# 11.SWant Sugar Mills Lli., Medrut v. Lakshmicha nd Shah, J

- **Citation:** [1963] Supp. 1 S.C.R. 266
- **Court:** Supreme Court of India
- **Decided:** 1960-01-15
- **Bench:** B. P. Sinha, P. B. Gajendrag.Adkar, K. N. Wanchoo, K. C. Das Gupta, J. c: SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-swant-sugar-mills-lli-medrut-v-lakshmicha-nd-shah-j-2707
- **Pages:** 10

## Headnote

Public Servant-Temporary employment-Termination of
service-Appeal
dismiss~An ex-convict for theft-Whether
ttrmination amounted to dismissal-Scope of enquiry-If same
a.o in Iudustrial Dispute-Central Services (Temporary Service)
Ruks, 1949, r.5-0onstiti.ttion of Iudia, Art. 311.
The respondent was appointed as a constable in the
Tripura Police Force. The employment was te!llporary. In
accordance with r. 5 of the Central Services (Temporary
Service) Rules, 1949, his services were terminated by giving one
month's notice. The respondent appealea. The Appellate
Authority wrote to him that as he was an ex-convict for theft
nothing could be done for him. The respondent filed: a writ
petition challenging the order of termination. The Judicial
"ommissioner held that the order was one of dismissal as
punishment on the ground that the respondent was an "exconvict" and that as no reasonable opportunity was given to the
respondent to show cause, the protection of Art. 311 was
not afforded to him and the order ·tenninating the respondents
employment was invalid.
Held, that the respondent had r.ot been dismissed by way
of punishment and there was· no violation of Art. 311(2). 'The
order in terms merely terminated the service of the responiient;
there was nothing in it to suggest that -the termination was on
account of the respondent being an "ex-convict". It could 11ot
be in the circumatanceo of this case inferred that an ~
of
1 S.C.R.
SUPREME COURT REPORTS
267
dismissal was camouflaged as an order of termination. It cannot be assumed that an order ex·facie one of termination was
intended to be one of dismissal. The onus to prove such intention lies upon the employee.
P'Urshotam Lal Dhingra v. Union of India, [1958] S.C.R.
828 and Satish Chander Anand v. Union of India, [1953] S.C.R.
655, referred to.
Held, further, that a court considering the validity of an
order of termination or dismissal of a public servant is not
required to investigate into the matter in the same way as
an Industrial Tribunal is when considering an application
under s. 33 of the Industrial Disputes Act, 1947. The Court
has mercllit to see whether the protection prescribed by Art. 311
and the mies made ·under Art. 309 has been denied to the
public servant. There is no similarity between an enquiry
under s. 33 of the Industrial Disputes Act and an enquiry by the
court when an order of dismissal of a public servant is
challenged.
Chartered Bank, Bombay v. Chartered Bank Employeis
Union, [1960] 3 S.C.R. 441, The Management ofChandrama"/ai
Estate, Ernak'U"/am v. Its Workmen, [1960] 3 S.C.R. 451 and
Punjab National Bank Ltd. v. Its Workmen, [1960] 1 S.C.R.
806, referred to
Crvn. APPELLA'rE JURISDICTION : Civil Appeal
No. 581 of 1961.
Appeal from the judgment and order dated
January 15, 1960, of the Judicial Commissioner's
court, Tripura at Agartala in Civil Misc. (Writ
Petition) No. 4 of 1959.
R. Ganapathy Iyer and P. D. Menon, for the
appellants.
D. P. Singh, for the respondent.
1962. September 25.
The Judgment of the
Court was delivered by
SHAH, ].-This is an appeal with a certificate
granted by the Judicial Commissioner of Tripura
under Art. 132(1) of the Constitution.
Gopal Chander. Dutta
Choudhury-hereinafter referred to as 'the respondent'-was ap;iointed
1962
Union Territory of
Tripura, Agartala
v.
Gopal Chander
Duttf.l Choudhury
S/Ja/r, J.
1962
Unfon Territory of
'Tripura, Agartala
v.
Gopal Chander
Dut!a Choudhury
Shah, .!.
