# SUPRSME COlJRT REPORTS [Hl61] THE STATE OF ORISSA AND ANOTHER v. RAM NARAYAN DAS

- **Citation:** [1961] 1 S.C.R. 606
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** S. K. Das, M. Hidayatullar, K. c. DAS GUPTA, J. C. Shah, N. Rajaoopala Ayyanoar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/suprsme-coljrt-reports-hl61-the-state-of-orissa-and-another-v-ram-narayan-das-2199
- **Pages:** 10

## Headnote

Pttblic sen·ant-P.rob<llioner S11b·l>1sj•cclor-Discharge 'from
sert•ice for unsatisfactory u·ork and conduct-If amor•nfs to dismissal-Constil11tio11 of India, Art. 3rr(2).
The respondent was appointed·a Sub-Inspector on probation
in the Orissa Police Force. A notice was served on him to show
cause why he should not be discharged from service ·• for gross
neglect of duties and unsatisfactory work". He submitted his
explanation and asked for opportunity to cross-examine certain
witnesses. The Deputy Inspector-General of Police considered
the explanation unsatisfactory and passed an order discharging
the respondent from service "for unsatisfactory work and conduct". The respondent contended that tl1e order was invalid
on two grounds: (i) that he was not gh·cn a reasonable opportunity to show cause against the proposed action within the
meaning of Art. 311(2), and (ii) that he was not afforded an
opportunity to be heard nor was any evidence taken on the
charges.
Held, that the order of discharge did not amount to dismissal and did not attract the protection of Art. 311(2) of the Constitution and was a valid order.
The sen·iccs of the respondent,
who was a probationer, were terminated in accordance with the
rules and not by way of punishment.
He had no right to the
post held by him and under the terms of his appointment he
was liable to be discharged at any time during the period of his
probation. The notice given to the respondent was under Rule
55-B of the Civil Services (Classification, Control and Appeal)
Rules which made it obligatory to give such notice before
terminating the services of a probationer. The enquiry was
merely for ascertaining whether he was fit to be confirmed.
Shyam Lal v. The Stale of U. P., [1955) I S.C.R. 26 and
Purshcttam Lal Dhingra ".· U11ion of India, [1958] S.C.R. 828,
referred to.
,
Stale of Bihar v. Gopi Kishore Prasad, A.l.R. 196o S.C. 689,
distinguished.
·
CIVIL APPELLATE
JURISDICTION:
Civil Appeal
No. 61/1959.
Appeal by special leave from the judgment and
order datiid December 4, 1957, of the Orissa High
Court in O.J.C. No. 449 of 1956.
' .
•
\.
1 S.C.R: SUPREME COURT REPORTS
607
0. K. Daphtary, Solicitor.General of India, D. N.
r960
Mukherjee and T. M. Sen, for the appellants.
The State of
Orissa & Another
The respondent did not appear.
v.
1960. September 8.
The Judgment of the Court Ram Na1·ayan Das
was delivered by
·
SHAH J.-The respondent was appointed in the
year 1950 a Sub-Inspector on probation in the Orissa
Police force. In view of the adverse reports received
against him on July 28, 1954, notice was served on the
respondent calling upon him to show cause why he
should not be discharged from service " for gross
neglect of"duties and unsatisfactory work". In the
notice, ten specific instances of neglect of duty and two
instances of misconduct-acceptance of illegal gratification and fabrication of official record were set out.
By his explanation, the respondent submitted that
action had already been taken against him. by the
Superintendent of Police in respect of instances of
neglect of duty set out in the notice and no further
action in respect thereof could on that account be
taken against him, because to do so would amount to
imposing double punishment. He denied the charge
relat.ing to misconduct and submitted that it was
based on the uncorroborated .statements of witnesses
who were inimical to him. He also asked for an
opportunity to cross-examine those witnesses.
