Union of India (UOI) vs G.S. Misra

S.K. Chakravarti, J.—This is a second appeal at the instance of the Defendant, the Union of India. The litigation, culminating in this appeal, has a long and chequered history. The Respondent G. S. Misra was an employee in the Railway Workshop of the B. N. Railway at Kharagpur. He was at first a first-grade apprentice and, thereafter, charge-hand in the Machine Shop Department. In the meantime, the administration of this Railway had been taken over by the Union of India and the post of Chief Inspector of Production fell vacant and Misra applied for the post, but he was not selected for it. He made representation to the authorities which bore no result. On the other hand, he was served with a charge-sheet and was ultimately discharged from service, on March 9, 1948, by the Superintendent, Mechanical Workshop. As a protest, by started hunger-strike and an agitation grew up over this matter. Thereafter, an Enquiry Committee was set up by the General Manager for the purpose of enquiring "into the circumstances leading up to and resulting in the removal from service of Mr. G.S. Misra, acting charge-hand, locomotive workman, Kharagpur." The Committee consisted of representatives of the different labour unions as well. The Committee was unanimous that the conduct and actions of Mr. Misra warranted his removal from service and made certain other recommendations as to how the post should be filled in. Therefore, the General Manager terminated the services of Misra by a letter dated June 19, 1948, with effect from June 21,1948 (Ex. C/25). Subsequently,, in 1951, the Plaintiff filed the present suit, out of which this appeal arises, alleging that the order of his termination from service was wrongful, improper, illegal and ultra vires and for adequate relief�s.

The suit was contested by the Union of India, which supported the order of discharge. The learned Subordinate Judge, who first tried the suit, came to the conclusion that sufficient opportunities had been given to Misra and that the order of discharge was quite valid and sufficient in law. Misra filed an appeal and the learned District Judge, on appeal, agreed with the findings of the learned Subordinate Judge and dismissed that appeal. Thereupon, Misra filed a second appeal in this Court, which was heard by a Divisional Bench of this Court and, on January 16,1961, the order of the two Courts below was set aside and this Court directed that the Court should come to a finding as to the nature of the appointment held by Misra, or, in other words, whether it was terminable under the contract of service or under the Rules. The matter went down to the trial Court and it came to the conclusion again that the Plaintiff was not entitled to any relief�s whatsoever as he was a temporary hand and his services were terminated in accordance with the Rules. Misra again appealed to the learned District Judge. The learned District Judge agreed with the findings of the learned Subordinate Judge that Misra''s service was of a temporary nature and he was liable to be discharged under the Rules. But he came to the conclusion that Section 240(3) of the Government of India Act, 1935, which was the law applicable at the relevant time, had not been complied with and Misra had not been given a proper hearing before the General Manager had passed the impugned order and, accordingly, the learned District Judge set aside the judgment and decree of the learned Subordinate Judge and decreed the suit on contest with costs in the lower Court. He declared that the order of termination of service, passed by the General Manager, by his order, dated June 19, 1948, embodied in Ex. C/25, was illegal and ultra vires.

Against this judgment and decree the Union of India has filed the present appeal. On behalf of the Union of India, Mr. Basu submits that, after the learned District Judge had found actually that the order of discharge was not passed on account of any misconduct on the part of Misra he erred in holding that Section 240(3) has any application to the facts of this case. It does appear that, after the case was remanded back to the trial Court, the Union of India examined a witness and the evidence of this witness showed quite unmistakably that, at the time of discharge, Misra was not a permanent employee but was a temporary hand only.

The law in this respect appears now to be well-settled. In regard to temporary servants, or servants on probation, every case of termination of service may not amount to removal. In cases falling under those categories the terms of contract or service rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period and if in exercise of the power thus conferred on the employer the services of a temporary or probationary servant are terminated, it may not necessarily amount to removal. In every such case Courts examine the substance of the matter and, if it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the contract or the relevant rules, Article 311(2) may not be applicable to such a case. If, however, the termination of a temporary servant''s services in substance represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and Article 311(2) would be attracted. The above principles were laid down by the Supreme Court in Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., .

In the background of these principles, it must be stated that the learned District Judge''s finding that Misra was entitled to be heard before the General Manager terminated his services, cannot stand, when he had already found that Misra was a temporary hand and that his services were not terminated on the ground of any misconduct on his part.

The moot question that arises now is as to whether, in substance, the order of discharge, as conveyed to Misra by Ex. C/25, was on the ground of any misconduct on his part. The order, as it stands by itself, does not contain any stricture against Misra but merely states that his services were no longer required. On the face of it, it was innocuous in nature ; but it is also well-settled now that, however innocent looking may be the order of discharge, the Court has every right to enquire into the circumstances which led to it and to find out whether in reality it was a punitive order or whether it was an innocuous one, as it appears to be on the very face of it.

