Zilla Parishad Ferozepore vs Satnam Singh

A.D. Koshal, J.—The facts leading to this second appeal by the defendant are these Satnam Singh plaintiff respondent was appointed Secretary to the District Board, Ferozepore, by virtu of an order signed by the chairman of the Board and dated the 19th of March 1961 (Exhibit P. 2) in which appear the following said conditions governing the respondent.

His appointment shall be subject to the verification of his character and antecedents as satisfactory by the police.

His appointment shall be subject to his being declared medically fit by the Civil Surgeon Ferozeporer.

For disciplinary action and other matters, i. e. leave, etc. his services shall be governed by Civil Services Rules

His services will be terminable on one month''s notice on either side provided it will be open to pay him his salary for the period by which the notice falls short of one month. Similarly if he wishes to resign, he may do so by depositing with the District Board his salary for the period by which the notice given by him falls short of one month.

He will not be entitled to any T. A for the journeys to be performed by him in connection with his medical examination and joining the appointment or on termination thereof

He will be considered on 6 months probation:

The District Boards were abolished in the State of Punjab u/s 118 of the Punjab Panchayat Samitis and Zila Parishads Act, 1961, in the month of November, 1962, and Zila Parishads were constituted in their place. In accordance with the provisions of that sect on the respondent and other employees of the District Board, Ferozepore continued to work in their respective capacities under the Zila Parishad, Ferozepore (hereinafter called the Parishad). The respondent was confirmed in the post of Secretary to the Parishad on the 2nd of February, 1963.

Sunder Singh, who was working as Head Clerk in the appellant''s office was transferred on account of his improper behaviour to the office of the District Medical Officer Health, Ferozepore (resolution No. 25 dated the 4th of February, 1964, passed by the Parishad-Exhibit. P. 13). About eight months later however. the said Sunder Singh was retransferred to the appellant''s office (resolution No. 2 dated the 9th of October, 1954, passed by the Parishad-Exhibit P.5).

Soon afterwards the respondent sent letter Exhibit P 21 dated the 24th of October. 1964, to the Minister for Development and Panchayati Raj, Punjab Chandigarh, praying for cancellation of resolution Exhibit P. 5 on the ground that it contravened the provisions of the Pa (sic) District Boards Act. This act of the respondent was made to the subject matter of the one of the eleven charges for which he was suspended from service by the parishad on the 7th of November, 1964, by virtue of resolution No. 4 of that date (Exhibit P.3) which directed that the respondent be charge sheeted and that an enquiry in to the charges be held by the senior Vice-Chairman of the Parishad and two others, The said Sunder Singh was ordered to wok as Secretary during the period of suspension from service of the respondent. Before any charge-sheet could be delivered to the respondent, however, the Parishad '' discharged" the respondent, from service under resolution No. 2 dated the 26th of November, 1964 (Exhibit P. 10) in accordance with condition No. 4 contained in the order of his appointment (Exhibit P. 2) and also with the provisions of Rule 1 (1) contained in Part V-A of the District Boards Rules, 1926 (hereinafter referred to as the Rules).

Of this action having been taken against him, the respondent was informed by virtue of a letter dated the 14th of December, 1964 (Exhibit P. 16) signed by the Chairman of the Parishad.

In his suit the respondent challenged the termination of his services with the Parishad on the following grounds;

(a) aving been confirmed in the post of Secretary to the Parishad on the 2nd of February, 1953, he was a permanent hand and had a right to continue in service till he attained the age of superannuation.

(b) he provisions of the Civil Services Rules were applicable to him and they had been contravened inasmuch as no enquiry into the charges made against him had been held.

(c) The order terminating his services was mila fide inasmuch as it was really made because of the action taken by the respondent against the said Sunder Singh whom Shri Kuldip Singh Virk, the Chairman of the Parishad, wanted to favour.

The relief claimed by the plaintiff respondent was a declaration to the effect that the order contained in resolution Exhibit P. 13 was illegal and void and that the respondent continued to be in the service of the Parishad as its Secretary.

The suit was tried by Shri M.L. Mirchia Senior Subordinate Judge, Ferozepore who framed the following issues:

Whether the services of the plaintiff were liable to be terminated on one month''s notice or one month''s pay in lieu there of even when he was a confirmed hand?

2 If issue No. 1 is not proved, is the order terminating the services of the plaintiff not illegal one?

Relief.

The following issue was added by the learned Senior Subordinate Judge later on:

Whether the order of termination of plaintiff''s services is illegal, void and opposed to principles of natural justice and mala fide?

