Patna High Court
Union Of India (Uoi) And Anr. vs Promode Narain Singh on 12 December, 1962
Equivalent citations: AIR1963PAT190, AIR 1963 PATNA 190
JUDGMENT K. Ahmad, J.
1. The plaintiff, who is the respondent here was until the 26th March, 1958, in the service of the Indian School of Mines and Applied Geology as a Laboratory Assistant, attached to the Department of Pnysics and Mathematics in the scale of Rs. 40-1-50-2-60 along with the usual dearness allowance. On 26-3-58, however, he suddenly received a letter from the Director of the. School terminating his service with effect from 28th April, 1958. Subsequently, on enquiry, he learnt from a Government letter dated 28th/29th March, 1958 that the termination of his service was effected under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, as both the post and appointment was temporary and was not the result of any complaint or allegation made against him.
The plaintiff thereupon got a notice under Section 30 of the Code of Civil Procedure served on the Director or the School on 16-4-58 and thereafter the present action was brought on 25-4-1958 for a declaration that the aforesaid letter dated 26-3-58 terminating his service with effect from 28th April, 1958, was illegal, ultra vires and without jurisdiction and was also arbitrary and discriminatory and as such no valid termination could be effected thereunder. In the plaint two persons were impleaded as defendants (1) The Union of India and (2) the Director of Indian School of Mines.
2. Both the Courts below have decreed the suit, the findings as given by the lower appellate Court in support of its judgment are as follows:
"1. There can be no doubt about the plaintiff's ser vice being of a temporary nature within the meaning of Rule 5(a) of the Central Services (Temporary Service) Rules 1949" and "that the contention of the plaintiff that he was given a permanent post cannot be accepted."
2. That the plaintiff "cannot be deemed to have been in quasi-permanent service".
3. It is not mentioned in the appointment letter "that' his appointment was for any particular period and so the only inference which can be drawn from this letter is that his appointment for the post was for the entire period over which the post was extended from time to time".
4. "That the provisions of Article 14 of the Indian Constitution are attracted under the circumstances of the present case, and the services of the plaintiff cannot be dispensed with, tiil the sanction for the post exists".
5. "That the Director of School of Mines and Applied Geology, waived the right under Section 80 C.P.C. and the validity of the notice, sent by the plaintiff under this section cannot be challenged".
3. It appears that the appointment of the plaintiff to the present post was made twice, in the first instance he was appointed under a letter dated 17th July, 1955. That was at a time when the aforesaid Indian School of Mines and Applied Geology was under the management of the Principal. That appointment, however, was admittedly temporary and it stood terminated on 8-6-57. On the second occasion the appointment given to the plaintitf was under a letter dated 26th June, 1957, and this time it was made by the Director of the School who had by then assumed charge of the management of the School, this time the advertisement was for five such posts and they were all initially for a period up to 31-5-57 but with a note therein that they were likely to continue. And it is not denied that subsequently these posts including the one held by the plaintiff were in fact extended from time to time till February 1960, and that even up to the date of the judgment under appeal they were in existence.
On these facts, the main contentions raised in the two Courts below on behalf of the plaintiff in regard to the tenure of his service were two--(i) that the service held by the plaintiff, even if not permanent, was at least quasi-permanent as defined in Rule 3 of the aforesaid Rules and not merely temporary, and (2) that in any case the plaintiff was entitled to hold the post at least till it existed.
4. A quasi-permanent service, as defined in Rule 2(b) of the Central Civil Services (Temporary Service) Rules, 1949, means "temporary Service commencing from the date on which a declaration issued under Rule 3 takes effect and consisting of periods of duty and leave (other than extraordinary leave) after that date". Then Rule 3 provides that-
"A Government servant shall be deemed to be in quasi-permanent service;-- (i) if he has been in continuous government service for more than three years; and
(ii) if the appointing authority, being satisfied as to this suitability in respect of age, qualifications, work ana character, for employment in a quasi-permanent capacity, has issued a declaration to that effect, in accordance with such instructions as the Governor General may issue from time to time."
5. In the present case the service of the plaintiff tip to the date of the suit was admittedly for a period less than three years and then there is no claim made that any declaration as provided in Rule 3 was ever made in respect of the plaintiff's service. Therefore, I think, both the Courts below have rightly held that the plaintiff cannot be deemed to have been in any quasi-permanent service and much less in any permanent service, and the appointment held by him was nothing but temporary further, this finding has not been challenged before me.
