Jagdish Mitter vs The Union Of India (Uoi) on 20 September, 1963

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 20 September 1963

Coram: P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo, J.C. Shah, Raghubar Dayal

In this appeal, the Court identified the central question as whether the order of Director of Postal Services on 28 October 1949 terminated the appellant’s employment as a dismissal. The issue was whether such dismissal attracted the provisions of Section 240(3) of the Government of India Act, 1935. The appellant had been appointed as a temporary Second Division Clerk in the General Post Office at Lahore for a six‑month period beginning on 9 October 1946. After the initial six months, his appointment was renewed periodically, and he was subsequently transferred to the office of the Post Master General at Ambala on 12 August 1947. While serving in that post, the Director of Postal Services issued the impugned termination order, thereby ending the appellant’s employment. The appellant filed a suit on 11 November 1952 seeking a declaration that the termination was illegal because Rule 126 of the Posts and Telegraphs Manual, Volume II, General Regulations, had been violated. He also contended that no enquiry had been held against him after he had been served with a charge‑sheet. The present appeal arose from that suit, which challenged the legality of the termination and sought redress of the alleged procedural violations. The Union of India disputed the appellant’s claim on several grounds, asserting that he remained a temporary servant and had not been declared a quasi‑permanent employee. Consequently, the respondent argued that his services could be terminated by giving one month’s notice as provided in his contract, without the requirement of an enquiry or a charge‑sheet. The respondent further stated that a complaint had been received in July 1949 from an individual named Sham Lal, which led to an enquiry into the appellant’s conduct. Sham Lal alleged that he had sent four reply‑paid postcards to the Post Master General at Ambala concerning a claim for National and Defence Certificates originally registered in Pakistan, but received only a bare acknowledgment. On 7 July 1949, Sham Lal received a reply written on a portion of one of his reply postcards, which showed that the card had been written by Vishwa Mitter, the appellant’s brother, to his mother. Vishwa Mitter had failed to strike out the original sender’s address, resulting in the postcard being delivered to Sham Lal instead of the intended recipient, his mother.

During the investigation that followed the incident, Vishwa Mitter admitted that he had used the reply‑paid postcard sent by Sham Lal to write a message to his mother. The Sub‑Judge at Ambala, who tried the appellant’s suit, held that because the appellant was a temporary government servant, his employment could be terminated without the need for an inquiry, and consequently concluded that the procedural safeguards prescribed in Section 240(3) of the Government of India Act, 1935 were not applicable. On that basis the Sub‑Judge dismissed the appellant’s suit. The appellant then appealed the decree, and the learned District Judge at Ambala allowed the appeal. The District Judge examined the nature of the order passed against the appellant and concluded that the order constituted a dismissal. Accordingly, he held that Section 240(3) of the Government of India Act, 1935 applied to the case. Observing that the statutory requirements of that provision had not been observed, the District Judge declared the order of dismissal invalid. This reversal of the Sub‑Judge’s decision set the stage for further litigation, as the respondent sought to overturn the District Judge’s finding by bringing an appeal before the Punjab High Court.

The Punjab High Court, presided over by Justice Capoor, considered the respondent’s appeal and upheld the respondent’s contentions, concluding that the order against the appellant was merely a discharge and therefore fell outside the scope of Section 240(3). As a result, the High Court allowed the respondent’s appeal and ordered that the appellant’s suit be dismissed. Unwilling to accept this outcome, the appellant filed a Letters Patent Appeal before a Division Bench of the same High Court; however, that appeal was dismissed at the threshold. Subsequently, the appellant applied to the High Court for a certificate of fitness, which was refused. Following that refusal, the appellant petitioned this Court for special leave, which was granted, permitting him to bring the present appeal before the Supreme Court. Counsel for the appellant argued that the High Court erred in holding that the impugned order did not amount to a dismissal within the meaning of Article 311 of the Constitution or Section 240(3) of the Government of India Act, 1935. Because the two provisions are substantially alike on the point in dispute, the Court indicated that it would refer to Article 311 in its judgment. The Court also noted that the proper legal position concerning the scope and effect of Article 311 with respect to temporary or probationary civil servants of the Union or a State is now well settled, and that it would briefly restate that position before addressing the merits of the present appeal, taking into account the legislative history of the relevant provisions.

