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TMI Blog1957 (11) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... to his substantive post in Class III service. This appeal raises a very important question about the construction of art. 311 of the Constitution. The facts are shortly as follows:-In August 1924 the appellant joined the railway service as a Signaller (Telegraphist). As a result of selection, he was promoted as Section Controller in 1942 and as Deputy Chief Controller in 1947 and as the Chief Controller in 1950. All these posts were in Class III service. On March 31, 1951, seven candidates, including the appellant, appeared before a selection board constituted for selecting a candidate for the post of Assistant Superintendent Railway Telegraphs, which was a gazetted post in Class 11 Officer's cadre. The appellant was selected out of the seven candidates for this post. On July 2, 1951, a notice of appointment was issued from the headquarters of the East Punjab Railway, Delhi, notifying that " Mr. Parshotam Lal, Officiating Chief Controller, is appointed to officiate in Class II service as Asstt. Spdt. Rly. Telegraphs, Headquarters Office vice Mr. Sahu Ram whose term of temporary re-employment expires on the afternoon of 3rd July, 1951 ". The applicant actually relieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferred to Headquarters office and appointed to officiate in Class 11 service as Assistant Signal and Tele-communication Engineer (Telegraphs) vice Shri Parshotam Lal Dhingra, who on relief reverts to Class III appointment." The appellant on August 20, 1953, appealed to the General Manager for reconsideration and thereafter on October 19, 1953, appealed to the Railway Board and made a representation also to the President of India. On February 2, 1955, the Railway Board wrote to the General Manager as follows: With reference to your letter No. 3780 dated the 30th December, 1953, the Board desires that you should inform Shri Parshotam Lal Dhingra that his reversion for generally unsatisfactory work will stand, but that this reversion will not be a bar to his being considered again for a promotion in the future if his work and conduct justify. He should also be informed that he has, in his representation, used language unbecoming of a senior official, and that he should desist from this in future. You may watch his work up to the end of March, 1955 and judging from his work and conduct, you may treat him as eligible for being considered for promotion as Assistant Transportatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verseas pay of an Indian Civil Servant was not a debt which could be attached in satisfaction of an order for the payment of alimony. In the State of Bihar v, Abdul Majid ([1954] S.C.R. 786.), however, this Court held, for reasons stated in the judgment delivered by Mahajan C. J. that the Indian Law has not adopted the rule of English Law on the subject in its entirety. Turning to our Statute Law, we find that in the Government of India Act, 1915 (5 & 6 Geo. V. Ch. 61)' as originally enacted, there was no reference to this doctrine of the English Common Law. By s. 45 of the Government of India Act, 1919 (9 & 10 Geo. V. Ch. 101) read with Part I of the second schedule to that Act several sections, including s. 96-B, were introduced into the Government of India Act, 1915 (hereinafter called the " 1915 Act"). The relevant portion of s. 96-B was as follows: " 96-B (1). Subject to the provisions of this Act and the rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nued by s. 292. It should be noted that the opening words of s. 96-B (1), namely, ,,Subject to the provisions of this Act and the rules made thereunder " were substituted by the words " Except as expressly provided by this Act." The effect of this will be discussed hereafter. Subsection (1) adopted the English Common Law rule regarding the pleasure of the Crown but imposed on it two qualifications by two separate sub-sections. Subsection (2) reproduced the qualification which had been imposed by s. 96-B (1), namely that a servant of the class therein mentioned must not be dismissed by an authority subordinate to that by which he had been appointed and sub-s. (3) introduced a still more important qualification on the exercise of the Crown's pleasure, namely, that no such servant must be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Reduction in rank was not referred to in s. 96-B (1) but was for the first time added to dismissal in sub-s. (3). Then came our Constitution on January 26, 1950. Part XIV deals with " Services under the Union and the States&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, the Auditor-General, the High Court Judges and the Chief Election Commissioner shall not be removed from his office except by an order of the President passed after an address by each House of Parliament, supported by the requisite majority therein specified, has been presented to him in the same session for such removal on the ground of proved misbehaviour or incapacity. These are clearly exceptions to the rule embodied in Art. 310(1), that public servants hold their office during the pleasure of the President or the Governor, as the case may be. Subject to these exceptions our Constitution, by Art. 310(1), has adopted the English Common Law rule that public servants hold office during the pleasure of the President or Governor, as the case may be and has, by Art. 31 1, imposed two qualifications on the exercise of such pleasure. Though; the two qualifications are set out in a separate article, they quite clearly restrict the operation of the rule embodied in Art. 310(1). In other words the provisions of Art. 311 operate as a proviso to Art. 310(1). All existing laws have been continued by Art. 372, some of which, e.g., the Code of Civil Procedure make, it possible for a public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manent or temporary, are regulated by the terms of the contract of employment, express or implied, and subject thereto, by the rules applicable to' the members of the particular service. The appointment of a Government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a "lien" on the post. This "lien" is defined in Fundamental Rule s. 111, ch. 11, r. 9(13) as the title of a Government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. The Government cannot