268 SUPREME COURT REPORTS [1963] SUPP.
a constable in the Police Force of Tripura by the
Superintendent of Police,
Agartala by order dated
April 18, l!l54.
The employment was temporary
and was liable to be terminated with one month's
~oticc. On December 6, 1957, the Superintendent
of Police, acting under r. 5 of the Central Services
(Temporary Service) Rules,
19·+9, informed the
respondent that his services "will be terminated with
effect from 6-1.-58 A. M." The respondent presented
an appeal to the Chief Commissioner against the
order of termina

## Text

1962
11.SWant Sugar Mills
Lli., Medrut
v.
Lakshmicha nd
Shah, J,
1962
266 SUPREME COURT REPORTS [1963] SUPP.
Both the appeals therefore fail and are dismissed with costs.
There will be one hearing fee.
A ppools dismissed.
UNION TERRITORY OF TRIPURA,
AGARTALA
v.
GOPAL CHANDER DUTTA CHOUDHURY
(B. P. SINHA, c. J., P. B. GAJENDRAG.ADKAR,
K. N. WANCHOO, K. C. DAS GUPTA and
J. c: SHAH, JJ.)
Public Servant-Temporary employment-Termination of
service-Appeal
dismiss~An ex-convict for theft-Whether
ttrmination amounted to dismissal-Scope of enquiry-If same
a.o in Iudustrial Dispute-Central Services (Temporary Service)
Ruks, 1949, r.5-0onstiti.ttion of Iudia, Art. 311.
The respondent was appointed as a constable in the
Tripura Police Force. The employment was te!llporary. In
accordance with r. 5 of the Central Services (Temporary
Service) Rules, 1949, his services were terminated by giving one
month's notice. The respondent appealea. The Appellate
Authority wrote to him that as he was an ex-convict for theft
nothing could be done for him. The respondent filed: a writ
petition challenging the order of termination. The Judicial
"ommissioner held that the order was one of dismissal as
punishment on the ground that the respondent was an "exconvict" and that as no reasonable opportunity was given to the
respondent to show cause, the protection of Art. 311 was
not afforded to him and the order ·tenninating the respondents
employment was invalid.
Held, that the respondent had r.ot been dismissed by way
of punishment and there was· no violation of Art. 311(2). 'The
order in terms merely terminated the service of the responiient;
there was nothing in it to suggest that -the termination was on
account of the respondent being an "ex-convict". It could 11ot
be in the circumatanceo of this case inferred that an ~
of
1 S.C.R.
SUPREME COURT REPORTS
267
dismissal was camouflaged as an order of termination. It cannot be assumed that an order ex·facie one of termination was
intended to be one of dismissal. The onus to prove such intention lies upon the employee.
P'Urshotam Lal Dhingra v. Union of India, [1958] S.C.R.
828 and Satish Chander Anand v. Union of India, [1953] S.C.R.
655, referred to.
Held, further, that a court considering the validity of an
order of termination or dismissal of a public servant is not
required to investigate into the matter in the same way as
an Industrial Tribunal is when considering an application
under s. 33 of the Industrial Disputes Act, 1947. The Court
has mercllit to see whether the protection prescribed by Art. 311
and the mies made ·under Art. 309 has been denied to the
public servant. There is no similarity between an enquiry
under s. 33 of the Industrial Disputes Act and an enquiry by the
court when an order of dismissal of a public servant is
challenged.
Chartered Bank, Bombay v. Chartered Bank Employeis
Union, [1960] 3 S.C.R. 441, The Management ofChandrama"/ai
Estate, Ernak'U"/am v. Its Workmen, [1960] 3 S.C.R. 451 and
Punjab National Bank Ltd. v. Its Workmen, [1960] 1 S.C.R.
806, referred to
Crvn. APPELLA'rE JURISDICTION : Civil Appeal
No. 581 of 1961.
Appeal from the judgment and order dated
January 15, 1960, of the Judicial Commissioner's
court, Tripura at Agartala in Civil Misc. (Writ
Petition) No. 4 of 1959.
R. Ganapathy Iyer and P. D. Menon, for the
appellants.