In the judgment, the Court explained that the expressions “dismissed”, “removed” and “reduced in rank” that appear in Article 311 had acquired the character of specialized legal terms. The Court cited the observation of Das C. J. in Parshottam Lal Dhingra v. The Union of India, noting that at the time the 1935 Act and the Constitution were enacted, those words were already understood in service rules to denote the three principal punishments that could be inflicted on government servants. The Court further observed that the statutory safeguards contained in Sections 240(1) and 240(2) were intended to give legal effect to the protection against dismissal, removal or reduction in rank by prescribing a procedure that had to be complied with before such punishments could be imposed, and that those safeguards had been carried forward into Article 311 of the Constitution. From this background, the Court concluded that any order that terminates the service of a public servant who is serving on a temporary or probationary basis will not, by itself, constitute “dismissal” or “removal” within the meaning of Article 311 unless the termination can be shown to have been imposed as a punitive measure. The Court also affirmed that the protection of Article 311 is available not only to permanent employees but also to temporary servants and probationers, referring again to the decision in Parshottam Lal Dhingra’s case. Consequently, the Court held that if a temporary or probationary employee receives an order terminating his service and the order unmistakably indicates that the termination is intended as punishment, the employee may legitimately invoke the safeguards of Article 311 and challenge the validity of the order on the ground that the mandatory procedural requirements of the article have not been observed. In other words, a temporary public servant or a probationer cannot be dismissed or removed without being afforded the protection guaranteed by Article 311. The Court acknowledged that the tenure of a temporary servant or a probationer is inherently uncertain; under the terms of the contract or the applicable statutory rules, his service may be ended with one month’s notice without any reason being assigned. Nonetheless, the Court emphasized that the authority also possesses a separate power to impose a punitive dismissal. Thus, the same authority may either terminate the service on the basis of the contractual or rule‑based provision, which would be a straightforward discharge not covered by Article 311, or may dismiss the servant as a punishment, in which case the procedural safeguards of Article 311 would become applicable.

In this matter, the Court observed that when an authority terminates the services of a temporary public servant merely by exercising the power granted by the contract or the applicable rule, the result is a simple and direct discharge and nothing more. In such a straightforward discharge, the safeguards contained in Article 311 of the Constitution do not come into operation, and the servant cannot rely on that provision. Conversely, if the authority decides to use its separate power to dismiss a temporary servant and issues an order of dismissal in a direct manner, the termination is characterised as a dismissal, and the requirements of Article 311 become applicable. Thus, the nature of the termination—whether it is a mere discharge under contractual terms or an actual dismissal—determines the relevance of the constitutional protection.

The Court further explained that this apparently clear distinction can become complicated when, even while acting under the contractual or rule‑based power to end a temporary servant’s employment, the authority chooses to conduct a fairness enquiry to determine whether the servant should continue in service. It is commonplace for temporary servants or probationers to be discharged because they are deemed not competent or suitable for the position they occupy. Conversely, when a temporary servant or probationer is judged to be satisfactory, efficient and otherwise eligible, termination of his services is unlikely. In such circumstances, before effecting a discharge, the authority may be required to examine the servant’s suitability and, acting in good faith, may provide the servant an opportunity to respond to any complaints or to dispute any concerns regarding his competence or suitability that have arisen from his performance. The enquiry, however, is confined solely to the question of whether continuation in service is warranted; it does not constitute a punitive proceeding. Its purpose is not to punish the servant but merely to decide whether he deserves to remain employed. If, after completing this enquiry, the authority concludes that the servant is not suitable for continuation, it may issue a simple order of discharge based on the powers conferred by the contract or the relevant rule. In that situation, the temporary servant cannot invoke the protection of Article 311, because the enquiry that led to his discharge was undertaken only to determine whether the contractual or rule‑based power should be exercised, not to impose a dismissal.