The
Deputy Inspector General of Police considered the
explanation and observed:
"I have carefully gone through the representation
of the probationary S. I. His argument that he has
already been punished by the S. P. for specific instances of bad work does not help him very much since
all these instances of bad work during the period of
probation have to be taken together in considering
his merits for confirmation or otherwise. The S. I.
has already had long enough of chance to work under
different S. Ps. though in one Distri

## Text

SefJfrmbtr 8,
606
SUPRSME COlJRT REPORTS
[Hl61]
THE STATE OF ORISSA AND ANOTHER
v.
RAM NARAYAN DAS
(S. K. DAS, M. HIDAYATULLAR, K. c. DAS GUPTA,
J. C. SHAH and N. RAJAOOPALA AYYANOAR, JJ.)
Pttblic sen·ant-P.rob<llioner S11b·l>1sj•cclor-Discharge 'from
sert•ice for unsatisfactory u·ork and conduct-If amor•nfs to dismissal-Constil11tio11 of India, Art. 3rr(2).
The respondent was appointed·a Sub-Inspector on probation
in the Orissa Police Force. A notice was served on him to show
cause why he should not be discharged from service ·• for gross
neglect of duties and unsatisfactory work". He submitted his
explanation and asked for opportunity to cross-examine certain
witnesses. The Deputy Inspector-General of Police considered
the explanation unsatisfactory and passed an order discharging
the respondent from service "for unsatisfactory work and conduct". The respondent contended that tl1e order was invalid
on two grounds: (i) that he was not gh·cn a reasonable opportunity to show cause against the proposed action within the
meaning of Art. 311(2), and (ii) that he was not afforded an
opportunity to be heard nor was any evidence taken on the
charges.
Held, that the order of discharge did not amount to dismissal and did not attract the protection of Art. 311(2) of the Constitution and was a valid order.
The sen·iccs of the respondent,
who was a probationer, were terminated in accordance with the
rules and not by way of punishment.
He had no right to the
post held by him and under the terms of his appointment he
was liable to be discharged at any time during the period of his
probation. The notice given to the respondent was under Rule
55-B of the Civil Services (Classification, Control and Appeal)
Rules which made it obligatory to give such notice before
terminating the services of a probationer. The enquiry was
merely for ascertaining whether he was fit to be confirmed.
Shyam Lal v. The Stale of U. P., [1955) I S.C.R. 26 and
Purshcttam Lal Dhingra ".· U11ion of India, [1958] S.C.R. 828,
referred to.
,
Stale of Bihar v. Gopi Kishore Prasad, A.l.R. 196o S.C. 689,
distinguished.
·
CIVIL APPELLATE
JURISDICTION:
Civil Appeal
No. 61/1959.
Appeal by special leave from the judgment and
order datiid December 4, 1957, of the Orissa High
Court in O.J.C. No. 449 of 1956.
' .
•
\.
1 S.C.R: SUPREME COURT REPORTS
607
0. K. Daphtary, Solicitor.General of India, D. N.
r960
Mukherjee and T. M. Sen, for the appellants.
The State of
Orissa & Another
The respondent did not appear.
v.
1960. September 8.
The Judgment of the Court Ram Na1·ayan Das
was delivered by
·
SHAH J.-The respondent was appointed in the
year 1950 a Sub-Inspector on probation in the Orissa
Police force. In view of the adverse reports received
against him on July 28, 1954, notice was served on the
respondent calling upon him to show cause why he
should not be discharged from service " for gross
neglect of"duties and unsatisfactory work". In the
notice, ten specific instances of neglect of duty and two
instances of misconduct-acceptance of illegal gratification and fabrication of official record were set out.
By his explanation, the respondent submitted that
action had already been taken against him. by the
Superintendent of Police in respect of instances of
neglect of duty set out in the notice and no further
action in respect thereof could on that account be
taken against him, because to do so would amount to
imposing double punishment. He denied the charge
relat.ing to misconduct and submitted that it was
based on the uncorroborated .statements of witnesses
who were inimical to him. He also asked for an
opportunity to cross-examine those witnesses.
