Union Territory of Tripura, Agartala vs Gopal Chander Dutta Choudhury

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 581 of 1961

Decision Date: 25 September 1962

Coram: J.C. Shah, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

In the matter titled Union Territory of Tripura, Agartala versus Gopal Chander Dutta Choudhury, the Supreme Court of India delivered its judgment on the twenty‑fifth of September, 1962. The case was authored by Justice J. C. Shah, who was joined by Justices Bhuvneshwar P. Sinha, P. B. Gajendragadkar, K. N. Wanchoo and K. C. Das Gupta. The petition was filed by the Union Territory of Tripura, Agartala, and the respondent was Gopal Chander Dutta Choudhury. The decision was reported in the 1963 All India Reporter at page 601 and also appears in the 1962 Supplement to the Supreme Court Reporter at page 266. Subsequent citations of the decision include references in the 1964 Supreme Court Reports at pages 600 (paragraph 139) and 719 (paragraph 9). The legal issue concerned a public servant employed on a temporary basis who was dismissed after the termination of his service, and whether the termination amounted to a dismissal that would invoke the safeguards of Article 311 of the Constitution of India. The applicable statutory framework included the Central Services (Temporary Service) Rules of 1949, specifically rule 5, and the relevant constitutional provision was Article 311, which provides protection against dismissal of civil servants except in accordance with the law.

The respondent had been appointed as a constable in the Tripura Police Force on a temporary basis and his service was subject to termination upon giving one month’s notice as authorized by rule 5 of the 1949 Rules. On the appointed date of termination, the Appellate Authority sent a communication stating that because the respondent was an ex‑convict for theft, no further action could be taken in his favour. Dissatisfied, the respondent filed a writ petition challenging the order of termination. The Judicial Commissioner initially held that the termination was in effect a dismissal motivated by punishment for the respondent’s criminal past and that the respondent had not been afforded a reasonable opportunity to show cause, thereby denying him the protection of Article 311 and rendering the termination invalid. On appeal, the Supreme Court examined whether the termination was truly punitive or merely an exercise of the contractual right to end temporary service. The Court concluded that the order merely effected termination of service without any express reference to the respondent’s status as an ex‑convict, and that no inference could be drawn that a dismissal was disguised as a termination. The burden of proving punitive intent was placed on the employee, which the respondent failed to meet. The Court further observed that, unlike an industrial tribunal conducting an inquiry under section 33 of the Industrial Disputes Act, a court reviewing a termination or dismissal of a public servant is not required to conduct a full investigation but must ascertain whether the statutory protections of Article 311 and the rules made under Article 309 were denied. Consequently, the Court held that there was no violation of Article 311(2) and dismissed the appeal, affirming that the termination did not constitute a dismissal in the constitutional sense.

In this appeal the Court recorded that several earlier decisions were cited, namely Bombay v. Chartered Bank Employees Union, [1960] 3 S.C.R. 441, The Management of Chandramalai Estate, Ernakulam v. Its Workmen, [1960] 3 S.C.R. 451 and Punjab National Bank Ltd. v. Its Workmen, [1960] 1 S.C.R. 806. The matter before the Court was Civil Appeal No. 581 of 1961, which arose from a judgment and order dated 15 January 1960 rendered by the Judicial Commissioner of Tripura at Agartala in Civil Miscellaneous (Writ Petition) No. 4 of 1959. Counsel for the appellants were R. Ganapathy Iyer and P. D. Menon, while D. P. Singh appeared for the respondent. The judgment was pronounced on 25 September 1962, and the opinion was delivered by Justice Shah.

