The Director, Defence Research and Development Laboratories, Hyderabad vs C. Pandu, Instrument Mechanic, Defence Research Development Laboratories, Hyderabad

Sambasiva Rao, J.—The substantial question which we will have to answer in this writ appeal is whether the order of termination of the services of the respondent was on the ground of his unsuitability to the service or whether it was as a matter of punishment. Madhava Reddy, J., held in W.P. No. 5471 of 1974 that the termination was by way of punishment and the Director of Defence Research and Development Laboratory. Hyderabad has preferred this appeal challenging that view of the learned Judge.

We will refer to the parties as they were arrayed in the writ petition. The petitioner was appointed on 12-10-1962 in the Defence Research and Development Laboratory which would hereinafter be referred to as "the Laboratory", as T.M. Welder. Later his probation was declared with effect from 11-4-1963. On 1-7-1963 he was promoted as Welder and his probation in that post was declared with effect from 1-1-1964. He was later promoted as Instrument Mechanic on 27-4-1972. Even here his probation was declared with effect from 27th of October, 1972. However, by an order of the Director of the Laboratory dated 23rd September, 1974, his services were terminated. The writ petition was filed for the issue of a writ of certiorari quashing that order.

The first and foremost contention of the petitioner was that the termination purporting to be under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, (hereinafter referred to as "the Rules") was illegal and void. According to him, it was not a termination founded on the impression that he was unsuitable to the pest he was holding but only a punishment inflicted on him. That was because he was the Secretary of the Laboratory Employees'' Union. There were complaints about medical bills claimed by some employees. The Director appointed a Court of inquiry to go into these claims which were suspected to be false. There was however, no enquiry against the petitioner. All the same the Director and the other authorities had a grouse against the petitioner and other office-bearers of the Union, because they had played active roles in these inquiry proceedings and other incidental activities. Consequent on this grouse and animosity, the Director terminated the services of the petitioner which was nothing but punishment. The termination purporting to be under Rule 5 of the Rules is a colourable exercise of power, while actually what was done to the petitioner was dismissal by way of punishment. The petitioner was not given any opportunity to meet any charges and no inquiry was held. Therefore, the termination is untenable and unsustainable.

The Director maintained that the petitioner was only a temporary employee. The petitioner''s allegation that his termination was by way of punishment was not true. He was given sufficient warnings to improve himself. But still he failed to rise to the occasion and give satisfaction. Therefore, his services were terminated on the ground of his unsuitability to the service. There was no occasion for framing any charges and giving him any opportunity. It was also contended that he was paid out of the civil defence estimates and so Art. 311 did not apply to his case.

Madhava Reddy, J., held, on an examination of the circumstances of the case, that the termination of the petitioner was by way of punishment. The very warnings given to him earlier showed that it was punishment. Since it was done without giving him any opportunity, the termination was bad and so the learned Judge struck it down. At the same time the learned Judge observed that it was, however, open to the Director and other authorities of the Laboratory to make an enquiry into the charges, if any, against the petitioner and pass such order as they may deem fit.

Sri Subrahmanya Reddy. learned standing counsel for the Central Government, has commended this appeal for our acceptance on four grounds. They are: (1) The court cannot interfere with the termination except on the ground of mala fides; otherwise Rule 5 of the Rules becomes unworkable; (2) Warnings cannot be taken as the basis for punishment. What was done to the petitioner was only termination on the ground of unsuitability and not by way of punishment; (3) The petitioner was holding only a temporary post; (4) He was paid out of civil defence estimates. Therefore, Article 311 does not apply.

Points 1 to 3 can be considered together. If it is termination simpliciter on the ground that the petitioner was found to be unsuitable for the service with the Laboratory, then it is a case which clearly comes under Rule 5 of the Rules. If, on the other hand, the termination was not on the basis of unsuitability but was in the nature of a punishment, it is immaterial whether the petitioner was holding a temporary post or a permanent post. As laid down by the Supreme Court as early as in Parshotam Lal Dhingra Vs. Union of India (UOI), the right to an opportunity exists even to a temporary employee if punishment is meted out to him. Strong reliance was placed by Sri Subrahmanya Reddy on State of Punjab v. Sukh Raj, AIR 1963 SC 1089 to contend that unless there is a charge-sheet, explanation, inquiry, report and termination or dismissal based on that report, it cannot be accepted as a punishment, Mitter, J., speaking for the Court in the aforesaid decision laid down five propositions as guidelines given in such matters. They are:

(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.

(2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

(3) If the order visits the public servant with any evil consequences or casts en aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of Article 311 of the Constitution.

(5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.

Obviously Sri Subrahmanya Reddy relies on the fifth proposition in support of his contention.