D. P. Singh, for the respondent.
1962. September 25.
The Judgment of the
Court was delivered by
SHAH, ].-This is an appeal with a certificate
granted by the Judicial Commissioner of Tripura
under Art. 132(1) of the Constitution.
Gopal Chander. Dutta
Choudhury-hereinafter referred to as 'the respondent'-was ap;iointed
1962
Union Territory of
Tripura, Agartala
v.
Gopal Chander
Duttf.l Choudhury
S/Ja/r, J.
1962
Unfon Territory of
'Tripura, Agartala
v.
Gopal Chander
Dut!a Choudhury
Shah, .!.
268 SUPREME COURT REPORTS [1963] SUPP.
a constable in the Police Force of Tripura by the
Superintendent of Police,
Agartala by order dated
April 18, l!l54.
The employment was temporary
and was liable to be terminated with one month's
~oticc. On December 6, 1957, the Superintendent
of Police, acting under r. 5 of the Central Services
(Temporary Service) Rules,
19·+9, informed the
respondent that his services "will be terminated with
effect from 6-1.-58 A. M." The respondent presented
an appeal to the Chief Commissioner against the
order of termination.
By letter dated April II, 1958
the respoμdent was informed that as he wasa"an Exconvict for theft, nothing can be done for him". In
reply to another application addressed to the Chief
Commissioner the respondent was informed by letter
dated May 26, 1958, that he was already informed in
connection with his previous appeal that as he was
"an Ex-convict in a case of theft" he "cannot be
re-employed by the Aministration."
The respondent then filed in the Court of the
Judicial Commissioner,
Tripura, a petition for a
writ tmdcr Art. 226 of the Constitution praying for
a writ declaring that the order of the Superintendent
of Police terminating his service was "illegal" and
for a writ of mmidarnus or a writ of certiorari directing the Chief Commissioner nor to enforce the said
order and for an order reinstating him in the Police
Force of the Tripura Administration with retrospective effect. The Tripura Administration submittrd
in rcjoinckr that the respondent being a temporary
employee of the Police Force, his services were lawfully terminated under r. 5 of the Central Civil
Services (Temporary Service) Rules, 1949.
The
Judicial Commissioner of Tripura held that the
respondent was a temporary employee, but the order
terminating the respondent's employment was invalid
for it infringed the constitutional
guarante of
protection of. public servants under Art. 3ll which
applied to temporary as well as permanent public
\
1 S.C.R.
SUPREME COURT REPORTS
269
servants. In the view of the Judicial Commissioner,
termination of employment of a temporary servant
governed by the Central Civil Services (Temporary
Service) Rules, l !l4U, will not per se be treated as a
punishment of dismissal or removal, but it is open
to the Court even if an order merely of termination
of employment of a temporary employee is passed to
ascertain whether the order was intended to be of
termination sirnpliciter or of dismissal entailing penal
consequences, and that the order dated April 11, 1958,
of the Chief Commissioner passed in appeal clearly
indicated that the order of the Superintendent of Police
was one imposing penalty. He observed "this reply
(dated April 11, 1958) will clearly indicate that though
the Superintendent of Police purported to terminate his
service under the Central Civil Services (Temporary
Service) Rules, he meant to dismiss the petitioner
from service as a punishment on the ground that he
was an ex-convict and that it was intended that he
should not be re-appointed in future in any department of the Government. Thus it cannot be gainsaid
that the termination was in fact a punishment for
previous misconduct debarring the petitioner from
being employed even in the future, and that in
passing the innocnous order (dated December 6, 1957Annexure D), the Superintendent was really camouflaging his real intention. The real intention came
to light, perhaps as the result of an oversight in
communicating the orders in appeal to the petitioner".
We are unable to agree with the Judicial
Commissioner that the termination of employment of
the respondent by the Superintendent of Police by
order dated December 6, 1957, was in violation of
Art. 311(2) of the Constitution. It is true that before
the respondent was discharged from service no enquiry
was made as to any alleged misconduct, nor was he
given any opportunity of showing cause against the
proposed termination of employment. But it is well
settled that whe'!'i employment of a temporary public
1962
Union Territory o
'Tripura .. Agart.:l
v.