6. The finding on the second point, however, as given by both the Courts below, is in favour of the piaintiff and that as stated in the judgment under appeal is that "the plaintiff's appointment for the post was for the entire period over which the post was extended from time to time" and that the service of the plaintiff "cannot be dispensed with till the sanction for the post exists".
7. And then in support of this finding reliance has also been placed on the contravention of Article 14 of the Constitution. In that regard the conclusion of the lower appellate Court is that the plaintiff "cannot be deprived of his job indiscriminately without assigning any reason whatsoever" and as Such "the provisions of Article 14 of the Indian Constitution are attracted under the circumstances of the present case".
8. Now in law this much is well established as unamimously held In Parshotamlal Dhingra v. Union of India, AIR 1958 SC 36 that-
"... .just as Article 310, in terms, makes no distinction between permanent and temporary members of the service or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does Article 311,... .makes no distinction between the two clauses, both of which are, therefore, within its protections..."
But the very protection as envisaged under Article 311 is subject to certain defined concept and in any case not unlimited either in its scope or ambit. What the majority decision in the aforesaid case on this point has pointed out is that-
"....it is only in those cases where the Government intends to inflict those three forms of punishment that the Government servant must be given a reasonable op-porunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that it the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim tne protection of Article 311(2)".
While Bose, J., who has delivered a dissentient judgment in that case, is of the view that-
"....the test must always be whether evil consequence over and above those that would ensue from a 'contractual termination' are likely to follow".
9. Judged, therefore, from either of the two points or view, what has to be found here is whether the termination of the plaintiff's service in the present case was by way of punishment or the result of any blame or was effected otherwise. This takes us to the formulation of the fixed test for ascertaining whether in a particular case termination of service is inflicted by way of penalty so as to amount to dismissal, removal or reduction in rank within the meaning of Article 311(2) or is brought about by the exercise of the right to terminate it arising out of the terms of employment agreed upon between the parties or contained in the rules regularising the conditions of the service subject to which the employment was made.
10. One test for determining whether the termination of the service of a government servant is by way or punishment is to ascertain whether the servant, but tor such termination, had the right to hold the post. If he had a right to the post as In the case of a permanent or quasi-permanent service or in the case of a service for a term fixed, though temporary, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, thin such termination in the manner provided by the contract or the rules is prima facie and per se not a punishment and does not attract the provisions or Article 311.
11. Now, on the facts as found here, the service OT the plaintiff was neither permanent nor quasi-permanent nor was, I think, for any term fixed, though temporary, as is unambiguously evident from the very letter of his appointment dated the 26th June, 1957. As to the nature of his service, the view taken by the trial Court was that "by implication the service of the plaintiff could not be treated as absolutely temporary but it was some sort of tenure or contract service the period of which was extended by stages...and, therefore, the service of the plaintiff cannot be terminated so long as the sanction for the post continued". And this view in appeal seems to have been in a way affirmed but the exact finding given by the ower appellate Court on this point is to the effect that-
"It is not mentioned in this letter that his appointment was for any particular period, and so the only inference which can be drawn from this letter is that his appointment for the post was for the entire period over which the post was extended from time to time. On merit, I think, the view taken by the two Courts below on this point may riot be discarded as altogether inconsistent with the materials on the record but even if it be so that by itself does not solve the crucial question, namely, whether the appointment given to the plaintiff, even though temporary, was for any term fixed.
In my view none of the aforesaid findings given by the two Courts below even if correct can be equivalent to this that the appointment which the plaintiff got was not only temporary but also for a term fixed. At least in the [letter of appointment sent to the plaintiff there was no term given and much less any fixed term. Further at no stage there was any intimation given to him that his employment was for any fixed term. True it is that the period of his temporary service was extended from time to time but that extension depended exclusively upon the 'discretion of the Government. In other words, if the Government had decided not to extend it, the service of the plaintiff would have come to an end. In that view ot the matter, there is no material available on the record to sustain the finding that the appointment given to the plaintiff Was in fact for any term fixed.
The term 'fixed' refers to a term which can be ascertained from before and not one which is dependable exclusively on the discretion vested in the employer. Therefore, either of the two aforesaid findings given by the two Courts below, as already stated, even if correct, is 'not equivalent to this that the employment the plaintiff had was for any term fixed. Therefore, there can be no substance in the claim made that the plaintiff had any right to hold the post. In this regard the test as laid down by the Supreme Court in the aforesaid case ot, AIR 1958 SC 36, is in these words:
"In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period or his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant sc appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service."
12. Then the fact that the plaintiff had no right to hold the post is also supported from what is provided in the Central Civil Services (Temporary Service) Rules 1949, hereafter to be referred to as "the Central Rules".
