The State of Orissa and Another vs Ram Narayan Das

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 61/1959

Decision Date: 8 September 1960

Coram: J.C. Shah, S.K. Das, M. Hidayatullah, K.C. Das Gupta, N. Rajagopala Ayyangar

The Supreme Court of India delivered its judgment on 8 September 1960 in the case titled The State of Orissa and Another versus Ram Narayan Das. The judgment was authored by Justice J. C. Shah, and the bench comprised Justices J. C. Shah, S. K. Das, M. Hidayatullah, K. C. Das Gupta, and N. Rajagopala Ayyangar. The parties are identified as the petitioner, the State of Orissa and another, and the respondent, Ram Narayan Das. The official citation of the decision is reported in 1961 AIR 177 and 1961 SCR (1) 606, with numerous citator references including RF 1962 SC 794, E 1963 SC 531, RF 1963 SC 1552, R 1964 SC 449, RF 1964 SC 600, R 1964 SC 1854, R 1968 SC 1089, R 1974 SC 423, F 1974 SC 2192, RF 1976 SC 1766, RF 1976 SC 2547, D 1978 SC 363, RF 1987 SC 2135, and R 1987 SC 2408. The operative statutory provision concerns a public servant serving as a probationer Sub‑Inspector and the question of whether discharge from service for unsatisfactory work and conduct amounts to dismissal within the meaning of Article 311(2) of the Constitution of India.

According to the headnote, the respondent had been appointed as a Sub‑Inspector on probation in the Orissa Police Force. A notice was served on him requiring him to show cause why he should not be discharged from service on the ground of gross neglect of duties and unsatisfactory work. The respondent submitted an explanation and requested an opportunity to cross‑examine certain witnesses. The Deputy Inspector‑General of Police examined the explanation, found it unsatisfactory, and consequently passed an order discharging the respondent from service for unsatisfactory work and conduct. The respondent challenged the order on two principal grounds: first, that he had not been afforded a reasonable opportunity to show cause as mandated by Article 311(2), and second, that he had not been given a hearing nor had any evidence been taken on the charges against him.

The Court held that the order of discharge did not constitute a dismissal and therefore did not attract the protective ambit of Article 311(2). The termination of the respondent’s services was deemed a valid exercise of authority, carried out in accordance with the applicable rules and not as a punitive action. As a probationer, the respondent possessed no vested right to the post and, under the terms of his appointment, could be discharged at any time during the probationary period. The notice issued to the respondent was issued under Rule 55‑B of the Civil Services (Classification, Control and Appeal) Rules, which obliges the authority to give prior notice before terminating the services of a probationer. The enquiry, the Court observed, was solely to determine the respondent’s fitness for confirmation.

The Court referred to the authorities Shyam Lal v. State of U. P. [1955] 1 SCR 26 and Purshottam Lal Dhingra v. Union of India [1958] SCR 828, while distinguishing State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689. The judgment was rendered in the civil appellate jurisdiction, specifically Civil Appeal No. 61/1959, which arose by special leave from the judgment and order dated 4 December 1957 of the Orissa High Court.

In O.J.C. No. 449 of 1956, the Court heard the appeal on 8 September 1960. Counsel C. K. Daphtary, Solicitor‑General of India, together with D. N. Mukherjee and T. M. Sen, represented the appellants, while the respondent failed to appear. The judgment was delivered by Justice Shah. The factual background recorded that the respondent had been appointed in 1950 as a Sub‑Inspector on probation in the Orissa Police force. On 28 July 1954 the authorities received a series of adverse reports about his performance, and consequently a notice was served on him asking him to show cause why he should not be discharged for “gross neglect of duties and unsatisfactory work.” The notice listed ten particular instances of neglect of duty and two instances of misconduct, namely acceptance of illegal gratification and fabrication of an official record. In his reply the respondent claimed that the Superintendent of Police had already taken action against him for the neglect of duty matters mentioned in the notice, and therefore any further proceedings on the same points would constitute double punishment. He denied the two misconduct allegations, asserting that they were based on uncorroborated statements from witnesses who were hostile toward him, and he requested an opportunity to cross‑examine those witnesses. The Deputy Inspector General of Police examined the respondent’s explanation and observed that the petitioner’s argument that he had already been punished for certain instances of poor work did not materially aid his case, because all instances of unsatisfactory performance during the probationary period had to be considered together when deciding whether to confirm him. The Deputy Inspector General noted that the probationary Sub‑Inspector had already worked under several Superintendents within one district and had failed to obtain a satisfactory report from any of them. Moreover, further adverse reports had been made after the respondent’s representation was filed. On that basis, the Deputy Inspector General concluded that retaining the respondent in service was not advisable and ordered his discharge effective from the date the order was served. Accordingly, on 11 December 1954 the Deputy Inspector General issued a formal order stating: “Probationary S.I. Ramnarayan Das of Cuttack District is discharged from service for unsatisfactory work and conduct with effect from the date the order is served on him.” The respondent subsequently filed a petition under Article 226 of the Constitution in the High Court of Judicature, Orissa, challenging the validity of the discharge order and seeking a writ of certiorari or any other appropriate writ to set aside the order. Among his contentions, the respondent argued that the discharge order was invalid because he had not been afforded a reasonable opportunity to show cause against the proposed action, and that the procedural safeguards of the Constitution had been breached.

