Union Of India vs Pandurang Kashinath More

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

Court: Supreme Court of India

Case Number: Appeal (civil) 579 of 1960

Decision Date: 28 April 1961

Coram: P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C.D. Gupta, N.R. Ayyangar

In this matter the Court observed that the respondent had been engaged as a “mistry” in a telephone workshop that was owned by the Union of India. After a strike occurred in the workshop, the respondent was placed in detention on 9 July 1949 under the Bombay Public Security Measures Act, although the record does not explain the precise reason for his detention. On 21 July 1949 the workshop manager issued an order that suspended the respondent from duty, making the suspension effective from the date of his detention, and the order expressly stated that the respondent would not receive any subsistence allowance during the period of suspension. Subsequently, on 29 March 1950 the manager passed another order that terminated the respondent’s service, with effect back‑dated to 9 July 1949, the same day on which the suspension had commenced, and the respondent was paid 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; during his detention the suspension and termination orders had been made.

Following his release, the respondent instituted 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 during which he had been suspended. He also submitted a written request to the workshop manager seeking reinstatement after his release, but this request was turned down. Consequently, the respondent filed a suit in the Bombay City Civil Court, and the present appeal arises from that suit. In the suit the respondent contended that the orders of suspension and termination were issued for several reasons, but he emphasized two points that were material to the appeal. First, he asserted that the orders violated Article 311 of the Constitution because he had not been afforded a proper opportunity to show cause as to why the orders should not be made. Second, he claimed that the order terminating his service breached Articles 14 and 16 of the Constitution, alleging that he had been “arbitrarily picked up and sacked.” The respondent prayed that the orders be declared void and illegal and also sought a decree for an amount of Rs 4,896 in salary arrears from 30 March 1950 to the date of filing the suit.

The trial Court, after examining the facts, held that the respondent was a temporary employee and that his termination was consistent with the terms of his employment contract; therefore, the Court concluded that no violation of Article 311 was involved. It appeared that the trial Court accepted the concession that, if Article 311 was not applicable to the respondent’s case, Articles 14 and 16 could not be invoked either. Accordingly, the trial Court dismissed the suit and rejected the other points raised by the respondent.

In the trial court, the judge concluded that because the plaintiff’s service termination occurred under the terms of his employment contract, there was no question of a breach of Article 311 of the Constitution. The court also accepted that, if Article 311 did not apply to the plaintiff, then Articles 14 and 16 could not be invoked either. Accordingly, the trial court dismissed the suit and rejected all other points raised by the respondent.

When the respondent appealed, the High Court confirmed the trial court’s finding that the plaintiff was a temporary employee and that no violation of Article 311 had occurred. However, the High Court observed that the plaintiff’s claim of being “arbitrarily picked out and sacked” had not been addressed in the defendant’s further written statement, and therefore the allegation was to be treated as admitted. That claim had been inserted into the plaint by way of amendment, which is why the High Court referred to the further written statement. The High Court offered the appellant a chance to amend its written statement, but the appellant did not take that opportunity. On the basis of the deemed admission, the High Court held that Article 16 of the Constitution had been violated. It then allowed the appeal, granted the declaration sought by the respondent, and issued a decree in his favour for the sum of Rs 12,157 as salary owed up to 9 September 1957. The Union subsequently filed an appeal against this judgment.

The Court identified two issues for determination. First, concerning Article 311, it was argued that even a temporary servant could invoke the protection of that article if his termination amounted to punishment, and that the plaintiff’s termination was punitive because he had not received the subsistence allowance during his suspension and had obtained it only after initiating proceedings under the Payment of Wages Act. The Court found this argument wholly unfounded. It held that the refusal to pay the allowance did not indicate punishment; rather, it resulted from a misinterpretation of the applicable rules by the appellant’s officials. Moreover, the withholding of the allowance during suspension bore no connection to the eventual termination, and Article 311 does not govern suspension from service.

The second issue concerned Article 16. The provision, quoted in clause (1), states 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” encompassed termination of employment, thereby prohibiting any inequality in dismissal. The appellant disputed this interpretation. The Court noted that it was unnecessary to resolve the broader dispute for the present case; it would simply assume that Article 16 could be breached by an arbitrary and discriminatory termination. However, before applying the article, the Court emphasized that the arbitrary and discriminatory nature of the termination must first be established. It observed that the High Court had treated the allegation as admitted on the pleadings, but had not found it proven on the evidence.

Article 16 of the Constitution states 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 argued that the phrase “matters relating to employment” also embraces termination of employment and therefore the article forbids any inequality in dismissing a government employee. The appellant rejected this interpretation. The Court, however, found it unnecessary to settle the interpretative dispute for the present case and proceeded on the assumption that the article could be infringed by an arbitrary or discriminatory termination of service.