The
Deputy Inspector General of Police considered the
explanation and observed:
"I have carefully gone through the representation
of the probationary S. I. His argument that he has
already been punished by the S. P. for specific instances of bad work does not help him very much since
all these instances of bad work during the period of
probation have to be taken together in considering
his merits for confirmation or otherwise. The S. I.
has already had long enough of chance to work under
different S. Ps. though in one District, but he has not
been able to procure a good chit from anyone. He
has also been adversely reported against after the
representation dealt with therein was submitted. It
Shah ].
608
SUPREME COUR'1' REPORTS
[1961)
i96o
is, therefore, no good retaining him further.in service.
T '
5
1 He is discharged from the da.te on which this order is
ne
/ale o
d
h'
,.
Orissa ~ A•1other serve
Oll
lffi
•
..
v.
The Deputy Inspector Genera.I of Police on Dccem-
, Ram Norayan Das ber H, 1954, in discharging the respondent from
service, passed a formal order as follows :
Shah J.
"Proba.tiona.ry S. l. Ramna.ra.ya.n Das of Gutta.ck
District is discharged from service for unsatisfactory
work a.nd conduct with effect from the da.te the order
is served on him ".
The respondent then presented a. petition under
Art. 226 of the Constitution in the High Court of
Judicature, Orissa., challenging the validity of the
order passed a.nd praying for the issue of a writ in the
nature of certiorari· or a.ny other writ quashing the
order of discharge. Inter alia, the respondent urged,
(!) that the order of discharge wa.s invalid since he
was not given a. reasonable opportunity to show ca.use
against the action proposed to be taken iu regard to
·him within the meaning of Art. 311(2) of the Constitution, (2) that the order of discharge wa.s invalid since
he was not afforded an opportunity to be heard nor
was any evidence taken on the charges framed.
The High Court by order dated December 4, 1957,
set aside the order of discharge. In the view of the
High Court, the Deputy Inspector General of Police
had taken into consideration allegations of corruption
in paRsing the impugned order and also that he had refused to give to the respondent a.n opportunity to crqssexamine witnesses on whose statements the charge
of misconduct wa.s made. The High Court observed
that by discharging the respondent from service without holding an enquiry as contemplated by r. 55 of
the Civil Services (Classification, Control and Appeal)
Rules and without complying wit.h the requirements
of Art. 311(2) of the Constitution, an "indelible stigma.
affecting his future career" had been ca.st.
Against
the order issuing the writ quashing the order discharging the respondent from service, this appeal ha.s been
preferred by special leave.
The rt>spondent was undoubtedly at the time when
proceedings were started against him a.nd when he ·
I
)I
..
..
1 S.C.R. SUPREME COURT REPORTS
609
was discharged from service, a probationer, and had
'960
no right to the post held by hini. Under the terms
Th St 1
/
of his appointment the respondent was liable to be Oriss.' c;. a ;n;th1r
discharged at any time during the period of his proba-
.
tion. By r. 668 of the Police Manual of the Orissa Ram Narayan Das
State, in so far as it is material, it is provided :
·
-
"AU officers shall in the first instance be appointed
Shah J.
or promoted on probation .. Where the period of probation ds,not otherwise provided for in the Rules, it
shall be for a period of two years in the case of executive officers......
The authority empowered to make
such appointment or promotion may at any time
during such probation period and without the formalities laid down .in Rule 820 remove an executive
officer. directly appointed or revert such an officer
promoted who has not fulfilled the conditions of his
appointment or who has shown himself unfitted for
such appointment or promotion".
Rule 681 of the Police Manual by cl. (b) in so far as
it is material provides,
,
" Those promoted from the rank 0f Assistant Sub.
Inspector shall be confirmed (Rule 659(e)) and those
appointed direct shall be on probation for a period of
two years. At the end of that period, those pronounced competent and fit will be confirmed by the Deputy
Inspector-General. The others will be discharged by
the same authority ''..
Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, in so far as it is material provides:
!