The respondent contended that the discharge order was invalid for two reasons. First, he argued that the order conflicted with the meaning of article 311(2) of the Constitution. Second, he maintained that he had not been given any opportunity to be heard and that no evidence had been taken on the charges that had been framed against him. The High Court, by an order dated 4 December 1957, set aside the discharge order. According to the High Court, the Deputy Inspector General of Police had taken into consideration allegations of corruption when passing the impugned order and, moreover, had refused to allow the respondent to cross‑examine the witnesses whose statements formed the basis of the misconduct charge. The Court further observed that discharging the respondent without conducting an enquiry as required by rule 55 of the Civil Services (Classification, Control and Appeal) Rules and without obeying the requirements of article 311(2) of the Constitution had inflicted an “indelible stigma affecting his future career.” The present appeal, filed by special leave, challenged the order that issued a writ quashing the discharge.

At the time the proceedings were initiated and when the discharge took effect, the respondent was a probationer and did not possess a permanent right to the post he held. Under the terms of his appointment, he was liable to be dismissed at any stage during the probationary period. Rule 668 of the Orissa State Police Manual, insofar as it was relevant, provided that all officers were initially appointed or promoted on probation and, where the Rules did not specify a probationary period, the period was two years for executive officers. The authority empowered to make such appointments or promotions could, at any time during the probationary period and without observing the formalities prescribed in rule 820, remove a directly appointed executive officer or revert a promoted officer who had not fulfilled the conditions of his appointment or who had proved unfit for the appointment or promotion. Rule 681 of the Police Manual, clause (b), stated that officers promoted from the rank of Assistant Sub‑Inspector were to be confirmed under rule 659(e), while those directly appointed were to serve a probation of two years; at the expiry of that period, officers deemed competent and fit would be confirmed by the Deputy Inspector‑General, and the others would be discharged by the same authority. Rule 55‑B of the Civil Services (Classification, Control and Appeal) Rules, as it applied, provided that where termination of a probationer’s employment was proposed, whether during or at the end of the probationary period, for a specific fault or unsuitability, the probationer must be informed of the grounds of the proposal and must be given an opportunity to show cause.

Rule 55‑B of the Civil Services (Classification, Control and Appeal) Rules made it obligatory to serve a notice asking the respondent to show cause why his employment should not be terminated. The Deputy Inspector General of Police, who had originally appointed the respondent, sent him a notice describing the grounds on which a discharge order was being considered. The notice required the respondent to show cause why the proposed action should not be taken, thereby giving him an opportunity to be heard. The notice was divided into two distinct parts, each addressing separate categories of alleged misconduct and providing specific examples. The first part listed ten headings that described gross neglect of duty and unsatisfactory work, thereby enumerating the areas in which the respondent’s performance was found lacking. The second part described suspicious and un‑policeman‑like conduct, citing specific instances where the respondent allegedly fabricated public records and accepted illegal gratification. In the order that follows the notice, the Deputy Inspector General of Police stated that, while evaluating the respondent’s case for confirmation, he had taken into account the reports that had been submitted to him. The formal order that was communicated to the respondent further stated that he was being discharged from service on the grounds of unsatisfactory work and conduct. The reasons set out in the order clearly show that the notice served on the respondent was issued under Rule 55‑B of the Civil Services (Classification, Control and Appeal) Rules. Its purpose was to determine whether he should be confirmed in service or his employment should be terminated. On its face, the order appears to be a termination of the respondent’s employment while he was a probationer, rather than a dismissal from the service. However, the High Court held that the discharge order amounted to a punishment because it visited the respondent with adverse consequences and inflicted a stigma that would affect his future career. The respondent did not appear before this Court to contest the High Court’s judgment, but the counsel for the State, appearing for the appeal, fairly drew the Court’s attention to the record. The counsel also referred the Court to the authorities that are relevant to the respondent’s case, ensuring that all pertinent legal precedents were considered. In Shyam Lal v. The State of Uttar Pradesh and the Union of India (1), this Court held that retirement of an officer under Civil Services (Classification, Control and Appeal) Rules does not constitute dismissal. The Court also observed that such retirement did not amount to removal within the meaning of Article 311 of the Constitution. In that case, the public servant, reported in [1955] 1 S.C.R. 26, was served with a notice to show cause concerning three misdemeanours committed as a public servant, and he submitted his explanation in response. Subsequently, after reviewing the case and the recommendation of the commission appointed to investigate, the President decided that the public servant should be retired immediately from service. This retirement order was challenged by a petition filed under Article 226 of the Constitution in the High Court at Allahabad. In an appeal against the order that dismissed the petition, this Court held that the compulsory retirement order did not involve any charge or imputation.