Gopal Chander Dutta Choudhury, hereinafter referred to as the respondent, had been appointed as a constable in the Police Force of Tripura by the Superintendent of Police, Agartala, by an order dated 18 April 1954. The appointment was expressly temporary and was liable to be terminated upon giving one month’s notice. On 6 December 1957, the Superintendent, acting under rule 5 of the Central Services (Temporary Service) Rules, 1949, informed the respondent that his services “will be terminated with effect from 6‑1‑58 A.M.” The respondent challenged this order by filing an appeal before the Chief Commissioner. By a letter dated 11 April 1958, the Chief Commissioner replied that, because the respondent was “an ex‑convict for theft, nothing can be done for him.” A further application addressed to the Chief Commissioner resulted in a letter dated 26 May 1958, which reiterated that the respondent had already been told that, being “an ex‑convict in a case of theft,” he could not be re‑employed by the Administration. Consequently, the respondent instituted a writ petition before the Court of the Judicial Commissioner, Tripura, under article 226 of the Constitution. He prayed for a declaration that the termination order was illegal, for a writ of mandamus or certiorari directing the Chief Commissioner not to enforce the order, and for an order reinstating him in the Police Force with retrospective effect. The Tripura Administration, in its rejoinder, submitted that the respondent, as a temporary employee of the Police Force, could be lawfully terminated under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. The Judicial Commissioner held that while the respondent was indeed a temporary employee, the termination order was invalid because it infringed the constitutional guarantee of protection to public servants under article 311, which applies to both temporary and permanent servants. In the Commissioner’s view, termination of employment of a temporary servant governed by the Central Civil Services (Temporary Service) Rules, 1949, does not per se constitute a punitive dismissal or removal, but it is open to the Court even if an order merely of termination of employment

In this case the Court observed that, when an order affecting a temporary employee is issued, it must be examined to determine whether the order is merely a simple termination or whether it is in fact a dismissal that carries penal consequences. The Court noted that the order dated 11 April 1958, issued by the Chief Commissioner on appeal, clearly demonstrated that the Superintendent of Police had intended to impose a penalty. The Court quoted the Superintendent’s reply of that date, stating that although the Superintendent claimed to be terminating the petitioner’s service under the Central Civil Services (Temporary Service) Rules, his true intention was to dismiss the petitioner as a punishment because the petitioner was an ex‑convict and because the Superintendent intended that the petitioner should not be re‑appointed in any Government department in the future. Consequently, the Court held that it could not be denied that the termination was, in substance, a punishment for prior misconduct that barred the petitioner from future employment, and that the apparently innocuous order of 6 December 1957 was merely a camouflage for this real intention, which became apparent, perhaps due to an oversight, when the appellate orders were communicated to the petitioner.

The Court could not agree with the Judicial Commissioner that the termination of the respondent’s employment by the Superintendent on 6 December 1957 violated Article 311 (2) of the Constitution. While it acknowledged that no enquiry into alleged misconduct had been conducted before the discharge and that the respondent had not been afforded an opportunity to show cause, the Court emphasized that settled law holds that when the employment of a temporary public servant is terminated pursuant to the terms of the contract, the servant is not entitled to the protection of Article 311 (2). The Court referred to the decision in Parshotam Lal Dhingra v. Union of India, where Chief Justice Das observed that a termination exercised as a contractual right does not automatically constitute dismissal or removal, as was also held in Satish Chander Anand v. Union of India. Such a termination does not carry the penal consequences of loss of pay or allowances under Rule 52 of the Fundamental Rules.

Nevertheless, the Court explained that the State may, instead of invoking its contractual right, choose to terminate a temporary employee’s service on grounds of misconduct, negligence, inefficiency or any other disqualification. When an order of termination is passed for such reasons, it amounts to dismissal or removal and therefore attracts the protection of Article 311. The wording of the order, the Court stressed, is not determinative. In Parshotam Lal Dhingra the Court had observed that the use of terms such as “terminate” or “discharge” is not conclusive; the court must apply two tests: first, whether the servant had a right to the post or rank; and second, whether the servant has suffered the adverse consequences described earlier. If either test is satisfied, the termination is to be treated as a punishment, amounting to dismissal, removal, or reduction in rank, and any failure to comply with the rules and Article 311 would render the termination wrongful and unconstitutional.