All the issues were found by the learned trial Judge in favour of the respondent on the basis of Rule 8. 1 of the Ferozepore District Board Business Rules, 1940, the provisions of which maybe quoted here with advantage:

In all matters relating to the conditions of service of its employees the Board shall so far as may be follow the rules from time to time in force for servants of the Punjab Government. Rule 1 contained in Part V-A of the Rules on which reliance was placed by the appellant Parishad and which is to the following effect:

(1) In the absence of a written contract to the contrary every officer or servant employed by a District Board shall be entitled to one month''s notice before discharge or to one months wages in lieu thereof unless he is discharged during the period of probation or for misconduct or was engaged for a specified term and discharged at the end of it.

(2) Should any officer or servant employed by a District Board in the absence of a written contract authorizing him to do so, and without reasonable cause, resign his employment or absent himself from duties without giving one month''s, notice to the Board, he shall be liable to forfeit a sum not exceeding one month''s wages out of any wages due to him and if no wages, or less then one month''s wages are due to him, he shall be liable to a penalty not exceeding wages for one month or an amount equal to the difference between one month''s wages and the wages due to him.

Was held by the learned trial Judge not to be applicable to the facts of the present case which, in his opinion, was a case not of discharge within the meaning of that expression as envisaged by the rule'' but of dismissal of the respondent to which the rules applicable were Rules 1 and 2 contained in part V of the Rules. These two rules are reproduced below:

No officer or servant of a District Board shall be dismissed except after an enquiry as provided in Rule 2 in this part, provided that no such enquiry shall be necessary if the accused is absconding or if he is to be dismissed on facts or inferences based on the findings of a court or if the Deputy Commissioner or the Commissioner orders his Dismissal u/s 27 of the Act.

A definite charge shall be framed in writing for each offence alleged against the officer or servant sought to be dismissed, and such change shall be explained to the accused and the evidence in support of it, and any evidence that the accused may adduce in his defense, shall be recorded in his presence and his defense taken down in writing and each such charge shall be discussed and a finding shall be recorded on it.

In coming to this conclusion the learned trial Judge took note of the interpretation placed on the provisions of the Section 45 (1) of the Punjab Municipal Act, 1911, which is similar in terms to Rule 1(1) contained in part V-A of the Rules, in Dr. Mukand Lal v. The Municipal Committee of Simla (1953) 55 P.L. R. 100, the relevant observations made wherein are:

I shall now consider the argument which was raised by counsel for the opposite party that Section 45(1) gives to the Municipal Committee an unlimited authority to discharge any servant they like provided it is not for misconduct. No doubt in Section 39 the words used are ''suspend'' remove, dismiss, or otherwise punish, and the word used in Section 45 (1) of the Act is ''discharge'', but this in my opinion is not a section of limitation on safeguards but makes a further provision in favour of the servants. If the Civil Services Rules (Punjab) apply as indeed they do, then ''discharge'' in Section 45(1) cannot apply to the removal of permanent servants from service. By the extension of the Civil Services Rules (Punjab) to Municipal servants and the rules made under the Municipal Act a protection is given to the Municipal employees against the vagaries of the Municipal Committee who might at any time by the brute forces of majorities try to terminate the services of employees whom they find to be inconvenient or whom they do not take. I do not think that Section 45 (1) has in any way taken away that guarantee or protection which the law seems to give to all Municipal servants and which the Constitution of India has now given to the Civil servants under the Central Government and the States. Indeed in democracies it is necessary that servants who have very often to perform unpalatable duties should receive every kind of protection against the tyranny of majorities or the whims of leaders of such majorities and it was for that reason that these rules seem to have been framed and extended to Municipal Committees and there was never a greater necessity for these rules than there is now when everything is governed by force of numbers and very often this force is used without any restraining force.

No enquiry as envisaged by Rule 1 contained in Part V of the Rules having been made against the respondent, the learned trial Judge came to the conclusion that his dismissal was opposed to the principles of natural justice and was, therefore, illegal. Relying on S.R. Tewari Vs. District Board Agra and Another, the learned trial Judge remarked that the powers in a statutory body were always subject to the statute constituting it, that they must be exercised consistently with the statute and that the Courts would in appropriate cases declare an action of the body as illegal or ultra virus even if the action related to determination of the employment of his servant In view of this conclusion Shri Mirchia considered it unnecessary to go into the question of mala fides actuating the impugned order and decreed the suit with costs.

