PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
RAM CHANDRA TRIVEDI
DATE OF JUDGMENT01/09/1976
BENCH:
SINGH, JASWANT
KHANNA, HANS RAJ
SARKARIA, RANJIT SINGH
CITATION:
1976 AIR 2547 1977 SCR (1) 462
1976 SCC (4) 52
ACT
Pracctice--Duty of High Court when there is conflict
between decisions of the Supreme Court--Upsetting concurrent
findings of fact in second appeal-Propriety.
Constitution of India, 1950 Art. 311--Termination of
services of temporary servant--Protection of article when
applicable.
HEADNOTE
The respondent was appointed as a temporary clerk in
an engineering division of the Government. The attempt of
another clerk to impersonate and appear for him in a depart-
mental examination was detected. The Executive Engineer
obtained explanations from both the clerks and reported the
matter to the Superintending Engineer, who brought the
matter to the notice of the ChiefEngineer. The Chief Engi-
neer wrote to the Superintending Engineer to award suitable
punishment. The Superintending Engineer passed the order
that the respondent a "temporary clerk is hereby served with
one month’s notice to the effect that his services shall not
be required after one month from the date of receipt of this
notice." The respondent filed a suit challenging the order
on the ground that the termination was one passed by
way of punishment and therefore attracted Art 311 of
the constitution;. and since the provisions of the
Article had not been complied had not been complied with
the order was void. The Trial Court and the First Appellate
Court dismissed the suit. But the High Court went,through
the official correspondence preceding the passing of the
impugned order, and observing that a close scrutiny of the
facts on record showed that the order was passed by way of
punishment on the basis of the enquiry proceeding and as a
result of the recommendation by the Executive Engineer
followed by the direction issued by Chief Engineer, allowed
the second appeal.
Allowing the appeal to this Court,
HELD :(1) It is no longer open to any one to urge that
the constitutional position in regard to cases of the
present nature is not clear. An examination of the deci-
sions of this Court shows that there is no real conflict in
their ratio decidendi. Even if there is a conflict, the
proper course for a High Court is to find out and follow
the opinion expressed by larger benches of this Court in
preference to those expressed by smaller benches of this
Court. This practice is followed by those Court itself and
has hardened into a rule of law. [475B-C]
Union of India & Anr. v.K.S. Subramanian, [1977] 1
S.C.R. 87, followed.
State of U.P. & Ors v. Sughar Singh [1974] 2 .S.C.R.
335: (1974) 1 S.C.C. 218, The State of Punjab v.P.S. Cheema
A.I.R. 1975 S.C. 1096, Satish Chandra Anand v. The Union of
India [1953] S.C.R. 655, Shyam Lal v. State of U.P. [1955]
1 S.C.R. 26, Parshotam Lal Dhingra v. Union of India [1958]
S.C.R. 828, Gopi Kishore Prasad v. Union of India AIR. 1960
S.C. 689, The State of Orissa & ,Anr. v. Ram Narayan Das
[1961] 1 S.C.R. 606, Madan Gopal v. State of Punjab [1963] 3
S.C.R. 716, Rajendra Chandra Banerjee v. Union of India
[1964] 2 SC.R. 135, Champakal Chimanlal Shah v. The Union
of.India [1964] 3 S.C.R. 190, Jagdish Mitter v. Union of
India A.I.R. 1964 S.C. 449, State of Punjab & Anr. v. Shri
Sukh Raj Bahadur [1968] 3 S.C.R; 234, Union Of India
463
& Ors. v.R.S. Dhaba [1969] 3 S.C.C. 603, State of Bihar &
Ors. v. Shiva Bhikshuk Mishra [1971] 2 S.C.R. 191. R.S. Sial
v. The State of U.P. & Ors. [1974] 3 S.C.R. 754, Shamsher
Singh & Anr. v. State of Punjab [1975] 1 S.C. R. 814 and The
Regional Manager & Anr. v. Pawan Kumar Dubey [1976] 3 S.C.R.
540 referred to.