Accordingly, the question that required determination was whether the Superintendent, by the order dated 6 December 1957, had in fact issued a dismissal on grounds of misconduct, negligence, inefficiency or similar cause, or whether he had merely exercised the State’s contractual right to terminate the temporary employee’s service.

The Court explained that the test for determining whether a servant has been dismissed is two‑fold: first, whether the servant has been deprived of his post or rank, and second, whether he has suffered the adverse consequences of the kind previously described. If either of these two criteria is satisfied, the servant is to be regarded as having been punished; consequently the termination of his service must be treated as a dismissal or removal, and any reversion to his substantive rank must be treated as a reduction in rank. Where the statutory rules and Article 311 of the Constitution, which protect government servants, have not been observed, such termination or reduction in rank is to be held wrongful and in violation of the servant’s constitutional right.

The specific issue for determination was whether the Superintendent of Police, by the order dated [1958] S.C.R. 828, 8bl. (2) (1953) S.C.R. 655, December 6 1957, actually passed a dismissal order on the grounds of misconduct, negligence, inefficiency or similar cause, or whether he merely exercised the State’s contractual right to end the employment of the respondent, who was a temporary employee. The order, in its terms, simply terminates the respondent’s service and was not preceded by any enquiry to ascertain whether the respondent was guilty of any misdemeanor, misconduct, negligence, inefficiency or a comparable fault. In the appeal to the Chief Commissioner, the order recites that the respondent was “an ex‑convict for theft and therefore nothing could be done for” him, although the precise meaning of that statement is somewhat obscure.

The memorandum of appeal filed before the Chief Commissioner was not produced as evidence, and the order contains no suggestion that the respondent’s employment was terminated because he had, prior to his appointment on 18 April 1954, been convicted by a criminal court for theft. The order of the Chief Commissioner dated 26 May 1958 indicates that the respondent had applied for re‑employment in the Police Force and that the Commissioner held that, because the respondent was “an excoriation in a case of theft,” he could not be re‑employed. There is no basis on which to infer that the Superintendent of Police sought to conceal a dismissal by giving the order the appearance of a termination exercised under Rule 5 of the Central Civil Services (Temporary Service) Rules. It cannot be presumed that an order that appears on its face to be a termination of a temporary employee’s service was intended as a dismissal.

The burden of proving that the authority intended to dismiss rather than merely terminate lies with the employee. In this case, there is no evidence regarding the Superintendent of Police’s intention other than the order itself. Counsel for the respondent submitted that, analogous to an application made under section 33 of the Industrial Disputes Act for permission of an Industrial Tribunal to discharge workmen pending adjudication, the tribunal must conduct a full investigation to determine whether the employer acted mala‑fide, whether the discharge amounted to an unfair labour practice, or whether it constituted victimisation.

In matters where a dispute involves an employer and workmen, the Tribunal was required to conduct a full investigation. It had to determine whether the employer acted dishonestly, whether the order of discharge constituted an unfair labour practice, or whether the dismissal represented victimisation. Similarly, when the Court examined an order terminating the employment of a temporary public servant, it was obliged to undertake a careful inquiry into the reasons that prompted the authority to issue the impugned order, even if the termination was presented as a simple enforcement of a contractual right or as a response to alleged misconduct, negligence or inefficiency. Counsel drew the Court’s attention to two earlier decisions, namely The Chartered Bank, Bombay v. The Chartered Bank Employees’ Union and The Management of Chandramalai Estate, Ernakulam v. Its Workmen, and argued that the considerations relevant to applications under section 33 of the Industrial Disputes Act were also applicable to discerning the true character of an order terminating a public servant’s employment. The Tribunal, when faced with an application under section 33, was required to examine all the circumstances leading to the termination and the employer could not refuse to disclose those circumstances. The form of the order was not determinative of its substance; the order might be a camouflage for a dismissal on grounds of misconduct. Consequently, the Tribunal could look beyond the form, assess the substance, and if it concluded that a superficially simple termination actually concealed a dismissal for misconduct, it could set aside the order as a colourable exercise of power.