It was held that the action did not constitute a dismissal or removal as defined in Article 311 (2) of the Constitution, and therefore the Presidential order could not be questioned on the basis that the public servant had been denied a full opportunity to show cause before the proposed action was taken. In the case of Parshottam Lal Dhingra v. Union of India (1), the majority of the Court ruled that when an officer occupying an officiating post possessed no statutory right under the service rules to remain in that post, and when such an appointment was terminable at any time on reasonable notice under general law, the officer’s reversion to his substantive position did not amount to a forfeiture of any right. The Court observed that the order “visited him with no evil consequences” and could not be considered a punitive reduction in rank. Justice Bose, dissenting from the majority, argued that the true test was whether consequences harsher than those normally resulting from a contractual termination were likely to arise from the impugned order; if such additional adverse effects were probable, Article 311 of the Constitution would be engaged even though the Rules did not expressly prescribe those consequences as penalties. In that judgment, Chief Justice Das, delivering the majority opinion, undertook an exhaustive review of the law governing termination of public‑servant employment and summarized it at pages 861‑863 as follows (1) [1958] S.C.R. 828: “Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service effected by exercising a contractual right is not per se dismissal or removal, as held by this Court in Satish Chander Anand v. The Union of India (1). Likewise, termination of service by compulsory retirement under a specific rule regulating conditions of service does not amount to the infliction of a punishment and does not attract Article 311 (2), as also held in Shyam Lal v. The State of Uttar Pradesh (2).” The Court clarified that when termination rests on a right derived from a contract or service rules, it is prima facie not a punishment, carries no evil consequences, and therefore does not invoke Article 311. However, the Court warned that even if the Government possesses a contractual or rule‑based right to terminate employment without following the procedure prescribed for dismissal, removal or reduction in rank, it may still choose to punish the servant. If the termination is based on misconduct, negligence, inefficiency or other disqualification, then it becomes a punishment and the safeguards of Article 311 must be observed. The Court reiterated that where a servant has a right to continue in the post, unless the employment contract or the rules provide otherwise, his services cannot be terminated except for misconduct, negligence, inefficiency or other sufficient cause.

If the governing rules or the employment contract do not state otherwise, the servant’s services may be terminated only on the basis of misconduct, negligence, inefficiency, or any other good and sufficient cause. When a termination is made on any of those grounds, it operates as a punishment and therefore constitutes a dismissal or removal within the meaning of Article 311, because it results in the forfeiture of the servant’s right to continue in the post and subjects him to the adverse consequences of loss of pay and allowances. Such a termination also places an indelible stigma on the officer, thereby affecting his future career.

However, the mere fact that a servant does not hold title to a post or rank, and that the Government, by contract—whether express or implied—or by the service rules, possesses the authority to reduce the servant to a lower post, does not automatically mean that an order of reduction to a lower post or rank can never be a punishment. The decisive inquiry is whether the reduction order also subjects the servant to any penal consequences. The relevant authorities include the judgments reported in [1953] S.C.R. 655 and [1955] 1 S.C.R. 26. The proper test for determining whether such a reduction is punitive is to examine whether the order imposes any penal effect on the servant.

The use of the terms “terminate” or “discharge” in an order is not conclusive in itself. Even when these apparently innocuous expressions are employed, the court must apply the two tests previously outlined: (1) whether the servant had a right to the post or rank, and (2) whether the servant has been visited with the evil consequences described earlier, such as loss of pay, allowances, seniority, or future promotion prospects. If either of these tests is satisfied, the servant must be considered punished, and the termination must be treated as a dismissal or removal from service.