(2) Before it is held that an order terminating the
services of a Government servant amounts to punishment the
Court must hold that either of the two tests,namely, (a)
that the servant had a right to the post or (b) that he had
been visited with evil consequences such as forfeiture of
pay etc., is satisfied. Therefore, an order terminating the
services of a temporary servant or probationer under the
Rules of employment and without anything more will not
attract Art. 311. Where a departmental enquiry is contem-
plated but an enquiry is not in fact proceeded with, Art.
311 will not be attracted unless it can be shown that the
order, though. unexceptionable in form, is made following a
report based on misconduct. Even though misconduct, negli-
gence, inefficiency or other disqualification may be the
motive for the order of termination, if a right exists under
the contract or the rules to terminate his services, then
Art. 311(2) is not attracted unless the misconduct or negli-
gence is the very foundation of the order. Where there are
no express words in the impugned order itself’ which throw a
stigma on the Government servant, the Court would not delve
into secretariat files to discover whether some kind of
stigma could be inferred on such research. [469 A-B; 473 C;
471 H; 475 F]
Parshotam Lal Dhingra v. Union of India [1958] S.C.R.
828, R.S. Sial v. The State of U.P. & Ors. [1974] 3 S.C.R.
754, Shamsher Singh & Ant. v. State of Punjab [1975] 1
S.C.R. 814 and 1. N. Saksena v. State of Madhya Pradesh
[1967] 2 S.C.R. 496 followed.
(3) The respondent was a temporary hand and had no right
to the post. Under the contract of service and the service
rules applicable to him the State had the right to
terminate his services by giving him one month’s notice. The
order ex-facie is an order of termination of service sim-
pliciter. It does not cast any stigma on the respondent nor
does it visit him with evil consequences, nor is it founded
on misconduct. Therefore, the respondent could not invite
the Court to go into the motive behind the order and claim
the protection of Art. 311(2) of the Constitution. [475 D-
E]
(4) The High Court failed to appreciate the true
legal .and constitutional position and upset the concurrent
findings of fact arrived at by the Courts below, ignoring
the well settled principle of law that a second appeal
cannot be entertained on the ground of erroneous findings of
fact, however, gross the error might seem to be. [475 G-H]
Paras Nath Thakur v. Smt. Mohani Das & Ors. [1960] 1 S.C.R.
271. Sri Ramanuja Jeer & Ors. v. Sri.Ranga Ramanuja Jeer
& Anr. [1962] 2 S.C.R. 509, P. Ramachandra Ayyar v.
Ramalingam [1963] 3 S.C.R. 604 and Madamanchi Ramappa
& ..Anr. v. Muthaluru Bojappa [1964] 2 S.C.R. 673, referred
to.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 258/76.
Appeal by Special Leave from the Judgment and Order
dated 3-1-75 of the Allahabad High Court in Second Appeal
No. 2261/66.
G.N. Dikshit and O.P. Rana, for the Appellant.
Promod Swarup and Manoj Swarup, for the Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is
directed against
464
the judgment and decree dated January 3, 1975, of the High
Court of Judicature at Allahabad setting aside the judgment
and decree dated July 27, 1965, of the Second Additional
Civil Judge, Jhansi, whereby the latter affirmed the judg-
ment and decree of the trial Court dismissing the respond-
ent’s suit for declaration that order dated November 29,
1961, passed by the Superintending Engineer, Circle IV,
Irrigation Works, Jhansi, U.P. terminating the services of
the respondent was void and ineffective in law and he was
entitled to recover a sum of Rs. 2147/-as arrears of pay and
dearness allowance from the appellant.
The facts leading to this appeal are: The respondent
herein was appointed as a temporary clerk in Gur Sarain
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 Superintend-
ing Engineer of his Division. Considering the explanations
tendered by the clerks to be unsatisfactory, the Superin-
tending 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 is hereby served with one month’s
notice to the effect that his services shall not be
required after one month from the date of receipt
of this Notice.
sd/- S.P. Sahni,
Superintending Engineer."
The respondent attempted to have the above order re-
scinded by making representations to the Chief Engineer, and
the Minister of Irrigation, U.P. which proved abortive. The
respondent thereupon challenged the aforesaid order of
termination of his services by instituting the aforesaid
suit averring inter alia that the order not being an order
of termination of his service simpliciter but being one
passed by way of punishment, attracted the applicability of
Article 311 of the Constitution which not having been com-
plied with rendered the order void and ineffective, in law.