Before Article 16 could be invoked, the Court required proof that the termination was indeed arbitrary and discriminatory. The High Court had earlier held, on the basis of the pleadings, that the appellant must be taken to have admitted such a termination. That conclusion was not supported by the evidence, the High Court having found no factual basis for it. After examining the material before them, the Court found no indication of discrimination. The record showed that several employees junior to the respondent remained in service while the respondent’s service was terminated, but the Court considered this circumstance insufficient to demonstrate discrimination. The respondent had been detained under the Bombay Public Security Measures Act, and the Court noted that it was unclear whether the junior employees had also been detained. Because a person lawfully detained under a statement may be placed in a separate class and treated differently from those not detained, the respondent’s detention itself created a distinction. Moreover, the detention deprived the appellant of the respondent’s services for a considerable period, placing the appellant in a separate class as well. The evidence did not reveal that the junior employees were otherwise comparable to the respondent. Consequently, the fact that the respondent’s service was terminated while junior employees continued in service did not, by itself, establish unequal treatment, and the respondent offered no additional evidence to substantiate a claim of discrimination.

The Court then examined whether the High Court was justified in concluding that, based on the pleadings, the appellant must be deemed to have admitted that the respondent had been “arbitrarily picked up and sacked,” meaning that he had suffered hostile discrimination. To answer this, the Court turned to the pleadings themselves. The plaint alleged that the orders of suspension, removal or dismissal were illegal, void and ineffective in law. Specifically, paragraph (g) of the plaint contended that the order of removal violated Articles 14 and 16 of the Constitution because the plaintiff was… (the allegation continued in the written statement, where the defendant denied that the removal order infringed Articles 14 and 16). The High Court had considered the denial insufficient. The present Court, however, found that the plaint did not contain a sufficiently detailed allegation of discrimination; general statements, even if strongly worded, are inadequate to constitute a specific averment of improper conduct such as discrimination.

In the original complaint, the plaintiff asserted that the respondent had been “arbitrarily picked up and sacked.” The defendant’s written statement responded to that allegation by stating that “the defendant denies that the order of removal is in violation of Arts. 14 and 16 of the Constitution.” The High Court held that such a denial was not adequate, but the present Court disagreed with that conclusion. First, the Court observed that the plaint does not contain a sufficiently detailed allegation of discrimination. It is a well‑settled principle that when a party alleges improper conduct, the allegation must be set out with full particulars. The Court referred to the decision in Wallingford v. Mutual Society [1880] 5 A.C. 685 (697), where Lord Selborne observed that even strong‑worded general allegations of fraud are insufficient to constitute a proper averment of fraud that a court must entertain. The Court further noted that the same principle applies to any allegation of improper conduct, citing Bharat Dharma Syndicate v. Harish Chandra, 64 Ind App 143 (147); 1937 AIR (PC) 146 (148). This rule is intended to ensure that a pleading provides enough detail for the opposite party to know exactly what is being alleged and to answer it appropriately.

The Court explained that if a pleading were considered sufficient merely by stating that there has been “arbitrary discrimination,” the opposite side would be unable to meet the claim unless it knew the precise manner in which the discrimination was alleged to have occurred. For example, if the plaintiff alleged that between two similarly situated individuals, A and B, the authority had preferred A, the pleadings should expressly state that fact. This would allow the defendant to either demonstrate that A and B were not similarly situated or that the act complained of did not amount to discrimination. In the absence of such particulars, the only realistic response for the defendant is to deny that any discrimination occurred, which is exactly what the appellant did in its written statement. The Court held that when the appellant denied any violation of Arts. 14 and 16, it was effectively denying that any arbitrary or hostile discrimination as alleged in the plaint had taken place; otherwise, the denial would have been meaningless. Consequently, the pleadings do not demonstrate that the appellant admitted any discrimination. The Court concluded that, based on the pleadings, there was no allegation by the respondent of hostile discrimination. If, however, the plaint were interpreted as containing a sufficient allegation of discrimination, the written statement must be understood as denying that allegation. A plaintiff may not complain that a general allegation in the plaint is met by an equally general denial in the written statement, because the respondent would then be permitted to raise a case of hostile discrimination without having to substantiate it with particular facts.

If the Court had been required to interpret the written statement as containing a denial of the allegation of hostile discrimination, it would have been obliged to examine whether the respondent had proved such discrimination by evidence. The Court earlier examined the material evidence and concluded that the allegation of hostile discrimination had not been established at all. Consequently, the logical result follows. If the respondent is not permitted to raise a case of discrimination, then no question of a breach of Article 16 can arise. In the same way, even if the respondent were allowed to maintain that allegation, the claim must fail because the respondent failed to prove the existence of discrimination on the record. Because the allegation cannot be sustained, the appeal must be allowed to succeed. Accordingly, the decree issued by the High Court is set aside and the decree of the trial Court is restored in its place. The appellant did not request any costs of the appeal, and therefore the Court will make no order awarding costs.