Gopal Chander
Dutta Choudhu1_'
Shoh, J.
1962
Tnion Territor.J of
'ripura Agnrtala
,v.
Gopal Chander
'Jutta Choudhury
S/,ah, J.
270 SUPREl\.IE COURT REPORTS [1963] SUPP.
.servant, is terminated pursuant to the terms of a
contract, he is
not en titled to the protection of
Art. 311(2).
As observed in Parshotnrn LaJ Dhingra
v. 'l'he Union of India (1) by Das, C. J., "a termination of service brought about by the exercise of a
contractual right is not per se dismissal or removal,
as has been held by this Court in 6atish Chander
Ananrl v. 'l'he Union of India ('). x x x x x x the
termination of the service did not carry with it the
penal conscq uences of loss of pay, or allowances under
r. 52 of the Fundamental Rules". But the State may
instead of exercising its contractual right seek to
terminate
the employment even of a temporary
employee for misconduct, negligence, inefficiency
or any other disqualification, and when an order of
termination of employment is passed for that purpose
it would amount to dismissal or removal attracting
the protection of Art. 311 of the Constitution. The
form. in which the order is couched is not always
decisive. In Parshotarn Lal Dhingra's case (1), it was
observed (at p. 863) "the use of the expression
'terminate' or 'di~charge' is not conclusive. In spite
of the use of such innocuous expressions, the court
has to apply the two tests mentioned above, namely,
(1) whether the servant had a right to the post or the
rank or (2) whether he has been visited with evil
consequences of the kind hereinbefore referred to ?
If the case satisfies either of the two tests then it
must be held that the servant has been punished and
the termination of his service must be taken as a
dismissal or removal from service or the reversion to
his substantive rank must be regarded as a reduction
in rank and if the requirements of the rules and
Art. 311, which give protection to Government
servant have not been complied with, the termination
of the service or the reduction in rank must be held
to be wrongful and in violation of the constitutional
right of the servant".
The question which falls to be determined is,
whether the Superintendent of Police by order dated
(I) [195~] S. C.R. 828, Bbl.
(2) (1953] S. C.R. 65$.
1 S.C.R.
SUPREME COURT REPORTS
271
December 6, 1957, passed an order in truth one of
dismissal for misconduct, negligence, inefficiency or
like cause or he enforced the contractual right of the
State to terminate the employment of the respondent
who was a temporary employee.
The order in terms
merely terminates the service of the respondent : it
was not preceded by any enquiry for ascertaining
whether the respond~nt was guilty ·of any misdcmeanour,
misconduct, negligence,
inefficiency or a
similar cause. In the order on appeal filed to the
Chief Commissioner it is recited that the respondent
was "an ex-convict for theft and thacfore. nothing
could be done for" him, but the purport thereof is
somewhat obscure.
The memorandum of appeal
filed before the Chief Commissioner was not tendered
in evidence, and there is nothing in the order suggesting that tlie employment of the respondent was
terminated because he had, before he was employed
on April 18, 1954, been convicted by a Criminal
Court for theft. It appears from the order of the
Chief Commissioner dated May 26, l 958, that the
respondent had applied for re-employment in the
Police Force and the Chief Commissioner was of the
opinion that because the respondent was "an exconvict in a case of theft" he could not be reemployed. There is no ground for inferring that the
Superintendent of Police was seeking to camouflage
an order of dismissal by giving it the form of tl'rmination of employment in exercise of the authority
under rule 5 of the Central Civil Services (Temporary
Service) Rules.
It cannot be assumed that an order
ex facie one of termination of employment of a temporary employee was intended to be one of dismisPal.
The onus to prove that such was the intention of the
authority terminating the employment must lie upon
the employee concerned : but about thr intention of
the Superintendent of Police there is no evidence
except the order of that authority .
. C~unsel for the rcspondcn t urged that as in an
apphcatlon made under s. 33 of the Industrial
1962
Union Territory of
Tripura, Agartala
v.
Gopal Chander
Dutta Choudhury
Shah, J.
1962
Union Territory of
Tripura, Agartala
v.
