OIL AND NATURAL GAS COMMISSION AND ORS. v. DR. MOHD. S. ISKENDER ALI

Citation: [1980] 3 S.C.R. 603

Court: Supreme Court of India

Bench: A.C. GUPTA, S. MURTAZA FAZAL ALI, P.S. KAILASAM

Case summary

Judgment text

OIL AND NATURAL GAS COMMISSION AND ORS. v. DR. MOHD. S. ! SKENDER ALI April 14. 1980 [A. C. GUPTA, S. MURTAZA FAZAI. Au AND P. S. KAILASAM, JJ. J f Tennination of Services-Tern1ination Si111pliciter-Services of a probationer terminated without further proceeding against the departmental enquiry- Whether offends Art. 311 (2) of the- Constitution and attaches any stigma. The respondent was appointed on a purely temporary basis to the post of a medical ofl:cer in the Oil and Natural Gas Commission. Under the terms and conditions of service. he was to remain on probation for a period of one y1e'ar \V1iich could be extended -at the disi;;retion of the appointing authority He was appointed on Ottober 15, 1965. During the period of his probation.

on a repart ag - ·~· bation or on an officiating basis and whose temporary service il'as not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for deterl mining whether the termination of the service of a Governmen servant is by way of punishment is to ascerta. in whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three oases hereinbefore mentioned, 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 and broadly speaking Art. 311 (2) will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank.

To put it in another way, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then 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 of Art. 311. " All these decisions were reviewed in the case of State of U. P. v. Ram Chandra Trivedi(') where this Court observed as follows :- "Keeping in view the principles extracted above, the respondent's suit could not be decreed in his favour. He was a temporary ha'nd and bad no right to post. It is a'. so not denied that both under the contract of service and the service rules governing the respondent, the State bad a right to terminate his services by giving him one month's notice. The order to which exception is taken is ex facie an order of termination of service simpliciter.

It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct. In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311 (2) of the Constitution. We, therefore, agree with the submission made on behalf of the appellant that the High Court was in error in arriv- ,, (I) [1977]I S. C. R. 462. ing at the finding that the impugned order was passed by way of punishment by probing into the departmental corespondence that passed between the superiors of the respondent overlooking the observations made by this Court in I. N. Saksena v. State of Madhya Pradesh [1967 (2) S. C. R. 496) ... that when there are no express words in the impugned order .. itself which throw a stigma on the Government servant, the Conrt would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such rese<arch.

" The facts of the present case appear to be on all fours with those of the aforesaid decision. From the undisputed facts detailed by us in an earlier part of the judgment, it is manifest that even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such a power flowed from the contract of service it could not be termed as penalty or punishment. The matter was again considered at great length by a recent decision of' this Court in the case of State of Maharashtra v. Veerappa R. Saboji & Anr. ,(') where Untwalia, J. , observed thus : "Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant.

In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such an order. " Applying the principles enunciated by this Court in various cases to the facts of the present case, the position is that the order impugned is prima facie an order of termination simpliciter without involving any stigma. The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the respondent who was probationer and had no right to the service. The respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment. (1) A. I. R. 1980 S. C. 42. • 'A Reliance was, however, placed by the respondent on a decision of this Court in the case of The State of Bihar v.

Gopi Kishore Prasad('), where it was held that although termination of the service of a person holding the p06t on probation cannot be said to deprive him of any right to the post and is no punishment but where instead of terminating a person's service the employer choose to hold an enquiry into his alleged misconduct and proceeds by way of a punishment, such a course involves a stigma and an order of termination is bad. Such, however, is not the case here. The short history of the service of the respondent clearly shows that his work had never been satisfactory and he was not found suitable for being retained in service and that is why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him. In these circumstances, therefore, if the appointing authority considered it expedient to terminate the services of the respondent-a probationer-it cannot be said that the order of termination attracted the provisions of Art.

311 of the Constitution. Thus, if the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned as held and observed by this Court in the cases cited above. For these reasons, therefore, we are satisfied that the order termi· nating the services of the respondent was valid and did not involve any stigma and was fully justified in the facts and circumstances of the present case. The' High Court, therefore, erred in law in quashing the impugned order. For these reasons, we allow this appeal, set aside the judgment and decree of the High Court and hold that the order terminating the services of the respondent was valid in law. In the circumstances of the case, there will be no order as to costs. S. R. Appeal allowed~ \ (! ) A. I . R. 1960 S. C. 689.