The suit was resisted by the appellant on the ground that
the respondent was only a temporary hand; that under the
contract of service as also the rules applicable to tempo-
rary Government servants, the respondent was liable to be
discharged any time even though an enquiry in respect of a
charge of misconduct might have been insti-
465
tuted against him; and that the impugned order not having
been passed a measure of punishment but being a simple
order of termination of the respondent’s services without
casting any stigma on him or visiting him with evil conse-
quences, was valid both under the aforesaid rules and the
contract of service. The grounds of attack made against the
impugned order did not find favour with the trial Court
which dismissed the suit. Aggrieved by the judgment and
decree of the trial Court, the respondont took the matter in
appeal to the Second Additional Civil Judge, Jhansi, who
affirmed the judgment and decree of the trial Court.
Both the Courts found that the impugned order was valid
in law as it was a simple order of termination of service
and not having been passed by way of punishment, it did not
attract the provisions of Article 311 (2) of the Constitu-
tion. Dissatisfied with these judgments, the respondent
preferred a second appeal to the High Court of Judicature at
Allhabad, which as already stated was allowed by a learned
Single Judge of that Court.
While oversetting the concurrent findings of fact ar-
rived at by the courts below and decreeing the respondent’s
aforesaid suit, the learned single Judge went through the
official correspondence preceding the passing of the im-
pugned order and observed that a close scrutiny of the facts
on record showed that the order was passed by way of punish-
ment on the basis of the enquire proceedings and as a result
of the recommendation made by the Executive Engineer fol-
lowed 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 pre-
ferred 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 relat-
ing 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 been vehemently urged by Mr. Garg,
learned counsel for the respondent, that the constitutional
position in regard to orders of the impugned nature is
not well settled in view of the conflicting decisions of
this Court particularly in view of the observations made in
State of U.P. & Ors. v. Sughar Singh(1) and The State of
Punjab v.P.S. Cheema (2), Mr. Garg has further contended
that the circumstances attending the issue of the impugned
order clearly establish that it was passed by way of punish-
ment.
It would, in our opinion, be appropriate at the outset
to refer to the I decisions of this Court which have an
important bearing on the instant
(1) [1974] 2 S.C.R. 335 =[1974] 1 S.C.C. 218.
(2) A.I.R 1975 S.C. 1096.
466
case and to dispel the doubts sought to be created by Mr.
Garg with regard to the constitutional position in relation
to the applicability of Article 311 (2) of the Constitution,
resulting from the said decisions.
In Satish Chandra Anand v. The Union of India(1), it was
held by this Court that any and every termination of service
does not amount to dismissal or removal and a termination of
service brought about by exercise of a contractual right is
not per se dismissal or removal. On the same reasoning,
this Court laid down in Shyam Lal v. State of U.P.(2) that
the termination of service by compulsory retirement in
terms of specific rule regulating the conditions of service
is not tantamount to the infliction of punishment and does
not attract Article 311(2).
In Parshotam Lal Dhingra v. Union of India(3) which is
regarded as the Magna Carta of the Indian Civil Servant Das,
C.J. speaking for the majority made the following illuminat-
ing observations :--
"Shortly put, the principle is that when a
servant has right to a post or to a rank either
under the terms of the contract of employment,
express or implied, or under the rules governing
the conditions of his service, the termination of
the service of such a servant or his reduction to a
lower post is by itself and prima facie a punish-
ment, for it operates as a forfeiture of his right
to hold that post or that rank and to get the
emoluments and other benefits attached thereto. But
if the servant has no right to the post, as where
he is appointed to a post, permanent or temporary
either on probation or on an officiating basis and
whose temporary service has not ripened into a
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 employ-
er, 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 provi-
sions of Art. 311.
It does not, however, follow that, except in the three
cases mentioned above. in all other cases. termination of
(1) [1953] S.C..R.. 655.
(2) [1955]1 S.C..R. 26.
(3) S..C..R. 828.
