TMI Blog1976 (9) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... rain Canal Division, Jhansi. on May 16, 1954. Seven years later, he was required to appear in a departmental examination which was held in July, 1961. On July 12. 1961, an optional typewriting test was held by the Department.In that test the Executive Engineer, Investigation and Planning Division, Jhansi, it is alleged, detected Gopal Deo Santiya, a clerk of Bhander Canal Division, attempting to personate and appear for the respondent. He obtained the explanation of both the clerks and reported the matter to the Superintending Engineer of his Division. Considering the explanations tendered by the clerks to be unsatisfactory, the Superintending Engineer brought the matter to the notice of the Chief Engineer, Irrigation Department, Lucknow. The Chief Engineer wrote back to the Superintending Engineer asking him to award suitable punishment to the aforesaid two clerks. The Superintending Engineer thereafter issued orders terminating the services of both the clerks. The order that was passed in respect of and served on the respondent ran as follows : No. E-70/IV/259 Dated Jhansi, November 29, 1961 OFFICE MEMORANDUM Shri Ram Chandra Trivedi, Temporary Routine Grade Clerk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing of the impugned order and observed that a close scrutiny of the facts on record showed that the order was passed by way of punishment on the basis of the enquire proceedings and as a result of the recommendation made by the Executive Engineer followed by the direction issued by the Chief Engineer that the respondent should be suitably punished. It is against this judgment and decree that the present appeal has been preferred by the State of U.P. Mr. Dixit, learned counsel appearing on behalf of the appellant, has urged that the High Court acted illegally in reversing the concurrent findings of fact arrived at by the courts below and quashing the impugned order which was a simple order of termination of the respondent's services and had been validly passed in accordance with the rules relating to temporary Government servants and the contract of service. He has further contended that the learned Single Judge could not probe into the departmental files to support his finding that the impugned order was passed against the respondent by way of punishment. He has. in support of his submissions, relied upon a number of decisions of this Court. As against this, it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking, Art. 311 (2), will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the Government has, by contract, express or implied, or, under the rules,the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is prima facie and per se not a punishment and does not attract the provisions of Art. 311. It does not, however, follow that, except in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art. 311 (2), as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh (supra). In either of the two above mentioned cases the termination of the service did not carry with it the panel consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to termiate the service the motive operative on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of India(1) wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract of 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. 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 or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant. In Gopi Kishore Prasad v. Union of India(A.I.R. 1960 S.C. 689), it was held by this Court that if the Government proceeded against the probationer in the direct way without cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es might be terminated without any notice and cause being assigned during that period and he agreed and joined the service and where later on during the period of his probation, he was called upon to show cause why his services should not be terminated and he was finally informed that the explanation given by him was not satisfactory and his services would stand terminated on a specified date, it was held by this Court that the termination of his service was not by way of punishment and could not amount to dismissal or removal within the meaning of Article 311. In Champaklal Chimanlal Shah v. The Union of India([1964] 5 S.C.R. 190) where the appellant, whose appointment being temporary, was liable to be terminated on one month's notice on either side was informed without assigning any cause after the expiry of about five years that his services would be terminated with effect from a specified date but before the termination, he was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him and certain preliminary enquiries were also held against him in which he was not heard, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, and order of termination of service made thereafter will attract the operation of the said Article. The principles laid down in Parshotam Lal Dhingra's case (supra), Champaklal Chimanlal Shah's case (supra), and Shri Sukh Raj Bahadur's case (supra) were reiterated by this Court in Union of India Ors. v.R.S. Dhaba([1969] 3 S.C.R. 603). State of Bihar Ors. v. Shiva Bhikshuk Mishra ([1971] 2 S.C.R. 191) and R.S. Sial v. The State of U.P. Ors.(3) where it was laid down that the test for attracting Article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive to its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. In R.S. Sial v. The ;State of U. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311 (2) he can claim protection. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment ...... A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2). An order terminating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. This Court's judgment in Sughar Singh's case (supra) shows that it was only following the law on Article 311(2) of the Constitution as laid down repeatedly earlier by this Court. It specifically referred to the following cases: Parshottam Lal Dhingra v. Union of India (supra); State of Punjab v. Sukh Raj Bahadur (supra); State of Orissa v. Ram Narayan Das (supra); R.C. Lucy v. State of Bihar(C.A. No. 590 of 1962 decided on 23-10-1963 ) Jagdish Mitter v. Union of India (supra);A. G. Benjamin v. Union 01 India([1967] 1 S.C.R. 718); Ram Gopal Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 1 S.C.R. 87) to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself. Keeping in view the principles extracted above, the respondent's suit could not be decreed in his favour. He was a temporary hand and had no right to the post. It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month's notice. The order to which exception is taken is ex facie an order of termination of service simpliciter. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct. In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311 (2) of the Constitution. We, therefore, agree with the submission made on behalf of the appellant that the High Court was in error in arriving at the finding that the impugned order wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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