The first appeal instituted by the appellant Parishad was dismissed on the 22nd of December, 1969, by Shri Pritpal Singh, Additional District Judge. Ferozepore, who referred to the dictum of their Lordships in S. R. Tewari v. District Board, Agra (supra) and proceeded to determine the question whether the termination of the appellant amounted to his dismissal. The question was answered by him in the affirmative on the authority of Anup Singh v. The State of Haryana 1969 (iii) S.L.R. 850 which is also a case relating to an employee of a Zila Parishad and which declares that such an employee, if confirmed, has a right to hold his post and of Parshotam Lal Dhingra Vs. Union of India (UOI), which lays down the proposition that when a servant has a right to a post either under the terms of his employment or under the rules governing the conditions of his service, the termination of his services is by itself and prima facie a punishment. He further held that the contents of documents Exhibits P. 13, P. 5, P. 21 and P. 8 clearly indicated that the services of the respondent had been terminated on account of misconduct on his part, the form of resolution Exhibit P. 10 notwithstanding. He agreed with the learned Senior Subordinate Judge that for the reasons given by the latter, Rule 1 contained in Part V-A of the Rules was inapplicable to the facts of the present ease which was really governed by Rule 8. 1 of the Ferozepore District Board Business Rules read with Rules 14. 10 and 14. 13 of the Punjab Civil Services Rules, which have been misquoted for Rules 4 and 7 respectively of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 (hereinafter called the Punishment Rules) In these premises the learned Additional District Judge dismissed the appeal with costs.

In view of the dictum of their Lordships of the Supreme Court in S.R. Tewari''s case (supra) no exception can be taken to the proposition, which is now well settled, that a statutory body must at within the powers conferred on it by the statute and that in so far as it transgresses the limit laid down by the statute, its acts are liable to be struck down, even though they relate to matters involving the termination of employments of its servants. Learned counsel for the appellant, however, urges that his client had, by virtue of the terms of appointment of the respondent, an unrestricted right to terminate his services at any time even after his confirmation, that there was nothing in the statute or the rules made there under which placed a limitation on that right, that the relevant rules, on the other hand support the proposition that the appellant had such a right and that the order of termination of the services of the respondent could not be regarded as an order of dismissal. After hearing him and learned counsel for the respondent, I find this contention to be unexceptionable3. In coming to the various findings against the appellant, the two Courts below seem to have completely ignored condition No. 4 attaching to the appointment of the respondent and appearing in letter of appointment Exhibit P. 2. That condition lays down in unequivocal term, that the services of the respondent would be liable to termination "on one month''s notice on either side". Now there is no reason at all why this condition should not be held to be fully enforceable and why the appellant should not be able to take advantage of it at its pleasure and without assigning any reason for so doing. Learned counsel for the respondent had to concede that the condition is legally good but he argued that it was not meant to be effective after the respondent had been confirmed the limitation which he thinks must be placed on the condition is not warranted by its language nor by the context in which it appears. It is common ground between the parties that the respondent was appointed to a permanent post and was to be on probation for a period of six months. During that period no notice for termination of his services was at all necessary and while the appellant could just say that he was found unsuitable and, therefore, discharged without notice, the respondent himself was under no obligation to stick to his job. The notice was, therefore, obviously provided for a contingency which might arise not during but after a completion of the period of probation Faced with this difficulty learned counsel for the respondent urged that the notice was meant to be (sic) during the period between the completion of the probationary period of six months and the confirmation of the respondent by the appellant The proposition so put forward, howler, ignores the real nature of the conditions of services which would obtain between the period of six months above referred to and the date on which the respondent was confirmed in his post such period would obviously be an extension of the probationary period and, therefore, partake of its nature unless it could be said that the respondent must be presumed not to have been continued on probation but to have been confirmed by the applicant. After his appointment, therefore, the respondent was to pass only through two stages during the course of his service the first stage to cover the period for which was to be on probation whether such period was one of six months or was longer by virtue of any extension and the second stage to embrace the period from the point of his confirmation onwards. There is no third stags and, therefore, no transitory period", as learned counsel for the respondent puts it, between the termination of probation and he confirmation of the respondent. And then if the intention of the authorities was to make condition No. 4 applicable only to the period prior to confirmation there is no reason why this should not have been stated in specific terms The interpretation which learned counsel for the respondents wants to put on the condition is neither warranted by the language thereof nor can be read in to it by necessary implication or intendment.