467
service of a Government servant who has no right to his
post, e.g., where he was appointed to a post, temporary or
permanent, either on probation or on an officiating basis
and had not acquired a quasi-permanent status, the termina-
tion cannot, in any circumstance, be dismissal or removal
from service by way of punishment’ Cases may arise where the
Government may find a servant unsuitable for the post on
account of misconduct, negligence, inefficiency or other
disqualification. If such a servant was appointed to a
post, permanent or temporary, either on probation or on an
offciating basis, then the very transitory character of the
employment implies that the employment was terminable at any
time on reasonable notice given by the Government. Again
if the servant was appointed to a post, permanent or tempo-
rary, on the express condition or term that the employment
would be terminable on say a month’s notice as in the case
of Satish Chander Anand v. The Union of India (supra), then
the Government might at any time serve the requisite notice.
In both cases the Government may proceed to take action
against the servant in exercise of its powers under the
terms of the contract of employment, express or implied, or
under the rules regulating the conditions of service, if any
be applicable, and ordinarily in such a situation the
Government will take this course. But the Government may
take the view that a simple termination of service is not
enough and that the conduct of the servant. has been such
that he deserves a punishment entailing penal consequences.
In such a case the Government may choose to proceed against
the servant on the basis of his misconduct, negligence,
inefficiency or the like and inflict on him the punishment
of dismissal, removal or reduction carrying with it the
penal consequences. In such a case the servant will be
entitled to the protection of Art. 311 (2).
The position may, therefore, be summed up as follows:
Any and every termination of service is not a dismissal,
removal or reduction in rank. A termination of service
brought about by the exercise of a contractual right is not
per se dismissal or removal, as has been held by this Court
in Satish Chander Anand v. The Union of India (supra).
Likewise the termination of service by compulsory retire-
ment in terms of a specific rule regulating the conditions
of service is not tantamount to the infliction of a punish-
ment 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
468
right exists, under the contract or the rules, to termi-
ate 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 terminate the employment without going
through the procedure prescribed for inflicting the punish-
ment 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 disqualification, then it is a punishment and the
requirements of Art. 311 must be complied with. As already
stated if the Servant has got a right to continue in the
post then, unless the contract of employment or the rules
provide to the contrary, his services cannot be termi-
nated otherwise than for misconduct, negligence, ineffi-
ciency or other good and sufficient cause. A termination of
the service of such a servant on such grounds must be a
punishment and, therefore, a dismissal or removal within
Art. 311, for it operates a forfeiture of his right and he
is visited with the evil consequences of loss of pay and
allowances. It puts an indelible stigma on the officer
affecting his future career. A reduction in rank likewise
may be by way of punishment or it may be an innocuous thing.
If the Government servant has a right to a particular rank,
then the very reduction from that rank will operate as a
penalty, for he, will then lose the emoluments and privi-
leges of that rank. If, however, he has no right to the
particular rank, his reduction from an officiating higher
rank to his substantive lower rank will not ordinarily be a
punishment. But the mere fact that the servant has no title
to the post or the rank and the Government has, by contract,
express or implied, or under the rules, the right to reduce
him to a lower post does not mean that an order of reduction
of a servant to a tower post or rank cannot in any circum-
stances be a punishment. 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 the loss of his seniority in his
substantive rank or the stoppage or postponement of his
future chances of promotion, then that circumstance 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
(1) A.I.R. 1956 Bom. 455.
469
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(1), it was held
by this Court that if the Government proceeded against the
probationer in the direct way without casting any aspersion
on his honesty or competence, his discharge would not have
the effect of removal by way of punishment, but if instead
of taking the easy course, the Government chose the more
difficult one of holding an enquiry into his alleged miscon-
duct and branded him as a dishonest and incompetent officer,
it would attract Article 311 (2) of the Constitution.
In The State (2) Orissa & Anr. v. Ram Narayan Das(2)
where July 28, 1954, a notice was served on the respondent
who was appointed as a Sub-Inspector on probation in the
Orissa Police Force in the year 1950 to show cause why he
should not be discharged from service for gross neglect of
duties and unsatisfactory work and where the explanation
tendered by him was considered to be unsatisfactory by the
Deputy Inspector-General of Police who passed an order
discharging the respondent from service for unsatisfactory
work and conduct and where the respondent contended that the
order was invalid on two grounds: (i) that he was not given
a reasonable opportunity to show cause against the proposed
action within the meaning of Article 311 (2), and (ii)
that he was not afforded an opportunity to be heard nor was
any evidence taken on the charge, it was held that the order
of discharge did not amount to dismissal and did not attract
the protection of Article 311 (2) of the Constitution as the
respondent was a probationer and had no right to the post
held by him and his services were terminated in accordance
with the rules which permitted his being discharged at any
time during the period of probation.