Copa! Chander
Dntla Choudhur.>
Shah, J.
272 SUPREME COURT REPORTS [1963] SUPP.
Disputes Act for permission of an Industrial Tribunal to discharge workmen pending adjudication of
the dispute in which the employer or the workmen
arc concerned, the Tribunal is bound to enter upon a
full investigation and ascertain whether the employer
had acted 1mt.fo jide or that the order of discharge
amounted to an unfair labour practice or that it was
a case
of victimisation, the Court in making
an enquiry where the order of termination of employment of a temporary public servant was merely
one in enforcement of a contractual right or an
attempt to dismiss au employee because of misconduct,
negligence or inefficiency, is also obliged to enter
upon a critical investigation of the reasons which
induced the authority to make the impugned order.
Counsel invited our attention to the decision of this
Court in The Olu.irtered
Br~nlc, Bombay v. The Chartered Bwik Employees' Un-ion (1) and The M~anagement
of Ohrm'dmnwlai JCstnte, Ernribdmn v. lts Workmen('),
and submitted that the considerations which were
material in deciding an application under s. 33 of
the Industrial Disputes Act were also relevan.t in
adjuding the true nature of the order terminating
employment of a public servant.
In considering an
application under s. ;~3 of the Industrial Disputes
Act the Tribunal has, it is true, "to go into all the
circumstances which led to the termination simpliciter and the employer cannot he permitted to say
that he is not bound to disclose the circumstances
before the Tribunal. The form of the order is not
conclusive of the true nature of the order: for it is
possible that the form may be merely a camouflage
for an order of dismissal for misconduct.
It is
therefore always open to the tribunal to go behind
the form and look at the substance; and if it comes
to the conclusion, for example, that though in form
the order amounts to termination sinipl·iciter it in
reality cloaks a dismissal for misconduct it will be
open to it to set it asicle as a colourablc exercise of
the power". llut in our view the principle of these
(I) [I!J60J 3 C. S. R, 441.
(2) [1960] 3 S. C.R. 451.
1 S.C.R.
SUPREME COURT REPORTS
273
cases under the Industrial Disputes Act dealing with
termination of employment of workmen and the
authority of the Tribunal to grant permission to
tenninate such employment evolved in the context
of maintenance of industrial peace, has no relevance
in deciding whether the aggrieved public servant was
by the impugned order denied the protection of the
constitutional guarantee.
A public servant holds a
civil office during the pleasure of the President or
the Governor of the State according as he holds
office under the Union or the State. But to protect
public servants a dual restriction is placed upon the
excercise of the power to terminate employment.
A public servant cannot be dismissed or removed by
an authority subordinate to that by which he was
appointed and that he cannot be dismissed or removed
or reduced in rank until he has been given a reasonable opportunity of showing cause against the action
proposed to be taken in regard to him. These protections undoubtedly apply to temporary public
servants as well as to public servants holding permanent employment. But the State is not prohibited
by the Constitution from reserving a right by the
terms of employment to terminate the services of
a public servant, and if in the bona fide enforcement
of that right the employment is terminated the
protection of Art. 311 of the Constitution will not
avail him, because such a termination does not
amount to dismissal or removal from service. In
The P1mjab National Bank Ltd. v. Its Worl,men ('),
this Court pointed out that there was a substantial
difference between the consequences of non-compliance with s. 33 of the Industrial Disputes Act and
Art. 311 (2) of the Constitution. Compliance with
s. 33 only avoids a penalty under s. 31 {I) while
compliance with Art. 311 (2) makes the order of
dismissal final.
In a proceeding under s. 33 of the
Industrial Disputes Act the Tribunal is concerned
only to make a limited enquiry whether the proposal
to terminate the employment of a workman was
(I) [1960] I S. C.R. 806.
1952
U1iion Ttrrilor)• of
Tri"p11ra, .4garta/11
v.
Gopal Chander
[Jutta Choudhury
Sha/1, J.
1962
Union 'Tenitorv nf
Trip11ra, Aenriala
\',
r.opal Chn1ulrr
"Jutta Cho11dh11n•
Shah, J
274 SUPREME COURT REPORTS [1963) SUPP.
primn facie, bonei fide or whether the employer was
guilty of victimisation or any unfair labour practice.
