GOPAL CHANDRA KALAY Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The question arising for consideration in this Writ Petition is a very old one, the question being whether a temporary civil servant, whose service has been terminated by an innocuous order of termination simpliciter in accordance with the terms of the contract of appointment or the relevant service rules and which does not ex facie disclose any stigma or the likelihood of any evil consequences, can still contend that the apparently innocuous order is really a cloak or a deceptive veil to disguise an order of dismissal within the meaning of Art. 311 of the Constitution and as such must be quashed if the provisions of the said Article have not been complied with ? The question has been considered and answered by the highest Court of the land and also by the different High Courts times without number and if one finds some difference in the answers given to this question from time to time by these Courts, one should try to understand the same in the spirit of the Rigvedic hymn, "Ekam Sadvipra Bahudha Vadanti", i. e., the Truth is one, but sages have expressed it in different ways. As Jaimini said, contradictions or inconsistencies are not to be readily assumed, as they are very aften not real but only apparent, resulting from the application of the very same principle to different sets of facts

(2.) After the decision of the Supreme Court in Parshotam Lal Dhingra's case (AIR 1958 SC 36), which has been described as "the Magna Carta of the Indian Civil Servants" in a much later decision of the Supreme Court in Ram Chandra Trivedi's case (AIR 1976 SC 2547 at p 2550): (1976 Lab IC 1647) and the long catena of cases following the same the latest reported one being, to my knowledge. Oil and Natural Gas Commission v. Md. S. Iskander Ali, 1980 AIR(SC) 1242it should be taken to be the settled law that the service of a temporary servant can be terminated under the terms of the contract of employment or under the rules of service governing him and such termination without more, would not attract the operation of Art. 311 of the Constitution, but if there is something more than a mere termination, then even a temporary servant may, in a proper case, invoke the protection of Art. 311 of the Constitution. It is by now settled that if the concerned authority wants to terminate the service of a temporary servant, it can pass a simple order of discharge without disclosing any reason and without casting any aspersion against or attaching any stigma on his conduct or character. But if it is shown that the order of termination purports to cast some aspersion or imputation against the temporary servant, such termination would amount to dismissal within the meaning of Art. 311 and cannot be effective without complying with the provisions of the said Article. It is true that the contract of employment, which gives the temporary employee a right, however precarious, to the employment, may and does authorise the employer to terminate the employment in accordance with the contract. But even though such a contract authorises the employer to discharge an employee it cannot and does not authorise the employer to disgrace an employee and, therefore, if in a given case, the employer has not only discharged a temporary employee, but has also disgraced him by casting some aspersion against his efficiency, honesty, integrity or otherwise in the purported iustification of such termination, both the employer and the employee then step out of the domain of free contract and employment, if it relates to a civil post, cannot be put to an end without complying with the provisions of Art. 311. A temporary civil servant asked to quit by a simple order of termination passed in strict accordance with the terms of contract or the relevant rules may not get any protection, but if such an employee is made to depart with some disgrace. Art. 311 steps in and demands strict satisfaction before such an employee can be allowed to be disgraced by any aspersion, imputation or stigma. While one may, as one should respectfully agree with Sir Henry Maine that "the movement of progressive societies had" (at least upto the time when Maine wrote his 'Ancient Law'), "been from status to contract", one would also, with respect, agree with Lord Simon (see. Johnson v. Merston, 1978 3 AllER 37) that since the days of Maine, the movement of many progressive societies has been the reverse, that is, from contract to status. Origin of the Government service is no doubt, as pointed out by the Supreme Court in Roshanlal's case (AIR 1967 SC 1839 at p. 1894), contractual. But the progress of our societies and the intervention of its progressive laws have very much circumscribed the contractual freedom of the Government and now by the provisions of Articles 14, 15. 16. etc., and Article 311, the State has been denied a good deal of the unfettered freedom which it had before and which a private employer still enjoys. Even in the matter of temporary appointments, the State is not a free master to hire and then to fire an employee in any manner it likes in its absolute pleasure, because if the fired employee, though employed temporarily, can show that such firing has left some scar on him the firing shall be declared to be illegal unless the Constitutional requirements are satisfied.

(3.) Be that as it may, as I understand it. and as has been contended by Mr. N. B. Kharga, learned counsel for the petitioner and not disputed by the learned Advocate-General appearing for the State, this can be taken to be the settled law that even in respect of a temporary civil servant, whose service can be terminated in accordance with the terms of the appointment by a simple notice, if the order terminating his service makes any imputation or casts any aspersion or attaches any stigma or otherwise visits him with any evil consequences, such a termination shall be deemed to be by way of punishment and to amount to dismissal within the meaning of Art. 311 and, therefore, can only be effective after compliance with the provisions of Art. 311. Without disputing this broad proposition, the learned Advocate-General has, however, urged that so long as there are no express words of aspersion or imputation or stigma attributed to the conduct of the employee so concerned in the impugned order, the same cannot be held to have been made by way of punishment to attract the operation of Art. 311. As I have been able to understand, the observations of the Supreme Court in some of the reported cases may be construed to lend support to this contention while, and this I say with respect, the observations of the Supreme Court in some other cases appear to lay down some different proposition and I may in this connection refer to the observations of Alagiriswami, J., in S. P. Vasudeva V/s. State of Haryana, 1975 AIR(SC) 2292 at p 2294). while delivering the judgment of a three Judge Bench of the Supreme Court, as hereunder :