The State of Punjab and Others vs Madan Gopal

S.S. Dulat, J.—Madan Gopal was temporarly employed as Inspector, Consolidation of Holdings, with effect from the 5th October, 1953. On the 17th March, 1955, the Deputy Commissioner, Bhatinda, made an order the operative part of which said--

I agree with the Settlement Officer, Bhatinda, and order that the services of Shri Madan Gopal, Inspector and Shri Chiman Lal, Sub-Inspector, C/H, are hereby terminated forthwith. They will, however, get one month''s pay instead of giving them one month''s notice as required by the rules.

Madan Gopal thereupon filed a petition for a writ to quash the order made against him. He claimed that he had been dismissed or removed from service and that this was illegal on two grounds (1) that the Deputy Commissioner was not the authority who had appointed him and his removal by him was, therefore,, a violation of Article 311 (1) of the Constitution; and (2) that before being removed he had not been afforded any opportunity of showing cause against the order. In support of the second plea it was stated that the Petitioner had been served with a charge-sheet alleging that he [had accepted bribes; that he had denied this charge; that the officer enquiring into these allegations being the Settlement Officer, Bhatinda, had heard some evidence behind the Petitioners back and had then come to certain conclusions; and that his conclusions were later accepted by the Deputy Commissioner without affording the Petitioner proper opportunity to disprove the allegations.

The facts as stated in the petition were in substance admitted on behalf of the State Government, but it was pleaded that Madan Gopal had not been either dismissed or removed from service and that, being a temporary servant, his service was terminated in accordance with the rules governing his employment and he had been given one month''s notice as required by the rules, and consequently Article 311 of the Constitution was not at all attracted.

The petition was heard by Bishan Narain, J., who found that the termination of Madan Gopal''s service was sought to be founded on misconduct and in view of the judgment of the Supreme Court in Parshotam Lal Dhingra Vs. Union of India (UOI), such termination of service was by way of punishment and, therefore, amounted to removal within the meaning of Article 311 of the Constitution, and since no opportunity was afforded to him to show cause against the action the order of removal was illegal. On these conclusions the learned Judge allowed the petition and declared that Madan Gopal continued to remain in service. Against this order the State has filed an appeal under Clause 10 of the Letters Patent.

The entire argument before us has been about the true import of the Supreme Court judgment in Parshotam Lal Dhingra Vs. Union of India (UOI), It is agreed that the words "dismissed or removed used in Article 311(1) and the words "dismissed or removed or reduced in rank" used in Article 311(2) of the Constitution refer to the three major punishments that can under the various service rules be inflicted on a Government servant, and that Article 311 of the Constitution is attracted only when any of these punishments is in fact inflicted. The Article has thus no application at all if no punishment is inflicted on the Government servant concerned although his employment may, in accordance with the terms of his contract or the conditions of his service, be terminated. Further, it is admitted, as is clear from the judgment of the Supreme Court, that the motive for the termination of service--whether it be inefficiency or suspected integrity or any other similar reason--is wholly irrelevant. The judgment also makes it clear that a temporary Government servant, unless he has acquired quasi permanent status, has no right to the post he may be holding and that ordinarily the termination of such temporary service cannot be called a punishment. S. R. Das, C. J., who delivered the majority judgment, then goes on to say--

''The use of the expression ''terminate'' or ''discharge'' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service ***

Since it is clear that Madan Gopal, as a temporary servant, had ho right to the post he was holding, the first test does not apply and the whole controversy turns on the second test, namely, whether he has been visited with evil consequences of the kind mentioned by the Supreme Court.

It is contended on behalf of Madan Gopal that the manner in which his service was terminated puts a stain on his reputation which is an evil consequence of the kind mentioned by the Supreme Court, and, in the result, the termination of service becomes a punishment and must be deemed to be removal from service within the meaning of Article 311. It is necessary, therefore, to understand the facts in the context of which Madan Gopal''s service was terminated. What happened is this. A complaint was received that Madan Gopal and one Chiman Lal (also mentioned in the order of the Deputy Commissioner) had demanded a bribe from one Darbara Singh for showing him some official favour and that Darbara Singh had actually paid a bribe to each of them. A charge-sheet containing these allegations was handed over to Madan Gopal and he submitted a reply denying the allegations. Then followed an enquiry by the Settlement Officer, Bhatinda, in the course of which some evidence was heard in the presence of Madan Gopal and some in his absence. A formal charge was then drawn up and some further evidence was heard. The Settlement Officer then made a report to the Deputy Commissioner holding the allegations to be true and recommending that both should be dismissed. The final order of the Deputy Commissioner, a part of which has already been quoted briefly, referred to all these facts and to the conclusion of the Enquiry Officer and also to the recommendations made by the Settlement Officer and then went on to say, as already mentioned, that the services of Madan Gopal and Chiman Lal be terminated and instead of one month''s notice each be given one month''s pay. The argument is that since action against Madan Gopal was initiated on the ground of misconduct and since thjere was an equiry and a finding and the Deputy Commissioner proceeded to act on the basis of that finding he must be deemed to have punished Madan Gopal when he ordered the termination of his service. Reliance in this connection is placed on the observations of the,Supreme Court in Dhingra''s case that Government may, in certain circumstances, although entitled to terminate a temporary servant''s service in accordance with the rules, decide that the servant concerned deserved some punishment and may for that purpose proceed against him on the ground of misconduct.