"Where it is proposed to terminate the employment
of a probationer, whether during or at the end of the
period of probation, for any specific fault or on
account of his unsuitability for the service, the probationer shall be apprised of the grounds of such
proposal and given an opportunity to show cause
against it, before orders are passed by the authodty.
competent to terminate the employment".
Notice to show cause whether the employment of
the respondent should be terminated was, by r. 55-B
made obligatory. The Deputy Inspector General of
Police who had appointed the respondent apprised
610
SUPREME COURT REPORTS
[ 1961]
r96o
him by notice of the groundR on which the order of
.
/
discharge was proposed to be made and required him
The .\/ale o
h
h
,
0 ."° & A"o'h" to s ow cause w y actIOn as proposed should not be
" ·
v.
taken. · The notice consisted of two parts, (I) relating
Ram Na'°J"" Das to ten heads of" gross neglect of duty and unsatisfactory work" and (2) "suspicious and unpoliceman-like
Shah J.
conduct" in which specific instances of fabricat.ion of
public records and accept3nce of illegal gratification
were set out. The Deputy Inspector General of Police
by his order which has been set out hcreinbefore,
expressly observed that he had, in considering the
case of the respondent for confirmation, to take into
account the reports received by him.
The formal
order communicated to the respondent also stated
that the respondent was discharged from sei:_vice for
unsatisfactory work and conduct. The reasons given
in the order clearly indicate that the notice served
upon the respondent was under r. 55-B of the Civil
Services (CJa.ssification, Control and Appeal) Rules for
ascertaining whether he should be con firmed or his
employment terminated. Prima facio, the order is one
terminating employment of the respondent as a probationer, and it is not an order dismissing him from
service. The High Court has however held that the
order of discharge amounted to imposing punishment,
because the respondent had been " visited with evil
consequences leaving an indeligible stigma on him
a.ffeoting his future career".
The respondent has not appeared ·before us to
support the judgment of the High Court, but the
learned Solicitor General who appeared in support of
the appeal has very fairly invited our attention to ·an
the materials on the record and the relevant authori-
. ties which have a bearing on the case of the respondent.
In Shyam Lal v. The State of Uttar Pradesh and the
Union of India (1), it was held that compulsory retirement under the Civil Services (Classification, Control
and Appeal) Rules of an officer did not amount to
dismissal or removal within the meaning of Art. 311
of the Constitution. In that case, the public servant
(1) [1955] 1 S.C.R. 26.
•
"'
1 s.c.R. SUPREME COURT REPORTS
611
concerned was served with a notice to show cause in
'960
respect of three spec!fic items o~ misd.emeanour ~s a
The--;;;,, of
public servant to whwh he submitted his explanat10n. Orissa ;;. . Another
Thereafter, the President, after considering the case
v.
and the recommendation of the commission appointed Ram Narayan Das .
to investigate the case, decided that the public servant "should be retired forthwith from service".
Shah f.
This order was challenged by a petition under 226 of
the Oonstitntion filed in the High Court at Allahabad.
In an appeal against the order dismissing the petition,
this court held that the order compulsorilly retiring
the public servant involved "no element of charge or
imputation" and did not amount to dismissal or
removal within the meaning of Art. 311(2) of the Constitution and the order of the President was n6t liable
to 'be challenged on the ground that the public servant
had not been afforded full opportunity to show cause
against the action proposed to be taken in regard to
hlm.
·
In Parshottam Lal Dhingra v. Union of India (1)
this court by a majority held that if an officer holding
an officiating post had no right under the rules
governing his service to continue in. it, and such
appointment under the general Jaw being terminable
at any time on reasonable notice, the reversion of the
public servant to his substantive post did not operate
as a forfeiture 0f any right: that order " visited him
with no evil consequences" and could not be regarded
as a reduction in rank by way of punishment. Bose, J.,
who disagreed with the majority observed that the
real test was whether evil consequences over and
above those that ensued from a contractual termina.
tion, were likely to ensue as a consequence of the
impugned order: if they were, Art. 311 of the Constitution would be attracted even though such evil con.
sequences were not prescribed as penalties under the
Rules. In that case, Das, C. J., in delivering the judg. ·
ment of the majority, entered upon an exhaustive
review of the law applicable to the termination of
empl0yment of public servants and at pp. 861-863
summarised it as follows:
(•l [1958) s.c.R. 828.
