The termination of a Government servant's services must be analyzed to determine whether it involves any loss of benefits previously earned and whether it casts a stigma on the employee, in order to ascertain if it amounts to dismissal or removal within the meaning of Art.311.

1. This is an appeal by the petitioner in O.P. No. 1167 of 1960 against the dismissal of that petition. The petition questioned the validity of an order of the Government terminating her services as an Honorary Medical Officer in the General Hospital, Ernakulam.

2. The order reads as follows:

"Under R.5 of the Rules issued in G.O.M.S. 450/58/EHD dated 25-4-1958, governing the appointment and service conditions of Honorary Medical Officers, the services of Dr. Rebecca Chanda Pillai, Honorary Medical Officer, General Hospital, Ernakulam are terminated forthwith.";

and the rule mentioned in the order:

"A person appointed to the post of Honorary Medical Officer will hold the post for a period of 5 years at a time. Government may terminate the appointment at any time without any notice and without assigning any reason therefor. The Honorary Medical Personnel once appointed will be eligible for reappointment provided they are found suitable for re-appointment by Government."

The petitioner was relieved of her duties with effect from the afternoon of 20-9-1960. Her current term of five years had not expired then and was due to expire only at the end of May 1963.

3. It is common ground that Art.311 of the Constitution applies to the petitioner and that if the termination of her services amounts to a dismissal or removal as contemplated by that Article, it has to be set aside on the ground that there has been no compliance with its provisions. The sole question for determination, therefore, is whether the termination amounts to a dismissal or removal as contemplated by Art.311 of the Constitution.

4. The history and impact of Art.311 will be clear from the following extract from A.I.R. 1953 S.C. 250:

"The services in India have long been afforded certain statutory guarantees and safe" guards against arbitrary dismissal or reduction in rank. Under S.240, Government of India Act, 1935 the safeguards were limited to those two cases. Under the present Constitution, a third was added, namely removal from service. In order to understand the difference between 'dismissal' and 'removal' from service, it will be necessary to turn to the Rules which governed, and with modifications still govern, the 'services' in India because of Art.313 of the Constitution.

"Part 12 of the Civil Services (Classification, Control and Appeal) Rules relating to conduct and discipline includes R.49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service. The Constitution has added a third to the list. The distinction which is drawn between the two is explained in R.49. There is first removal from service "which does not disqualify from future employment' and there is next dismissal from service "which ordinarily disqualifies from future employment". Then follows an Explanation:

'The discharge

x x x x

(c) of a person engaged under contract, in accordance with the terms of his contract does not amount to removal or dismissal within the meaning of this rule.' These terms are used in the same sense in Art.311."

5. The statement that the discharge of a person engaged under contract in accordance with the terms of his contract does not amount to dismissal or removal within the meaning of Art.311 only means that it

does not per se or by itself amount to that. This was clarified by the Supreme Court in AIR. 1958 S.C. 36. And in the light of the clarification it should be taken as settled law that a Government servant under contractual employment is free to prove that the order of termination is in effect an order of dismissal or removal within the meaning of Art.311 and have it set aside if the safeguards provided by that Ar