On behalf of the State it is urged that these observations of the Supreme Court have no applicatoin to the present case because, although there was an allegation of bribery against Madan Gopal which was found true, the authorities concerned finally decided not to proceed on the basis of misconduct but under the service rule and terminated his service by giving him one month''s notice. The real test, according to the learned Assistant Advocate-General, is not whether action was started on the ground of any complaint against the Government servant but whether the final action was taken in accordance with the contract of service or the conditions of employment and whether anything more by way of penalty has in fact been visited on the servant apart from the termination of his service. In this context, according to the argument, a mere reflection on the efficiency or the honesty of the Government servant is of no consequence and we have to judge the matter by reference to the actual penal consequence. To put it in another way the argument is that if a temporary servant''s employment is terminated in accordance with the conditions of his employment, it cannot matter at all if at the same time the authority concerned also happens to form the opinion that the servant is either inefficient or dishonest or for other reasons unfit to be continued in employment, and that such considerations are merely the motive for the final action and the Courts are only concerned with the ultimate result and not the motive. The question, therefore, is whether the Supreme Court, when speaking of other ''penal consequences'' or ''evil consequences'', had in view some concrete punishment apart from the termination of service, or whether the Supreme Court had in view such matters as loss of reputation for efficiency or integrity. Explaining this matter of penal consequences, the learned Chief Justice says--

The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstances may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty.

The illustrations here are with reference to a reduction in rank because Dhingra''s case was concerned directly with ''reduction'' but these illustrations leave no doubt that the Supreme Court had in mind some actual punishment or penalty such as service rules ordinarily envisage. I find nothing in the judgment to support the view that, if a Government servant''s employment is terminated and it appears from what has happened prior to that termination that the servant concerned was considered inefficient or corrupt, and an opinion expressed in connection with such inefficiency or corruption it would be deemed to be a penalty and would make the termination of employment a punishment. The dissenting judgment by Bose, J., makes this even clearer. When dealing with the precise point on which he dissented from the majority of the Court, Bose, J., observed--

It is here that I venture to dissent, with the very greatest respect from my Lord''s construction of Article 311. If I read his judgment aright, I gather that his view, and that of my learned brothers, is that Article 311 is confined to the penalties prescribed by the various rules and that one must look to all the relevant rules to determine whether the order is intended to operate as a penalty or not. With deep respect, I do not think that the gist of the matter is either the form of the action or the procedure followed; nor do I think it is relevant to determine what operated in the mind of a particular officer. The real hurt does not lie in any of these things but in the consequences that follow and, in my judgment, the protections of Article 311 are not against harsh words but against hard, blows. It is the effect of the order alone that matters, and, in my judgment Article 311 applies when any substantial evil follows over and above a purely ''contractual one''. I do not think the Article can be evaded by saying in a set of rules that a particular consequence is not a punishment or that a particular kind of action is not intended to operate as a penalty. In my judgment, it does not matter whether the evil consequences are one of the ''penalties'' prescribed by the rules or not.

These observations leave little doubt that the majority view was that the termination of, service of a temporary Government servant could be called a punishment and, therefore, termed ''removal from service'' only if over and above the termination of such service some other penalty normally contemplated by the service rules is also inflicted, and it is significant that the learned Chief Justice when illustrating penal consequences mentoined only such penalties like stoppage of increment, or postponement of promotion, or loss of seniority. "Harsh words" as Bose, J., puts it like telling a person whose service is being terminated that he had not been working efficiently or honestly, can be of no consequence if in actual fact no punishment or penalty apart from the termination of employment is inflicted on the servant. I agree that in the present case it was unnecessary for the Deputy Commissioner to say anything about the allegation of corruption made against Madan Gopal and it may sound somewhat unfair that, without making a proper enquiry demanded by the rules, if a person is to be punished, the Deputy Commissioner chose to form an opinion but that consideration does not convince me that the formation or the expression of any such opinion amounted to punishment within the meaning of the Supreme Court judgment, nor that being coupled with such opinion the termination itself became ''removal from service'' within the meaning of Article 311. It is here useful to refer to the facts involved in the case on which the Supreme Court made its pronouncement. Dhingra was employed as Chief Controller, in the Railway Service and was later promoted to officiate as Assistant Superintendent in Class II. Subsequently some remarks adverse to him were made by his officers and the matter was placed before the General Manager who ordered his reversion to his substantive post. Dhingra''s contention was that he had been reduced in rank within the meaning of Article 311 (2) of the Constitution. The Supreme Court hold that this was not so, because Dhingra had no right to the post in which he was officiating and the order sending him back to his substantive post was not a punishment as no penal consequence other than reversion had in fact ensued. The learned Chief Justice said in this connection--