612
SUPREME COL'RT REPORTS
[1961]
1960
"Any and every termination of service is not a.
Th st 1 1 dismissal, removal or reduction in ra.nk.
A termina.-
O•iss.'.;;. ·:.:thu tion of service brought about by the exercise of a. conv.
tra.ctual right is not per se dismissal or removal, a.s
R•n• Na.aya" Das haR been held hv this court in Satish Chander Anand
v. The Union of India('). Like-wise the termination
of service by compulsory reti:ement in terms of a.
specific rule regulating the· conditions of service is
Shah j.
not tantamount to the infliction of a punishment. and
does not a.ttra.ct Art. 311(2) a.s has a.lso been held by
this court in Shyam Lal v. 1'ht State of Uttar Pradesh (') ...... .In short, if the termination of service is
founded on the right flowing from contra.ct or the service rules then, prima facie, the termination is not a.
punishment a.nd carries with it no evil consequences
and so Art. 311 is not a.ttra.cted.
But even if the
_Government ha.s, by contra.ct or under the rules, the
right to terminate the employment without going
through the procedure prescribed for inflicting the
punishment of dismiBBal, or removal or reduction in
ra.nk, the Government ma.y, nevertheless, choose to
punish the sorva.nt a.nd if the termination of service is
sriught to be founded on misconduct., negligence, inefficiency or other disqua.lifica.t.ion, then it is a. puui•hment
a.nd the requirements of Art. 3ll must be complied
with. As already stated, if the servant ha.s got a. right
to continue in the post, then, unless the contract of employment or the rules provide to the contrary, bis services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient ca.use.
A termination of tho service of such a. servant on such grounds must be a. punishment and, therefore, a dismissal or removal within Art. 311, for it operates a.s a. forfeiture of his right and he is visited with
tho evil consequences of loss of pa.y and allowances. It
puts an indelible stigma. on the officer affecting his
future ca.reer ....... But the mere fact tha.t the servant
ha.s no title to the post or the ra.nk and the Government has, by contra.ct, express or implied, or under
the rules, the right to reduce him to a lower post
does not mean that an order of reduction of a servant
(1) [1953] S.C.R. 653.
(>) [1955] 1 S.C.R. >6.
l S.C.lt SUPREME COURT REPORTS
613
to a lower post or rank cannot-in any circumstances
z960
be a punishment. The real test for determining w heTh 51
h
h
d
.
.
h
.
.
t b
f
'
tat• o
t er t e re uct10n lil sue cases 1s or 1s no
y way o Orissa .,,; Another
punishment is to find out if the order for the reduction
v.
_
also visits the servant with any penal consequences. Rmn Narayan Das
...... The use of the- expression, " terminate " or " discharge" is not conclusive. In spite of the use of such
Shah J.
innocuous expressions, the court has to apply the two
tests mentioned above, namely, (1) Whether the ser.
vant had a right to the post or the rank or (2) Whe.
ther 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
.
"
servwe...... .
The respondent had no right to the post held by
him. Under the terms of his employment, the respondent could be discharged in the manner provided.
by r. 55-B. Again mere termination of employment
does1n.t>t carry with it " any evil consequen~es" such
as forfeiture of his pay or allowances, loss of his seniority, stoppage or postponement of his future chances
of promotion etc. It is then difficult to appreciate
what "indelible stigma affecting the future career"
of the respondent 'was east on him by the order discharging him from employment for unsatisfactory
work and conduct.
The use of the expression
" discharge " in the order terminating employment
of a put.lie servant is not decisive: it may, in certain cases, amount to dismissal.
