The Union Of India (Uoi) vs Pandurang Kashinath More

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 28 April, 1961

Coram: P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta, N. Rajagopala Ayyangar

The judgment dated 28 April 1961 concerned a dispute between the Union of India, acting as the employer, and Pandurang Kashinath More, the respondent. The case was heard by a bench comprising Justice P. B. Gajendragadkar, Justice A. K. Sarkar, Justice K. N. Wanchoo, Justice K. C. Das Gupta and Justice N. Rajagopala, with Justice A. K. Sarkar authoring the opinion. The respondent had been employed as a mister in a telephone workshop that belonged to the Union of India. Following a strike in that workshop, the respondent was detained on 9 July 1949 under the Bombay Public Security Measures Act, although the record does not explain the specific reason for this detention. Shortly thereafter, on 21 July 1949, the workshop manager issued a suspension order that took effect from the date of detention, expressly stating that the respondent would not receive any subsistence allowance during the period of suspension. Later, on 29 March 1950, the same manager issued another order terminating the respondent’s service, back‑dating the termination to 9 July 1949, the date of his suspension, and providing the respondent with one month’s wages in lieu of notice. The respondent remained in detention until 25 October 1950, when the High Court at Bombay ordered his release; the suspension and termination orders were thus effected while he was still detained.

After his release, the respondent initiated proceedings under the Payment of Wages Act to recover arrears of his dues from the Union of India, and he succeeded in obtaining payment of the subsistence allowance for the period of his suspension. He also submitted a request to the workshop manager seeking reinstatement, which the manager rejected. Consequently, the respondent filed a suit in the Bombay City Civil Court, challenging the validity of the suspension and termination orders. In that suit, he argued that the orders were void for several reasons, but the appeal focused primarily on two constitutional claims. First, he contended that the orders violated Article 311 of the Constitution because he had not been afforded a proper opportunity to show cause before the orders were made. Second, he asserted that the termination order contravened Articles 14 and 16, alleging that he had been arbitrarily selected and dismissed. He sought a declaration that the orders were void and illegal, along with a decree for the payment of Rs 4,896 as arrears of salary from 30 March 1950 to the date of filing the suit. The trial court examined the nature of his employment and concluded that the respondent was a temporary employee; therefore, the termination was consistent with the terms of his contract and did not implicate Article 311. The trial court further accepted the proposition that, because Article 311 was not applicable, Articles 14 and 16 could not be invoked either, and consequently dismissed the suit, rejecting all other points raised by the respondent.

If Article 311 is held not to apply to the plaintiff, then Articles 14 and 16 likewise cannot be applied to his case. On that basis the trial court dismissed the suit, having also rejected the other points raised by the respondent. The respondent appealed to the High Court at Bombay. The High Court affirmed the trial court’s findings that the respondent was a temporary employee and that there was no violation of Article 311. However, the High Court observed that the plaintiff’s allegation that he had been “arbitrarily picked out and sacked” remained unaddressed in the further written statement of the defendant and therefore must be taken as admitted. The reference to a further written statement arose because the plaintiff’s plea had been added to the plaint by amendment. The High Court gave the appellant an opportunity to amend its written statement, but the appellant did not take that opportunity. Because the appellant was deemed to have admitted the allegation of arbitrary dismissal, the High Court concluded that Article 16 of the Constitution had been violated. Consequently, the High Court allowed the appeal, declared the relief sought by the respondent, and awarded a decree of Rs 12,157 for salary up to 9 September 1957. The Union subsequently appealed from that judgment.

Two questions were then presented for consideration. First, concerning Article 311, it was argued that even a temporary servant could invoke its protection if termination amounted to punishment, and that the respondent’s termination was punitive because he had not received the subsistence allowance during his suspension and only obtained it after initiating proceedings under the Payment of Wages Act. The Court found this contention wholly unfounded. It held that the refusal to pay the subsistence allowance did not indicate that the termination was punitive. The refusal resulted merely from a misreading of the applicable rules by the appellant’s officers. Moreover, the withholding of the allowance during suspension bore no causal connection to the eventual termination of service. The Court further noted that Article 311 does not concern itself with suspension from service. The second question involved Article 16, specifically clause (1) which provides that “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.” The respondent contended that “matters relating to employment” also encompass termination of employment. While the appellant disputed this broader interpretation, the Court indicated that it was unnecessary to finally resolve the dispute for the purposes of the present case and proceeded on the assumption that the article could be violated by an arbitrary and discriminatory termination of service.

