportunity to petitioner to

show cause. Secondly he contends that they are indicative of the mala fides, or, at least malice in law, of the Government and respondent 2. We

have given our anxious consideration to both these aspects of the matter. Some of these circumstances are unsavoury and leave a bad taste in the

mouth. They are bound to cause anxiety to any person dealing with the matter judicially. However, there is the other side of the shield also.

Respondent 2 deposes that many complaints were received against petitioner. There is no reason to believe that respondent 2 had any hand in the

making of these complaints. The worst view which one can take under the circumstances is that, probably these complaints could have been

engineered by someone interested against petitioner. But, there is no reason to believe that the aforesaid complaints were not, in fact, received by

respondent 2. Now, if an employer does receive a number of complaints of a serious nature against his employee, then, it is but natural that he

would become anxious about the efficiency and the smoothness of his administration. Respondent 2 states in his affidavit that the Government came

to the conclusion that the lock-gate system which had recently been installed at Bhavnagar was likely to be brought into disrepute; that the shipmen

were likely to be frightened away from the Bhavnagar Port, and that serious damage was likely to be caused to the reputation of the port

administration. Respondent 2 also states that, before petitioner was called for interview on 24 November 1961, the Government had already taken

a decision on the basis of the material which the Government possessed that it was not in the interest of the administration that petitioner should be

continued as a Port Officer. Now, an employer is bound to modulate his conduct in the interests of his own work and reputation. If he feels that the

complaints received are such and so many in number that the continuance of the existing state of affairs itself may injure his interests permanently,

he may as well decide to act within the terms of his contract rather than take any further risk involved in making an elaborate inquiry in the duration

of which irreparable damage may be done to his work and reputation. No exception can be taken if the Government decides to take an immediate

action impelled by such considerations. Now, in our judgment, if the behaviour attributed to respondent 2 at the interview is considered in the light

of the decision of the Government, then a second view is probable, and that is that the interview was arranged primarily for the purpose of giving a

chance to the petitioner to resign his post so that he could leave the present employment without any stigma on his character.

Sri Nanavati contends that, in the present case, the Government could not have terminated petitioner''s services simpliciter and that, under the

terms of the employment, the Government was bound to inquire into the question as to whether the work of the petitioner was satisfactory or not.

Therefore, he contends that the very nature of the condition of the petitioner was such that the Government was bound to institute an enquiry, as

was done in the case of Gopi Kishore Prasad, and that, the Government having withheld or having refused to give a chance to petitioner, it must be

held that the respondent was acting mala fides or that the Government, in any case, was intending to punish petitioner. We cannot agree with this

broad proposition. In every case of a probationer where the aforesaid condition is inserted, it is implied that the employer has a right to review the

work already done by the employee in order to enable him to decide whether the employee should or should not be confirmed or continued in

service. If the Government receives adverse reports which leads it to conclude that its administration is likely to be seriously affected, the

Government may decide not to waste any more time by instituting an enquiry and it may in the exercise of the right of every normal employer

proceed to terminate the services of the employee forthwith. However, Sri Nanavati contends that if the decision is taken behind the back of the

employee without instituting any enquiry, the procedure itself is unreasonable and is indicative of the mala fides of the Government. He submits that,

in any case, even if it were not actual mala fides to so proceed, it is malice in law. We cannot agree with this submission of Sri Nanavati also. The

approach of the Government must not be judged from the point of view of an ideal employer. It must be judged from the point of view of a

reasonable employer. It is in the context of the behaviour of a reasonable employer that conduct of the Government must be decided. In our

judgment, having regard to the aforesaid circumstances, there is no reason for us to believe that the Government bore any malice either in fact or in

law against the present petitioner. The materials received by respondent 2 and disclosed in his affidavit are so many, derived from so many diverse

sources and of such serious nature, that a reasonable employer may decide to terminate the services of his employee forthwith and not take the

trouble of undertaking any regular enquiry into the merits of the matter. On this aspect of the case, we are not in a position to say that the

Government had passed the aforesaid order with the intention of visiting petitioner with any foul consequences or that it had acted mala fide or that

it was actuated by malice in law. It may be that Virkar and others may have manoeuvred the whole show and that a detailed enquiry may have

unearthed a foul conspiracy against petitioner. In dispensing with the enquiry, it may be that the Government may have committed a serious error of

judgment which may have done a serious wrong to an innocent person. It is not for the Court to enquire into this side of the picture. It is for the

petitioner to address the Government and to make out a case for review. However, in our judgment, having regard to the materials which the

Government had at its disposal, if it did take a decision that it must terminate the services of petitioner and that the only step it must take must be to

give a chance to petitioner to get out of the service honourably, it cannot be said that the action of the Government was such that a reasonable

employer would not have undertaken. In our judgment, therefore, though there are some circumstances present in the case, which are likely to

dismay a judicial mind, on the whole, the circumstances are not such that one can say that the aforesaid order was not justified by the terms of

employment or that it was passed either with malice or that the Government had garbed the order as one of termination whereas its real intention

was to punish petitioner. In our judgment, having regard to the materials which the Government had at its disposal, the Government was acting in

the interests of the administration itself and as the contract of employment gave the right to the Government to terminate the services, no relief can

be granted to petitioner on any basis.

