MANAGER GOVT. BRANCH PRESS & ANR. v. D. B. BELLIAPPA
Citation: [1979] 2 S.C.R. 458; 1978 INSC 246
Court: Supreme Court of India
Bench: R.S. SARKARIA , V.D. TULZAPURKAR, A.P. SEN
Judgment date:
Case summary
1978 INSC 246. Supreme Court of India judgment dated 1978-11-30. MANAGER GOVT. BRANCH PRESS & ANR. v. D. B. BELLIAPPA. Read the judgment and case details on...
Judgment text
460 SUPREME COURT REPORTS [1979] 2 s. c. R. I MANAGER GOVT. BRANCH PRESS & ANR. V. D. B. BELLIAPPA November 30, 1978 [R. S. SARKARIA, V. D. TuLZAPURKAR AND A. P. SEN, JJ. J Constitution of India, Articles 14 and 16(1), protection of, when available to temporary employees-S. 16(1) "appointment", Scope, Incumbent on dismissing authority to disclose reason for termination of services~ when specific charge of hostile discrimination. The services of Belliappa, a temporary Class IV employee, were terminated without assigning any reason, albeit in accordance with the conditions of his service, while three other employees, similarly situated, junior to Balliappa in the same temporary cadre, were retained. The order terminating his services, was preceded by a show-cuase notice of proposed disciplinary action against him, but otherwise, there was nothing to show that the service reoord of Belliappa was, in any way, inferior to his three juniors who have been retained in service.
Furthermore, neither the dismissal order nor the appellant's counter affidavit assigned any reason for the termination and the appellant had throughout maintained that there was no nexus between the show-cause noti·. ::e and the impugned action. The High Court allowed a writ p'etition of Belliappa, holding- that the order terminating his services, contravened the guarantee of equal treatment embodied in Article 16 of the Constitution. It was contended that Belliappa was a temporary employee, and his services could be terminated at any time without notice, and that Articles 14 and 16 are not attracted when the services of a temporary employee are terminated in accordance with the conditions of his service. Dismissing th'e appeal, the Court HELD: I. The protection of Articles 14 and 16(1) will be aW. ilable even tc> a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors similarly circumstanced.
The competent authority may have a discretion under the conditions of service governing the employee, to terminate bis services without notice, but such discretion has to lbe exercised in accordance with reason and fair play, and not capriciously. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee, may itself constitute denial of equal p:" ~rved a notice on the respondent on December 29, 1966, statini. ; that the -respondent had taken outside the Press some copie5 of the ool! ot papers relating to the Director's election of Coorg Cardamom Co-operative Societies, Mercara. The respondent was required to show cause before 2. 00 P. M. of December 30, 1966, why disciplinary action be not taken against him as per Rules. It was further stated in the notice that failure to comply with the notice will result in the respondent's suspension and further disciplinary action against him.
Thereafter on January 3, 1967, an order was served on the respondent, terminating bis service. This order (hereinafter called the impugned order) TUil$ a,s under : . -. ,. _ "Office of the Manager, Government Branch Press, Mercara. Memoranda As per instructions contained in Head Office Order No. 570/66-67, dated 3-1-1967, Sri D. B. Belliappa, junior Compositor of this Office is hereby informed that your appointment is purely temporary and terminable at any time without any previous notice and without reasons being assigned therefor are not required. Therefore your services are hereby terminated with immediate effect. Sd/- xxx Government Branch Press. M were appointed as temporary Junior Compositors subsequent to the respondent's appointment, had been retained and continued in service, while a discriminatory treatment was meted out to the respondent, without any reason.
It was urged that in these circum>tances, the termination of the respondent's service, while continuing three others, similarly situated, was violative of Article 16 of th11 Constitution. At the stage of arguments, the respondent gave up his claim for regulari-sation of service. The High Court by its order dated June 20, 1968, allowed the writ petition, holding that the impugned order contravened the guarantee oi equal treatment embodied in Article 16. ! he High Court did not give reasons in this order, but stated therein lhat the reasons giwn in the decision of that Court in Writ Petition No. 153 of 1965, were applicable. In the result, the impugned order, by which the respondenfs services were terminated, was set aside and it "as dec-lared that he will be entitled to all the benefits flowing from the court's order, including reinstatement and the like. Hence, this appeal by special leave. Mr.