It is not contended that these rules did not apply to the case of the plaintiff and I think rightly.
13. Rule 1(2) of the aforesaid Central Rules provides that-
"Subject to the provisions of sub-rule (3), these rules shall apply to all persons who hold a civil post under the Government of India and who are under the rule making control of the Governor-General, but who do not hold a lien on any post under the Government ot India or any Provincial Government."
Sub-rule (3) of this rule has no bearing on the facts of this case. Further there can be no question that the post held by the plaintiff was one under the Government of India and he was under the rule making control Of the corresponding authority, as referred to therein. Lastly, it is not suggested that the plaintiff had any lien on the post to which he was appointed. Therefore, the provisions of these Central Rules were clearly applicable to the case of the plaintiff. Now Rule 2(d) of the Central Rules lays down that " 'temporary service' means officiating and substantive service in a temporary post, and officiating service in a permanent post, under the Government of India". In view of this definition, therefore, it is clear from what has been stated above that the appointment given to the plaintiff was temporary and it does not matter whether it was substantive or temporary for in either case his service will be nothing but temporary service. And for terminating such a service, Rule 5(a) of the Central Rules provides that :
"The service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant".
Therefore, this also lends support to the conclusion that the service being temporary, the plaintiff had no right to hold the post. On the contrary, it goes a step further end lays down that such a service can be terminated at any time either at the instance of the employer or the employee by mere notice as contemplated thereunder. Therefore, the present case has to be judged on the footing, as already stated above, that the service of the plaintiff was neither permanent nor quasi-permanent, and not even for any term fixed, though temporary. And in law as already stated termination of service in such a case cannot per se be deemed as a case of punishment.
In other words, there is no such presumption in sucn a case. And so far as the positive materials, if any, that there are on the record are concerned, they also go in the same direction, namely, that it was not a case OT punishment or even blame. For example, there is the letter dated the 28th/29th March, 1958, sent by the Gov-ernment to the plaintiff in answer to the query made. Therein it is unequivocally stated that the termination ot his service was not the result of any complaint or allegation. Therefore, the very basis essential for the compliance of the protection as envisaged under Article 311(2) ot the Constitution of India is not present in the case of the plaintiff, namely, that the termination of service was by way of punishment or the result of any blame.
Unfortunately, this aspect of the case completely escaped the attention of either of the two Courts below and they seem to have been guided by the sole consideration that the temporary appointment of the plaintiff to the post was for the entire period for which the post was extended from time to time. But this latter finding, even if not incorrect, as already stated, is not by itself of any avail in coming to the conclusion that the service was for any term fixed. That being so, the order of termination of service passed in the case of the plaintiff Icannot be struck out or held illegal as it lacks the compliance of what is provided in Article 311(2) of the Constitution, Therefore, on that point the view taken by the two Courts below has to be reversed.
14. Then the other ground given in the judgment under appeal in support of the claim of the plaintiff is that the order of dismissal as passed is discriminatory and as such hit by Article 14 of the Constitution. In order, however, to support such a finding, it must be shown that the plaintiff has been discriminated against in the exercise of enjoyment of any legal right which is open to others who are similarly situated. In the opinion of the lower appellate Court, the discrimination said to have been made here arises from that though originally five such posts were created and five persons including the plaintiff were finally appointed to hold these five posts and though tne other four persons are still in service, but the service ot the plaintiff alone has been terminated.
In my opinion, this view is based on the assumption that all the five employees including the plaintiff had a common right to hold the post and enjoy it till it existed. But in my opinion, this is wholly misconceived. Firstly for the reason that all the five posts are quite independent of each other. Therefore, the rights and privileges of every employee are based on his own terms of employment and contract, if any, which he has entered into in respect thereof. Secondly, the appointment being temporary and not for any term fixed, none of them had any right to hold the post. Therefore the termination of service in the case of any cannot be a ground for the assertion that there was a case of discrimination made as the service of others was not at the same time terminated. In this view of the matter, therefore, this ground too tor holding that the order of dismissal in the case of the plaintiff was bad can be of no avail to the plaintiff.
15. To summarise, therefore, it comes to this that the order of termination as passed in the case of the plaintiff is bad neither for any non-compliance of the protection as given in Article 311(2) nor for any contravention of Art, 14 of the Constitution. And this finding by Itself is sufficient to dispose of the appeal. But in view of the fact that a good portion of the argument on behalf of the appellants has also been advanced on the footing that the notice given in this case under Section 80 of the Code of Civil Procedure was not proper, it is, I think, necessary to touch that point as well, though not in any detail.