The Court also considered the opposite scenario, where the authority elects to exercise its power to dismiss a temporary servant, a decision that ordinarily requires a formal departmental enquiry. When such a formal enquiry is convened and, upon its findings, an order terminating the servant’s services is issued, the termination prima facie amounts to a dismissal. The Court noted that it is necessary to recall earlier decisions in which the services of temporary servants were terminated directly as a result of a formal departmental enquiry. In those cases, the character of the termination is that of a dismissal, thereby attracting the procedural safeguards of Article 311.

In the cases that have been considered, the Court observed that the termination of a temporary public servant’s services could either arise directly from the findings of a formal departmental enquiry or could occur without such a direct link. The Court explained that, according to its earlier decisions, particularly the case of Parshottam Lal Dhingra, the motivation that the authority may have had when terminating the services does not change the legal nature of the termination. To illustrate this principle, the Court described a situation in which an authority commenced a formal departmental enquiry against a temporary servant but, while the enquiry was still pending, decided that a dismissal order was neither necessary nor convenient. To avoid the stigma that a dismissal would create, the authority terminated the enquiry and issued a simple order of discharge that was consistent with the terms of the contract or the applicable rule. Relying on the ruling in Parshottam Lal Dhingra, the Court held that such a discharge, even if it was motivated by an allegation that the servant did not deserve to continue because of alleged misconduct, could not be treated as a dismissal in law. Consequently, whenever a formal enquiry is started against a temporary servant but is not pursued to its conclusion, the motive of the authority is irrelevant to the classification of the termination.

The Court further emphasized that, because the motive must be disregarded, the wording used in the termination order is not decisive. If a formal departmental enquiry records findings against a temporary servant and, based on those findings, terminates his services, the fact that the order is labeled as a discharge does not conceal the reality that, in substance and in law, the termination amounts to a dismissal. The Court stressed that the form of the order is inconsequential; what matters is the substance of the action, which must be assessed by looking at the material facts that existed before the order was issued. For example, when a temporary servant challenges his discharge by alleging bad faith on the part of the authority, and the authority responds by pointing to facts that relate to the servant’s misconduct, negligence or inefficiency, it cannot be said that the later justification transforms the original order into a mere discharge. The Court must examine, in each case, the material facts that were present up to the time of discharge to determine whether, despite the terminology used, the servant was in effect dismissed, thereby attracting the protections of Article 311. The Court noted that complaints by discharged temporary servants raise a variety of factual situations, and while the emphasis may shift with each set of facts, the underlying principle remains the same.

When an authority later relies on facts concerning misconduct, negligence or inefficiency to justify a discharge that was already effected, it cannot be said that the discharge resulted from those later‑made considerations. The court must examine, for each case, whether, based on the material facts that existed before the discharge, the order functions in substance as a dismissal. If the analysis shows that, despite the label used in the order, the appointing authority effectively dismissed the temporary public servant, then the protections of Article 311 become applicable. The complaints filed by temporary public servants who have been discharged involve a variety of factual situations, and the emphasis of the court shifts to the particular facts presented in each individual case. Nevertheless, the principal rules that this Court has consistently accepted and applied to cases of discharged temporary servants remain clear and undisputed. For purposes of illustration, the Court finds it helpful to refer to several recent decisions that reaffirm the established position. The court therefore rejects any argument that the authority can retrospectively change the ground for dismissal after the discharge has taken effect. The inquiry into the servant’s conduct, if any, must be completed before the termination order is issued for the order to be considered regular.