terminate his service unless it is entitled to do so (1) by virtue of a special term of the contract of employment, e.g., by giving the requisite notice provided by the contract or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfilment of the conditions for compulsory retirement or, subject to certain safeguards' on the abolitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period. In such a case the servant so appointed acquires a right to his tenure for that period which cannot be put an end to unless there is a special contract entitling the employer to do so on giving the requisite notice or, the person so appointed is, on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself, found guilty of misconduct, negligence, inefficiency or any other disqualification and is by way of punishment dismissed or removed from service or reduced in rank. The substantive appointment to a temporary post, under the rules, used to give the servant so appointed certain benefits regarding pay and leave, but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis, that is to say, terminable by notice except where under the rules promulgated in 1949 to which reference Will hereafter be made, his service had ripened into what is called a quasi- permanent service. The position may, therefore, be summarised as follows: In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laxminarayan Chiranjilal Bhargava v. The Union of India (7), Engnneer-in- Chief, Army Head Quarters v. C. A. Gupta Ram (8), State of Punjab v. S. Sukhbans Singh (9) and Chironjilal v. Union of India (10). The cases cited before us also indicate that the preponderance of view is that only a dismissal or removal or reduction in rank by way of penalty attracts the operation of Art. 311 (2), but that a termination of service brought about otherwise than by way of punishment, e.g., by the exercise of the right under the terms of employment or under the relevant rules regulating the conditions of service which form part of the terms of employment does not. See Jayanti Prasad v. The State of Uttar Pradesh (supra), Shrinivas Ganesh v. Union of India (11); Jatindra Nath Biswas v. R. Gupta (12), Rabindra Nath Das v. The General Manager, Eastern Railway (13), Jatindra Nath Mukherjee v. The Government of the Union of India("), Ahmad Sheikh v. Ghulam Hassan (15), Ganesh Balkrishna Deshmukh v. The State of Madhya Bharat (16), D. P. Ragunath v. The State of Coorg (17), M. V. Vichoray v. The State of Madhya Pradesh (18), Kamta Charan Srivastava v. Post Master General (19) and Sebastian v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutiny. The matter, however, does not rest here. Coming to Art. 31 1, it is obvious that if that article is limited to persons who are permanent members of the services or who hold permanent civil posts, then the constitutional protection given by cls. (1) and (2) will not extend to persons who officiate in a permanent post or in a temporary post and consequently such persons will be liable to be dismissed or removed by an authority subordinate to that by which they were appointed or be liable to be dismissed, removed or reduced in rank without being given any opportunity to defend themselves. The latter classes of servants require the constitutional protections as much as the other classes do and there is nothing in the language of Art. 311 to indicate that the Constitution makers intended to make any distinction between the two classes. There is no apparent reason for such distinction. It is said that persons who are merely officiating in the posts cannot be said to " hold " the post, for they only perform the duties of those posts. The word " hold " is also used in Arts. 58 and 66 of the Constitution. There is no reason to think that our Constitution makers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of punishment. Those expressions, it is urged, have been taken from the service rules, where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of art. This leads us to embark upon an examination of the service rules relating to punishments to which the Government servants can be subjected. Rule 418 of the Civil Service Regulations of 1902 (hereinafter called the 1902 Rules) provide, inter alia, that the removal of public servants from the service for misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination entailed forfeiture of past services. Those 1902 Rules, however, did not Bay under what circumstances or in what manner and by which authority public servants could be removed. In exercise of the powers conferred by s. 96-B(2) of ,he 1915 Act the Secretary of State in Council framed the Civil Service (Governor's Provinces) Classification Rules (hereinafter referred to as the 1920 Classification Rules) which came into force in December, 1920 and were applicable to Government servants serving in the Governor's Provinces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might by general or special order declare them to be applicable. Like r. 418 of the 1902 Rules, r. 52 of the Fundamental Rules provided that the pay and allowances of Government servants, who were dismissed or removed from service, would cease from the day of such dismissal or removal. Thus the penal consequences of loss of pay and allowances continued to follow dismissal or removal. On May 27, 1930, the Secretary of State for India in Council, in exercise of the powers conferred by s. 96 B(2) of the Government of India Act, 1919, made the Civil Services (Classification, Control and Appeal) Rules, (hereinafter called the 1930 Classification Rules) which superseded the 1920 Classification Rules. The 1930 Classification Rules, by r. 3, applied to every person in the whole time civil employment of a Government in India (other than a person so employed only occasionally or sub- ject to discharge at less than one month's notice) except certain classes of persons therein specified which included, inter alia, railway servants. Under r. 14 the public services in India were classified under six heads, namely, (1) All-India Services, (2) Central Services Class I, (3) Central Services Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with rule 5 of the Central Civil Services (Temporary Service) Rules, 1949; or (c) of a person engaged under a contract does not amount to removal or dismissal within the meaning of this rule or of rule 55. Explanation II : Stopping a Government servant at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increments or promotion within the meaning of this rule. " Like r. XIV of the 1920 Classification Rules, r. 55 of the 1930 Classification Rules, as originally framed in 1930, provided that, without prejudice to the Public Servants Enquiries Act, 1850, no order of dismissal, removal or reduction should be passed on a member of a service (other than an order passed on facts which had led to his conviction in a criminal court or by a court martial) unless he had been informed in writing of the grounds on which it was proposed to take action and had been afforded an adequate opportunity of defending himself Detailed provisions were made as to the grounds on which it was proposed to take action being reduced to the form of a definite charge or charges and for the communication thereof to the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person appointed on probation, during the period of probation, (b) of a person engaged under contract for a specific period, on the expiration of such period in accordance with the terms of his contract, (c) of a person appointed in a temporary capacity otherwise than under a contract, in accordance with the general conditions of service applicable to temporary employment and of some other persons enumerated therein, do not amount to removal or dismissal within the meaning of r. 1702. Rule 1703 states that while dismissal from service disqualifies a railway servant from future employment, removal from service is not to be considered an absolute disqualification. Rule 1704 specifies the , authority competent to impose penalties. Rule 1706 enumerates the causes for which a railway servant may be dismissed from service, namely, (1) conviction by a criminal court or by a court martial, (2) serious misconduct, (3) neglect of duty resulting in or likely to result in loss to Government or to a Railway administration, or danger to the lives of persons using the railway, or (4) insolvency or habitual indebtedness, and (5) obtaining employment by the concealment of his antecedents, which wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same manner as those of Government servants in permanent service could be terminated or when the appointing authority certified that reduction had occurred in the number of posts available to Government servants -not in temporary service. Further protection was given by the two provisos to that rule. By r. 5, however, the employment of persons holding temporary service could be terminated at any time by a month's notice. Just to complete the history of the service rules reference may be made to the all-India Service (Discipline and Appeal) Rules, 1955 which were promulgated by the Central Government in September, 1955, after consultation with the State Governments. For our present purpose it is enough to say that rr. 49 and 55 of the 1930 Classification Rules were substantially reproduced in rr. 3 and 5 respectively of these 1955 Rules except that the Explanation to r. 49 has been elaborated and the results of the judicial decisions have been incorporated therein. In exercise of powers conferred by Art. 309 and Art. 148 (5) of the Constitution the President, on February 28, 1957, made the Central Civil Services (Classification, Control and Appeal) Rules 1957. Rule 13 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble by action, to hold his office in accordance with those rules. It (I) (1936) L.R. 64 I.A. 55. was held that s. 96-B of the 1915 Act and the rules made thereunder only made provision for the redress of grievances by administrative process. As if to reinforce the effect of that decision, the opening words quoted above were, in s. 240(1) of the 1935 Act, replaced by the words " Except as expressly otherwise provided by this Act". The position of the Government servant was, therefore, rather insecure, for his office being held during the pleasure of His Majesty under the 1915 Act as well as under the 1935 Act the rules could not over-ride or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself. The only protection that the Government servant had was that, by virtue of s. 96- B(1), they could not be dismissed by an authority subordinate to that by which they were appointed. The position, however, improved to some extent under the 1935 Act which, by s. 240(3), gave a further protection in addition to that provided in s. 240(2) which reproduced the protection of s. 96-B(1) of the 1915 Act. In other word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service if; sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Art. 311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided. The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in (1) [1954] S.C.R. 1 I50- 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 cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of punishment. Thus where a person is appointed to a permanent post in a Government service on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment, for the Government servant, so appointed, has no right to continue to hold such a post any more than the servant employed on probation by a private employer is entitled to do. Such a termination does not operate as a forfeiture of any right of the servant to hold the post, for he has no such right and obviously cannot be a dismissal, removal or reduction in rank by way of punishment. This aspect of the matter is recognised in the Explanation to r. 49 of the 1930 Classification Rules which correspond to the Note to r. 1702 of the Indian Railway Code and r. 3 of the 1955 Rules and r. 13 of the 1957 Rules, for all those rules expressly say that the termination of such an appointment does not amount to the punishment of dismissal or removal within the meaning of those rules. Likewise if the servant is appointed to officiate in a permanent post or to hold a temporary post other than one for a fixed term, whether substantively or_on probation or on an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned above,, in all other cases, termination of 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 termination cannot, in any circumstance, be a, dismissal or removal from service by way of punishment. Cases may arise where the Government may find a servant unsuitable for the post on acconut 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 