Veerappa, learned counsel for the appellant, contends that the respondent, Belliappa, was appointed in a temporary capacity and his service could be terminated at any time without notice. The pro-position propounded is that Articles 14 and 16 are not attracted in case where the services of a temporary employee are terminated in accordance with lhe conditions of his service. In the alren,ative, it is submitted that the principle of 'first come. and last go' may apply only when there is a general retrenchment and not wher~ thero is some special reason for terminating the services of one employe·o while continuing his juniors in the temporary service. It is mair. tained that the show-cause notice which was served on the respondent on December 29, 1966, furnishes the motive or the cause for terminating the respondent's services, while retaining his juniors in service. Mr.
Veerappa contends that in spite of the fact that the position taken by -the appellants in the impugned ord>~r was that the servtce of the respondent was being terminated without assigning any reason in accordance with the conditions of his service, it could be spelled out from the show-cause notice that the real cause of terminating the respondent's service was his unsuitability for the job or unsatisfactory conduct. A number of decisions have . been cited: The Umon ot India v. Pandurang Kashinath More('), Champaklal Chimanlal Shah v. The 3 Union of India('), Doddaiah v. State of Mysore( ) Union of India v. Prem Parkash Midha('); State of U. P. v. Ram Chandra Trivedi('); Madan Singh Puran Singh v. The Union of India. (6). As against this, it is submitted on behalf of the respondent that in his further afli.
davit, dated January 25, 1968, the responc\ent had taken up the plea of hostile discrimination, with particularity, stating that while his three named juniors who were in all respects similarly situated, were continued in service; the respondent was arbitrarily singled cul for discriminatory treatment, although the respondent's record cf &,rvice was good and at no time he gave room for any complaint from his official superiors. It is stressed that these averments in the additional affidavit of the respondent were not :ebutted or countered by the opposite side on afli. davit, nor was any material pro-duced on record to show that there was any special reason for terminating the respondent's service, and continuing the service of his juniors.
It is urged that since the consistent stand taken by the appellant in the impugned order, in their counter-affidavit and at the time of arguments in the High Court was that the service of the respondent has been terminated without any reason, in accordance with the terms and conditions of his service, the appellants should '. JO! be allowed to commit a volt face in this special appeal and take up a different ground which was never ~et up or pleaded. Eefcre dealing with the contentions canvassed on both sides, it will be useful to notice the relevant undisputed facts for the discus-sion emerging from the pleadings and the material on record. (1) A. I. R. 1962 S. C. 630. (2) [1964! 5 S. C. R. 190. (3) A. I. R. 1967 Mysore 223. (4) [1965] 69 S. I.. R. 655 (S. C. ) (5) [1977] 1 S. C. R. 462. (6) 1972 S. I.. R. 67 (Delhi). ;;,--~ GOVT. PRESS v. BF. LLJAPPA (Sarkaria, !.
) 463 The ~ervice of the respondent, Belliappa, has been terminated without assigning any reason albeit in accordance with the conditions of his service, while three employees, similarly situated, ju! 'ior to Belliappa in the same temporary cadre have been retained. A charge of hostile discrimination has been levelled with sufficient particularity against the appellant. Hostile animus was also attributed by B~lliappa in his writ petition to his superior officers. In the additional grounds of his further affidavit, Belliappa averred that his service record was good. This fact has not been controverted by the appellant by filing any counter-affidavit. However, there is material on the record to show that the impugned order was preceded by a show-cause notice of proposed disciplinary action against Belliappa. It could, therefore, be presumed that but for this show-cause notice, the service record of Belliappa was good. At any rate, th~re is n'.
>thing on the record to show that the service record of Belliappa was, rn any way, inferior to his three juniors who have been retained in service. The impugned order itself says that Belliappa's services are being terminated without assigning any reason, and the same h~s been n. iteraled In the counter-affidavit, dated September 22, 1967, filed on behalf of the present appellant in the High Court. In ion of the p Constitution Bench in Champak LaI's case (supra). Tnat was a case -of a temporary Government servant. Rule 5 governing a temporary Gov~: nment servant, which came up for consideration in that case, gav~ power to the Government to terminate the service of a temporary Government servant by giving him one month's notice or on payment of one month's pay in lieu of notice. This rule was attacked on the gr0und that it was hit by Article 16.