We may now see whether there is any statutory limitation on the powers of the appellant such as would negative the legality of condition No. 4 contained in letter Exhibit P 2 According to Rule 8.1 of the Ferozepore District Board Business Rules, 1940, the respondent was to be governed by the Punjab Civil Services Rules, a part of which namely, rules 4 and 7 of the punishment Rules are relied upon for the respondent in support of the argument that his services could not have been terminated without an enquiry being held in to any charges justifying his removal from service. Rule 4 and Rule 7(1) of the Punishment Rules may be quoted: The following Penalties may, for good and sufficient reason-as hereinafter provided, be imposed upon members of the services to whom these rules are applicable, namely:

(i) Censure;

(ii) Withholding of increments or promotion, including stoppage at an efficiency bar, if any;

(iii) Reduction to a lower post or time-scale; or to a lower stage in a time-scale

(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence of breach of orders;

(v) Suspension;

(vi) Removal from the Civil Service of the Government, which does not disqualify from future employment;

(vii) Dismissal from the Civil Service of the Government which ordinarily disqualifies from future employment. 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 the appointment and the rules governing the probationary service; or (b) of a temporary Government servant appointed, otherwise than under contract, on the expiration of the period of the appointment, on the abolition of the post or before the due time in accordance with the terms of the appointment; or and (c) of a person engaged under a contract in accordance with the terms of his contract; does not amount to removal or dismissal within the meaning of this rule, or Rule 7.

(1) without prejudice to the provisions of the Public Servants (Inquiries) Act, 1950, no order of dismissal, removal or reduction, shall be passed against a person to whom these rules are applicable, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

The other sub-rules of Rule 7 of the Punishment Rules make provision about the procedure to be followed in giving the employee concerned the opportunity envisaged in Sub-rule (1) of the rule which, however, does not come into play unless the order proposed to be passed against the concerned employee is one of dismissal, remove or reduction within the meaning of Rule 4 which specifically states that the termination of employment of a person in accordance with the terms of the contract governing the same does not amount to removal or dismissal within the meaning of either of the two rules under consideration. It is thus made clear that if the contract of employment of a person envisages termination of his services in certain contingencies such termination, if male in accordance with the terms of the contract, would not attract tine provision of Rule 7 of the Punishment Rules This aspect of the matter has been ignored is both the Courts below and vitiates the failing concurrently arrived at by them that the termination of the services of the respondent amounted to dismissal or removal covered by Rules 4 and 7 of the Punishment Rules, even though the view taken by them that the present case did not fall within the ambit rule I contained in Part V-A of the Rules is not open to attack

I shall now take up a consideration of the finding of the Courts below that although resolution Exhibit P. 10 directed only the termination of the services of the respondent, it was really an order of dismissal for the reasons that

(a) the respondent was a confirmed hand who had a right to hold his post and the termination of whose services was therefore in the nature of punishment: and

(b) the order was passed mala fide and actually as a measure of punishment inflicted on the respondent on account of his opposition to Sunder Singh above mentioned.

With regard to (a) 1 may at once state that the respondent was no doubt a confirmed hand but then it cannot be said that he had a right to hold the post till superannuation or dismissal or that the term-ination of his services must be regarded punishment prima facie. As already pointed out, the appellant had an unrestricted right under condition No. 4 contained in letter of appointment Exhibit P. 2 to terminate the services of the respondent serving him with a month''s notice.

In the preference of this condition, after the Validity of which has not been challenged on behalf of the respondent, he cannot be said to have any right to hold the post until resort is had to the provisions of the Punjab Civil Services Rules for his removal form service.

In Anup Singh v. The State of Haryana and Others(supra), to which reference has been made on behalf of respondent, the facts were these. The employee concerned was promoted as Head Draftsman in the office of the Zila Parishad, Rohtak. Although he completed the period of probation, he was not confirmed During that period another person was appointed as Draftsman and was confirmed as such without completing the period of probation where after the post of Head Draftsman was abolished and the services of the employee holding the post terminated. His contention was that this was done with mala fide intent and that the post of Draftsman had been filled up substantively with the sole purpose of terminating his services by abolition of the post of Head Draftsman. It was found by Sarkaria,J., that in the circumstances of the case the contention was well founded. The case was decided on its own facts which have no analogy with those obtaining in the present case, the result of which is mainly dependent on the interpretation to be placed on and the effect of condition No. 4 contained in letter Exhibit P 2, a situation which did not arise there. Nor is Parshotam Lal Dhingra''s case (supra) at all helpful to the respondent. The Observations made therein and presumably relied upon by the learned Additional District Judge in coming to the conclusion that the termination of the services of a permanent employee is by itself and Prima pacie a punishment, because it operates as a for feiture of his right to hold that post, may be quoted here with advantage:

It has already been said that where a person is appointed substantively to a dement post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of Superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he can not be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Article 311 (2) Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant''s rights and brings about a premature end of his employment. Again where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has be in guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceeding; are taken under the rules read with Article 311 (2). The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Article 311(2).