The case of Madan Gopal V. State of Punjab(3) where the
order terminating the employment of the appellant who was a
temporary Government servant was qashed on the ground that
it was in the nature of an order of punishment which had
been passed without complying with the provisions of Article
311 (2) of the Constitution is clearly distinguishable.
In that case, the order of termination of the
(1) A.I.R. 1960 S.C. 689.
(2) [1961] 1 S.C.R. 606.
(3) [1963] 3 S.C.R. 716.
470
appellant’s service which was preceded by an enquiry into
his alleged misconduct was based on the finding of miscon-
duct which amounted to casting a stigma affecting his future
career.
In Rajendra Chandra Banerice v. Union of India(1)
where the appellant was appointed as a probationer for one
year (which was extended from time to time) on condition
that his services 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 in-
formed that the explanation given by him was not satisfacto-
ry 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(2)
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 termina-
tion, 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, but no regular departmental enquiry
followed and the proceedings were dropped, it was held by
this Court after considering the cases of Gopi Kishore
Prasad v. Union of India (supra), State of Orissa v. Ram
Narayan Das (supra). Madan Gopal v. State of Punjab (supra)
and Jagdish Mitter v. Union, of India(3) that such a regular
departmental enquiry though contemplated was not held
against the appellant and no punitive action was taken
against him, there-was no question of the case being gov-
erned by Article 311(2) or the Constitution. It was fur-
ther held in that case that it is only when the Government
decides to hold a regular departmental enquiry for the
purpose of inflicting one of the three major punishment’;
that the Government servant gets the protection of Article
311.
In State of Punjab & Anr. v. Shri Sukh Raj Bahadur(4)
where the Punjab Government reverted the respondent from
his officiating appointment in the Punjab Civil Service
(Executive Branch) to his substantive post in the Delhi
Administrative after issuing him a charge sheet to which the
respondent replied but the enquiry was not proceeded with,
it was held by this Court that the respondent could not
complain against the order reverting him to his former post
because the order of reversion was not by way of punishment.
In that case, Mitter, J. who spoke for the Bench laid down
the following propositions :--
(1) [1964] 2 S.C.R. 135.
(2) [1964] 5 S.C.R. 190.
(3) A.I R. 1964 S.C. 449.
(4) [1968] 3 S.C.R. 234.
471
"1. The services of a temporary servant or a
probationer can be terminated under the rules of
his employment and such termination without any-
thing more would not attract the operation of
Art. 311 of the Constitution.
2. 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.
3. If the order visits the public servant with
any evil consequences or casts an aspersion
against his character or integrity, it must be
considered to be one by way of punishment, no
matter whether he was a mere probationer or a
temporary servant.
4. An order of termination of service in unex-
ceptionable 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 Art. 311 of the
Constitution.
5. If there be a fulI-scale departmental enquiry
envisaged by Art. 311 i.e. an Enquiry Officer is
appointed, a charge sheet submitted, explanation
called for and considered, and order of termina-
tion 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(1). State of
Bihar & Ors. v. Shiva Bhikshuk Mishra(2) 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 over-
riding 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.P. & Ors. (3) to which
one of us (brother Khanna, J.) was a party, it was made
clear in unambiguous terms that it may be taken to be well
settled that even though misconduct, negligence, ineffi-
ciency or other disqualifications may be the motive or the
inducing factor which influence the Government to take
action under the express or implied terms of the contract of
employment or under the statutory rule, nevertheless if a
right exists, under
(1) [1969] 3 S.C.R. 603.
(2) [1971] 2 S.C.R. 191.
(3) [1974] 3 S.C.R. 754.
472
the contract or the rules to terminate the services the
motive operating on the mind of the Governments is wholly
immaterial. The same rule would hold good if the order
passed is not for termination of service but for reversion
of a Government servant from a higher post to a lower post
which he holds in a substantive capacity.