Mr. Gupta, appearing on behalf of the Respondent, very strenuously contends that the facts and circumstances of this case would go to show that actually Misra was being discharged on the ground of alleged misconduct on his part and on the report of the ad hoc enquiry committee and, as such, he was entitled to be given an opportunity to show cause, as required by the law, as it then stood. Mr. Basu, however, contends that this aspect of the case cannot be considered by this Court in view of the judgment, already delivered by this Court on January 16, 1961. We have examined this judgment very closely and carefully and we are of the opinion that the contention raised by Mr. Gupta, in this respect was actually considered and negatived by that Court and, as such, it is not open to this Court to reconsider that matter. Mr. Gupta also argued before that Bench that the order of the General Manager was bad because that was passed without giving to the Plaintiff Appellant an opportunity to show cause. The Court then considered this matter and found that the order of the General Manager (Ex. C/25) does not, on the face of it, show that the Plaintiff-Appellant''s service was dispensed with on any charge of misconduct. All that appears is that the Plaintiff-Appellant''s service was terminated on payment of one month''s pay in lieu of notice, inasmuch as his service was no longer required.

The Court further found that that letter, without more, would not go to show that the charges against the Plaintiff-Appellant were found to have been established and that he was being punished because of that. It noted that what was wanting in the letter was sought to be supplied by the written statement, wherein it was pleaded that the General Manager''s order (Ex. C/25) was in ''its nature confirmatory of the order dated 9th March, 1948.

this Court, on an examination of the circumstances of the case, came to the conclusion that the order of the General Manager (Ex. C/25), on the face of it, cannot be taken to be an order confirming the order dated March 9, 1948, and further commented that that it might just be that the General Manager intended to confirm the earlier order by his own later orders, but what he intended, he did not carry into action and that the Court was concerned with the act of the General Manager and not with his state of mind.

The Court, therefore, ignored the story in the written statement that the order (Ex. C/25) confirmed the order, dated March 9,1948, and came to the conclusion that the order passed by the General Manager was not on the ground of any misconduct but because the services of Misra were no longer required. this Court, thereupon, directed the trial Court to find out whether the Plaintiff''s service was lawfully determined by the order and laid down that, if the trial Court answered the issue in the negative, then it must decree the Plaintiff''s claim, if not barred in any other way, otherwise the Plaintiff''s suit must fail.

We have already pointed out that, after the case went back on remand to the trial Court, the trial Court, on the further evidence and on the evidence already on the record, came to the conclusion that Misra was a temporary hand at the time of his discharge. The riding has also not been challenged by Mr. Gupta, appearing on behalf of Misra, before us. If Mr. Gupta''s contention had been accepted by this Court when it sat over the matter in 1961, then there would have been no necessity for a remand. This is a judgment which binds us. We cannot overrule it, nor can we bypass it. So long as this judgment stands, it must be held that the termination of Misra''s service was not on the ground of any misconduct on his part but because his services were no longer required. In this aspect of the matter, neither Article 311(2) nor Section 240(3) of the Government of India Act, 1935, would be attracted to the facts and circumstances of this case and the learned District Judge''s judgment and decree cannot stand.

Mr. Gupta very seriously challenges the directions given in the judgment of this Court on January 16, 1961. It does appear that the parties came to Court on a definite case that the order passed by the General Manager was in confirmation of the order passed by the Superintendent. It was on that basis that both the Courts considered this case and the evidence had been adduced. He, therefore, submits that it was not open to this Court to make out a new case and find that the order was not of a confirmatory nature, specially when it was the admitted position of both the parties that it was a confirmatory order. His further grievances are that the circumstances which finally led to the order of discharge would go to show that actually the order of discharge was on account of alleged misconduct on the part of Misra. It would appear that when Misra did not get his coveted appointment, he did not join his own, duties but approached the foreman of the machine-shop and falsely represented to him that he had orders to take over the post of the Chief Inspector of Production. He even occupied the chair of that officer and gave out orders to his subordinates stating that he had received the order to take over the post of the Chief Inspector, Productions. On these allegations a charge-sheet was submitted and he was asked to show cause. He did not show cause and thereupon he was dismissed by the Superintendent with effect from March.9, 1948. Thereupon, an ad hoc enquiry committee was also set up for the purpose of enquiring into the circumstances which led to his dismissal and the ad hoc committee also came to the conclusion that Misra did not deserve to be retained in service and, after this report was submitted, the impugned order was passed by the General Manager. Mr. Gupta, therefore, contends that a consideration of all these facts and circumstances would show that the order of the General Manager was actually confirmatory of the order of the Superintendent and was passed on the grounds of alleged misconduct on the part of Misra. If the matter had been open to us, we might have accepted his contention. But, as we have already pointed out, we are constrained to hold that this contention of Mr. Gupta cannot be raised before this Court in view of the judgment already delivered by this Court on January 16, 1961. As a matter of fact, Mr. Gupta with his usual candour has informed us that he moved the Supreme Court against the order of this Court. But the Supreme Court refused leave on the ground that there was no final order at that stage. Be that as it may, as we have already pointed out, the order passed by this Court on January 16, 1961, stands and neither can it be overruled nor bypassed by us.