In the present case, the respondent did not possess a right to the post he held. Under the terms of his employment, the respondent could be discharged in accordance with rule 55‑B. Moreover, a mere termination of employment does not, by itself, entail any “evil consequences” such as forfeiture of pay or allowances, loss of seniority, or the stoppage or postponement of future promotion opportunities. Consequently, it is difficult to see how an “indelible stigma affecting the future career” of the respondent could be said to have been cast upon him by the order discharging him for unsatisfactory work and conduct.

The expression “discharge” in an order terminating the employment of a public servant is not decisive; it may, in some circumstances, amount to a dismissal. If a confirmed public servant holding a substantive post is discharged, the order amounts to dismissal or removal from service. In contrast, an order discharging a temporary public servant may or may not constitute a dismissal. Whether the discharge amounts to a dismissal depends upon the nature of any enquiry, the proceedings conducted therein, and the substance of the final order issued as a result of that enquiry. Where the governing rules for a public servant provide for such procedures, the characterization of the discharge must be assessed in light of those procedural safeguards.

In the case of a public servant who occupied a post on probation, the Court observed that the termination of the probationary period required a prior notice asking the servant to show cause why his service should not be terminated. When a notice was issued that asked the public servant to demonstrate why his probation should be continued or why he should be discharged from service, the resulting order of discharge could not be characterized as a dismissal that involved punishment. The Court further recognised that the Government could, however, conduct a formal enquiry against a probationer on charges of misconduct with the intention of dismissing him from service. If, in such an enquiry, an order terminating the probationer’s employment was issued without affording him a reasonable opportunity to show cause within the meaning of Article 311(2) of the Constitution, the order would be invalid. The Solicitor General drew the Court’s attention to a recent judgment of this Court, State of Bihar v. Gopi Kishore Prasad, in which the learned Chief Justice extracted five propositions from earlier authorities, particularly the case of Parshottam Lal Dhingra dealing with termination of employment of temporary servants and probationers. The third proposition stated that when, instead of terminating a person’s service without any enquiry, the employer chooses to hold an enquiry into alleged misconduct, inefficiency, or a similar reason, the termination becomes a punishment because it places a stigma on the person’s competence and affects his future career, thereby attracting the protection of Article 311(2). The Court held that this proposition did not conflict with the principles established in earlier cases concerning termination of probationers. The enquiry against the respondent was conducted to determine his fitness for confirmation. An order discharging a public servant, even a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification could appropriately be regarded as a punishment; however, an order discharging a probationer following an enquiry to ascertain whether he should be confirmed was not of that nature. In Gopi Kishore Prasad, the public servant was discharged as a result of an enquiry that found him unsuitable for the post, and the Court described that order as clearly a punishment, not merely a determination of continuation of service. The Court found no real inconsistency between the observations in Parshottam Lal Dhingra and Gopi Kishore Prasad. The third proposition in the latter case referred to an enquiry into allegations of misconduct or inefficiency with a view to imposing punishment, not to an enquiry concerning confirmation of a probationer.

The Court observed that the enquiry which had been undertaken was directed at allegations of misconduct or inefficiency and that its purpose, if those allegations were proven, was to impose punishment; it was not an enquiry whose sole purpose was to decide whether a probationer should be confirmed in service. Accordingly, the mere fact that an enquiry had been held was not the controlling factor for deciding the nature of the order that followed. What mattered, the Court explained, was whether the order that resulted from the enquiry was intended as a punitive measure. In determining this, the Court applied the criteria laid down in the earlier decision of Parshottam Lal Dhingra’s case (2), which had set out the tests for ascertaining when an order could be said to be by way of punishment.

After a careful review of the evidentiary material that had been placed before it and of the legal authorities to which the parties had drawn their attention, the Court became firmly of the opinion that the High Court had erred in its conclusion. The High Court had held that the order discharging the respondent from service amounted to a dismissal that fell within the protection afforded by Article 311(2) of the Constitution. The Court now held that, because the order was not a punitive dismissal but rather an administrative discharge not linked to a finding of misconduct, the protection of Article 311(2) did not apply. In light of this conclusion, the Court allowed the appeal, dismissed the petition for a writ, and ordered that no costs be awarded to either side throughout the proceeding. The appeal was thereby allowed. (1) A.I.R. 1960 S.C. 689. (2) [1958] S.C.R. 828.