In the case titled State of Bihar v. Gopi Kishore Prasad, the Court considered the termination of a Sub‑Deputy Collector whose discharge order enumerated in detail the grounds for the termination. The Court upheld the probationer’s contention that the discharge, in substance, amounted to a dismissal within the scope of Article 311. It observed that the termination occurred because, after conducting an enquiry, the Government concluded, correctly or incorrectly, that the probationer was unsuitable for the post he occupied on probation. The discharge order itself referred to considerations that portrayed the probationer as corrupt and therefore unfit, effectively attaching a stigma to his name. Because the order openly stigmatized the probationer, the Court affirmed the view of the Patna High Court that Article 311 applied and that its mandatory provisions had not been observed, rendering the order invalid. It is also important to note that the impugned order followed an enquiry that gave the probationer notice and required him to show cause why his services should not be terminated immediately. While addressing this issue, Chief Justice Sinha, speaking for the Court, summarised the earlier decision in Parshottam Lal Dhingra’s case by formulating five propositions, of which two and three are relevant to the present discussion.

The Court recited the two propositions that had been formulated earlier. The second proposition stated that terminating the employment of a person who held a post on probation without conducting any enquiry could not be described as depriving him of a right to the post and therefore did not constitute a punishment. The third proposition, however, explained that when the employer, instead of effecting termination without any enquiry, chose to hold an enquiry into alleged misconduct, inefficiency or a similar ground, the termination was to be regarded as a punishment because it attached a stigma to the employee’s competence and consequently affected his future career prospects. The Court observed that the employee in such circumstances was entitled to the protection of Article 311 of the Constitution. It was pointed out that these propositions originated in a case where the discharge order, on its face, attached a stigma to the probationer and was preceded by an enquiry conducted to decide whether the probationer’s services should be terminated forthwith. In appreciating the effect of the third proposition, the Court emphasized that those material facts must be kept in mind.

The Court added that it did not intend to lay down a sweeping and unconditional rule that every enquiry held by an authority before terminating the services of a probationer would automatically render the termination a dismissal. In many situations, the authority was required to inquire whether the probationer or temporary servant deserved to be continued, and such an inquiry might legitimately be undertaken. The Court considered it a matter of fairness for the authority to conduct an enquiry and give the servant an opportunity to explain his conduct before arriving at a decision. This type of enquiry was driven solely by the desire to resolve the simple question of continuation and was not intended to attach any stigma to the servant. The Court distinguished this informal enquiry from a formal departmental enquiry in which charges were framed and the purpose was to punish the servant. If the two were not distinguished, an absurd result would follow: a temporary servant or probationer could be discharged without any enquiry, yet if the authority acted fairly by conducting a modest enquiry and permitting the servant to respond, the same discharge would be treated as a dismissal. The Court affirmed that the third proposition was not meant to cover such informal enquiries and was not intended to apply in cases of routine, non‑punitive investigations.

The Court explained that the principle concerning a simple and straightforward discharge of temporary servants applies even where an informal enquiry has been held. In the case of State of Orissa v. Ram Narayan Das the matter involved a Sub‑Inspector who was on probation in the Orissa Police Force and who had been discharged. The Sub‑Inspector argued that his discharge amounted to a dismissal; the Orissa High Court had upheld that view, but the Supreme Court, on appeal, rejected it. The Court held that the order of discharge could not properly be described as a dismissal. Although the impugned order referred to adverse remarks about the probationer’s conduct and concluded that it was not advisable to retain him in service – language that might appear to attach a stigma – the Court interpreted the order as a plain discharge only. This interpretation was based on Rule 55(b) of the Civil Service (Classification, Control and Appeal) Rules, which mandates that before the service of a probationer may be terminated, an enquiry must be conducted to examine his competence and he must be given a chance to show cause against the allegations. Because such an enquiry had been carried out, the findings of that enquiry were communicated to the probationer at the time of his discharge. Accordingly, the statements in the discharge order were required by the procedural rule and did not, by themselves, convert the discharge into a dismissal. The Court further observed that the enquiry against the respondent was intended to determine whether he was fit to be confirmed in service; therefore, an order that discharges a probationer after such an enquiry cannot, in law, be treated as a dismissal. This decision underscores the significance of the nature of the enquiry held against a temporary servant, as it may ultimately lead to termination of his service. The Court also warned that if the probationer’s contention had been upheld, every discharge made in compliance with Rule 55(b) would have to be treated as a dismissal, a result the Court found unreasonable. The third authority referred to by the Court was S. Sukhbans Singh v. State of Punjab, which concerned a Tehsildar recruited in 1936 who had been appointed as an Extra Assistant Commissioner on probation in 1945 and who, in 1952, was reverted to the post of Tehsildar by a duly served order.