Mr. Gupta next contends that the order of the General Manager is bad inasmuch as the President cannot delegate his power of dismissal or discharge to him. At the relevant time Misra must be held to be holding a civil post and it was only the President who could discharge his services, according to Mr. Gupta. He relies in Baburam''s case ( The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, and Makhan''s case (Makhanlal Dey v. Union of India) (1965) 70 CW.N. 925. Now Baburam''s case was considered by the Supreme Court in Moti Ram''s case (Supra, p. 619) and it has been observed that in Baburam''s case it was held that while Article 310 provides for a tenure at pleasure of the President or the Governor, Article 309 enables the Legislature or the Executive, as the case may be, to make any law or rule in regard, inter alia, to conditions of service without impugning upon the overriding power recognised under Article 310. In other words, in exercising the power conferred by Article 309, the extent of the pleasure recognised by Article 310 cannot be affected, or impaired.

It was further pointed out that the judgment in Baburam''s case (2) also contained observations that the Parliament or the Legislature can make a law regulating the conditions of service without affecting the powers of the President or the Governor. under Article 310 read with Article 311, and that the power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution.

The Court definitely laid down that this latter observation is not intended to lay down that a law cannot be made under Article 309 or a Rule cannot be framed under the proviso to the said Article prescribing the procedure by which, and the authority by whom, the said pleasure can be exercised.

As a matter of fact, the same interpretation was also followed by Gupta, J. in Makhan''s case (Supra ). Mahhan''s case is also to be distinguished from the facts of this case inasmuch as in Makhan''s case no authority was found conferring on the officer concerned a power to terminate the services. It is, therefore, clear from the observations in Moti Ram''s case (Supra ) that Rules can be framed prescribing the procedure by which, and the authority by whom, the pleasure of the President can be exercised, and it is common ground that such Rules have already been framed for the Railway servants. Further, if the matter is at the discretion and pleasure of the President, then the President can certainly himself frame Rules as to how his pleasure should be exercised. We, accordingly, hold that this contention of Mr. Gupta cannot be sustained in law.

Mr. Gupta finally urges that, even if it be found that the President''s pleasure could be exercised by the General Manager, still the Rules, as were then prevalent, do not contain anything to show that the General Manager has been vested with the authority to terminate the services of any Railway employee. We do not find in these Rules anything to show that the General Manager has been specifically given any authority to terminate the services. But it would follow from Sub-rule (4) of Rule 148 and Rules 134 and 135 that the General Manager had this authority. Sub-rule (4) reads thus:

(4) In lieu of the notice prescribed in this Rule it shall be permissible on the part of the Railway Administration to terminate the service of a Railway servant by paying him the pay for the period of notice.

Sub-rule (1) relates to the circumstances, under which the services of the temporary servants may be terminated, and it is in accordance with this Rule that, according to the Union of India, the services of Misra were terminated. On a reading of these different sub-rules together the conclusion appears to be inevitable that the General Manager, who is at the head of the Railway Administration, has the authority to terminate the services. It would further follow from Rules 134 and 135 that the General Manager has got the authority to appoint persons to posts in the Railways. Under the general law, a person who has the authority to appoint, has got also the authority to terminate the services. We are, therefore, of the opinion that the General Manager has got the authority to terminate the services of a temporary Railway hand in accordance with Rule 148(1).

The services of Misra were duly terminated by the General Manager in accordance with this Rule and, as we have pointed out, this Court has already held that the services were not terminated on account of any misconduct on his part. The result, therefore, is that he is not entitled to the protection of Section 240(3) of the Government of India Act, 1935, or Article 311(2) of the Constitution, his services, being those of a temporary hand, having been terminated in accordance with the Rules, and he cannot get any relief in the instant suit.

The appeal is, therefore, allowed and the decree passed by the learned District Judge is set aside, and the Plaintiff''s suit is dismissed.

In the circumstances of this case, each party will bear its own costs throughout.

P.N. Mookerjee, J.

I agree.