The Tribunal has merely "to consider the primer. fride
aspect of the matter, and either grant it or refuse it
according as it holds that primer. fricie case is or is
not made out by the employer.
x
x
x
x x
The effect of the permission given by the Tribunal is
only to remove the ban imposed by s. 33 of the
Industrial Disputes Act.
The Tribunal can neither
validate a dismissal nor prevent it from being challrngcd in an industrial dispute; in such a dispute when
raised the employer may justify his action only on
such grounds as were specified in the original chargcshcet and no others". Before terminating the employment of a public servant sanction of the Court
is not necessary.
The order of termination of
employment operates proprio vigore and is not made
justiciable. The validity of such an order may be
challenged only on the ground that the constitutional
protection prescribed by Art. 311 and the rules made
under Art. 309 was denied to the public servant
concerned.
There is no similarity between the
enquiry made under s. 33 of the Industrial Disputes
Act and an enquiry made by the Court where the
order of dismissal of a public servant is impugned.
The Court in dealing with the case of a public servant only adjudicates upon the validity of the act of
the authority concerned : the Court is not railed
upon to sanction a proposed dismissal.
The enquiry
to be made by the Court is restricted to the observance
of the rules prescribed by the Constitution. It would,
therefore, be impossible to assimilate the contrnt
of an enquiry contemplated to be made under s. 33
of the Industrial Disputes Act before granting permission to terminate employment of a workman into
the enquiry to be made by the Civil Court, when the
public servant claims that he is denied the protection
under Art. 311 or that his employment has been
terminated in violation of rules framed under Art. 309
of the Constitution.
'
1 S.C.R.
SUPREME COURT RF PORTS
275
The appeal must therefore be allowed and the
petition filed by the respondent dismissed. There
will ho "" ""'" " '° oorogbo"'~ ppool ,.,,,,,.,,
M/s .. MANGALORE GANESH BEDI WORKS
v.
THE STATE OF MYSORE & ANOTHER
(S. K.
DAS, J. L.
KAPUR,
A. K.
SARKAR,
1f. HrnAYATULLAH and RAGHUBAll DAYAL, .JJ.)
lnrlian Coinage-Enactment le?Jying tax in terms of naya
paisa., if a taJ:ing measnrc-Constitntional ?Jalidity-Amendment
-Effect-Indian Coinage Act, (Act. 3 of 1906), as amended by
Indian coinage (Amendment) Act, (31 of 1955), s. 14-0onstilntion of India, Arts. 255, 197, 198, 199, 202.
The appellant was a registered firm under the Mysore
Sales Tax Act on which was imposed a tax of Rs. 1,16,728.44
Nps at the rate cf .02 Nps per rupee on a return of over Rs.58,
36,422·26 Nps.
Its grievance was that according to Mysore
Sales Tax Act, it was liable to Sales Tax at the rate of 3 pies
for every rupee but after the amendment of Indian Coinage Act
(Act 30 of 1906) by amending Act 31 of 1955, tax was levied
at the rate of .02 Nps per rupee, which made him liable to pay
more than 'vhat he \VOtild have paid if charged at the rate of
3 pies per rnpee.
It was contended that such enhancen1ent of
tax \Vas unconstitutional and illegal being in contravention of
Article 255 0f the Constitution. Objection• by the appellant
regarding the validity of tax were (1) that by the substitution
of 2 naya paisas in place of 3 pies, a change '\vas brought in the
tax exigihle by the Mysore Sales Tax Act and since this enactment enhancing the tax was eot enacted according to procedure
for money hills not being in accordance with Articles 193, 199
and 207 of the constitution, the tax \Vas illegal and invalid;
(2) that the Indian coinage
~'\cti being a central i\ct dealing
,vith "coinage and legal tender" under item 3G of
I~ist I,
could not change the rate of tax under the Mysore Sales Tax
Act.
1962
Union Territory D.f
Tri/mra, Agtirtala
v.
Gopal Chanikr
Dutta Choudhury
Shah, J.
1962
Septemb<r 25.