# STATE OF U.P v. RAM CHANDRA TRIVEDI - **Citation:** [1977] 1 S.C.R. 462 - **Court:** Supreme Court of India - **Decided:** 1977 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-ram-chandra-trivedi-6934 - **Pages:** 15 ## Headnote A B 462 STATE OF U.P. v. RAM CHANDRA TRIVEDI September I, 1976 [ H. R. KHANNA, R. S. SARKARIA AND JASWANT SINGH, JJ.]. Practice-Duty of High Court when there is confiic~ between decision.o of the Supreme Court-Upsettinf! concurrent findin!JS of fact in second appealPropriety. Constitution of India, 1950 Art. 311-Termlnation of services of temporary C servam-Protection of article when applicable. D E F G H The respondent was appointed as a temporary clerk in an engineering ::fivision of the Government. The attempt of another clerk to impersonate an:! appear for him in a departmental examination was detected. The Executive Engineer obtained explanations from both the clerks and reported the ·matter to the Superintending Engineer, who brought the matter to the notice of the Chief Engineer. The Chief Engineer wrote to the Superintending Engineer to award suitable punishment. The Superintending Engineer passed the order that · the respondent a "temporary clerk is hereby served with one month's notice to the effect that his services shall not be required after one month from the date of receipt of this notice." The respondent filed a suit challenging the order on the ground that the termination was one passed by way of punishment and therefore attracted Art. 311 of the Constitution; and since the provisions of tha Article had not been complied with the order was void. The Trial Court and the First Appellate Court dismissed the suit. But the High Court went through the official correspondence preceding the passing of the impugned order, and o~rving that a close scrut'ny of the feels on record showed that the order was passed by way of r punishment on the basis of the enquiry proceeding and as a result of the recommendation by the Executive Engineer followed by the direction issued by Chief Engineer, allowed the second appeal. Allowing the appeal to this Court, HELD : (!) It is no longer open to any ohe to urge that the cons'tutional position in regard to cases of the present nature is not clear. An examination of the decisions of this Court shows that there is no real conflict in their ratio decidendi. Even if there is a conflict, the proper course for a High Court i~ to find out and follow the opinion expressed by larger benches of this Court in pre. ference to those expressed by smaller benches of this Court. This practice is followed by thi; Court itself and has hardened into a rule of law. [475B-C] Union of India & A nr. v. K. S. Subramanian, [1977] 1 S.C.R. 87, followed. . . State of U.P. & Ors v. Sughw Singh [1974] 2 S.C.R. 335: (1974) 1 S.C.C. 218, The State of Punjab< v. P.S. Cheema A.I.R. 1975 S.C. 1096, Satish Chandra Anand v. The Union of India [1953] S.C.R. 655, Shyam I.al v. State of U.P. [1955] 1 S.C.R. 26, Parshotam Lal Dhingra v. Union tance may indicate that although in form the Government. had purported to exercise its right to term;nate the employment or to reduce the servant to a lower rank under the terms of the contract of emoloyment or under the rules, in truth and reality the _ ~_.'."'.~ernmen!_ ~~s terminated the employment as and by way (!)A.LR. 1956 Bo'll. 455. ( u. P. I'. RAM CHANDRA TRIVEDI (Jaswa./11 Singh, J.) 469 of penalty. The use. of the expression 'l'Crminate', or. 'discharge' is not conclusive. In spite of the use of sud1 innocuous expressions, the court has to apply the two test~ mentioned above, namely, ( J) whether the servant had. '1: nght .to the post or the rank or (2). whethe~ he has been V!Slted?w1th evil consequences of the kmd herembeforc r~fcrred to . If the case satisfied 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. G~vernment serv~nt have not been complied with, the termmat1on of the. serv1i::e or the reduction in rank must be held to be wrongful and m violation of the constitutional right of the servant." In Gopi Kishore Prasad v. Union of 1n4ia('), it was ~eld by this Court that if the Government proceeded agamst the probationer m the direct way without casting any aspersion on his honesty or eompete~ce, his discharge wonld not have the effect of removal by way of pumshment, but if instead of taking the easy course, the Government chose the more difficult one of holding an enquiry into his alleged misconduct and branded him as a dishonest and incompetent officer, it would attract Article 311 ( 2) of the Constitution. In The State of Orissa & Anr. v. Ram Narayan Das(2) where ON. July 28, 1954, a notice was served on the respondent who was appointed as a Sub-Inspector on probation in the Orissa Police Force in the year 1950 to show cause why he should not be discharged from service for gross neglect of duties and unsatisfactory work and where the explanation tendered by him was considered to be unsatisfactory by the Deputy Inspector-General of Police who passed an order discharging the respondent from service for unsatisfactory work and conduct and where the respondent contended that the order was invalid on two grounds : (i) that he was not given a reasonable opportunity to show cause against the proposed action within the meaning of Article 311 (2), and (ii) that he was not afforded an opportunity to be heard nor was any evidence taken on the charge, it was held that the order of discharge did not amount to dismissal and did not attract the protection of Article 311 (2) of the Constitution as the respondent was a probationer and had no right to the post held by him and his services were terminated in accordance with the rules