TMI Blog1963 (10) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... no opportunity was given to him of showing cause against the action taken against him. He therefore brought a suit in the City Civil Court at Bombay, and his contention was that his services had been terminated unjustifiably and maliciously as the Regional Director of Production in the Textile Commissioner's office at Ahmedabad was against him. Because of this on December 29, 1953, the appellant 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. The appellant went on to state in the plaint that certain enquiries were held against him behind his back but the matter was not pursued and he was transferred to Bombay in February 1954. While he was at Bombay he received the notice terminating his services. He claimed that he was a quasi-permanent employee under the Central Civil Services (Temporary Service) Rules, 1949, (hereinafter referred to as the Rules) and no action under r. 5 of the Rules could be taken against him. He was further entitled to the protection of Art. 311 of the Constitution and as his services were terminated without complying with that provision th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle to the protection of Art. 311(2) of the Constitution in the circumstances of this case. The trial court held on all these points against the appellant and dismissed the suit. The appellant then went in appeal to the High Court. The High Court agreed with the trial court and dismissed the appeal. The appellant then applied for a certificate to appeal to this Court, which was granted; and that is how the matter has come up before us. 4. The first question that falls for consideration is whether the appellant was a quasi permanent employee and r. 5 did not apply to him. If the appellant is held to be a quasi permanent employee, he will be entitled to the protection of Art. 311(2) and as admittedly the provisions of Art. 311(2) were not complied with in the present case, his suit would have to be decreed and no further question would arise for decision. Rule 3 of the Rules, which falls for consideration in this connection, is as follows :- A Government servant shall be deemed to be in quasi-permanent service :- (i) if he has been in continuous Government service for more than three years; (ii) if the appointing authority, being satisfied as to his suitability in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in B.M. Pandit v. Union of India AIR1962Bom45 where the learned Judges pointed out at p. 48 that they found from the copy of the gazette of the Government of India in which these Rules were first published that neither the word and nor the word or appeared between the two sub-clauses and this position is accepted on behalf of the respondent before us. The question therefore arises whether we have to read the two sub-clauses conjunctively or disjunctively. We may add that the Bombay High Court in the case mentioned above read the two sub-clauses conjunctively and we are of opinion that that view is correct. 7. The object of these Rules obviously was to provide for some security of tenure for a large number of temporary government servants who had to be employed in view of World War II and also to provide for former employees of the Governments of Sind, the North West Frontier Province and Baluchistan who had come to India on account of the Partition. This protection was afforded temporary government servants and the government servants of the other type by the device of creating quasi-permanent service. Rule 3 provided in what circumstances a government servant shall be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it must be held that both the conditions in r. 3 must be satisfied before a government servant can be deemed to be in quasi-permanent service. 8. This will in our opinion also be clear from the scheme of the Rules following r. 3. Rule 4 provides that a declaration issued under r. 3 shall specify the particular post or the particular grade of posts within a cadre in respect of which it is issued, and the date from which it takes effect. This rule is clearly meant to apply to all quasi-permanent employees and shows that no government servant can be deemed to be in quasi-permanent service until a declaration has been issued. Rule 6 provides that the service of a Government servant in quasi-permanent service shall be liable to termination in the same circumstances and in the same manner as a government servant in permanent service. Now under the definition of r. 2(b), quasi-permanent service begins with a declaration issued under sub-clause (ii) of r. 3. Therefore the protection of r. 6 can only be given to a quasi-permanent employee after a declaration has been made. This again shows that a declaration is necessary before a Government servant can claim to be in quasi-permanen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uasi-permanent service and r. 3 laying down how a government servant can be deemed to be in quasi-permanent service require that the two sub-clauses should be read conjunctively and that two conditions are necessary before a government servant can be deemed to be in quasi-permanent service, namely, (i) continuous service for more than three years, and (ii) declaration as required by sub-clause (ii) of r. 3. It is not in dispute that though the appellant had been in service for more than three years by 1954, no declaration as required by sub-clause (ii) of r. 3 has ever been made in his case. He cannot therefore claim to be in quasi-permanent service. It follows therefore that he cannot claim the benefit of r. 6, which lays down that the services of a government servant in quasi-permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service. If he could claim the benefit of r. 6, he would have been certainly entitled to the protection of Art. 311(2). As he is not entitled to the benefit of r. 6, he cannot claim the benefit of Art. 311(2) on the ground that he must be deemed to be in quasi-permanent servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r we see no denial of equal opportunity if out of the class of temporary employees some are made quasi-permanent depending on length of service and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees. It has been urged on behalf of the respondent that Art. 16 in any case will not apply to matters relating to termination of service. We do not think it necessary for present purposes to decide whether Art. 16 would apply to rules relating to termination of service. We shall assume for the purposes of this appeal that Art. 16 will apply even in the case of rules relating to termination of service. But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate equality of opportunity provided in Art. 16. The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances. In particular the very fact that the service of a government servant is purely temporary makes hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct. A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory. We therefore reject the contention that the appellant was denied the protection of Art. 16 and was treated in a discriminatory manner. 