In the matter concerning the Tehsildar who had been appointed as an Extra Assistant Commissioner on probation, the Court noted that after the order reverting him to the post of Tehsildar was issued, a warning was served on him on 18 September 1953. The warning expressly alleged that the officer had committed misconduct in several respects. The officer subsequently challenged the legality of the reversion order, contending that the order functioned as a punitive measure and that it had been issued in bad faith. The Court examined the evidence presented during the proceedings and found that the officer’s service record was exceptionally satisfactory. Moreover, the Court observed that the reversion order itself demonstrated an intention on the part of the Government to act in bad faith. Consequently, the Court held that the principal basis of the decision was the determination that the reversion had been effected with mala‑fide intent, even if it might also have amounted to a punishment when viewed in the context of the officer’s exemplary record and the sequence of events leading to the warning. The Court therefore concluded that the officer’s successful claim rested on the finding of bad faith rather than on the characterization of the reversion as a disciplinary sanction.

The Court then turned to the case of Madan Gopal v. State of Punjab, which had been cited for the same point of law. Madan Gopal had been appointed as an Inspector of Consolidation in 1953 on a temporary basis, his appointment being terminable upon one month’s notice. In 1955 he received a charge‑sheet alleging that he had accepted an illegal gratuity of Rs 150 from an individual named Darbara Singh and that he had solicited an illegal gratuity of Rs 30 from another individual named Ude Singh. After submitting his explanation, an enquiry was conducted. The officer appointed to conduct the enquiry prepared a report that, on 22 February 1955, concluded that Madan Gopal was guilty of the charge relating to the receipt of Rs 150 from Darbara Singh. The records indicated that the Settlement Officer who conducted the departmental enquiry found Madan Gopal culpable of the alleged misconduct and recommended his immediate removal from service. Accordingly, on 17 March 1955 an order was issued terminating Madan Gopal’s employment forthwith and notifying him that, in lieu of notice, he would receive one month’s salary as required by the applicable rules. Although the order was formally presented as a discharge, the Deputy Commissioner who issued it explicitly affirmed agreement with the enquiry officer’s finding that Madan Gopal had taken bribes. In this connection the Court emphasized that the enquiry conducted by the Settlement Officer was undertaken expressly to determine whether disciplinary action should be imposed for the alleged misconduct, and that the order of termination flowed directly from the finding of guilt in that enquiry.

After the enquiry that was conducted, a discharge order was issued. The Court observed that, although the order appeared in the form of a discharge, its effect was in substance a dismissal. Because the order operated as a dismissal, the Court set it aside as illegal, noting that it violated Article 311 of the Constitution. In the petition filed by Madan Gopal, it was alleged that he had not been given a reasonable opportunity to show cause before his dismissal, as required by Article 311. Since the Court had determined that the discharge operated as a dismissal, Madan Gopal’s reliance on Article 311 succeeded. The Court explained that, when public servants challenge the termination of their service, the determining factor is the real nature of the termination rather than the label used in the order. The Court also referred to four earlier cases that examined various aspects of the problem as it related to temporary servants who were discharged or reverted. In each of those cases, the Court made observations pertinent to the specific issue under consideration. The Court concluded that the principles established in those decisions are consistent with one another and do not conflict.