The decision of this Court in State of Uttar Pradesh &
Ors. v. Sughar Singh (supra) where the order of the re-
spondent’s reversion held to have been passed by way of
punishment to which our attention has been drawn by Mr. Garg
and which has led to a certain amount of misunderstanding
turned upon a clear statement made before the High Court by
the Standing Counsel for the State that the foundation of
the order of reversion was the adverse entry made in his
confidential character roll.
The constitutional position has now been made crystal
clear by a Bench of seven Judges of this Court in Shamsher
Singh & Anr. v. State Punjab(1) where the learned Chief
Justice after an exhaustive review of the decisions of this
Court observed :--
"No abstract preposition can be laid down
that where the services of a probationer are termi-
nated without saying anything more in the order of
termination than that the services are terminated
it can never amount to a punishment in the facts
and circumstances of the case. If a probationer is
discharged on the ground of misconduct, or ineffi-
ciency or for similar reason without a proper
enquiry and without his getting a reasonable oppor-
tunity of showing cause against his discharge it
may in a given case amount to removal from service
within the meaning of Article 311 (2) of the Con-
stitution.
Before a probationer is confirmed the author-
ity concerned is under an obligation to consider
whether the work of the probationer is satisfactory
or whether he is suitable for the post. In the
absence of any Rules governing a probationer in
this respect the authority may come to the conclu-
sion that on account of inadequacy for the job or
for any temperamental or other object not involv-
ing 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 inef-
ficiency or corruption, and if his services are
terminated without following the provisions of
Article 311 (2) he can claim protection .....
(1) [1975] 1 S.C.R. 814.
473
The fact of holding an inquiry is not always
conclusive. What is decisive is whether the order
is really by way of punishment ...... A proba-
tioner 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 the services of a
temporary servant or probationer under the Rules of
Employment and without anything more will not
attract Article 311. Where a departmental enquiry
is contemplated and if an enquiry is not in fact
proceeded with Article 311 will not be attracted
unless it can be shown that the order though unex-
ceptionable in form is made following a report
based on misconduct."
The Division Bench judgment of this Court in P.S. Chee-
ma’s case (supra) on which strong reliance has been placed
by Mr. Garg is also clearly distinguishable and no help can
be derived therefrom by the respondent. In that case, both
the trial Court and the first appellant Court had come to a
concurrent finding of fact that the impugned order of
termination was by way of punishment. It would also be
seen that in that case on a representation being made by the
respondent to the then Chief Minister of the State, the
latter after consideration of the matter had ordered that in
view of the respondent’s previous good record, he did not
deserve the "punishment of termination of service only on
account of a few bad reports and that the respondent should
continue in service and his case should be reviewed after
he earned another report from the Excise and Taxation
Commissioner for the year 1964-65".
In a recent decision of this Court in The Regional
Manager & Anr. v. Pawan Kumar Dubey(1) to which one of us
was a party, Sughar Singh’s case (supra) which is the sheet
anchor of Mr. Garg’s contention was also adverted to and it
was explained therein that that case did not depart from
earlier decisions on applicability of Article 311 (2) or
Article 16 of the Constitution. The following observations
made in Pawan Kumar Dubey’s case (supra) should suffice to
clear the doubts that may still be lurking in some quarters
as to the ratio decidendi of Sughar Singh’s case (supra) :--
"We think that the principles involved in
applying Article 311(2) having been sufficiently
explained in Shamsher Singh’s case (supra) it
should no longer be possible to urge that Sughar
Singh’s case (supra) could give rise to some
misapprehension of the law. Indeed, we do not
think that the principles of law declared and
applied so often have really changed. But the
application of the same law to the differing cir-
cumstances and facts of various cases which
(1) [1976] 3 S.C.R. 540.