The Court observed that the constitutional provision in question declares that there shall be no inequality of treatment in the termination of the service of any employee of the Government. The appellant disputes this understanding of the provision. However, the Court found it unnecessary to resolve that dispute for the purpose of the present case and therefore proceeded on the assumption that the provision could be breached by an arbitrary and discriminatory termination of service. Before the provision can be invoked, the Court held that it is necessary first to establish that the termination was indeed arbitrary and discriminatory. The High Court, relying on the pleadings, had taken the view that the appellant must be deemed to have admitted that the termination was arbitrary and discriminatory. The High Court, however, did not find, on the basis of the evidence, that such a fact existed. After reviewing the material evidence itself, the Court found nothing that supported a conclusion that any discrimination had occurred. The evidence, as presented, merely showed that many employees who were junior to the respondent remained in service while the respondent’s service was terminated. In the Court’s opinion, that circumstance alone is entirely futile for establishing discrimination.

The Court further noted that the respondent had been detained under the Bombay Public Security Measures Act, and it was not clear whether the junior employees had been similarly detained. A person who is lawfully detained under a statute may legitimately be placed in a separate class and treated differently from those who are not detained. Moreover, because of the detention, the appellant was deprived of the benefit of the respondent’s services for a considerable period, which also placed the respondent in a distinct class. The evidence did not demonstrate that the junior employees were otherwise in the same class as the respondent. Consequently, the fact that the respondent’s service was terminated while junior employees were retained does not, by itself, establish unequal treatment, and the respondent had relied on no other material to prove discrimination. The Court then examined whether the High Court was justified in concluding, from the pleadings, that the appellant had admitted the respondent had been “arbitrarily picked up and sacked,” i.e., subjected to hostile discrimination. The plaint contained the statement that orders for suspension, removal or dismissal were illegal, void and ineffective, specifically alleging that the order of removal violated Articles 14 and 16 of the Constitution because the plaintiff was arbitrarily picked up and sacked. In the written statement, the defendant denied that the order of removal violated Articles 14 and 16. The Court considered this exchange in assessing the pleadings.

The High Court held that the denial offered in the written statement was not sufficient, and the Court expressing its view stated that it could not agree with that assessment. The Court first examined whether the plaint set out a proper allegation of discrimination. It observed that when an allegation of improper conduct is made, the law requires that the allegation be fully detailed with all necessary particulars. To illustrate this requirement, the Court cited the authority of Wallingford v. Mutual Society (1880) 5 AC 685 (697), where Lord Selborne declared that even strong‑sounding general allegations of fraud are inadequate to constitute a complaint that a Court must consider. The Court further noted that the same principle applies to any claim of improper conduct, referring to the earlier decision of Bharat Dharma Syndicate v. Harish Chandra, 64 Ind App 143 (147): (AIR 1937 PC 146 (148)). By drawing on these authorities, the Court underscored that a mere assertion of arbitrary discrimination, without specific detail, fails to meet the standard of a sufficient pleading.

The Court then explained the rationale behind this rule. It stated that if a pleading were deemed sufficient merely by alleging arbitrary discrimination, the opposite party would be unable to respond effectively because it would not know the exact nature or basis of the alleged discrimination. For example, if discrimination were alleged to have occurred between two individuals, A and B, who were similarly situated, and the claim was that A was preferred over B, the pleading should expressly state that circumstance. Such specificity would allow the respondent either to show that A and B were not similarly situated or to argue that the act complained of did not amount to discrimination. In the absence of such particulars, the only possible reply for the respondent is a blanket denial of discrimination, which is precisely what the appellant did in its written statement. The Court observed that when the appellant denied any violation of Articles 14 and 16, it implicitly denied the existence of the arbitrary or hostile discrimination alleged in the plaint; otherwise the denial would have been meaningless. Consequently, the pleadings do not show that the appellant admitted any discrimination. The Court concluded that, on the basis of the pleadings, there is no allegation by the respondent of hostile discrimination. If, however, the plaint were read as containing a sufficient allegation, the written statement must be interpreted as a denial, and the burden would shift to the respondent to prove such discrimination by evidence. The Court noted that it had previously examined the evidence and found no proof of discrimination.

The Court examined the material placed before it and held that the allegation of discrimination had not been established at all. In view of that finding, the Court explained that if the respondent were not permitted to put forward a case of discrimination, then no question could arise as to whether there had been a breach of the guarantee of equality of opportunity in matters of public employment contained in Article 16 of the Constitution. Conversely, even if the respondent were allowed to advance such a claim, the Court observed that the claim would still fail because the respondent had failed to prove the existence of discrimination on the basis of the evidence on record. The judgment therefore clarified that the burden of establishing a discriminatory act rested upon the respondent, and that the failure to meet that burden removed any basis for invoking the constitutional provision. Having reached that conclusion, the Court was of the view that the appeal must therefore succeed. Accordingly, the Court set aside the decree that had been passed by the High Court and restored the decree originally issued by the trial Court. The restoration of the lower court’s decree means that the decision of the trial court, which had been set aside by the High Court, is now revived. The party who had brought the appeal did not seek any award of costs, and consequently the Court ordered that no order as to costs would be made.