12. We now come to the last question whether the appellant was entitled to the protection of Art. 311(2) of the Constitution, even though he was a temporary government servant. It is well settled that temporary servants are also entitled to the protection of Art. 311(2) in the same manner as permanent government servants, if the government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank : (see Parshotam Lal Dhingra v. Union of India (1958)ILLJ544SC . But this protection is only available where discharge, removal or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post to a lower post where the post is held on a temporary measure. This dissatisfaction with the work and/or conduct of a temporary servant may arise on complaint against him. In such cases two courses are open to government. It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct. Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of Art. 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him. An e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... temporary employee or a government servant holding a higher rank temporarily it must not be confused with the regular departmental enquiry (which usually follows such a preliminary enquiry) when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is concerned there is no question of its being governed by Art. 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporarily to which he has no right. In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Art. 311(2) for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to dispense with their service or revert them to their substantive posts. The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e.g. r. 5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of Art. 311(2). Whether such termination would amount to dismissal or removal within the meaning of Art. 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service. 16. Let us now turn to the facts of this case. On December 29, 1953, a memorandum was given to the appellant under the signature of the Under Secretary to the Government of India. By that memorandum he was informed about four matters and his explanation was called in that connection. The first matter referred to his punctuality in attending office and his absenting himself from duty without prior intimation and instances in that respect were brought to his notice. The second matter was with respect to irregular claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry as contemplated under Art. 311(2) read with the relevant Central Services Rules was ever held after the notice of December 29, 1953, as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross-examine witnesses produced against him and would also have been entitled to lead evidence. It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should not be taken against him, no departmental enquiry followed that memorandum and the matter was dropped. That is further borne out by the fact that the appellant was transferred from Ahmedabad to Bombay in February 1954, which would be most unlikely if a departmental enquiry was going on against him in Ahmedabad. The respondent's case in this connection is that it gave up the departmental enquiry even though it was contemplated and transferred the appellant to Bombay in order to give him a chance of improvement. The appellant worked in Bombay for over six months and thereafter the Government finally decided to terminate his services under r. 5 as his work and conduct were found unsatisfactory even after his tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab (1964)ILLJ68SC . In that case Madan Gopal was a temporary government servant. A charge-sheet was served on him on February 5, 1955 and he was charged with having taken bribes in two cases. He was also asked to explain why disciplinary action should not be taken against him. He was further asked to state if he wanted to be heard in person and also to put forth any defence. It will be clear that charges were served upon Madan Gopal in that case while in the present case no charges were ever served on the appellant and the communication of December 29, 1953 was headed as a memorandum. Further the charge-sheet in Madan Gopal's case (1964)ILLJ68SC besides asking him to state why disciplinary action should not be taken against him also asked him to state in his reply if he wanted to be heard in person and wanted to put forward any defence, which clearly showed that a departmental enquiry was going to be held particularly when the charges were given by the Settlement Officer who had apparently been appointed the enquiry officer for the purpose. Further in Madan Gopal's case (1964)ILLJ68SC an enquiry was held and a report was submitted by the enquiry officer to the Deputy C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and this Court laid down five propositions therein. It is the third proposition therein on which strong reliance has been placed on behalf of the appellant. It is in these terms :- But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of Art. 311(2) of the Constitution. 20. It is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer - and the same it is said will apply to a temporary employee as the two stand more or less on the same footing - the protection of Art. 311(2) would be available. We are of opinion that this is reading much more in the proposition then was ever intended by this Court. In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquiries showed that he had the reputation of bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority competent to terminate the employment and pointed out that action in accordance with the rules would not be hit by Art. 311. Gopi Kishore Prasad's case (1960)ILLJ577SC was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasad's case (1960)ILLJ577SC referred to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed, which means that where the Government purports to hold an inquiry under Art. 311(2) read with the Rules in order to punish an officer, it must afford him the protection provided therein. The third proposition therefore in Gopi Kishore Prasad's case (1960)ILLJ577SC must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct. The third proposition must be restricted only to those cases whether of temporary government servants or others, where gove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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