474
have come up to this Court could create the impres-
sion 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 cir-
cumstances of a case which constitutes its ratio
decidendi and not some conclusion based upon
facts which may appear to be similar. One addition-
al or different fact can make a world of differ-
ence between conclusions in two cases even when the
same principles are applied in each case to simi-
lar 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 specif-
ically 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(1) Jagdish Mitter v. Union of India
(supra);A. G. Benjamin v. Union 01 India(2);
Ram Gopal Chaturvedi v. State. of Madhya
Pradesh(3); Union of India v. Galendra Singh(4);
Divisional Personnel Officer v. Raghavendrachar(5);
Union of India v. Joswant Ram(6); Madhav v. State
of Mysore(7); State of Bombay v.Abraham(8). In
Sughar Singh’s case (supra), this Court summarised
the propositions of law deducible from the cases
mentioned above; and, while considering the ap-
plicability of some of the propositions of law to
the facts of the case, it did observe that, on the
face of it, the action against Sughar Singh did not
appear to be punitive. Nevertheless, on a total
consideration of all the facts, including the
admission in the High Court before Verma, C.J. by
the Standing Counsel appearing on behalf of the
State, that the reversion order could not be ex-
plained except as a result of the adverse entry
made two years earlier, it had finally applied the
ratio decidendi of the State of Bihar v. Shiva
Bhikshuk Mishra (supra), where this Court had
affirmed the opinion of the High Court, on facts,
that the reversion was not in the usual course or
for administrative reasons but it was after the
finding on an enquiry about some complaint against
the Plaintiff and by way of punishment to him.
On this view of the case, it was not really
necessary for this Court to consider whether the
reversion of Sughar Singh was contrary to the
provisions of Article 16 also.
C.A. No. 590 of 1962 decided on 23-10-1963 .
(2) [1967] 1 S.C.R. 718.
(3) [1970] 1 S.C.R. 472.
(4) [1972] 2 S .C.R. 660.
(5) [1966] 3 S.C.R. 106.
(6) A.I.R.1958 s.c. 905.
(7) [19621 1 S.C.R. 886.
(8) [1962] Supp. 2 SC.R. 92.
475
We do not think that Sughar Singh’s case
(supra) in any way, conflicts with what has been
laid down by this Court previously on Article
311(2) of the Constitution or Article 16 of the
Constitution."
Thus on a conspectus of the decisions of this Court
referred to above, it is obvious that there is no real
conflict in their ratio decidendi and it is no longer open
to any one to urge with any show of force that the consti-
tutional position emerging from the decisions of this
Court in regard to cases of the present nature is not clear.
It is also to be borne in mind that even in cases where a
High Court finds any conflict between the views expressed
by larger and smaller benches of this Court, it cannot
disregard or skirt the views expressed by the larger bench-
es. The proper course for a High Court in such a case, as
observed by this Court in Union of India & Anr. v.K.S.
Subramanian(1) 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 arriv-
ing at the finding that the impugned order was passed by way
of punishment by probing into the departmental correspond-
ence that passed between the superiors of the respondent
overlooking the observations made by this Court in I.N.
Saksena v. State of Madhya Pradesh(2) that when there are no
express words in the impugned order itself which throw a
stigma on the Government servant, the Court would not
delve into Secretariat flies to discover whether some kind
of stigma could be inferred on such research.
We also find ourselves in agreement with the contention
advanced on behalf of the appellant that the High Court
failed to appreciate the true legal and constitutional
position and upset the concurrent findings of fact arrived
at by the Courts below that the impugned order was not by
way of punishment ignoring the well settled principle of law
that a second appeal cannot be. entertained on the ground
of erroneous finding of fact, however gross the error might
seem to be. (See Paras
(1) [1977] 1 S.C.R. 87.
C2) [1967] 2 S.C.R. 496.
476
Nath Thakur v. Smt. Mohani Dasi & Ors.(1); Sri Sinna Ramanu-
la Jeer & Ors. v. Sri Ranga Ramanuja Jeer & Anr. (2); R.
Ramachandra Ayyar v. Ramalingam(3) and Madamanchi Ramappa &
Anr. v. Muthaluru Bojappa(4).
For the foregoing reasons, the contentions of Mr. Dixit
are upheld and those of Mr. Garg are repelled.
In the result, we allow the appeal, set aside the judg-
ment and, decree of the High Court, restore the judgments
and decrees of the Courts below and dismiss the respond-
ent’s suit. In the circumstances of the case, the parties
are, however, left to pay and bear their own costs of this
appeal.
V.P.S. Appeal allowed.
(1) [1960] 1 S.C.R. 271.
(2) [1962] 2 S.C.R. 509.
(3) [1963] 3 S.C.R. 604.
477