It is obvious that these observations, are not intended to apply to cases where the employment in question is governed by a contract which envisages termination of the employment otherwise than by recourse to rules normally applicable to cases of Government employees. On the other hand, their Lordships were at pains to point out that the concerned employee would have a right to hold the post only in the absence of a contract, express or implied, to the contrary. The case in fact lends support to the contention raised on behalf of the appellant that condition No. 4 contained in letter Exhibit P 2 cuts at the root of any right which the respondent might otherwise have to hold the disputed post.

That termination of services simplicities is something quite distinct from an order of dismissal was made clear by their Lordships of the Supreme Court in S.R. Tewari''s case (supra) That was a case of an employee of the District Board, Agra, which had terminated his services giving him three month''s notice under Rule 3a of the UP. District Boards Rules framed tinder the U.P. District Board Act, Sections 82 and 84 of which make provision for dismissal of employees of District Boards. The High Court took the view that "dismissal" as envisaged in the two sections included termination of employment simplicities. This view was not shared by their Lordships of the Supreme Court who held that in the law relating to master and servant the expression "dismissal'' had acquired a limited menacing, namely, termination of employment as a method of punishment for misconduct or other acts and that an order of termination of employment otherwise than at a punishment was something different from an order of dismissal.

The conclusion is that where the statute, or the rules legally made in conformity therewith, or a valid contract between the parties, envisages termination of the services of an employee by she issuance of a notice to him covering a specified period, such termination does not per se amount to dismissal which must involve punishment for misconduct or other cause. In the present case the appellant having terminated the services of the respondent under condition No. 4 contained in Jetter Exhibit P.2 it cannot be said that the action prima fake amounted to an order of dismissal even though the respondent was at the time a confirmed employee of the appellant.

The only question which remains to be considered, concerns the allegation of mala fide intent on the part of the appellant and the pro-position put forward by learned counsel for the respondent that the impugned order was really passed as a measure of punishment.

As laid down in S.R. Tewari''s case (supra), it is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely intended to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order, though in form merely one of termination of employment is in really a cloak for an order of, dismissal as a matter of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by statutory rules upon the employee.

The contention raised on behalf of the respondent is that the charges leveled against him in resolution No:4 dated the 7th November, 1964 (Exhibit P.8) were the real reason for the termination of his services had that consequently that termination amounted to dismissal However, it is by now fully established that the motive behind an order of termination of services of an employee is not relevant for the purpose of finding whether such termination amounted to dismissal provided it is otherwise justifiable. In this connection reference may usefully be made to Shri A.G. Benjamin v. Union of India, 1967 (1) S.L. R. 185 In that case the appellant was a temporary Government employee whose services could be terminated with one month''s notice on either side according to the rules regulating his employment. There were certain complaints against him in respect of which he was asked to show cause why disciplinary action should not be taken against him and an enquiry officer was appointed but before the enquiry could be completed the Government terminated his services in pursuance of the following recommendation made dy one of his superior officers:

The departmental proceedings will take a much longer time we are not sure whether after going through all the formalities we will be able to deal with the accused in the way he deserves.

It was held by their Lordships of the Supreme Court that as the order of termination did not attach a stigma to the employee, it was a valid order and that the motive behind it was wholly irrelevant.

Shri A.G. Benjamin''s case (supra) was cited with approval in the State of Punjab and Anr. v. Sukh Raj Bahadur 1968 (II) S.L.R. 701, in which the employee concerned was a Punjab Government servant who was served with a charge-sheet and submitted his explanation thereto. However the enquiry proceeded no further and the Enquiry Officer held no sittings, recorded no evidence and arrived at no conclusion? In holding that the case was one in line with Shri A.G. Benjamin''s case (supra) their Lordships of the Supreme Court laid down the following propositions;

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.

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.

If the order visits the public servant with any evil consequences or casts an asperse on against his character or integrant it must be Considered to be one by way of punishment no matter who the he was a mere probationer or a temporary servant.

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.