If a confirmed
public servant holding a substantive post is discharged, the order would amount to dismissal or
removal from service ; but an order discharging a
temporary public servant may or may not amount to
dismissal. · Whether it amounts· to an order of dismissal depends upon the nature of the enquiry, if any,
the proceedings taken therein and the substance of
the final order passed on sueh enquiry.
_
Where under the rules governing- 'a public servant
holding a post on probation, an order terminating the
probation is to be preceded by a notice to show cause
614
SUPRE){E COURT REPORTS
. [1961]
i96o
why his service should-not be terminat~d, and a notice
n
5
1 1 is issued asking the public servant to show cause
Oms.' .,.'";.:,h., whether probation should be contiuued or the officer
v.
should be discharged from service the order discharg-
-Ra .. Narayan Das ing him cannot be said to amount to dismissal involvShah ].
ing punishment.
Undoubtedly, the Government may
hold a formal enquiry against a probationer on charges of misconduct with a view to dismiss him from
service, and if an order terminating his employment
is made in such an enquiry, without giving him reasonable opportunity to show cause against the action
proposed to be taken against him within the meaning
of Art. 311(2) of tho Constitution, the order would undoubtedly be invalid.
-
The Solicitor General invited our attention to a
recent judgment of this court, State of Bihar v. Gopi
Kishore Prasad (1) in which, deli1,cring the judgment
of the court, the learned Chief Justice extracted five
propositions from the authorities arid particular!.) from
Parshottam Lal Dhingra's case('), dealing with the
termination of employment of temporary servants and
probationers. The third proposition set out in the
judgment is as follows:
" But instead of terminating s1rnh a person's service without any enquiry, the employer chooses to
hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of
service is by way of punishment, because it puts a
stigma on his competence and thus affects his future
career. In such a case, he is entitled to the protection
of Art. 311(2) of the Constitution".
This proposition, in our judgmeut, does not derogate
from the principle of the other cases relating to termination of employment of probationers decided by this
court nor is it inconsistent with what we have observed earlier. The euquiry against the respondent was
for ascertaining whether he was fit to be confirmed.
An order discharging a. public serva.nt, even if a probationer, in a.n enquiry on charges of misconduct,
negligence, inefficiency or other disqualification, may
(1) A.l.R. [r96oj S. C. 68g.
(•) [1958] S C.R. 8>8-
,
•
1 S.C.R. SUPREME COURT REPORTS
615
appropriately be regarded as one by way of punish-
'960
ment, but an order discharging a probationer following
Tl
5
1
.
.
.
Id b
"
late o
upon an enqmry to ascertam whether he shou
e 0 ,issa &·Another
confirmed, is not of that nature.
In Gopi K ishore
v.
Prasad's case (1), the public servant was discharged Ram Narayan Das
from service consequent upon an enquiry into alleged
misconduct, the Enquiry Officer having found that the
Shah f.
public servant was " unsuitable " for the post. The
order was not one merely discharging a probationer
following upon an enquiry to ascertain whether he
should be continued in service, but it was an order as
observed by the court "clearly by way of punishment". There is in our judgment no real inconsistency between the observations made in Parshottam
Lal Dhingra's case(') and Gopi Kishore
Prasad's
case (1). The third proposition in the latter case refers
to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established; to
imposing punishment and not to an enquiry whether
a probationer should be confirmed. Therefore the fact
of the holding of an enquiry is not decisive of the
questio'n.
What is decisive is whether the order is by
way of punishment., in the light of the tests laid d'own
in Parshottam Lal Dhingra's case(').
We have carefully considered the evidence and the
authorities to which our attention has been invited
a.nd we are definitely of opinion that the High Court
was in error in holding that the order discharging the
respondent from service amounted to dismissal which
attracted the prote.ction of Art. 311(2) of the Constitution.
'"
In that view of the case, this appeal will be. allowed
and the petition for a writ dismissed. There will be no
order as to costs throughout.
(1) A.I.R. 1960 S.C. 689.
79
Appeal allowed.
(2) [1958] S.C.R. 828.