The next argument of Sri Nanavati is that, even if the case of petitioner does not fall within the purview of Art. 311, Clause (2), of the

Constitution, petitioner is entitled to the benefit of rule 49 of the Classification Rules of 1930 as amended in 1947. Now that rule is reproduced in

Appendix I of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules (hereafter described as ""the Bombay Rules""). These Bombay

Rules were made by the Government of Bombay in 1932 under the power vested in it under sub-rule (2) of rule 48 of the Classification Rules of

1930. That sub-rule empowered the local Government in a Governor''s province to make rules only to regulate ""the conduct"" of the members of

the provincial and some other services which were under the administrative control of that Government. The Classification Rules of 1930 deal not

only with the subject of conduct, but also with such other subjects as ""discipline, control and appeals."" When the Government of Bombay made the

Bombay Rules, it was empowered to make rules only for regulating the conduct of the members of the provincial services. It was not empowered

to make any rules for the discipline, control and appeal of such Government servants. Rule 33 of the Bombay Rules enumerates the penalties which

could be inflicted on Government servants. Having regard to the fact that the Bombay Government was not empowered to make rules on that

topic in relation to members of the provincial services, in the proviso to rule 2, it was specifically provided that rule 33 applied only to Government

servants in the inferior services. Thus, the provincial service people were excluded from the purview of rule 33. The subject dealt with by rule 33 of

the Bombay Rules is dealt with by rule 49 of the Classification Rules of 1930. Rule 33 of the Bombay Rules is almost in the same terms as rule 49.

Rule 49 also mentions various penalties which the Government can inflict upon its servants for good and sufficient reasons. Amongst the penalties

are mentioned those of removal and suspension. There are two explanations attached to rule 49 and the relevant parts of the two explanations are

as follows :

Explanation I. - ""The discharge -

(a) of a person appointed on probation during or at the end of the period of probation, on grounds arising out of the specific conditions laid down

by the appointing authority, e.g., want of a vacancy, failure to acquire prescribed special qualification or to pass prescribed tests

(b) * * *

(c) * * *

does not amount to removal of or dismissal within the meaning of this rule.

Explanation II. - ""The discharge of a probationer, whether during or at the end of the period of probation for some specific fault or on account of

his unsuitability for the service, amounts to removal or dismissal within the meaning of this rule.

Now, the contention of Sri Nanavati is that the case of petitioner directly falls within Expln. II aforesaid and that in spite of the fact that the

order of discharge has been designated by the Government as one of termination of service, it amounts to an order of removal or dismissal within

the meaning of Expln. II aforesaid. Sri Nanavati contends that rule 49 is not merely an administrative rule but that it is a statutory rule. On this basis,

Sri Nanavati submits that two results will follow. The first is that the order of discharge, being one of removal or dismissal within the meaning of

Expln. II, it will also be removal or dismissal, within the meaning of Clause (2) of Art. 311 of the Constitution. For this proposition, Sri Nanavati

relies upon a judgment of the Supreme Court, delivered on 18 February 1963, in Ranendra Chander Banerjee v. Union of India and another in

Civil Appeal No. 217 of 1962. In that case, the same contention as is raised by Sri Nanavati was also raised and that contention was based upon

the same Expln. II. Their lordships came to the conclusion that that explanation did not apply to the facts of that particular case. However, their

lordships made the following observations on which Sri Nanavati relies :

Now if this explanation were in force in 1952 when action was taken against the appellant, his contention that Art. 311, Clause (2), applied to him

would be correct.

The second result, according to Sri Nanavati, will be that, even if this consequence does not follow, rule 49 being a statutory rule, a breach

thereof will entitle the petitioner to a writ of certiorari against the Government, in case the Government is proved to have committed a breach

thereof.

Now, it will be noticed that the validity of the aforesaid two submissions of Sri Nanavati depends entirely upon the validity of his contention

that rule 49, as aforesaid, is a statutory rule, and that the aforesaid two explanations are parts of such a statutory rule. Therefore, it becomes

necessary to trace the history of rule 49 because the explanation below rule 49 appears to have undergone more than one change.