In the alternative, it was urged that even if rule 5 is good, the order by which the appellant's services were dispensed with, was bad because it was discriminatory. Reference was made to a number of persons whose services were not di&pensed with, even though they were junior to the appellant and did nor have as good qualifications as he had. Wanchoo J. (as be then was), speaking for the Court, repelled the al;ernative argument in th•:'e terms : "We are of opinion that there is no force in this contention. This is not a case where services of a temporary employee are being retrenched because of the abolition of a post. In such a case, a question may arise as to who shonld be retrenched when one out of several temporary post is being retrenched in an office. In those circum-stances, qualifications and length of service of those holding similar temporary posts may be relevant in considering whether the retrenchment of a particn! ar employee was as a result of discrimination.
The present however is a case where the appellant's services were terminated because his work was found to be unsatisfactory. . . . . . (In such a case there can, in our opinion, be no question of any dis- ~· crimination. It would be absurd to say that if the service of one temporary servant is terminated oo the ground of ~ " unsatisfuctory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is. Therefore even though some of those mcntiou"d in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken >against the appellant terminating his services was discriminatory, for that action was taken on the basis of his unsatisfactory conduct.
A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on · ~ account of his conduct being unsatisfactory. " (Parenthesis and emphasis supplied) ... The principle that can be deduced from the above analysis is that if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off in a class apart from other temporary servants who have been retained in service, there is no question o~ the applicability of Article 16.
Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apJlrt from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in' accordance GOVT. PRESS v. BELLIAPPA (Sarkaria, J. ) 467 with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispell that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action.
Excepting, perhaps, in cases analogous to those covered by Article 311(2), Proviso (c), the authority cannot • withhold such information from the Court on the lame excuse, that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service. "The giving of reasons'', as Lord Denning put it in Green v. Amalgamated Engineering Union('). "is one of the fundamentals of good administration", and, to recall 2 the words of this Court in Khudi Ram v. State of West Bengal( ) in a Government of laws "there is nothing like unfettered discretion immune from judicial review ability". The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 and 16(1). Another facet of Mr.
Veerappa's contention is that the respondent had voluntarily entered into a contract of service on the terms of employment offered to him. One of the terms of that contract, embodied in the letter of his appointment is that his service was purely temporary and was liable to termination at the will and pleasure of the appointing authority, without reasou and without notice. Having willingly accepted the employment on terms offered to him, the respondent cannot complain against the impugned action taken in accordance with those mutually agreed terms. The argument is wholly misconceived. It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to Government servants. Secondly, even with regard to private employment, much of it has pa£sed into the fossils of time.
"This rule held the field at the time when the masrer and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias". The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the (I) J1971] I All E. R. at p. 114. (2) [1975] (2) S. C. R, 832 at page 845. 468 SUl! REME COURT REPORTS [1979] 2 s. c. R. employer's absolute right to discharge the employee. "Such a philosophy", as pointed out by K. K. Mathew J. (vide his treatise : "Democracy, Equaii<y and Freedom", page 326), "of the employer's domi-nion over his employee may have been in tune with the rustic simpli-city of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers.
" To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Consti-tutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled. Coming back to the point, we have a vague feeling that it was, perhaps, open to the appellant to say in view of the complaint alluded to in the show-cause notice against the integrity and fidelity of the respondent, that the former had lost confidence in the latter and consi-dered him u_nsnitable to be continued in the post w}lich was one of trust and confidence.
But it will be liazardous for us to base our decision on any such speculation, when the appellant, himself, instead of taking any such plea, has, with obdurate persistency stuck to the po5ition that the respondent's service has been terminated without any reason, which comes per:iJously near to admitting that the power reserved to the employer under the conditions of the employment, has been exercised arbitrarily. In the absence of any information from the appellant indicating that the respondent was marked off for discharge on the basis of an intelligible differentia having a reasonable nexus with the object of maintaining the efficiency and integrity of the public service, we·are constrained to hold, in agreement with the High Court, that the impugned order suffers from the vice of unfair discrimination and is violative of Articles 14 and 16(1) of the Constitution. Accordingly, we uphold the decision of the High Court and dismiss this appeal with costs. M. R. Appeal dismissed.
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