The Court, however, held that the principles derived from industrial‑relations cases under the Industrial Disputes Act, which were developed to maintain industrial peace, did not govern the question of whether a public servant was denied the protection guaranteed by the Constitution. A public servant held a civil office at the pleasure of the President or the Governor, depending on whether the office was under the Union or the State. To safeguard such servants, the Constitution imposed a dual restriction on the power to terminate employment. First, a public servant could not be dismissed or removed by an authority subordinate to the one that appointed him. Second, the servant could not be dismissed, removed, or demoted unless he was afforded a reasonable opportunity to show cause. These constitutional safeguards applied equally to temporary public servants as to those in permanent positions, and they operated independently of any contractual right of the State to terminate services in the ordinary course of employment.

In this case, the Court observed that the safeguards provided by Article 311 of the Constitution extend to temporary public servants as well as to those who enjoy permanent appointments. Nevertheless, the Constitution does not forbid the State from including a clause in the terms of employment that permits it to terminate the service of a public servant. When such a termination is carried out in good faith in accordance with that contractual clause, the protection granted by Article 311 does not become applicable, because the termination in those circumstances does not constitute a dismissal or removal from service. The Court referred to the decision in The Punjab National Bank Ltd. v. Its Workmen (1) to illustrate that a clear distinction exists between the legal consequences that follow a breach of section 33 of the Industrial Disputes Act and those that arise under clause (2) of Article 311.

In The Punjab National Bank case, the Court explained that compliance with section 33 of the Industrial Disputes Act merely avoids the penalty prescribed in section 31(1), whereas compliance with Article 311(2) renders the order of dismissal final and binding. When a dispute is pursued under section 33, the Tribunal’s role is confined to a limited inquiry to determine whether the employer’s proposal to terminate a workman’s employment appears prima facie bona fide and whether the employer has engaged in victimisation or any unfair labour practice. The Tribunal is required only to assess the prima facie aspect of the case and to either grant or refuse permission based on whether it finds a prima facie case established by the employer. The permission granted by the Tribunal merely removes the prohibition imposed by section 33; it does not validate the dismissal nor does it prevent the dismissal from being contested in an industrial dispute. If the employer chooses to contest the dispute, he must justify his action strictly on the grounds originally specified in the charge sheet and on no other basis. Importantly, the Court held that before a public servant’s employment is terminated, no prior sanction from the Court is required. The termination order operates independently and does not require justification through a court process. The only basis upon which the validity of such a termination can be contested is the allegation that the public servant was denied the protection guaranteed by Article 311 and the rules framed under Article 309. The Court emphasized that the inquiry conducted under section 33 of the Industrial Disputes Act bears no resemblance to the inquiry that a civil court undertakes when a public servant challenges a dismissal order. When the matter is before the civil court, the court’s function is limited to examining whether the authority acted in accordance with the constitutional rules; the court does not act as a body that sanctions the proposed dismissal. Accordingly, the court’s inquiry is confined to the observance of the procedural safeguards laid down in the Constitution, and it is therefore impossible to equate the inquiry envisaged under section 33 with the judicial scrutiny applied by the civil court in a dismissal case.

In the present case, the Court carefully examined the scope of the inquiry that a Civil Court must conduct when a public servant contends that his employment has been terminated without the safeguards provided by the Constitution. The Court pointed out that any decision to grant permission to terminate the service of a workman is not a separate administrative act but forms an essential element of the judicial inquiry prescribed under the constitutional framework. Consequently, whenever a public servant asserts that the protection guaranteed by Article 311 has been denied to him, or that his dismissal has been carried out in breach of the procedural regulations framed under Article 309, the Civil Court is obliged to scrutinise the legality of the termination within the same inquiry. After applying this principle to the facts before it, the Court found that the appellant’s submissions were well founded and therefore concluded that the appeal ought to be allowed. In the same breath, the Court ordered that the petition which had been instituted by the respondent be dismissed in its entirety. The Court further directed that no costs shall be awarded to either party at any stage of the proceedings, leaving the parties without any cost liability. Accordingly, the appeal was allowed.