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

The facts in the present case are analogous to those obtaining in the State of Punjab and Anr. v. Sukh Raj Bahadur (supra), and the propositions laid down by their Lordships and cited above negative the contention that the termination of the services of the respondent amount to a dismissal by reason of the motive behind it.

Another case in point is Somnath Sahu v. The State of Orissa C.A. No. 813 of 1966 Civil Appeal No. 813 of 1966, decided by their Lordships of the Supreme Court on the 21st of March, 7969. In that case the employee concerned was appointed as Welfare Officer by the Indian Aluminium Company, Limited, Calcutta on six months probation commencing from the 16th of July, 1956. One of the conditions governing his appointment was

The Company will have the right to dispense with your services at any time without assigning any reason on giving you one calendar month''s notice dating from the time of such notice or alternatively, salary in lieu of notice This clause, in no way affects the ''Company''s rights to determine your engagement summarily as provided above for the infringement of certain rules, misconduct negligence of orders of your superiors.

On the 11th of March, 1960, the appellant was dismissed through a letter issued by the Company to the following effect:

Your services are hereby terminated with effect from March 11,1960 on the following grounds: In a Conference held in Writer''s Office on the afternoon of March 10,1.160 in which our personnel Manager Mr. P.K. Krishna Pillai, Production Manager Mr. S.S. Narayan, Personnel Superintendent Mr S. Misra, yourself and that writer were present, you have stated:

[1] That you have no confidence in the fair dealings of the Company.

[2] That you would be looking for another job elsewhere and that you are only continuing your services with the Company till you secure another job.

(3) That you have stated in the presence of the above mentioned Officers of Company and the writer that you have no interest in the Company and further that you will not be showing any general interest in your work, and

[4] That you will not be extending co- operation to the Personnel Superintendent who is your immediate Superior Officer.

You will also recall that in the past you had taken up an attitude of non-co-operation with your Departmental Head and that the writer had to advise you on several occasions to change your attitude and to improve your performance.

On the above grounds we have completely lost confidence in you and, therefore, it is not in the interest of the Company to keep you in our services in the responsible position of Welfare Officer. You will please vacate the Company quarter which you are presently occupying and collect your dues including one month''s notice to which the Company is pleased to give ex-gratia though under the terms of contract you are not entitled to it. In repelling the contention that this letter was really an order of dismissal involving punishment for misconduct, their Lordships of the Supreme Court observed:

It is clear from this letter that respondent No. 4 had a contractual right to terminate the service of the appellant without assigning any reason by giving one month''s notice or one month''s salary in lieu of notice. Upon a reading of the letter dated the 11th March, 1960 we are of opinion that the removal of the appellant was effected in accordance with the terms of the contract. It is true that in the first part of the letter Respondent No. 4 has said that the appellant had refused to disclose the names of the supervisory staff taking part in the union activities and the appellant had not extended co-operation to the Personnel Superintendent who was his immediate superior officer. For these reasons Respondent No. 4 thought that the appellant failed in his duty of obedience to superior officer and was also not showing loyalty to the management But no finding of misconduct was recorded by Respondent No. 4 and the order of removal dated the 11th March, 1960 was really tantamount to a simple order of discharge under the terms of the contract There is no element of punitive action in the order of Respondent No. 4 dated the 11th March 1960. In form and substance it is no more than an order of discharge effected under the terms of contract and it cannot in law be regarded as an order of dismissal because Respondent No. 4 was actuated by the motive that the appellant did not deserve to be continued in service for alleged misconduct. We are, therefore, of opinion that Respondent No. 4 was not required to issue notice to the appellant or to make an enquiry and there was no violation of principles of natural justice.

These observations are fully applicable to the present case. The appellant before me had a contractual right to terminate the services of the respondent by giving the latter a month''s notice or a month''s salary in lieu of notice. The removal of the respondent from service was in accordance with the terms governing his appointment. Merely because on the 7th of November, 1964, the appellant resolved to charge-sheet the respondent for his acts of omission and commission and ordered an enquiry into them...an enquiry which never commenced- would certainly non be enough reason to hold that the termination of the respondent''s services was ordered by way of punishment and, therefore, amounted to his dismissal.

''For the reasons stated, no fault can be found with the order of termination of the respondent''s services passed by the appellant in resolution Exhibit P. 10. Accordingly, the appeal is accepted and the suit of the plaintiff-respondent is dismissed. In view of the complicated nature of the question of law involved, however would leave the parties to bear their own costs throughout.