In the year 1930, when the Classification Rules of 1930 were first made, there was only one explanation and it was in the following terms :

Explanation. - ""The discharge

(a) of a person appointed on probation during the period of probation

(b) * * *

(c) * * *

does not amount to removal or dismissal within the meaning of this rule.

This explanation was first amended in November 1947. The explanation was marked as Expln. I and Expln. II was added. The two

explanations read as follows :

Explanation I. - ""The discharge

(a) of a person appointed on probation during or at the end of the period of probation on grounds arising out of the specific conditions laid down

by the appointing authority, e.g., want of a vacancy, failure to acquire prescribed special qualifications or to pass prescribed test

(b) * * *

(c) * * *

does not amount to removal or dismissal within the meaning of the said rule.

Explanation II. - ""The discharge of a probationer whether during or at the end of the period of probation for some specific fault or on account of

his unsuitability for the service, amounts to removal or dismissal within the meaning of this rule.

These two explanations were in their turn again amended in 1949. In place of the aforesaid two explanations, only one explanation was

substituted and it was in the following terms :

Explanation. - ""The termination of employment

(a) of a person appointed on probation during or at the end of the period of probation in accordance with the terms of appointment and the rules

governing the probationary service

(b) * * *

(c) * * *

does not amount to removal or dismissal within the meaning of this rule.

Now, from the above history, it will be noticed that the explanation as finally amended in 1949 does not contain Expln. II. It will be also

noticed that the two explanations which have been reproduced in Appendix I of the Bombay Rules reproduce the explanations as they were

amended in 1947 and that the appendix dose not reproduce the explanation which was finally substituted in 1949. The amendment of 1947 came

into force on 28 March 1948. The amendment of 1949 came into force on 28 February 1950. It will be also noticed that the original explanation

was in force from 1930 to 1947, that the explanations introduced in 1947 were in force from 1947 to 1950 and the explanation now in operation

came into force from 28 February 1950.

Now, the question for consideration is whether the aforesaid two explanations which came into force on 28 March 1948 and 28 February

1950 have or have no statutory force. Now, rule 49, as it stood when the Classification Rules of 1930 were first enacted, was a part of the

Classification Rules of 1930. Those rules were made by the Secretary of State for India in Council under S. 96B, Sub-section (2), of the

Government of India Act of 1915, as amended by the Government of India Amendment Act of 1919 (hereafter called 1915 Act). They came into

force on 27 May 1930. Therefore, there cannot be any doubt that the Classification Rules of 1930, including rule 49, were statutory rules. Having

regard to the fact that rule 49 related to the discipline of Government servants. There is no doubt that it applied to the members of the provincial

services. The Act of 1915 was replaced by the Government of India Act of 1935. That Act came into force from 1 April 1937. As is well-known,

that Act introduced Provincial Autonomy in India and created what were then known as Provinces and Central Government. Under S. 276 of

1935 Act, until provision was made under Part X of that Act of 1935, rules made under the Act of 1915, relating to the civil services of, or civil

posts under, the Crown in India which were in force immediately before the commencement of Part III of Act of 1935 (i.e., 1 April 1937)

continued, notwithstanding the repeal of that Act of 1915 in force in so far as they were consistent with the Act of 1935 and were to be deemed to

be rules made under the appropriate provisions of the Act of 1935. Therefore, it is not disputed that under S. 276 of 1935 Act, the aforesaid

Classification Rules of 1930 continued as statutory rules under S. 241 of 1935 Act. Section 241, Sub-section (2), of 1935 Act provided :

Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity in India shall, subject to the

provisions of this section, be such as may be prescribed :

(a) * * *

(b) in the case of persons serving in connexion with the affairs of a province, by rules made by the Governor of the province or by some person or

persons authorized by the Governor to make rules for the purpose.

Under this section, the rule-making authority was the Governor of Bombay or his delegated agent. Therefore, it is quite clear that, after 1 April

1937, the power to amend the statutory rules which were continued under the Act of 1935 became vested in the Governor of Bombay, in so far as

Classification Rules of 1930 became applicable to the affairs of the Province of Bombay. This position is not disputed by any side and that position

appears to us to be established on the materials placed at our disposal. The question for consideration, however, is whether the amendment made

on 28 March 1948 in the explanation to rule 49 which introduced Explns. I and II and which amendment is now reproduced as Explns. I and II in

the Appendix I of the Bombay Rules was made by which authority and whether that amendment was applicable to the members of the provincial

services and whether it had the status of a statutory rule. Now, on this particular subject, in our judgment, the record of this case does not throw

any light whatsoever. In the first instance, petitioner did not state in his petition that rule 49 in Appendix I including the two explanations had the

force of a statutory rule. In his petition, petitioner has described that rule as a mere service rule. Respondents did not dispute that proposition.