which permitted his being discharged at any time dilring the period of probation. The case of Madan Gopal vt State of Punjab(') where the order terminating the employment of the appellant who was a temporary Government servant wa~ ouashed on the ground that it was iu the nature of an order of punishment which had been passed without complying with the provisions of Article 311 (2) of the Constitution is clearly distinguishable. In that case, the order of termination of the (l)-A-:1.R: 1960 S.C. 689. (2) [1961] 1 S.C.R. 606. (3) [1963] 3 S.C.R. 716. A B c D E F G H A B c D E F 470 SUPREME COURT REPORTS [1977] 1 S.C.R. appellant's service which was prw~ded by ~ enquiry in~o his alleged misconduct was based on the findmg of misconduct which amounted to casting a stigma affecting his future career. In Rajendra Chandra Banerjee v. Union of India(') where the appellant was appointed as a probationer for one year (which was extended from time to time) on condition that his services might be terminated without any notice and cause being assigned during that period and he agreed and joined the service and where later on during the period of his probation, he was called upon to show cause why his services should not be terminated and he was finally informed that the explanation given by him was not satisfactory and his services would stand terminated on a specified date, it was held by this Court that the termination of his service was not by way of punishment and could not amount to dismissa! or removal within the meaning of Article 311. In Champaklal Chimanlal Shah v. The Union of India(') where the appellant, whose appointment being temporary, was liable to be terminated on one month's notice on either side was informed without assigning any cause after the expiry of about five years tliat his services would be terminated with effect from a specified date but before the termination, he was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action shou!d not be taken against him and certain preliminary enquiries were also held against him in which he was not heard, but no regular departmental enquiry followed and the proceedings were dropped, it was held by this Cou):t after considering the cases of Gopi Kishore Prasad v. Union of India (supra), State of Orissa v. Ram Narayan Das (supra), Madan Gopal v. State of Punfab (supra) and Jagdish Mitter v. Union of lndia( 3 ) that such a regular departmental enquiry though contemplated was not held against the appellant and no punitive action was taken against him, there was no question of the case being governed by Article 311 (2) of the Constitution. It was further held in that case that it is only when the Government decides to hold a regular departmental enquiry for the purpose of inflictmg one of the three major pw1ishments that the Government servant gets the protection of Article 311. In State of Punjab & Anr. v. Shri Sukh Raj Bahadur( 4 ) where the Punjab Government reverted the respondent from his officiating appointment in the Punjab Civil Service (Executive Branch) to his G substantive post in the Delhi Administrative after issuing him a charge sheet to which the respondent replied but the enquiry was not proceeded with, it was held by this Court that the respondent could not complain against the order reverting him to his former post because the order of reversion was not by way of punishment. In that case, Mitter, J. who spoke for the Bench laid down the following propositions :- H (I) [1964] 2 S.C.R. 135. (2) (1964] 5 S.C.R. 190. (3) A.IR. 1964 S,C. 449. (4) [1968] 3 S.C.R. 234. \ u. P. v. RAM CHANDRA TRIVEDI (Jaswant Singh, J.) 4 71 "l. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution. 2. The circumstances preceding or attendant on t;he order of termiiiation of service have to be examined in each case, the motive behind it being immaforial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art. 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, and order of termina~ion of service made thereafter will attract the operation of the said Article." The principles laid down in Parshotam Lal Dhingra's case (supra), 'Champaklal Chimanlal Sfiah's case (supra), and Shri Sukh Raj Bahadur's case (supra) were reiterated by this Court in Union of India & Ors. v. R. S. Dhaba('), State of Bihar & Ors. v. Shiva Bhikshuk Mishra( 2 ) and R. S. Sial v. The State of U.P. & Ors.(3) where it was laid down that the test for attracting Article 311 (2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or .whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive to its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. In R. S. Sial v. The State of U.P. & Ors. (8) to which one of us (brother Khanna, J.) was a party, it was made clear. in unambiguous ·terms that it may be taken to be well settled that even though mis·- conduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under (1) [1969) 3 s.c.c. 603. (2) [1971] 2 S.C.R. 191. {3) [1974] 3 S.C.R. 754. A B c D E F G H 472 SUPREME COURT REPORTS [l 977] 1 S.C.R. A the contract or the rules to terminate the services the motive operating · on the mind of the Governments is wholly immaterial. The same rule would hold good if the order passed is not for tiermination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity. B c D E F G H The decision of this Court in State of Uttar Pradesh & Ors. v. Sughar Singh (supra) where the order of the respondent's reversion held to have been passed by way of punishment to which our attention has been drawn by Mr. Garg and which has led to a 1;ertain amount of misunderstanding turned upon a clear statement made before the High Court by the Standing Counsel for the State that the foundation of the order of reversion was the adverse entry made in his confidential character roll. The constitutional position has now been made crystal clear by a Bench of seven Judges of this Court in Shamsher Singh & Anr. v. State of Punjab(') where the learned Chief Justice after an exhaustive review of the decisions of this Court observed :- "No abstract preposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Constitution. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is sa.tisfactory or whether he is suitable for the post. .Jn the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on acount of inadequacy for the job or for any tempernmental or other object not involving moral turpitude ·the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may · simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the .probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311( 2) he can claim protection. (1) [1975] 1 S.C.R •. 814. \ /- { u. P. v. RAM CHANDRA :rRLVEDI (laswa.nt Singh, J.) 473 The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by .way .of punishment ...... A probationer whose .terms ,of service provided -that it could be terminated without any notice and without any cause being ·assigned could not claim the protection of Article 311 ( 2). An order.terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a depai;tmental enquiry is. contemplated and if mi enquiry is not in fact proceeded wilh Article 31l will not be attracted unless it can be shmyi1' Jhat the order though unexceptionable in form .is m{ld~ Jot/owing_ a report based on ·misconduct." ·. - ~ . . . • \ . t. - J ~ ' - . . , ·- . - . -~ ' . Tb.e Division Bench judg;neni of.this Court in P; S. Cheema's case (supra) on which strong reliance has been placed by Mr. Garg is also clearly distinguishable and no help can be derived therefrom by the responcl.ttnt. · In that case, both the trial Court and the first appellant Court J:iad come to a concurrent finding of fact that the impugned order of termination .was by way of punishment. It would also be seen tqat in that case on a representation being made by the respondent to .tJ:ie then Chief Minister of the State, the latter after consideration of the matter had ordered that in view of the respondent's previous good recorci, .he did not deserve the "punishment of termination of · service only on account of a few bad reports and that the respondent · should .continue jn service and his case should be reviewed after he earned another report from the -Excise and Taxation Commissioner for the year 1964-65". In a r.ecent decision of this Court in The Regional Manager & Anr. v. Pawan Kumar Dubey(') to whi_ch oiie of us was a party, Sughar Singh's case (supra) .w.hich is the sheet anchor of Mr. Garg's cp'ntention was also adverted to and it was explained thereiii that that case did not depart from earlier decisions on applicability of Article 311 (2) or Art.icle 16 of the Constitution. The following observations made in Pawan Kumar Dubey's case (supra) should suffice to clear. the doubts that may still be lurking in some quarters as to the ratio decidendi of Sughar Singh's case (siipra) :- · · · ·· -- · ·· · · _ -''We thi111< _tha(the prinCiples involved in applying Article 311 (2) having be«n suffic\ently explained in Shamsher Singh's case (supra) it should no longer be possible to urge that Sughar Singh's case (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But the application of the same law to the differing circumstances and f~cts of various cases which (I) [1976] 3 S.C. R. 540. A B c D E F G H A B c D E F G H 474 SUPREME COURT REPORTS [1977] 1 S.C.R. have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are appli~d in each case to similar facts. This Court's judgment in Sughar Singh'~ case (supra) shows that it was only following the law on Article 311 (2) of the Constitution as laid down repeatedly earlier by this Court. It specifically referred to the following cases : Parslwttam Lal Dhingra v. Union of India (supra); State of Punjab v. Sukh Raj Bahadur (supra); State of Orissa v. Ram Narayan Das (supra); R. C. Lucy v. State of Bihar(1•) Jagdish Mitter v. Union of India (supra); A. G. Benjamin v. Union of India( 2 ); Ram Gopal Chaturvedi v. ·State of Madhya Pradesh(8); Union of India v. Gajendra Singh(~); Divisional Personnel Officer v. Raghavendrachar(5); Union of India v. loswant Ram( 6); Madhav v. State of Mysore( 7 ); State of Bombay v. Abraham( 8). In Sughar Singh's case (supra), this Court summarised the propositions of law deducible from the cases mentioneq above; and, while considering the applicability of some of the propositions of law to. the facts of the case, it did observe that, on the face of it, the action against Sughar Singh did not appear to be punitive. Nevertheless, on a total consideration of all the facts, including the admission in the High Court before Verma, C.J. by the Standing Counsel appearing on behalf of the State, that the reversion order could not be explained except as a result of the adverse entry made two years earlier, it had finally applied the ratio decidendi of the State of Bihar v. Shiva Bhikshuk Mishra (supra), where this Court had affirmed the opinion of the High Court, on facts, that the reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the Plaintiff and by way of punishment to him. On this view of the case, it was not really necessary for this Court to conside_r whether the reversion of Sughar Singh was contrary to the provisions of Article 16 also. (1) C.A. No. 590 of 1962 decided on 23-10-1963 . (2) [1967] 1 S.C.R. 718. (3) [1970] 1 S.C.R. 472. (4) [1972] 2 S.C.R. 660. (5) [1966] 3 S.C.R. 106. (6) A.LR. 1958 S.C. 905. (7) [1962] 1 S.C.R.