officiating 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 temporary, 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 ([1953] S.C.R. 655), then the Government might at any time serve the requisite notice. In both cases the Government may proceed to take action against the servan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment 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 terminated otherwise than for misconduct, negligence, inefficiency 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 as 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng basis, that is to say, he was appointed to officiate in that post which, according to Indian Railway Code, r. 2003 (19) corresponding to F.R. 9 (19) means, that he was appointed only to perform the duties of that post. He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment. Nor did this reduction under Note 1 to r. 1702 amount to his dismissal or removal. Further it is quite clear from the orders passed by the General Manager that it did not entail the forfeiture of his chances of future promotion or affect his seniority in his substantive post. In these circumstances there is no escape from the conclusion that the petitioner was not reduced in rank by way of punishment and, therefore, the provisions of Art. 311 (2) do not come into play at all. In this view of the matter the petitioner cannot complain that the requirements of Art. 311 (2) were not complied with, for those requirements never applied to him. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the rules for I cannot agree that the Constitution can be construed by reference to Acts of the Legislature and rules framed by some lesser authority and, in particular, to rules made and Acts passed after the Constitution. (1) [1953] S. C. R. 655. I agree with my Lord that Art. 311 applies when penal consequences ensue from the dismissal or removal or reduction in rank, though I prefer to phrase this in wider terms and say that the Article is attracted whenever a " right " is infringed in the way in which I shall proceed to explain, for a right can be infringed in that sort of way even when no penal consequences follow. I have used the word " right" but must hasten to explain that I use it in a special sense. The " right " need not necessarily be justiciable nor need it necessarily amount to a contract but, broadly speaking, it must be the sort of "right " which, even when not enforceable in the courts, would form a good foundation for a "Petition of Right" in England. It is as difficult to speak of "rights " (except those expressly conferred by the Constitution) when one holds at " pleasure " as to speak o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terminable with a month's notice on either side. In Shyam Lal v. State of Uttar Pradesh ([1955] 1 S.C.R. 26) it was a condition of service that permitted compulsory retirement at a particular age. Any other variation that does not offend the Constitution would be equally permissible. These conditions confer a " right" on one side and correspondingly reduce the ambit of the " rights " conferred by the " contract " on the other. Therefore, when Government exercises one of their " rights " there is no infringement of the other party's " rights " because to that extent he has none. It follows that when, in a given case, Government has an option to adopt one of two courses as, for example, to " dismiss " or " reduce " for misconduct and at the same time to terminate or alter the service under a term of the " contract " or because of a condition of the service, then, if it chooses to act under the right conferred by the " contract ", Art. 311 is not attracted even though misconduct is also present and even though that is the real reason for the action taken. But, if Government chooses to ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evil consequences over and above those that would have ensued in a similar case where there was neither misconduct nor blame. Our attention was directed to remarks in the appellant's confidential reports and to various administrative notings on his files. All these are, in my opinion, irrelevant. We are only concerned with the operative order made by the proper authority competent to make it and with the consequences that ensue from that order. In this case, the order of reversion dated August 19, 1953, is non-committal. It merely says that Shri Bishambar Nath Chopra is appointed to officiate in the appellant's place and that on relief the appellant will revert to a lower rank. That in itself might be harmless but the order does not stand alone and though the various administrative notings are irrelevant, the General Manager's remarks on them, which form the real foundation of the order, cannot be ignored because the sting lies there and the evil con- sequences of which I speak flow from them. They are really part and parcel of the order and the two must be read together. I say this because, quite obviously, the constitutional guarantees of Art. 311 cannot be evaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gather that his view, and that of my learned brothers, is that Art. 311 is confined to the penalties prescribed by the various rules and that one must look to all the relevant rules to determine whether the order is intended to operate as a penalty or not. With deep respect, I do not think that the gist of the matter is either the form of the action or the procedure followed; nor do I think it is relevant to determine what operated in the mind of a particular officer. The real hurt does not lie in any of those things but in the consequences that follow and, in my judgment, the protections of Art. 311 are not against harsh words but against hard blows. It is the effect of the order alone that matters ; and in my judgment, Art. 311 applies whenever any substantial evil follows over and above a purely "contractual one". I do not think the article can be evaded by saying in a set of rules that a particular consequence is not a punishment or that a particular kind of action is not intended to operate as a penalty. In my judg- ment, it does not matter whether the evil consequences are one of the "penalties" prescribed by the rules or not. The real test is, do they in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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