However, in view of the fact that there was no direct averment in the petition that rule 49 was a statutory rule, there was no occasion for

respondents to deny that fact. The question as to whether this has not the status of statutory rule came into prominence for the first time in the

course of the arguments. It assumed a great deal of importance only when Sri Nanavati tried to rely upon rule 55B which was introduced for the

first time on 28 February 1950. It was in the course of the examination of the question as to whether rule 55B had or had not the status of a

statutory rule, that the question about the aforesaid two explanations having a similar status assumed prominence. We adjourned the case to enable

the parties to enlighten us, if they could, as to which was the authority which had amended and introduced the two explanations as reproduced in

Appendix I of the Bombay Rules. Now, as already stated, there is no doubt whatsoever that those explanations were introduced by the Central

Government. That is the position which is not disputed. But, any amendment introduced by the Central Government after 1935 Act would have no

statutory force in regard to provincial service in the the Province of Bombay. This would be so on the ground that under S. 241(2)(b) of the 1935

Act, the only authority, which had the power of making rules, and consequently of amending the existing rules, would be the Governor of Bombay.

Therefore, unless and until petitioner satisfies us that the aforesaid two explanations were introduced by the Governor of Bombay or any of his

delegated agents, the question as to whether those two explanations have a statutory force cannot be decided in favour of petitioner. The learned

Assistant Government Pleader says that he made all the enquiries which he could, on the subject, but his enquiry has not yielded any fruitful result.

Sri Nanavati also stated to us that he was unable to throw any further light on the subject. In our judgment, it will not be proper to proceed on the

assumption that the explanations aforesaid had any statutory force simply because the explanations came to be introduced in Appendix I aforesaid.

The explanations would have statutory force only if they were amended by the authority mentioned in S. 241(2)(b) of the 1985 Act. Under the

circumstances, in our judgment, whilst the record does not leave any doubt that the original explanation as it existed in the Classification Rules of

1930 had the status of a statutory rule, there is no evidence before us which would justify us to hold that the Explns. I and II introduced on 28

March 1948 had such a statutory force. In that view of the matter, it is not possible for us to decide the point raised by Sri Nanavati on the basis

that the breach of a statutory rule was committed. We may mention that it is common ground that if the two explanations had statutory force, then,

by virtue of the provision contained in Art. 313 of the Constitution of India, the same would have statutory force and the rights of the parties would

be governed on that particular basis. But, having regard to our finding that the materials do not disclose that the explanations aforesaid had any

such force, it is not necessary for us to consider the aforesaid two submissions raised by Sri Nanavati, viz., whether the present case falls within the

purview of Expln. II, or whether it falls within the purview of Expln. I, and, if it does fall within the purview of Expln. II, whether the present case

would fall within the purview of Clause (2) of Art. 311 of the Constitution by reason of the fact that the termination of the services of petitioner

would amount to removal, or whether, even if it does not fall within the purview of Clause (2) so aforesaid, the Government had committed breach

of any statutory rule by reason of the fact that it terminated the services of petitioner in the circumstances mentioned in Expln. II aforesaid.

Sri Nanavati, alternatively, contends that, even though there may be no evidence to show the authority which had amended the two

explanations on 28 March 1948, any amendment, introduced by the Central Government even after 1935 Act was enacted, would automatically

apply to the members of the provincial services. We cannot agree with this submission. We cannot do so bacause, after the Act of 1935, the only

authority, which had power to make rules governing the members of the provincial services, was the Governor or his delegate. It is true that the

power to amend the Classification Rules of 1930 originally vested with the Secretary of State for India in Council and that power would devolve

after the 1935 Act upon the same authority. Even assuming that the submission of Sri Nanavati is right that, that authority is the Central

Government, in our judgment, the Central Government would not have thereby the authority to make any rules or to amend the existing rules in so

far as they relate to the members of the provincial services, either under the rules or under some other law. The Central Government would not

retain such authority because the retention of such authority would be inconsistent with the provisions of S. 241, Sub-rule (2), Clause (b),

aforesaid.

Therefore, in our judgment, petitioner has failed to substantiate that there was breach of any statutory rule which would give him a cause of

action against the Government.

It is not necessary for us to discuss over, again the third point of Sri Nanavati, viz. that the order was made mala fide and that in any case, it

was made in such circumstances which amounted to malice in law. We have discussed this part of his submission whilst discussing the question

about the circumstances in which the question as to whether, in fact, the order of termination of service was or was not the order of punishment.

Our reasons for reaching an adverse conclusion on this topic are the same which we have given while discussing the question whether the

impugned order was or was not an order of punishment.

For the aforesaid reasons, the petition must fail and it must be dismissed. Rule discharged. No order as to costs.