The Court then turned to the facts of the present matter. It noted that, before the appellant’s service was terminated, an enquiry was conducted in response to a complaint made by an individual named Sham Lal. During that enquiry, it emerged that Vishwa Mitter, who is the brother of the appellant, had used a reply‑paid postcard that had been sent by Sham Lal, without correctly addressing it as required. Vishwa Mitter appears to have admitted that he had used the postcard unlawfully. However, the record does not disclose when the enquiry took place, how it was initiated, or what final order, if any, resulted from it. The appellant’s case file, which was permitted to be filed as a pauper, does not contain the relevant documents. Consequently, it cannot be established that the enquiry was conducted with the purpose of imposing disciplinary action on the appellant, nor that the discharge order later issued against him directly stemmed from the findings of that enquiry. It is possible that, even if the respondent intended to hold a formal enquiry to consider disciplinary action, it may first have contemplated a preliminary investigation to decide whether a full enquiry should proceed. If the enquiry was limited to such a preliminary investigation, the appellant would not be able to rely on it to support the contention that his discharge amounts to a dismissal.

The Court observed that the appellant’s allegation that the order of discharge, taken at its face, actually amounted to a dismissal could not be dismissed out of hand. It had already been noted that Article 311 of the Constitution extended its safeguard to temporary servants and probationers. Consequently, where an authority, instead of merely terminating the service of such a person by giving the one‑month notice required by the contract or the applicable rules, proceeded to dismiss the person, the authority was obliged to afford the protection guaranteed by Article 311. In the present case the appellant argued that the very wording of the order demonstrated that the action taken was not a simple discharge but a dismissal, and that this issue therefore required a construction of the order. The order in question read: “Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month’s notice of discharge with effect from November 1, 1949.” The Court acknowledged that the order ostensibly sought to effect a discharge and thus could be linked to the statutory power that allowed the authority to terminate a temporary appointment by giving one month’s notice. However, the Court found that the clause stating that the appellant had been “found undesirable to be retained in Government service” expressly placed a stigma upon him and, in that respect, transformed the document into an order of dismissal rather than a mere discharge.

The learned Additional Solicitor‑General contended that the order merely indicated that the Government did not consider it desirable or necessary to keep the appellant in employment. He admitted that the language employed in the order was somewhat unfortunate, yet he urged a liberal construction that would treat the order as an exercise of the authority’s power to end the appellant’s service by giving the prescribed notice. The Court rejected this line of argument. It held that describing a temporary servant as “undesirable” to continue in service was fundamentally different from stating that the servant was “unnecessary” to continue. In the former situation a stigma was attached to the servant, whereas in the latter the termination was based solely on the consideration that the temporary post did not need to be filled, without casting any aspersions on the servant’s character. A reasonable reader of the order would naturally conclude that the appellant had been found undesirable, a finding that inevitably carried a punitive element and formed the core of the order. The Court explained that when an authority wishes to terminate the service of a temporary servant, it may issue a straightforward discharge order that does not impugn the servant’s reputation. Once it is shown that the order in this case sought to cast an aspersion on the appellant, the Court could not treat it as a simple discharge.

In assessing whether an order that terminates the service of a temporary servant constitutes a dismissal, the Court explained that the essential inquiry is whether the order contains any statement that disparages the servant or attaches a stigma to his character. The Court held that if the wording of the order indeed casts an aspersion on the servant, then, irrespective of any formal description of the order as a simple discharge, the substance of the termination must be treated as a dismissal. Applying this test to the order under review, the Court found that the order did contain language that cast aspersion on the temporary servant, and therefore the termination could not be characterised merely as a discharge. On that basis, the Court concluded that the High Court had erred in holding that the appellant had not been dismissed but only discharged. The Court further observed that when the order is construed as a dismissal, the appellant, as a temporary servant, was entitled to the protections guaranteed under Section 240(3) of the Government of India Act, 1935 and under Article 311 of the Constitution. Because those protections had been denied, the order could not be sustained. Accordingly, the Court allowed the appeal, set aside the judgment of the lower appellate court, and restored the decree that had been passed there, directing that costs be awarded throughout. The Court also ordered the appellant to pay the court‑fees that he would have been required to pay had he not been permitted to proceed as a pauper litigant. Finally, the Court directed that the counsel who had appeared for the appellant be awarded his legal fees.