1. Temporary public servant terminated following an enquiry into allegations of illegal gratification — Challenge to termination for violation of Article 311(2) of the Constitution. (Para 1 , 2 )
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1962 Supreme(SC) 274
SUPREME COURT OF INDIA
27th August, 1962.
B.P. SINHA, C.J.I., K. SUBBA RAO, J.C. SHAH, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ.
Madan Gopal, Appellant
Versus
The State of Punjab and others, Respondents.
Civil Appeal No. 329 of 1960.
Advocates appeared
Mr. N. N. Keswani, Advocate, for Appellant; Mr. N. S. Bindra, Senior Advocate, Mr. P. D. Menon, Advocate, with him), for Respondents.
Advocates:
N.N.KESHVANI, N.S.BINDRA, P.D.MENON
N.N.KESHVANI, N.S.BINDRA, P.D.MENON
Termination of a temporary public servant's services following an enquiry into misconduct is punitive and attracts the protection of Article 311(2) of the Constitution, as it casts a stigma on their future career, distinguishing it from termination based on general unsuitability for confirmation.
Headnote:(A) Constitution of India - Article 311(2) - Termination of service of temporary public servant - Enquiry into misconduct - Stigma - Punishment - If instead of terminating a temporary employee's service without any enquiry, the employer chooses to hold an enquiry into alleged misconduct or inefficiency, the termination of service is by way of punishment because it puts a stigma on the employee's competence and affects their future career; in such cases, the employee is entitled to the protection of Article 311(2) of the Constitution. (Para 4)
(B) Distinction between termination for confirmation and punitive termination - An order discharging a public servant, even a probationer, following an enquiry into charges of misconduct, negligence, or inefficiency is regarded as punishment. Conversely, an order discharging a probationer following an enquiry to ascertain whether they should be confirmed is not punitive, provided the termination does not carry evil consequences such as forfeiture of pay, loss of seniority, or other stigmas affecting the future career. (Para 6)
Facts of the case:
A temporary employee was served with a charge-sheet alleging the receipt and demand of illegal gratification. An enquiry was conducted, and the report concluded that the charges were proved and the employee lacked integrity. Consequently, the employment was terminated forthwith. The employee challenged the order, contending that the termination was punitive and violated the requirement of providing a reasonable opportunity to show cause under Article 311 of the Constitution.
Findings of Court:
The termination was not a simple exercise of the authority to terminate temporary employment without assigning reasons. Because the termination followed an enquiry into specific misdemeanours and was based on findings that the employee was a person of doubtful integrity, it cast a stigma on the employee's future career and thus amounted to punishment.
Issues: Whether the termination of a temporary employee's services, following an enquiry into allegations of misconduct, constitutes a punishment attracting the protection of Article 311(2) of the Constitution.
Ratio Decidendi: The protection of Article 311(2) of the Constitution applies to temporary public servants as well as permanent ones. When an enquiry is conducted specifically to determine if disciplinary action should be taken for a misdemeanour, any subsequent termination based on that report is punitive. Such an action requires the employee to be given a reasonable opportunity to show cause against the proposed action. (Paras 5, 7)
Result: Appeal allowed.
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Table of Contents
2. Whether termination of a temporary employee following a misconduct enquiry constitutes a punishment requiring compliance with Article 311(2) or a simple termination under employment terms. (Para 2 , 3 , 6 )
3. Termination based on a proven misdemeanour following a disciplinary enquiry casts a stigma on the employee's career, transforming a simple termination into a punitive action. (Para 4 , 5 , 6 , 7 )
4. Termination of a temporary public servant following an enquiry into misconduct is punitive and attracts the protection of Article 311(2) of the Constitution. (Para 4 , 5 , 7 )
5. Appeal allowed — High Court order set aside — Order of the Single Judge quashing the termination restored. (Para 8 )
6. Does the protection of Article 311(2) of the Constitution extend to temporary public servants?
Yes, the protection of Article 311(2) of the Constitution applies to temporary public servants as much as it applies to permanent public servants. (Para 5 )
7. When does the termination of a temporary employee's service constitute a punishment?
Termination is considered a punishment if the employer chooses to hold an enquiry into alleged misconduct or inefficiency and terminates service based on those findings, as this casts a stigma on the employee's competence and affects their future career. (Para 4 , 5 )
8. What is the legal distinction between an enquiry for confirmation and a disciplinary enquiry regarding termination?
An enquiry to ascertain if a probationer is fit for confirmation does not necessarily make termination punitive. However, an enquiry conducted to determine if disciplinary action should be taken for a misdemeanour is punitive and requires compliance with Article 311(2). (Para 6 , 7 )
Judgment:
SHAH, J. : The appellant Madan Gopal was appointed an Inspector of Consolidation by order dated October 5, 1953 of the Settlement Commissioner of the Patiala and East Punjab States Union. The appointment was on temporary basis and terminable with one month s notice." On February 5, 1955, the appellant was served with a "charge-sheet by the Settlement Officer, Bhatinda that he (the appellant) had received Rs. 150/- as illegal gratification from one Darbara Singh and had demanded Rs. 30/- as illegal gratification from one Ude Singh. The appellant was called upon to show cause why disciplinary action should not be taken against him if the allegations in the charge-sheet were proved. The appellant submitted his explanation to the charge-sheet. On February 22, 1955 the Settlement Officer submitted his report to the Deputy Commissioner Bhatinda, that the charge relating to receipt of illegal gratification from Darbara Singh was proved. The Deputy Commissioner by order dated March 17, 1955 ordered that the services of Madan Gopal Inspector be terminated forthwith and that in lieu of notice he will get one month s pay as required by the Rules.
2. The appellant requested the Deputy Commissioner to review the order, and also submitted a memorial to the Minister for Revenue affairs. Having failed to obtain relief, the appellant applied to the High Court of Pepsu for a writ under Art. 226 of the Constitution quashing the order dated March 17,1955 on the ground inter alia that the order of dismissal from service was in contravention of Art. 311 of the Constitution as no reasonable opportunity to show cause against the order of dismissal was at all given. He also challenged the authority of the Settlement Officer to hold the enquiry and submitted that the procedure followed by that Officer in making the enquiry was irregular. The petition was transferred to the High Court of Punjab on the reorganization of the State of Punjab.
3. Bishan Narain J. who heard the application issued the writ prayed for, because, in his view, the order of termination of employment was in the nature of an order of punishment and as the provisions of Article 311 (2) had not been complied with by the Enquiry Officer, the Deputy Commissioner or the Settlement Commissioner, the order was invalid. In appeal under the Letters Patent, the order was reversed by a Division Bench of the High Court. The High Court held that the appellant was a temporary servant and had no right to hold the post he was occupying and by the impugned order the appellant was not dismissed or removed from service, but his employment was, terminated in exercise of authority reserved under the terms of employment, and no penalty was imposed upon the appellant.
4. The appellant was a temporary employee, and his employment was liable to be terminated by "notice of one month" without assigning any reason. The Deputy Commissioner however, did not act in exercise of this authority: the appellant was served with a charge-sheet setting out his misdemeanour, an enquiry was held in respect of the alleged misdemeanour and his employment was terminated because in the view of the Settlement Officer - with which view the Deputy Commissioner agreed - the misdemeanour was proved. Such a termination amounted to casting a "stigma affecting his future career". In State of Bihar v. Gopi Kishore Prasad , AIR 1960 SC 689 the learned Chief Justice in dealing with cases of termination of service or discharge of public servant on probation set out five propositions of which the 3rd is enunciated thus:
"But, if instead of terminating such a person s service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311 (2) of the Constitution.
5. It is true