There is no doubt that the Supreme Court laid down this proposition to say that when there is a full-scale departmental enquiry the inference is inescapable that it is by way of punishment. That does not mean, and it is wholly unreasonable to understand the Supreme Court as saying, that unless and until there is a full-scale departmental enquiry envisaged by Article 311 no termination of service could be by way of punishment. Otherwise, propositions 2 and 3 would become meaningless. As stated in proposition No. 2 the circumstances preceding or attendant on the order of termination of service will have to be examined in each case. The motive behind it, however, is immaterial. Proposition No, 3 says that if the order visits the public servant with any evil consequence or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment. In this case no doubt the order reads as if it is a simple order of termination under Rule 5. But as the Supreme Court has said in State of Punjab and Another Vs. Shri Sukh Raj Bahadur, the circumstances preceding and attendant on the order of termination of service have to be examined in each case. On such an examination it should be found out whether the termination was essentially one based on unsuitability of the person to the service, or whether its real basis was punishment. It is not necessary to refer to other cases.

Now in the light of the above principle, let us examine the events and circumstances of the present case. We have already narrated the history of the service of the petitioner. He started his career on 12-10-1962 as T.M. Welder. His probation was declared on 11-4-1963. He was then promoted as Welder and once again his probation was declared on 1-1-1964. He gained again promotion as instrument Mechanic on 27-4-1972 and his probation thereunder was declared with effect from 27-10-1972. This steady progress of the petitioner in his service career would show that the authorities were satisfied with his qualifications, his adequacy to the service and his ability and suitability to discharge the task assigned to him. There cannot be, therefore, any ghost of a suggestion that there was doubt as to the suitability of the petitioner.

However, we find from the record two written warnings both of them dated 20th February. 1970. At that time the Court of inquiry was constituted to enquire into the so-called false medical claims made by the staff of the Laboratory. Admittedly, the petitioner was the Secretary of the Union of the Laboratory staff. In the first warning it was stated that the petitioner had behaved towards J.S.O, at lunch-time in a very improper manner and in a way which was not in keeping with the standards of discipline expected of his grade. He was advised to be careful about his behaviour in future and that any complaint in future would be viewed very seriously. On the same day another note was sent. It said that the attitude with which the petitioner had behaved towards S.S.O. II and also the words he had used in his conversation had confirmed his misbehaviour on the earlier occasion. Therefore, he was once again warned to be careful in his behaviour in future. Both of them were given under the subject ''discipline''.

Very fairly Sri Subrahmanya Reddy has placed before us a confidential report sent by one Gopalaswami to the Director on 16th of September, 1974, stating, among other things, that the petitioner had behaved in a very violent manner. It was stated in the report that the petitioner had complained that the Director was hitting the workers in the stomach. Had this been a different part of the country he (Director) would have been murdered by the workers. Then the report continues to say that getting more worked up, he (petitioner) continued to say "I will murder the Director as I have nothing to lose". Then Sri Gopalaswami concluded his report saying that in view of the extreme seriousness of the situation he was reporting the incident to the Director for information as the behaviour of the petitioner constituted grave misconduct and was likely to cause serious trouble among the workers in this unit. This was on 10th of September, 1974 and the order of termination was made on 23rd of September, 1974. These circumstances lead only to one conclusion and that is that it was by way of punishment for misbehaviour and threatened violence of the petitioner. By no stretch of imagination, could it be said that the petitioner was found to be unsuitable to the service because stage by stage he had earned his promotion and in every post his probation was confirmed. Therefore, it is not possible to say that the order of termination dated 23rd September, 1974, was on account of unsuitability of the petitioner to the service. It was clearly a case of punishment imposed on him for his alleged violent behaviour. Though Rule 5 was quoted in the order of termination it was nothing but a colourable exercise of power. In substance and in fact, the termination was by way of punishment. So, all the first three contentions of Sri Subrahmanya Reddy cannot be accepted.

The fourth and the last contention of the learned counsel is that since the petitioner was paid out of the civil defence estimates Article 311 does not apply. The question is not whether Article 311 would, in terms, apply to the petitioner''s case or not. Once it is found to be punishment, he must be given due opportunity to meet the charges that may be levelled against him. Whether it is Article 311 or the other provisions of the law like Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, the petitioner must be given an opportunity to meet the charges levelled against him. That opportunity was not admittedly given to him. Therefore, the order of termination is liable to be struck down. We, therefore, uphold the decision of Madhava Reddy, J., striking down the order of termination.

One other aspect has been brought to our notice by Sri Subramanya Reddy, learned counsel is under the impression that our learned brother has thought that the petitioner was confirmed in the various posts of T.M. Welder or later Welder. What our learned brother obviously meant is that his probation was declared in those posts. The learned Judge merely borrowed the language used in the orders issued by the authorities declaring the probation of the petitioner in the respective posts. Sri M.B. Rama Sarma, learned counsel for the petitioner (respondent before us) states that he has never argued that the petitioner was permanently confirmed in these posts. So, we would like to make it clear that, what the learned Judge has said is that the petitioner''s probation was declared in all these posts.

Therefore, we dismiss the appeal with costs. Advocate''s fee Rupees 150/-. As our learned brother Madhava Reddy, J., has done, we also make it clear that this order does not preclude the respondent (appellant in the writ appeal) horn making an enquiry into the charges, if any, against the petitioner after giving him due opportunity and pass such order as they deem fit.