16. Now, the suit in the present case, as already stated was instituted on 25-4-58 and the notice under Section 80 of the Code of Civil Procedure was served on tne Director of the School on 16-4-58. Therefore, the period intervening between the date of the service of notice and that of the institution of the suit is obviously less than two months. Section 80, however, provides that no suit shall be instituted against a Government or against a public officer in respect of any act purporting to be done by such a public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to or left at the relevant office.
Prima facie, therefore, there is no escape from the conclusion that the mandatory provision of Section 80 of the Code of Civil Procedure in this case has not teen in terms complied with. The two Courts below, however, seem to think that here the notice, as provided under Section 80 of the Code of Civil Procedure was waived Dy the appellants. In support of this contention reliance has been placed on behalf of the respondent on the decisions in Vellyan Chettiar v. Govt. of the Province of Madras, AIR 1947 PC 197, Province of Bihar v. Kamakshya Narain, AIR 1950 Pat 366 and M/s. Lakshmi Narayan v. union or India, AIR 1958 Pat 489.
The opposite view is that on the facts of the present case there can be no question of any waiver on the part of the appellants in regard to the compliance of the mandatory provision given in Section 80 of the Code of Civil Procedure and in support of this contention reference has been made to the decisions in Bhagchand v. Secy, of State, AIR 1927 PC 176, and Lakshmi Narain v. Union of India, 1951 B.L.J.R. 752 : (AIR 1962 Pat 64).
17. On principle, it is well-established that notice required under Section 80 of the Code of Civil Procedure 's open to be waived if the authority concerned thinks fit to waive it as laid down in AIR 1947 PC 197, even though the provision as provided therein is mandatory, in this case, therefore, what remains to be considered in this connection is whether the materials on the record do justify the inference that such a waiver was expressly or by implication ever made on behalf of the appellants. In AIR 1950 Pat 366, it has been observed that:
"Learned counsel's answer to the second contention of the learned Advocate General is contained in what I have said above about the suit being of the nature of a bill quia timet. A suit of this kind, it is said, does not require a completed act in order to give the plaintiff a right or relief. He is entitled to protection from a threatened act which, if completed, would give him a right of action: Emperor of Austria v. Day, (1861) 45 ER 851 : 30 LJ Ch 690; Mulji Haridas v. Ibrahim Rahimtulla, ILR 56 Bom 254 : AIR 1932 Born 166".
Relying on this observation, it has been contended on behalf of the respondent that on 26-3-58 there was already a letter served upon him with a clear decision incorporated therein that his service would be terminated with effect from 28th April, 1958. Therefore, the threat to his service started from the very time he received the letter and if he had waited for a period of two months from the date of the service of the notice effected thereafter, he would have been by then thrown out of his employment and put to peril, Therefore, according to tne plaintiff, the reasonable inference to be drawn from the tact that the decision already taken by the appellants was to be given effect to not after but within the period of two months from the date of the letter communicated to the respondent for the first time on 26-3-58 is that the protection as envisaged under Section 80 of the Code of Civil Procedure was waived.
In my opinion, there is much force in this contention and it is fully supported by the authorities relied upon by the respondent; and so far as the decisions referred to in this connection by the appellants are concerned they in fact do not bear upon the specific point that is involved here. The case of, AIR 1927 PC 176 related to the question whether a suit in which injunction alone was claimed was such as was attracted by the provisions of Sec, 80. In answer to that question, their Lordships held that that proceeding was not in any sense less than a suit and as such attracted by the provision of Section 80. In fact, for that very reason this authority has been in terms distinguished by their Lordships of the Privy Council in the case reported in AIR 1947 PC 197.
Similar is the position of the case in 1961 B.LJ.R. 752 : (AIR 1962 Pat 64). Therein also the simple question raised was whether the provisions made in Section 80 of the Code of Civil Procedure were express, explicit and mandatory or whether it admitted of any implications of exceptions and not whether in certain circumstances t could be waived. Therefore, none of these authorities is of any avail to the appellants in support of the SUD-mission as stated above on their behalf. On the contrary, I think, the finding as given by the lower appellate court on this point is not only based on principle but also supported by the authorities. The grievance, therefore, of any want of proper notice under Section 80 of the Code of Civil Procedure is not available to the appellants on the facts of this case.
18. In view, however, of the reasons, as given above, I hold that the order terminating the service of the plaintiff was neither illegal nor void.
19. Accordingly the appeal is allowed, the judgments and decrees given by the Courts below are set aside and the suit is dismissed. But in the circumstances of the case, there will be no order for costs.