***** it is quite clear from the orders passed by the General Manager that it did not entail the forfeiture of his chances of future promotion or affect his seniority in his substantive post. In these circumstances there is no escape from the conclusion that the Petitioner was not reduced in rank by way of punishment and, therefore, the provisions of Article 311(2) do not come into play at all.

Bose, J., was of the opinoin that since the order of reversion was accompanied by a rider that Dhingra should revert as a subordinate till "he makes good the shortcoming noticed in this chance of his as an officer", the implication was that he was not to be promoted to a like post till some competent officer chose to think that he had made good his previous shortcoming and that this was an evil consequence over and above that which ensued merely on his reversion. It is clear, however, that both the learned Judges were thinking of some penalty over and above the reversion and similarly in the case of a termination of service of some penalty over and above such termination. In the present case it is difficult to see what penalty, apart from the termination of service, has been inflicted on Madan Gopal, for it does not appear that a reflection against the efficiency or the honesty of a Government servant can be called a; penalty in the sense the Supreme Court described it. For the Respondent it is contended that the finding regarding the charge of bribery against him would mean this that he will never again be employed in Government service and this is a penalty over and above the termination of his service. This is, however, a surmise and there is admittedly no rule which debars a Government servant, whose service has been terminated in this manner, from being again employed and it is only when a Government servant is dismissed that such disability arises under the rules. It has to to be remembered that whenever a temporary Government servant''s employment is terminated because he is not working to the satisfaction of his officers, there is some likelihood that he may not be employed again, but that does not make the termination a removal from service within the meaning of Article 311. It has also to be remembered that the business of Government is largely carried on through the written word and it is impossible for any responsible officer to avoid expression of opinion on the work of a Government servant in some form or other, and, if it were to be held that every time there is such expression of opinion adverse to the Government servant and his employment is terminated for such reason it amounts to his removal from service, nearly every case where a temporary employment is terminated for such a reason would attract Article 311 of the Constitution, for somewhere or the other it would be possible to find in the official records some such expression of opinion. The proper way to look at this matter, in my opinion, is to see what the effect of the order is, and if the only effect is a termination of service as is provided for in the conditions of service no question about Article 311 of the Constitution arises and it does not matter whether at the time of or immediately before the termination of service the Government servant is given a good or a bad testimonial. Although, therefore, it is true in the present case that the termination of Madan Gopal''s service was unnecessarily accompanied by certain remarks reflecting on his integrity, I cannot agree that the termination of his service for that reason amounted to removal from service as punishment within the meaning of the Supreme Court decision. The learned Single Judge was of opinion that the termination of service in this case was sought to be founded on misconduct in the form of bribery and that, according to the Supreme Court,, the termination of service must be deemed to have been by way of punishment and he relied on a passage in the judgment of the learned Chief Justice appearing at page 49 which runs--

In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted, but even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment 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 disqualifications then it is a punishment and the requirements of Article 311 must be complied with.

These observations are, however, to be read along with what follows and it is clear that immediately afterwards the learned Chief Justice explained the matter and at page 50 specifically laid down the two tests already mentioned and a little earlier observed--

The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for reduction also visits the servant with any penal consequences,

and then follow the illustrations to which I have already referred. I am, therefore, unable to agree that the circumstances that the action against Madan Gopal started with a complaint of bribery, makes any particular difference, as the final order terminating his service was founded on the rule governing temporary employment and that rule entitles Government to terminate such service on one month''s notice. As I have said before, no other penal ''consequence'' has followed. In the circumstances, I am of opinion that Madan Gopal''s service has been terminated in accordance with the conditions of his employment and that he was neither dismissed nor removed from service. It is conceded that if he was neither removed nor dismissed, Article 311 of the Constitution does not come into play and there is, therefore, no occasion for enquiring whether the termination of service was in accordance with the provisions of that Article.

No other question arises in the case. This appeal must, therefore, be allowed and the rule issued in this case discharged. In the circumstances of the case, however, I would leave the parties to their own costs in this Court.

A.N. Bhandari, C.J.

I agree.